The marriage contract is a formal bond that turns two individuals from strangers to husband and wife. Allaah refers to it as a strong covenant (mithaqun ghalithun ) (Q4:21). As a result of the contract, many rights and obligations become imperative and many fruits become anticipated. As in any other contract in Islaam, there are certain guidelines which are considered essential to its existence. Each of these should be understood in order to ensure that the marriage has been performed in the proper manner.
GENERAL CONDITION
With respect to marriage, one general condition is that none of the various aspects of the contract must be carried out in jest. The Prophet ( sallallahu alayhi wa sallam )said:
“There are three matters in which it is not permissible to joke: marriage, divorce, and emancipation of slaves.\’ (Tabarani)
Thus, neither party can say \’I was joking or I was not serious\’ once they have uttered the offer/acceptance. It is immediately binding.
Aside from the general guidelines, the following are various specific conditions that a marriage contract must fulfill.
CONDITIONS REQUIRED FOR INITIATING THE CONTRACT
The Eligibility Of The Couples
The Bridegroom: He must be a chaste Muslim male who has attained full puberty and mental ability. It is not permissible for a non-Muslim man to be married to a Muslim woman.
“And give not (your daughters) in marriage to AI-Mushrikun till they believe (in Allah Alone) and verily, a believing slave is better than a (free) Mushrik (idolater, etc.), even though he pleases you.\’ (Q2 [Baqarah}:221)
The Bride: She should be chaste, preferably a Muslim but could be a Christian or Jew with full mental ability. She must not also be currently married to another man i.e. her womb must be free.
No forbidden relationship: Both the intending husband and wife must not be related within the following forbidden marital bracket (i.e. she [or he] or she must not be one of the following to him [or her]):: mother (father), grandmother (grandfather) from both sides; daughter (son), granddaughter (grandson) and further down; sister (brother) either full or half; maternal and paternal aunt (uncle).
Moreover, they must not have been breastfed by the same woman. She [or he] must also not be related to him (or her) in any of the following ways: wife of father (husband of mother) and upward in the lineage, the wife of son (the husband of daughter), the wife\’s mother (the husband\’s father) or be a daughter of his wife with whom) sexual intercourse has been enjoyed.
CONDITIONS REQUIRED FOR THE VALIDITY OF THE CONTRACT
The Permission of the Bride: Being one of the two main parties to the marital contract, the bride reserves the right to decide with whom she wants to spend the remaining part of her life. It is not permissible to give a woman in marriage without her knowledge and approval of it. The Prophet (sallallahu alayhi wa sallam ) said:
\’When one of you wants to give his daughter in marriage, he should take her permission.\’ (Tabarani)
This permission comes in various ways depending on the woman involved. It could be through her silence, if she is a virgin, or a verbal permission. The Prophet (sallallahu alayhi wa sallam ) said:
\’Take the women\’s permission in regard to themselves (i.e. marriage). A non-virgin expresses herself with her tongue; and a virgin\’s silence is (a sufficient proof of) her acceptance. \’ (Ahmad)
If she introduced the bridegroom in the first place as the person she would like to marry, then that suffices\’ as her acceptance of him.
The Consent of the Wali: A woman cannot herself away in marriage. The Prophet (sallallahu alayhi wa sallam ) said:
“A marriage (contract) is not valid without a wali.\’ (Abu Dawud)
Abu Hurairah (RA) added:
\’For, indeed, it is an adulteress who gives herself in marriage (without her wali\’s consent). \’ (Ibn Majah)
Who is a Woman\’s Wali?: In a normal situation, the wali of a woman is her father, if· for any reason, he cannot discharge this role, the role devolves on next closest of her
mahram (grandfather, son, brother, uncle etc.) A wali must be Muslim for Allaah says:
“Allaah will never grant to the unbelievers a way (of authority) over the believers.\’ ( Q4[Nisaa): 141)
The next Muslim in her lineage takes over as the wali . A woman, no matter her position in the family, cannot be a wali . The Prophet (sallallahu alayhi wa sallam ) said:
“A woman may not give another woman in marriage.\’ (Ibn Majah).
It is not permissible for a woman to appoint a wali for herself if she does not have one. Only a constituted Muslim authority can appoint a wali for her. The Prophet (sallallahu alayhi wa sallam ) said:
\’The (Islamic) authority is the wali of the one who does not have a wali. \’ (Ahmad).
In the absence of a Muslim authority, then the imaam of masjid may be consulted. An appointed wali \’s position is not permanent, his role has ended once he discharged his obligation in the marriage contract.
Witnesses: Another condition for the validity of marriage contract is the presence of two Muslim witnesses. The Prophet (sallallahu alayhi wa sallam ) said:
“A marriage contract is not valid without a wali and two trustworthy witnesses. \’ (Ahmad)
The witnesses should witness and hear the entire contract\’s details and should, not be under any compulsion to disclose the fact of the marriage.
CONDITIONS REQUIRED FOR THE SOUNDNESS OF THE CONTRACT
The Mahr (Dowry): It is obligatory upon the husband to give his wife a marriage gift which is often referred to as mahr or sadaaq. Allaah says:
“And give the women (upon marriage) their dowry as a free gift.\’ ( Q4[Nisaa]:4) .
Even though the dowry is a significant aspect of the marriage contract, the most accurate position is that it is not a condition for its validity. A marriage can be done without specifying a mahr at the time of the contract but to be paid at a later date. The Prophet ( sallallahu alayhi wa sallam ) said to a man:
\’Do you agree that I marry so-and-so woman to you ?\’ He replied, \’Yes.\’ The Prophet (sallallahu alayhi wa sallam ) then said to the woman, \’ Do you agree that I marry you to so-and-so man ?\’ She replied, \’Yes.\’ So he married them to each other without naming a mahr for the bride or giving her anything. When he approached death, he said: \’Indeed, Allaah\’s Messenger (sallallahu alayhi wa sallam ) gave me so-and-so in marriage but I did not then give her anything. Be my witness that I now give her as mahr my share from Khaybar.\’ So she took it and sold it for one hundred thousand
dirham .\’ (Abu Dawud)
Who takes the mahr: It is the sole right of the wife and no one can or should take it away from her. She may however remit part of it to anyone she chooses, even her husband if she desires.
Kinds of Dowry: The dowry can be in money, jewelry, clothes, or other material things. It could as well be non-material such as teaching her Islaamic knowledge. It must be something that is beneficial to the woman.
Amount of the dowry: The amount of the dowry should be in accordance with the husband\’s financial ability and with the bride\’s social status. This should be negotiated between the man and the woman (or her wali). There is neither an upper ceiling nor a lower ceiling for dowry, but it is recommended that the woman be easy on the man. The Prophet (sallallahu alayhi wa sallam ) said:
\’The best of marriages (or dowries) are the easiest.\’ (Abu Dawud)
THE CONTRACT\’S PROCEEDINGS
It is recommended for whoever is conducting the marriage to begin by reciting the khutbat ul-Hajjah . The most important aspect of the marriage proceeding is the Ijab wal Qubul (offer and acceptance). The wali offers her ward in marriage to the man in words that conveys the meaning that is intended and understood accordingly by participants in the contract. The acceptance must correspond to what is being offered. If the guardian says: \’I marry you to Khadijah\’, a response of \’I accept Fatimah as my wife\’ would not constitute a valid contract. An exception to this is if the wali mentions a specific dowry amount and the groom responds with a higher amount. It is regarded that there is no reason for dispute since it is assumed that a higher dowry will be acceptable. The marriage must be effective immediately. If the wali says \’I will marry her to you after one month\’, there is no marriage and the two remain unmarried.
ANNOUNCING THE COMPLETION OF THE CONTRACT
This is done by inviting people to walimah.
And Allah knows best
