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.
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s I intend to demonstrate in this paper, that even Sharía divorce serves as a religious device to formalise a termination of spousal relation in the patriarchal system, in which a man can dictate terms of divorce to his advantage, it is precisely the contract in the Shari’a that guarantees the fairness and justice which a Muslim woman ought to demand when she agrees to marry a Muslim man.
I believe the subject is important not only for the general education of Muslim women, who are least informed about their rights in the Shari’a; rather, a legally prepared prenuptial agreement under the auspices of the community administration can thwart future con?ict and ensuing psychological and ?nancial damage in a divorce for reasons of incompatibility or irreconcilable differences.
The time for preparing an Islamic marriage contract for our married couples is overdue. We cannot ignore its pivotal function in providing a much-needed con?dence in our system to protect the rights of men and women against infringement.
General Observations About Marriage In Islam The Qur’an and the Sunna have laid great emphasis on marriage as part of the natural and legitimate process for the continuation of the family and society through procreation. Islamic revelation recognises the union of man and woman and incorporates their offspring into the fabric of social life as an overall goal of creating an ideal Islamic community. The Qur’an has also viewed marriage as the means to bring about the integration of society by setting up kinship ties. Marriage is a starting point for kinship ties that run across and between different and independent kinship lines. However, Islam also sees marriage as a system of exchange, an exchange recognised as equivalent to the settlement of disputes.
The system of mahr, that is a dower, is a form of exchange in which a gift of wealth or property is made by the groom to the bride in keeping with her status to provide security for her in case of an irreconcilable dispute. Love is not a requirement in this exchange because it is the relationship which is the goal of the mahr.
The relationship based on mutually agreed mahr and validated through a religious-legal exchange brings about the affection (mawadda) between man and woman. The system of mahr regulated by the marriage contract creates particular individual and kinship responsibilities in the Islamic legal system.
Consequently, marriage in Islam is regarded as one of the most fundamental individual and group responsibility. The Islamic marital rules encourage individual responsibility by strengthening the nuclear family – father, mother, and children. The marital rules also encourage egalitarianism and social mobility, especially among males. In the tribal culture of the early community, it was common for men of quality to have one or more wives, which the Sharia limited to four with absolutely equal rights, which the children also shared.
The effective cause behind the Sharia rules regulating the number of wives a man can marry is to provide legal constructions with suf?cient consequences in favour of equality of rights of the wives in a polygamous union. Since marriage is de?ned in the Shari’ a as the “situation that results from a particular contract, entered into freely by a man and a woman, by which sexual intercourse (the literal meaning of the word nikah) between them becomes legitimate in the eyes of God and society,” it is the contractual exchange that retains a major place in providing equivalent exchange.
In legislating for equality in personal status Islam had been especially concerned with family law. The Prophet was greatly attentive to instituting proper regulation of each person’s Civil status, for he regarded that to be the very foundation of Islamic public order. It was for this reason that only a limited range of provisions in marriage contracts was allowed. No one was free to arrange whatever relations suited him/her best; these relations were a concern of the community as a whole. Of course, such regulations were a means of protecting the weaker against the stronger and an enforcement of common norms of propriety.
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.
