Marriage Contract – Protection of Spousal Rights in Islam – Part 1

Marriage

Abdulaziz Abdulhussein Sachedina is a Professor and Endowed IIIT Chair in Islamic Studies at George Mason University in Fairfax, Virginia. He has been a professor since 1975. He annually teaches courses on Classical Islam, Islam in the Modern Age, Islam, Democracy and Human Rights, Islamic Bioethics and Muslim Theology. He was born in Tanzania, his heritage is originally from India. He has an MA/PhD from the University of Toronto and has BA degrees from Aligarh Muslim University in India and Ferdowsi University of Mashad in Iran. He was one of the students of Dr. Ali Shariati in Iran.

T

he Muslim institution of marriage is faced with the inevitable dichotomy between the Shar’i and the secular legal systems in protecting the rights of a man and a woman who enter into a marital relationship through a contract or a prenuptial agreement. The situation is particularly critical in places where Muslim family law is not recognised as a consideration in the court of law.

There have been numerous cases of marriage dissolution in North America in which Muslim women have had a recourse to the country’s civil law to protect their interests connected with child custody and alimony, and even to demand other monetary compensation which, from the Islamic legal point of view, they had no right because there was no contractual agreement to that effect before the marriage was consummated. In the court battles between spouses in such cases, materialism has overshadowed all other considerations that govern spousal decency and concern for the children, if there are any, in Islamic marital ethics.

Frequently, Muslim modernists and feminists have blamed the underlying patriarchal system that favours male privileges for injustices committed against Muslim women in marriage and divorce.

How much of this negative appraisal of the Islamic family law is justified depends upon the understanding of the pillars of the marriage contract in the Shari’ a. Unfortunately, in the context of the Muslim community, the marriage contract has not received the necessary attention it deserves as a method of protecting the interests of both parties concerned. The only thing which is commonly discussed and continues to be brought up at the wedding ceremonies is the amount of the mahr (dower), which must be ?xed before the marriage can be solemnised. And. probably if the Shar’i rule had not required it to be ?xed as a condition to validate the ‘aqd, it would have been neglected, Since it is a statute that guarantees a woman’s right in a marriage, Islam has regarded a marriage contract, and not the marriage itself, as some jurists have ruled, null and void if it fails to mention the mahr. However, the question that must be asked is if validation is the only function of the contract (‘agd) in Islam.

The paper proposes to explain the actual function of a contract in a relationship that is negotiated outside consanguinity to protect the rights of the two parties that enter into such a relationship. In addition, it intends to show that a formal declaration (ijab) and acceptance (qabul) without any reference to the substantial protection that it affords to the spouses miss the effective cause for which the contract was made a statute in the law governing the validity of a marriage.

The paper also proposes to emphasise the need for a substantial marriage contract to forestall disputes that result in bitter contests over divorce and the ?nancial settlement that usually takes place outside the purview of the community. Muslims are living under changed economic and social conditions subject to the civil code of a modern nation-state. The availability of the secular legal system to redress injustices committed to maintaining a troubled marital relationship has put the burden of proof on the Shari system to establish fairness and justice in dealing with spousal disputes and their resolutions.

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