NIKÂH – MARRIAGE
(From Beheshti Zewar)
1. Nikâh is a great bounty from Allah Ta’âlâ. The affairs of this world and the hereafter are put in order through marriage. There is a lot of wisdom and many benefits in marriage. A person saves himself from sinning and his heart is put at ease. He does not have any evil intentions and his thoughts do not begin to wander and stray. The greatest virtue is that there are only benefits and only rewards in this. This is because a husband and wife’s sitting together and engaging in a loving conversation, joking with each other, etc. is better than nafl salât.
2. A marriage can be executed by just two words, e.g. a person says the following words in the presence of witnesses: “I give my daughter to you in marriage.” The person who is addressed replies: “I accept her in marriage.” In so doing, the marriage is valid and both of them are lawful husband and wife. However, if the person has several daughters, the nikâh will not be executed by his uttering the words mentioned above. He will have to mention the daughter by name, e.g. he says: “I give my daughter, Qudsiyyah, to you in marriage”, and the person replies: “I accept her in marriage.”
3. A person says: “Give so-and-so daughter of yours to me in marriage.” The father replies: “I give her to you in marriage.” In so saying, the nikâh will be valid irrespective of whether he says that he accepts or not. (In other words, it is not necessary for the word “accept” to be mentioned).
4. If the daughter is present and the father says: “I give this daughter of mine in marriage to you”, and the person replies: “I accept her”, the nikâh will be valid. It will not be necessary to mention her name.
If the girl is not present, it is necessary to mention her name and the name of her father in such a loud tone that all the witnesses are able to hear. If the people do not know the father and there is a strong possibility that by mentioning his name they will still not know whose nikâh is being performed, then it will be necessary to mention the name of the grand-father as well. In other words, such identification is necessary whereby those present immediately know whose nikâh is being performed.
5. In order for a nikâh to be valid, it is also essential for at least two males or one male and two females to be present, to hear the nikâh being performed, and to hear the two words (i.e. the offer and the acceptance) being uttered. Only then will the nikâh be valid. If two persons sit together in privacy and one says to the other: “I give my daughter to you in marriage” and the other person replies: “I accept your daughter”, the nikâh will not be valid. Similarly, if the nikâh was performed in the presence of one person only, even then the nikâh will not be valid.
6. If there are no males present, but only females, the nikâh will not be valid even if there are ten females present. Together with two females, one male has to be present.
7. If there are two males but they are not Muslims, the nikâh will not be valid. Similarly, if both are Muslims but both or one of them is immature, the nikâh will not be valid. Similarly, if there is one male and two females but both or one of the females is immature, the nikâh will not be valid.
8. It is preferable to perform the nikâh in a large gathering such as after the jumu’ah salât in a jumu’ah musjid or in any other large gathering. This is so that the nikâh will be well announced and the people will become aware of the nikâh. A nikâh should not be performed in secret and privacy. However, if due to some reason many persons are unable to attend, then at least two males or one male and two females who hear the nikâh being performed in their very presence should be present.
9. If both the man and woman are mature, they can perform their own nikâh. All that they have to do is say the following in the presence of two witnesses: One of them must say: “I am making my nikâh with you” and the other must say: “I accept.” In so doing, the nikâh will be valid.
10. If a person does not make his nikâh himself, but asks someone to perform his nikâh with someone, or, he mentions the name of the person with whom he wishes his nikâh to be performed and this person performs this nikâh in the presence of two witnesses – the nikâh will be valid. Even if this person rejects or denies this later, the nikâh will still be intact.
Persons with whom Nikâh is Harâm
1. Marriage with one’s children, grand-children, great grand-children, etc. is not permissible. Nor is marriage with one’s parents, grand-parents, maternal grand-parents, etc. permissible.
2. Marriage with one’s brothers, uncles and nephews is not permissible. According to the Sharî‘ah, a brother is one whose mother and father is the same, or they have one father but two mothers, or one mother but two fathers. They are all brothers. But if the father is different, and the mother is also different; that person will not be a brother. Nikâh with him will be valid.
3. Marriage with one’s son-in-law is not permissible. This is irrespective of whether the daughter is already living with him or not. In all cases, nikâh with him is harâm.
4. A girl’s father passed away. Her mother married another person. However, before the mother could even live with her new husband, she passed away or he divorced her. In such a case, the girl can marry this step-father of hers. However, if the mother lived with him, it will not be permissible for this girl to marry him.
5. Nikâh with one’s step-children is not valid. In other words, if a man has several wives, then one of the wives cannot marry the children of the co-wives. This is irrespective of whether she had lived with her husband or not. Nikâh with these children is prohibited under all circumstances.
6. It is not permissible for a woman to marry her father-in-law or even the father or grand-father of her father-in-law.
7. As long as a sister is married to her husband, it is not permissible for another sister to marry this brother-in-law of hers. However, if her sister passes away or he divorces her and she completes her iddah, it will be permissible for the other sister to marry her brother-in-law. In the case where the brother-in-law divorces the first sister, it is not permissible for the second sister to marry her brother-in-law until her sister completes her iddah.
8. If two sisters marry one person, the marriage of the sister whose nikâh was performed first will be valid while the marriage of the sister whose nikâh was performed later will not be valid.
9. A man married a woman. As long as he remains married to her, he cannot marry her maternal and paternal aunts and nieces.
10. If the relationship between two women is such that if we had to regard one of them as a man, their nikâh will not be valid, then such two women cannot marry a person at the same time. When one of them passes away or one of them is divorced and completes her iddah, only then will it be permissible for the person to marry the other woman.
11. If a woman and her step-daughter marry a person at the same time, the nikâh will be valid.
12. Adoption is not considered in the Sharî‘ah. By adopting a boy, he does not become one’s son. It is therefore permissible to marry one’s adopted son.
13. If a man is not one’s real uncle but he becomes an uncle through some other distant relationship, marrying him is permissible. Similarly, if a man happens to be one’s paternal uncle or nephew through some distant relationship, nikâh with him is permissible. Nikâh with one’s cousins is also valid irrespective of whether they are paternal or maternal cousins.
14. Two women who are not blood sisters but are maternal or paternal cousins are permitted to marry one man at the same time. In the presence of such a cousin, another cousin can also marry the same man. The same rule applies to a very distant maternal or paternal aunt. That is, the niece and this distant maternal or paternal aunt can marry the same man at one time.
15. All the relations which become harâm on account of lineage also become harâm on account of breast-feeding. In other words, if a girl is breast-fed by a particular woman, then this girl cannot marry the latter’s husband because he will now be regarded as her father. A girl who has been breast-fed by a particular woman cannot marry a boy who has been breast-fed by the same woman. Nor can this girl marry the children of this woman because she is also regarded as a child of this woman. All the maternal and paternal uncles and maternal and paternal nephews who become related due to this breast-feeding also become harâm on this girl.
16. If two girls have been breast-fed by one woman, they cannot marry the same man at one time. In other words, whatever has been explained previously, will also apply to relations based on breast-feeding.
17. A man committed adultery with a certain woman. Now it will not be permissible for her mother or her children to marry this man.
18. Due to the passions of youth, a woman touched a man with evil intentions. It will now not be permissible for her mother or her children to marry this man. Similarly, if a man touches a woman with evil intentions, her mother and her children will be harâm on him.
19. In the middle of the night, a man decided to awaken his wife. However, he mistakenly touched his daughter or his mother-in-law. Thinking them to be his wife, he touched them with the passions of youth. Now, this man will become harâm on his wife forever. There is no way in which she can become permissible for him. It will be necessary for him to divorce his wife.
20. If a boy touches his step-mother with an evil intention, she will become harâm on her husband. There is no way in which she can be halâl for him. If the step-mother touches her step-son with an evil intention, the same rule will apply.
21. A Muslim woman cannot marry a man who belongs to any other religion. She can only marry a Muslim man.
22. A woman’s husband divorced her or he passed away. As long as she does not complete her iddah, she cannot marry anyone else.
23. Once a woman marries a man, she cannot marry another person unless and until she is divorced by this person and also completes her iddah.
24. If a woman is not married and she falls pregnant due to adultery, it will be permissible to marry her. However, it will not be permissible to have intercourse with her until she delivers the child. But if the woman marries the same person who had committed adultery with her, it will be permissible for the person to have intercourse with her.
25. If a person has four wives, he cannot marry a fifth woman. If he happens to divorce one of his four wives, another woman cannot marry him until the one who is divorced completes her iddah.
26. The marriage of a Sunnî girl with a Shî’ah man is not permissible according to the majority of the ‘ulamâ.
The Wali or Legal Guardian
The person who has the power or choice of getting a boy or girl married is called a wali.
1. The first wali of a boy or girl is their father. If the father is not present, the grand-father becomes their wali. If he is not present, then the great grand-father. If none of them are present, the blood-brother becomes their wali. If he is not present, then the step-brother, i.e. brothers from one father. Thereafter, the nephew, thereafter the nephew’s son; and thereafter, the nephew’s grand-son. If none of them are present, the blood uncle becomes their wali. If he is not present, then the step-uncle, i.e. the step-brother of their father. Thereafter, the son of the blood uncle and thereafter his grand-son. Thereafter, the son of the step-uncle and thereafter his grand-son. If none of them are present, the father’s uncle becomes their wali; and thereafter his children. If the father’s uncle, his children and grand-children are not present; then the grand-father’s uncle becomes their wali. Thereafter, his children, grand-children, and great grand-children.
If none of them are present, the mother will be their wali. Thereafter, the paternal grand-mother, then the maternal grand-mother and then the maternal grand-father. Thereafter, the blood-sister and then the step-sister, i.e. sisters from one father. Thereafter, the step-brother and then the step-sister who is from one mother. Thereafter, the paternal aunt, then the maternal uncle, and then the maternal aunt.
2. An immature person cannot become a wali of anyone. A kâfir cannot be a wali for any Muslim, nor can a lunatic be a wali for anyone.
3. A mature girl has the choice to marry or not to marry. She can marry whomsoever she wishes – no one can force her to marry a particular person. If she marries a person on her own, the nikâh will be valid irrespective of whether the wali is informed or not, and irrespective of whether the wali gives his consent or not. In all cases the nikâh will be valid. However, if she does not marry a person who is of the same social standing as her, and instead, marries a person who is of a lower standing than her family, and her wali is not happy about this marriage, then the fatwâ in this case is that the nikâh will not be valid.
If she marries a person who is in the same social standing as her, but the mahr that she receives is less then what is normally fixed in her paternal grandfather’s family, then although the nikâh will be valid, the wali will have the right to annul this marriage. The mahr that is normally fixed in her paternal grandfather’s family is known as mahrul mithl. The wali can go to a Muslim court and have such a marriage annulled. However, it should be borne in mind that this right of annulment is only possessed by all those walis whom we had mentioned before the mother. In other words, from the father onwards till the children of the grand-father’s uncle.
4. A wali performed the nikâh of a mature girl without asking her or without seeking her consent. The validity of such a nikâh will be dependent on her permission and consent. If she grants her permission, the nikâh will be valid. If she does not grant her permission or is not happy, the nikâh will not be valid. The method of granting permission is mentioned in the next mas’ala.
5. The wali came and informed a young virgin girl that he intends performing her nikâh with a certain person, or that he has already performed her nikâh with a certain person. Upon hearing this, she remained silent, began smiling or began to cry. All these responses of her’s will be considered to be a permission and a consent. Now, if the wali performs her nikâh, it will be valid. If he has already performed it, it will also be valid. It is not a prerequisite for her to give a verbal permission. Those who force a girl in giving a verbal permission are in error.
6. At the time of seeking her permission, the wali did not mention the name of her future husband, nor did she have any prior knowledge of him. In such a case, her silence will not be considered to be a form of consent, nor will it be considered to be a form of granting permission. It is necessary to mention the boy’s name or some other form of identification whereby the girl can understand that the wali is referring to a particular person. Similarly, if the wali performed the nikâh without mentioning the amount of mahr to her and it was far less than the mahrul mithl, the nikâh will not be valid without her permission. He will have to seek her permission again.
7. The girl is not a virgin, and instead had married previously and this is her second marriage. When the wali asks her or seeks her permission for this second marriage, her mere silence will not be considered to be a form of granting permission. Instead, she will have to give a verbal reply. If she does not give a verbal reply and remains silent, and despite this the wali performs her nikâh, then her nikâh will be in abeyance. Later, if she gives a verbal permission, the nikâh will be valid. If not, it will not be valid.
8. Despite the father being present, the uncle, brother or any other wali sought the permission of a virgin girl. If she remains silent, it will not be considered to be a form of granting permission. Only when she gives a verbal permission will it be considered. However, if the father sent these persons to seek her permission, her silence will be considered to be a form of consent. In short, the wali who is given the first preference in the Sharî‘ah and who has the most right to seek permission from the girl – when he asks her or when someone who has been sent by him asks her, then only will her silence be considered to be a form of consent. If the grand-father had the right of asking her, and instead the brother asked her; or if the brother had the right of asking her and instead she was asked by her uncle, then in such a case her silence will not be considered to be a consent.
9. A wali performed the nikâh of a girl without asking her and without obtaining her consent. After the nikâh, the wali or his messenger came and informed the girl that her nikâh with a particular person has been performed. In such a case, if she remains silent, this will be a permission on her part and the nikâh will be valid. But if someone else comes and informs her, and this person is a pious, reliable person, or two persons come and inform her, then by her remaining silent the nikâh will be valid. But if there is only one person who informs her and he is an unreliable person, then by her remaining silent the nikâh will not be valid. Instead, it will be held in abeyance. When she gives a verbal reply or any other form of granting permission is found, then only will the nikâh be valid.
10. Upon being informed of her nikâh, the girl did not give a verbal reply although it was necessary for her to give a verbal reply. However, when her husband approached her she did not refuse him from engaging in sexual intercourse with her. Even in this case, the nikâh will be valid.
11. The same rules apply to a mature boy, i.e. he cannot be forced into a marriage nor can the wali perform his nikâh without his permission. If his nikâh is performed without his permission, it’s validity will be dependent on his permission. If he expresses his consent, his nikâh will be valid. If not, it will not be valid. However, it should be borne in mind that the boy’s silence is not considered to be a form of granting permission. He will have to give a verbal reply.
12. If a boy or a girl are immature, they do not have their own choice. Their nikâh is not valid without a wali. If a boy (or girl) performs his nikâh on his own or someone else performs it, it will be dependent on the permission of the wali. If the wali grants permission, the nikâh will be valid. If not, it will not be valid. The wali has full rights over such a boy or girl. He can get them married to whoever he wishes and refuse whoever he wishes. Immature girls and immature boys cannot reject such a nikâh at that time. This is irrespective of whether the girl is a virgin or had been married previously and had also been sent to her (first) husband’s home – the same rule will apply.
13. If the father or grand-father perform the nikâh of an immature girl or boy, they do not have the right to reject or repudiate this nikâh even after they become mature. This is irrespective of whether the marriage was executed with a person who is of the same social standing or with a person of a lower class, and irrespective of whether the nikâh was performed with mahrul mithl or whether it was far less than the mahrul mithl. In all cases the nikâh will be valid and they cannot reject or repudiate this nikâh.
14. If a wali other than the father or grand-father performed the nikâh, and it was performed with a boy of the same social standing and the mahrul mithl was also given, then in such a case the nikâh will be valid. However, after reaching the age of maturity, she has the right to endorse this nikâh or to go and complain to a Muslim judge and have this marriage annulled.
But if the wali performed her marriage with a person of a lower social standing or accepted a mahr which was far less than the mahrul mithl, the nikâh will not be valid from the very outset. Similarly, if the wali performed the nikah of a boy with a mahr which was far more than the mahrul mithl of the girl, the nikâh will not be valid from the very outset.
15. A wali other than the father or grand-father had performed the nikâh of an immature girl who also had knowledge of this nikâh. Thereafter, she became mature and until then her husband hadn’t had any sexual intercourse with her. In such a case, the moment she becomes mature, she must mention her discontent with regard to marrying this person. She must clearly state that she is not happy. Alternatively, she could say that she does not wish to continue with this marriage. This could be said in the presence of others or in privacy where she is all alone. But she has to mention it verbally. However, by her merely saying this, the nikâh will not be annulled. She will have to go to a Muslim judge, he will annul the marriage, and only then will it be annulled.
Once she becomes mature and allows even a moment to pass in which she does not mention her discontent, she will not have the choice of having her nikâh annulled.
But if the girl did not have any knowledge of this nikâh and only learnt of it after becoming mature, then the moment she is informed, she will immediately have the right to reject the nikâh. If she remains silent for even a moment, she will forfeit this right to reject the nikâh.
16. If her husband engaged in sexual intercourse with her, and thereafter she becomes mature, it is not necessary for her to reject the nikâh immediately after becoming mature or after being informed. Instead, as long as she does not express her consent and happiness, she will have the choice of rejecting or accepting irrespective of how much time lapses. However, if she clearly states that she is happy about this marriage, or her consent is made apparent in some other way such as being in solitude with her husband like any other normal husband and wife, then she will have no choice and this nikâh will become entrenched.
17. The person who is most entitled of being the wali of an immature girl is gone to a foreign country. He is so far away that if the rest of the family had to await his arrival in order to consult him, the girl will lose this opportunity. Furthermore, the person who has come with the proposal is not prepared to wait for so long and it will be difficult for the girl to receive a similar proposal. In such a case, the person who is next in line to become her wali can also perform her nikâh. If he performs the nikâh without consulting the girl, it will be valid. But if the first wali is not very far away, her nikâh should not be performed without consulting him. If it is performed, it will be dependent on his permission. Once he grants his permission, the nikâh will be valid.
18. Similarly, if the second wali performs the nikâh of an immature girl despite the most rightful wali being present, it will be dependent on his permission. For example, if the grand-father performs the nikâh without consulting the father despite the latter being present, it will be dependent on the father’s permission. If the right belonged to the brother but the nikâh was performed by the uncle, it will be dependent on the brother’s permission.
19. A woman became a lunatic and lost her sanity. She has a mature son and a father as well. If her nikâh has to be performed, her wali will be her son because the son is more entitled of being a wali than the father (father of the woman).
The Question of Compatibility or Kufu’
1. The Sharî‘ah has taken great precautions in ensuring that nikâh with an incompatible person or a person of a lower social standing does not take place. In other words, do not perform the nikâh of a girl with a man who is not equal to her in status or who is of no match to her.
2. Compatibility or equality is considered in several factors: (1) lineage, (2) Islam, (3) piety, (4) wealth, (5) profession or occupation.
Equality in Lineage
1. Equality in lineage is that the Shaykh, Sayyid, Ansâri, and ‘Alawi are all equal to each other. In other words, although the status of a Sayyid is more than the others, if the daughter of a Sayyid marries a Shaykh boy; it will not be said that she did not marry someone who is of her family relations. Instead, it will also be regarded as if she has married one of her relatives.
2. In matters of lineage, the lineage of the father is considered and not the mother. If the father is a Sayyid, the son is also a Sayyid; and if the father is a Shaykh, the son is also a Shaykh – irrespective of what the mother may be. If a Sayyid marries a woman who is not a Sayyid, their son will be regarded as a Sayyid. This son will be equal in status to all other Sayyids. Although the son whose father and mother are both from a noble family is respected more, according to the Shariah they will all be regarded as relatives or of the same social standing.
3. The Moghuls and Pathans are regarded as one nation and are not of the same class as that of the Sayyids and Shaykhs. If the daughter of a Sayyid or Shaykh gets married with one of them, it will be said that she married someone who is of a lower social standing than her.
Equality in being a Muslim
1. Equality in being a Muslim is only considered among the Moghuls, Pathans, and other non-Arab nations. There is no consideration of this among the Shaykhs, Sayyids, ‘Alawis, and Ansâris. A man who accepts Islam and his father was a kâfir cannot be on par or equal to a woman who is a Muslim and her father was also a Muslim. The man who is a Muslim, his father is also a Muslim, but his grandfather was a kâfir; cannot be equal to a woman whose grandfather was also a Muslim.
2. A man whose father and grandfather were Muslims, but his great grandfather was a kâfir will be regarded as equal to a woman whose several forefathers were Muslims. In short, this equality is only considered till the grandfather. Equality beyond the grandfather, such as the great grandfather and beyond him is not considered.
Equality in Piety
Equality in piety means that a man who does not follow the dictates of the Sharî‘ah – who is a wicked person, a scoundrel, an alcoholic, a shameless person – will not be considered to be equal to a pious, chaste and religious woman.
Equality in Wealth
Equality in wealth means that a person who is an absolute pauper cannot be compatible to a rich woman. If the man is not an absolute pauper, but is capable of giving that amount of mahr that is normally given on the first night and is also capable of giving her maintenance, then he will be regarded to be equal to her in status even if he is unable to give the entire amount of mahr. It is not necessary for the man to be in exactly the same financial position as that of the woman. Nor is it necessary for him to be close to that financial position.
Equality in Occupation
1. Equality in occupation is that, e.g. weavers are not regarded as equal to tailors and are accorded a status that is lower than that of tailors. Similarly, barbers, washermen, etc. are not regarded as being equal to tailors, but are regarded as being lower than tailors.
2. A mad, lunatic person cannot be equal to an intelligent, understanding woman.
Mahr – Dowry
1. Once a nikâh is performed, it will be valid irrespective of whether mention of any mahr was made or not. Despite it being valid, one will have to give the mahr. In fact, if a person makes the condition that he will not give any mahr and that he is marrying the woman without any mahr, he will still have to give the mahr.
2. The minimum mahr is 10 dirhams and there is no limit to the maximum amount of mahr. The woman can stipulate as much as she wishes. However, it is not good to stipulate a very high figure. If a person gives an amount less than 10 dirhams or its equivalent, he will have to give the balance as well because mahr cannot be an amount less than the minimum. If the husband divorces his wife (in this case) even before she can come and live with him, he will have to give half of the minimum.
3. A person stipulated R20, R100, R1000, or any other amount according to his financial position. The woman thereafter came and lived with him. He also had sexual intercourse with this wife of his. Alternately, he did not have intercourse with her, but he and his wife were able to meet in privacy where no one or nothing stopped them or prevented them from engaging in sexual intercourse. In both these cases, it will be wajib on the person to fulfil the full amount of the stipulated mahr. If none of the above transpired between them, and one of them passed away, it will still be wâjib to fulfil the entire mahr. Furthermore, if none of the above transpired between them, and the man divorced her, it will be wâjib on him to fulfil half the stipulated mahr.
In short, if the husband and wife meet in privacy, as mentioned above or one of them passes away, the entire mahr becomes wâjib. And if the husband divorces her prior to them being in privacy and seclusion, it will be wâjib to fulfil half the stipulated mahr.
4. If one of them was ill, keeping a fast of Ramadân, in the ihrâm of hajj, the woman was in her hayd or there was someone who was peeping at them or intruding on their privacy, and they met in private or seclusion in any of the above situations, then this privacy or seclusion of their’s is not considered. If they meet each other in any of the above situations or circumstances, the total amount of mahr will not become wâjib. If the husband divorces her, it will be her right to receive half the total mahr. However, if the fast was not a fast of Ramadân, instead it was a qadâ, nadhr, or nafl fast, and this was being kept by one of them, then in such a case if they happened to meet in privacy and seclusion, the wife will have the right of receiving the full amount of the mahr. It will be wâjib on the husband to fulfil the full amount.
5. The husband is impotent, however, both of them met in privacy and seclusion. The wife will still receive the full mahr. Similarly, if the husband is a hermaphrodite and they meet in privacy and seclusion and thereafter he divorces her, she will receive the full mahr.
6. The husband and wife met in privacy and seclusion but the wife is so young that she is incapable of sexual intercourse. Alternately, the husband is so young that he is incapable of sexual intercourse. If they meet in privacy and seclusion in such a case, the full mahr will not be wâjib.
7. If no mention whatsoever of the mahr was made at the time of the nikâh, or the nikâh was performed on the condition that the woman will not receive any mahr, and thereafter one of them passed away or they met in privacy – that is regarded as a valid privacy in the Sharî‘ah – even then the mahr will have to be fulfilled. However, in such a case, the mahrul mithl will have to be paid.
In the above case, if the husband divorced his wife prior to being in seclusion with her, she will have no right to receive any mahr. Instead, she will only receive a set of clothing. It is wâjib on the man to give this to the woman. He will be sinning if he does not do so.
8. When giving this set of clothing, only four items are wâjib on the man: a dress, a scarf, a pants, and a sheet which can cover her body from head to toe. Apart from these items it is not wâjib to give any other clothing.
9. The clothing that the man gives should be according to his financial position. If the man is poor, he should give cotton clothing. If he is of a middle class, he should give silk that is of an inferior quality. If he is very rich, he should give silk clothing that is of a very high quality. However, it should be borne in mind that in all these circumstances the clothing that is given should not be more than half the mahrul mithl in value. At the same time, it should not be less than 5 dirhams in value.
In other words, it is not wâjib on the man to give clothing which is very expensive and which exceeds half the mahrul mithl in value. However, it is permissible for him to give clothing that is more than the stipulated amount provided that he gives it happily and out of his own will.
10. At the time of the nikâh no mahr was stipulated. However, after the nikâh, the husband and wife agreed upon a specific amount as mahr. In such a case, mahrul mithl will not have to be given. Instead, the amount that they had agreed upon will have to be given. But if the husband divorced his wife prior to their meeting in privacy and seclusion, she will not have any right of receiving any mahr. Instead, she will only receive the clothing that had been mentioned previously.
11. A person stipulated R100, R1000 or any other amount according to his financial position. Thereafter the husband decided to give more than the original amount that was stipulated. This he did voluntarily and out of his own good will. For example, the stipulated mahr was R100, but he decided to give R150. Whatever additional amount he decides to give will now become wâjib upon him. If he does not give it, he will be sinning. But if he divorces her prior to meeting in privacy and seclusion, he will have to give half of the original amount that was stipulated. The additional amount that he had decided to give will not be calculated.
Similarly, if the wife happily and willingly reduces the amount of mahr, it will be considered to be reduced. If she absolves him from paying the entire amount, it will be absolved. Now she has no right to claim it.
12. If the husband pressurized her into reducing the mahr or instilled some fear into her so that she reduces the mahr, then by her reducing or forgiving her husband, it will not be considered to be forgiven. It will still be wâjib upon him to fulfil the mahr.
13. No cash, gold or silver was stipulated for the mahr. Instead, a small village, a farm or some land was stipulated. This is permissible. The farm, land, etc. that was stipulated will have to be given.
14. A horse, elephant or any other animal was stipulated as mahr. However, a specific horse or a specific elephant was not stipulated. This is also permissible. In such a case an average horse which is not too cheap nor too expensive will have to be given. Alternatively, it’s value in cash could be given. However, if an animal was stipulated without specifying the type of animal, this will not be valid. Mahrul mithl will have to be given.
15. A couple got married in an unlawful way and the husband and wife were therefore made to separate. For example, they got married in secret without the presence of two witnesses. Alternately, two witnesses were present but they were deaf and were therefore unable to hear the words that make a nikâh valid. Alternatively, a man had divorced his wife or he had passed away. Prior to completing her iddah, the woman married another man. Or some other form of unlawful marriage had taken place and the husband and wife were therefore made to separate. However, in all these cases, the man did not have any sexual intercourse with this woman. In such a case, she will not receive any mahr. In fact, even if they met in privacy and seclusion, she will still not be eligible to receive any mahr. But if sexual intercourse had taken place, she will receive mahrul mithl. However, if at the time of nikâh some mahr had been stipulated and this mahr is less than the mahrul mithl, then she will receive the mahr that had been stipulated at the time of the nikâh and not the mahrul mithl.
16. A person had sexual intercourse with a woman after mistaking her for his wife. He will have to give her mahrul mithl as well, and this intercourse with her will not be regarded as adultery (zinâ) nor will there be any sin. In fact, if the woman falls pregnant, the lineage of the child will be in order. It will not be tainted and it is not permissible to label the child as being illegitimate. The moment the man realizes that this is not his wife, he should immediately separate himself from her and it will not be permissible for him to continue with the intercourse. It is also wâjib on this woman to observe the iddah. It is not permissible for her to stay with her husband or to engage in sexual intercourse with him. The rules related to iddah will be mentioned in a later chapter – Inshâ’ Allah.
17. If in a certain place or country, the norm is that the entire mahr must be given on the first night, then the woman has the right to demand the mahr on the first night. If she does not ask for it on the first night, she can ask for it whenever she wishes and it will be wâjib on the husband to give it to her. He cannot delay in fulfilling the mahr.
18. The practice in India is that the paying and receiving of mahr is undertaken after divorce or after death. When the woman is divorced, it is only then that she claims her mahr. Alternatively, when the husband dies and leaves behind some wealth, she takes her mahr from this left over wealth of his. If the woman dies, her inheritors claim the mahr. As long as the husband and wife are living together, no one pays the mahr nor does she ask for it. In such a situation, the woman cannot demand the mahr before divorce. However, it is wâjib on the man to give an amount that is normally given in that place on the first night. But if all these practices are not found in any place, these rules will not apply.
19. If the husband does not give the amount of mahr that is normally given beforehand, the wife has the right to refuse him to engage in sexual intercourse with her until he pays that amount. If they engaged in intercourse once, she still has the right of refusing him the next time or the following time if he does not pay the mahr. If he wishes to take her to another city or country, she has the right of not going unless her mahr is paid. Similarly, if the mahr is not paid and the woman wishes to travel to another city or country, or wishes to go to her parents home, and there is a mahram who can take her, then the husband does not have the right to stop her. But once he pays the mahr, she does not have the right to do any of these things without her husband’s permission. It is not permissible for her to go anywhere without his consent. As for the husband, he can take her wherever he wishes. It is not permissible for her to refuse him.
20. The husband gave some item (or cash, gold, silver, etc.) to his wife with the intention that it is mahr. Whatever he gives will be regarded as part of the mahr. It is not necessary for him to inform his wife at the time of giving it to her that he is giving her mahr.
21. The man gave an item to his wife. She claims that the item was given as a gift and not as mahr while the man claims that he gave it as mahr. In this case, the husband’s claim will be considered. However, if the item was such that it is consumed as food or drink, it will not be considered to be mahr and the husband’s claim will not be considered.
1. Family mahr or mahrul mithl is determined in the following way: look at any woman in the girl’s father’s family who is similar or equal to this girl. That is, if the girl is young, the woman must also be young at the time of marriage. If the woman is beautiful, this girl must also be beautiful. If the woman’s marriage had taken place when she was a virgin, this girl’s marriage must also take place while she is a virgin. The wealth that this girl possesses at the time of her nikâh, that woman also had possessed the same at the time of her nikâh. The place or locality from which this girl is, that woman must also be from the same place. If this girl is religious-minded, intelligent, well-mannered and educated, that woman must also be the same. In short, this girl whose nikâh is being performed now, must also possess the qualities that that woman possessed at the time of her nikâh,. If they share the same qualities, then the mahr that was stipulated for that woman will be the mahrul mithl for this girl.
2. Women of the girl’s father’s family refer to the girl’s sisters, paternal aunts, cousins (children of paternal uncles), etc. In other words, girls or women who are connected to her paternal grandmother. When determining the mahrul mithl, the mahr of the mother is not considered. However, if her mother is also of the same family as that of her father’s, e.g. if her father marries his cousin (paternal uncle’s daughter), then the mother’s mahr will also be regarded as mahrul mithl.
The Marriages of the Kuffâr
1. The different forms of marriage in the different religions are recognized in the Sharî‘ah. If both, husband and wife, accept Islam, there is no need to repeat their nikâh. The nikâh that they had performed as kuffâr will still be valid.
2. If the husband or the wife accepts Islam and the other partner does not accept, their nikâh will be annulled. It will not be permissible for them to live as husband and wife.
3. If the wife accepts Islam and not the husband, then as long as the wife does not complete three hayd periods, it will not be permissible for her to marry another person.