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Fiqh of Pre Marriage

Fiqh of Pre-Marriage

2012 Spring Session (March 25 to May 27 2012)

Class taught by Shaikh Jamaal Zarabozo

Topics planned for this quarter include: How to meet and limits of meeting with prospective spouse and member of the opposite sex; Etiquettes and rules concerning engagement; Pre-Nuptial agreements; The Marriage Contract; The Waleemah.

Time: Sundays  4:15 - 5:30 PM PDT

Course Outline:
Relations with the opposite sex, being in seclusion, speech. Dating, internet dating, “Speed-dating” etc.
The role of the wali, obstacles to marriage; removal of the wali if necessary.
Rules of engagement.
Pre-nuptial agreements.

2012-03-25 Class Notes

This is the second class on the subject of fiqh of marriage and the last class on the subject of pre-marriage.

We are going to continue from where we left off last quarter.  We will be starting with the question of where and how to find a spouse.  We will then talk about what are some of the limits of meeting with potential spouse and members of the opposite sex and will then talk about some of the rules and regulations of engagements.  We will discuss other topics as well; we may not be able to get to the topic of the mahr (not part of the contract but rather is a right of the wife, so it really belongs with next quarter).

Most of these topics are straightforward fiqh issues with just some comments needed.  

Finding a spouse

The Importance of the Wali
We will talk about the wali later and his role in the contract itself.  What is meant by the wali here is that this should be the starting point for someone in the process of getting married.  

Wali have the best interests of their children in their heart
Historically speaking, our ulimah talked about child marriages, getting children married when they were still young.  The ulimah allowed these to happen only under the auspices of the father(s) (both for the boy and girl).  The reason they allow this arrangement in the first place is that all of the fuqahah have a very strong belief that the wali must have the interest of the son or daughter in their heart; the wali is the main individual who has the interest of his son or daughter and therefore will be the main person trying to find a spouse for his son or daughter.

Wali has connections in order to find a spouse for their children
It is the father who knows his son or daughter best and the father usually has connections as well; his friends and colleagues.  He has the best connection especially in an Islamic environment, particularly since the interaction between the boys and girls who are not mahram are restricted.  The wali is the one who takes the first steps.

Wali should take the initiative in finding the spouse for their children
When the son or daughter is ready for marriage, they should express their readiness to their parents who should have already been thinking about who are capable candidates.  This is part of their obligation towards their child; they shouldn’t have to wait until their son or daughter finally comes forward regarding marriage.  The parents should bring up the topic openly and discuss it with their kids.  They need to take initiative.

Role of arranged marriages
People are more independent these days and often don’t like the idea of parents finding someone for them.  If arranged marriages are done properly where people who know you best and the other party best will be the right decision for both parties involved.  There is a researcher by the name of At Trafi who did research (broadness is not known) on women who were having difficulty in getting married.  He found that 36% of women who were not married said that they were not married as a result of their father blocking them from getting married; putting obstacles in front of them that prevented them from getting married while they were ready to get married.

Practice of ‘Adl (hindering or preventing your daughter from getting married)
This process/practice where the wali keeps the daughter from getting married is called ‘adl.  The wali keeps turning down qualified candidates.  Sometimes it is done to keep the daughter at home, many times if she is helping around the house.

This is considered a kabira amongst the majority of the ulimah; to prevent your daughter from getting married when she is capable of getting married.  Allah swt speaking to the guardians in the Qur’an, marry off the young women and men from your servants; this is a command from Allah swt to the wali to get those who are ready to get married to help them in getting married.  Being a parent is not just supporting your children by feeding them, clothing them, etc.  Helping them get married is part of the parents’ role as you know your child best.

We will discuss later what to do in the case of ‘adl.

Parents should take an active role in getting their children married
We begin by speaking to the parents and telling them to take an active role in getting their children married.  Marriage is a great thing that you are helping them do and it is a protection for them.  If they are ready and willing, you should assist them.  As a whole, Muslims should assist one another.  The Prophet saas said none of you truly believes until he loves for his brother what he loves for himself.  This is a very general statement but discusses the roots of brotherhood and the relationship between each other.  The prophet saas also said that the deen is the deen as naseehah, the way of well-wishing for others.

The parents have to be very clear about their intentions.  Take for example someone who is in a position of a sheikh or imam; he cannot go out looking for a spouse and then realize the person he was looking for was not interested in marriage.  He might raise the hopes of someone when that should not have happened.  Those who are ready for marriage need to come forward.

Some people are shy but in some cases one must overcome their shyness; if one is shy towards stating that they are ready for marriage and need help getting married, one needs to make this clear. (Footnote: you should get rid of arrogance and shyness in two matters, which are knowledge of the deen and …)

Q: Is the father also a wali for his son?
A:For a son, a father is wali until he becomes mature??? but once he is old enough, he does not need his father in order to sign the marriage contract but it is considered ??????

Q: What is the father wants to wait until his daughter is old enough before she is married?

Kamaal Sharawy’s approaches for finding a spouse
Kamaal Sharawy, in his book, talks about secure ways in meeting a potential spouse.  He talks about many of the places and ways to find spouses.  He starts off by saying that meeting a future spouse outside of these Islamic guidelines could lead to marriage but may lead to not making the best decision or getting the right information about the person, etc.  He is saying here that the process of getting married, as we have spoken about it before, getting a righteous spouse is one of the biggest blessings in this world; one needs to try their best to have taqwa of Allah swt and follow the guidelines to pleasing Allah swt.  

Don’t expect to do something haram and via that haram find someone and marry then and expect Allah to give you something good out of it; that is a false expectation to have.  One must put in the effort to follow the proper steps in the first place.

Kamaal also says to consider what method works best for you.  [the issue of where to find someone is not an issue of fiqh]

The first source is family, relatives and friends that you trust.
Your parents know you the best and should have your best interest at heart.  Because of this, they should also be eager to help you out.  Other than the parents, also turning to those people who are similar to you but are married; similar in the sense of age, background, etc.  You have to make it clear what you are looking for; you need to emphasize that this is your marriage and you trust their judgment but it is your marriage and they need to have your interests at heart.

The biggest issue is getting access to people.  If a brother wants to get married and his friend is married; his friend’s wife knows single sisters.  The close friend can feed information about his single friend to his wife who can then pass the information along or look around in her pool of single friends to see if there are any potential matches.

Parents may not understand exactly what their children are looking for as there is typically a cultural gap.

Turning to someone who doesn’t really know you is not wise.  It will be difficult for them to find what you are looking for and have no clue about you in terms of personality, interests, emaan, etc.  It will be difficult for the person to devote as much energy into finding someone for you if they don’t know you.

The second thing that he mentions are single events at Islamic centers
Muslim masajid and organizations have found that there is a huge need to connect single brothers and sisters.  This is a sign that we are not helping each other out (referring back to point number 1 of family and friends helping you find a spouse).  They have organized lots of different events.  The problems with these events is that some are much more “Islamic” than others.  Before taking part, one needs to examine how the event is being done.  Some events are like speed dating, others make you fill out questionnaires and then examine the pool to find someone who is a potential match for you.

Usually the sisters feel uncomfortable as they feel like they are being “checked out” or “scoped” by the brothers.

These events are being resorted to as ways to address an issue. Shaikh is trying to determine if anybody in the class knows of these events, have organized it or participated in it, or know somebody who got married as a result of these events. It looks like from the informal survey, that these events are not that successful.

The third aspect is shared volunteering interests (implication is that they are Islamic interests)
Is there anything wrong with volunteering and doing so also with the intention of meeting a potential spouse?
Is it possible to have multiple intentions when doing something?

There is nothing wrong with multiple intentions, just don’t let them distract or confuse you.  It’s better to have the intention to be involved and you may end of meeting someone while being involved.

You dont want to get involved in an organization that has not proper etiquette. Even in organization which follows proper limits, you find out the other parties involved. Shaikh knows many people who have gotten married because of their interactions in organizations, to the point that MSAs (Muslim Students Association) are known joking as Matrimonial Services Agency.

Next category is websites
Even though it is not the way your parents got married, it is becoming very prevalent. He has a website called

Somebody wrote an article (Sr Munira Izzadeen) and said that there are 400 such websites. And she says that you have to be careful about some of the websites. She says, that the best benefit is for those who don’t have family or friends, then it creates a bigger pool of choices, and it is beneficial for new muslims or being in a location that does not have many muslims. One of the drawbacks is the anonymity, and it could become a perfect opportunity to exaggerate and lie even about their marital status. She recommends that as early as possible, you should arrange to meet in a neutral site, in order to root out individuals who are exaggerating or lying. She also states that people are very careful in face to face interactions and you lose those boundaries online.

This is another thing to be careful about when doing things on the internet.  Things need to be kept clear.

She also warns about giving too much information as the internet is known for people preying on others.

She also says that when chatting with someone, let your parents know so they know who you are dealing with.

It is not allowed to be in privacy with a member of the other sex; this includes private communication or semi-private situations.  You must always make sure that others are present and that the information is shared with others so that there is a record that cannot be contested.

One question that you have to ask is what is your immigration status, etc.  If they are getting married just for status is that once they get that status they are looking for, they may no longer be interested in the marriage.

Another place mentioned by Sharawy is work (places of work)
This may be easier in Muslim countries or here if you have Muslims who are colleagues.

2012-04-01 Class Notes

Last time we discussed where to find a spouse and we emphasized that any kind of arrangement has to be done with proper Islamic etiquette.  

First we will discuss looking at the opposite sex and then discuss about looking at a potential spouse.

Looking at the opposite sex
Allah swt says in the Quran Surah Nur verse 30 and 31, tell the believing men to reduce some of their vision and guard their private parts, it is better for them and indeed Allah is aware of them and similar admonition for the believing women.

قُل لِّلْمُؤْمِنِينَ يَغُضُّوا مِنْ أَبْصَارِهِمْ وَيَحْفَظُوا فُرُوجَهُمْ ۚ ذَٰلِكَ أَزْكَىٰ لَهُمْ ۗ إِنَّ اللَّهَ خَبِيرٌ بِمَا يَصْنَعُونَ

Sahih International
Tell the believing men to reduce [some] of their vision and guard their private parts. That is purer for them. Indeed, Allah is Acquainted with what they do.

وَقُل لِّلْمُؤْمِنَاتِ يَغْضُضْنَ مِنْ أَبْصَارِهِنَّ وَيَحْفَظْنَ فُرُوجَهُنَّ وَلَا يُبْدِينَ زِينَتَهُنَّ إِلَّا مَا ظَهَرَ مِنْهَا ۖ وَلْيَضْرِبْنَ بِخُمُرِهِنَّ عَلَىٰ جُيُوبِهِنَّ ۖ وَلَا يُبْدِينَ زِينَتَهُنَّ إِلَّا لِبُعُولَتِهِنَّ أَوْ آبَائِهِنَّ أَوْ آبَاءِ بُعُولَتِهِنَّ أَوْ أَبْنَائِهِنَّ أَوْ أَبْنَاءِ بُعُولَتِهِنَّ أَوْ إِخْوَانِهِنَّ أَوْ بَنِي إِخْوَانِهِنَّ أَوْ بَنِي أَخَوَاتِهِنَّ أَوْ نِسَائِهِنَّ أَوْ مَا مَلَكَتْ أَيْمَانُهُنَّ أَوِ التَّابِعِينَ غَيْرِ أُولِي الْإِرْبَةِ مِنَ الرِّجَالِ أَوِ الطِّفْلِ الَّذِينَ لَمْ يَظْهَرُوا عَلَىٰ عَوْرَاتِ النِّسَاءِ ۖ وَلَا يَضْرِبْنَ بِأَرْجُلِهِنَّ لِيُعْلَمَ مَا يُخْفِينَ مِن زِينَتِهِنَّ ۚ وَتُوبُوا إِلَى اللَّهِ جَمِيعًا أَيُّهَ الْمُؤْمِنُونَ لَعَلَّكُمْ تُفْلِحُونَ

Sahih International
And tell the believing women to reduce [some] of their vision and guard their private parts and not expose their adornment except that which [necessarily] appears thereof and to wrap [a portion of] their headcovers over their chests and not expose their adornment except to their husbands, their fathers, their husbands' fathers, their sons, their husbands' sons, their brothers, their brothers' sons, their sisters' sons, their women, that which their right hands possess, or those male attendants having no physical desire, or children who are not yet aware of the private aspects of women. And let them not stamp their feet to make known what they conceal of their adornment. And turn to Allah in repentance, all of you, O believers, that you might succeed.

We should lower our vision from looking at what is haraam.

Bukhari records a question that is asked of Hasan al Basri, somebody asked him that foreign women uncover their hair and their chests; how should we look at them, he said that turn your gaze and he quoted the above verse.

Scholars emphasize is that the first step in zina is the look. Since it is the first step, we should be more careful about it. It is pure for us if we don’t look at what is haraam.

Allah then warns us that he is aware of what we do.

Then Allah swt says, the same for the believing women. One of the lessons is that this repitition is a form of emphasis. If the verse was not repeated then everyone would have understood it that the ruling applies to both men and women. But when he addresses the believing women, it is for emphasis.

In one hadith, Prophet (saws) said, Allah swt has written for every human being a portion of zeena, and it is written and there is no way to avoid it, zeena of the eye is the look ....

In Sahih Bukhari, Prophet warned us about sitting in the walkways. If you must do so then give the walkway its right. And the right is to lower your gaze, do not cause any harm, respond to greetings, encourage good and forbid evil, not to cause any harm, do not obstruct the walkway.

Prophet was asked about unexpected look and he said that you should look away.

Ali said that do not follow up one look with another. First look is permissible or is unavoidable.

There are some exceptions when you have to look at a woman, for example you are judge or a wali or a teacher, where you might have to look or there is some need for you to look and it is permissible for you to look. One of the reasons for looking at woman would be if she is a prospective bride.

There might be case that sister covers her face and you have not seen her face if you intend to marry her.

Looking at prospective spouse

There is an opinion that it is not even allowed to look at prospective bride. This opinion exists and we have to be aware of it. This is a minority opinion and it is not based on any evidence.

So the question is whether it is recommended or permissible to look at prospective spouse?
It is recommended to look at the prospective spouse. Prophet asked an individual if he had looked at the prospective bride and he said no, then the prophet said that he should go and look at her, for this is more likely to engender feelings between the two.

In a more general hadith, if one of you proposes a woman, then he should look at her........

Based on this hadith and others, if someone has the ability to see the prospective bride then he should look at her.

The hikmah of this is very clear and there is no need to prove it. However the scholars go into details that we do not need to discuss here.

You want to avoid the negative feelings that might occur on the night of the wedding if you are not attracted to your wife physically. Taking precautions i.e. looking at the prospective spouse before marrying is highly recommended.  This is a hypothetical case nowadays. One of the exceptions would be in case of arranged marriages where you have not seen her before.

Conditions for looking at prospective spouse
Condition: There has to be real intent of marriage.

One time a woman came to him and offered herself in marriage and the prophet looked at her. Implying that he looked at her only after she announced her intention and did not look at her before.

In other words if you are not really serious and there is no real intent of marriage, then you should not look at them. For example you cannot go online just to look at prospective spouses but there is no real intention for marriage. Intent and possibility should exist before you look at her. Otherwise you are doing something that is not permissible.

The idea behind the look is that there is possibility of creating this feeling between the two. It is permissible to look at more than once.

Women are usually shy at their first meeting. They are there at the meeting but the mind is somewhere else. The look is there but you were nervous and the look was not sufficient. So you can arrange to see it again. You can do this two or three times, there is no limit to it as long as the intention is there.

Now if the goal is met then it is no longer to permissible to look at each other anymore. Just because you have proposed, it does not mean that you can do whatever you want. You cannot look at the woman who is ajnabi to you. So if you have met her and have already decided then it is no longer permissible to look unless you have some doubts.

Many people get engaged and they have pictures of their fiance and keep looking at it. The look should have purpose to it and once it has been fulfilled, then you no longer have the right to look at her since she is ajnabi to you.

The look cannot be done in private and we will discuss it later.

The next question is how much can be seen. There are lot of differences among scholars and it stretches from one end to another.

One opinion is that he may only see her hands and face. This is a predominant view of Shafies and Hanbalis.

If you go back to Surah Nur where Allah swt describes to whom a woman can uncover in front of, the prospective spouse is not listed.

Bascially they say what is permissible is what can be seen in public. They say looking at hands gives you an idea of how plumb or thin she is and this is sufficient and there is no evidence provided for it.

Hanafis say it is permissible to see the feet.

Majority of the Hambalis say that it is permissible for prospective spouse to see what is uncovered for her daily needs at her home. This includes arms, legs and neck. This is also the view of Qardawi and Al Albaani. They base their view on the general hadith which we mentioned earlier to go and look at her. And they say that it is unrestricted and they can see more than what is visible in public.

They also mention another evidence. ..... It was reported that Umar Khattab was interested in marrying Ali's daughter.  Ali sent her to Umar and he looked at her legs and then she said that if you were not Khalifah then I would have slapped you. This hadith is weak as it is based on a weak chain. And the daughter of Ali was young and the rules of awrah are different for immature and mature woman.

They also used another evidence, a report concerning Jabbir and report concerning ...

Jabbir narrates that the prophet saws said that if you have the ability then you should look at your prospective bride. Jabbir then says that he proposed to a girl and then he used to spy on her until he saw from her what encouraged him to marry her.
In another narration regarding Jabbir, he used to hide behind a palm tree and look at her, until he saw what encouraged him to marry her.

We will discuss later on whether we need the woman’s permission to look at her as a prospective bride.

Scholars use this hadith that shows that Jabbir is looking at more than what is normally visible of a woman.

There is no evidence that the Prophet (saws) approved or even knew of this action of a sahabi i.e, Jabbir (ra).

There is more going on in this hadith. Arnaut calls this hadith hasan. Al Albaani says it is hasan as well.

Both of them point out that there are problems in the chain. Ibn Ishaq is in the chain, he is known to commit tadlees, and he does not state how he got this hadith. So if we have a narration from a narrator who is accused of committing tadlees, then if we do not know how he got the hadith, then we reject this narration.

Jabbir (ra) is also quoting the general statement that if someone proposes he should look at her. Then Jabbir (ra) says that he saw from behind the tree. Now both Arnaut and Albani mention the problem of ibn Ishaq, since ibn Ishaq in another chain quotes his source explicitly and hence the other chain does not have this problem but there is another problem. The chain where ibn Ishaq mentions the whole source is that that chain states the general hadith but it does not mention the story of the Jabbir (ra) where he mentions hiding behind the trees or spying on the woman. So the general statement is there in authentic chain but the Jabbir’s spying part is not there.

Then another hadith is quoted from Muhammad ibn Maslamah who says that he was hiding on the roof spying on some women and someone asked that you are companion of Prophet (saws) and you do that and he mentions that yes and mentions the general statement. The incident of ibn Maslamah is after the death of the Prophet (saws) and the chain is weak as well. Albani mentions the weakness but considers the other report of Jabbir (ra) supporting it. Despite the weaknesses it is clear that they were not peeking into the house or into the privacy so what they were seeing is in public so the dress code was already Islamic so these narrations are not supporting spying into privacy. These narrations are weak in the first place even though they are used very often.

Some of the Dhahiriees and one report from Imam Ahmad and one report from ibn Qattan (a Maliki scholar) who mentions that he may see all of her except her private parts. One opinion from ibn Hazm (and Ahmad according to ibn al Qayyim) is that he allows completely in the nude and this contradicts the Quran and is considered too extreme of an opinion of the general permission of the Hadith. Hence this is not an acceptable opinion.

Safest opinion is the it is restricted to face and hand. This is the majority opinion.   

This look has to be before the proposal. This is going to be part of the consideration of the proposal but after the person has realized that this is a serious candidate by other considerations. We will continue on this next week.

2012-04-08 Class Notes

We are discussing when the look should take place, we have finished discussing the amount that can be looked.

The preferred time for the look

There is difference of opinion about when this look should take place, whether it should be before khatabah or proposal. It is due to the wording of the hadith or different narrations of the hadith, the scholars are divided whether the look should occur before the proposal or after.

Hanbalis and most of the Shafi’s say that it should happen before the proposal but after he has decided that he is serious about marriage.

The Malikis are of the opinion that the look should be after the proposal. Shaikh does not think that it is a strong reasoning, because when you stand for the prayer you should wash your face, it means when you intend to prayer and not when you stand up for prayer that you perform wudu.

The strongest view is that most likely, either way is permissible. The question is which way is preferred. Some scholars say that if you propose before looking at her, and then when you look at her and don’t like her, then you could potentially harm her psychologically; she might not know why you rejected her and this might cause other harm.

During the time of the Prophet saas, the single women in general stayed in their houses and would not leave their houses.  They would also cover their hands and faces.  In their custom, the single women would not leave the house in general.  Also, at the same time it was not unusual for people to get married without seeing each other at all.

So at least see the prospective wife and then make a decision.

Knowledge or permission for the look

The next point related to this viewing require her knowledge/permission or that of her wali. On this point, the scholars are very much divided whether it is required to have her or her wali’s permission or her knowledge.

The Shafi’s, hanbalis and dhahiris say that this permission is not needed and her knowledge is not needed.  For example, some Shafi’ scholars say that the lawgiver has given the permission and therefore her permission is not needed.

The Malikis are probably the most stringent on this point; they say that it is disliked and some use even stronger terms closer to haram to look at her without her permission or knowledge.  In particular, Imam Malik is looking at what the result would be, it could be something very dangerous for society as a whole.

Those who say you can look at her without her permission rely on those narrations that we discussed last time.  One was the narration of Jabir and the other was the narration of Mohammed ibn Maslamah, both stated that they used to hide or spy to see her without her knowledge.  Some even use this to say that you can see more of her than her face and hands.  As we mentioned last time, both of these narrations are not authentic and are both also very problematic.  There are some contemporary speakers that talk about looking into their house and conclude that the shariah sanction that.  However, what if there are other women in the household for which you have no intention or interest to marry?

Looking without knowledge is not necessarily an act of spying

There is a narration from Musnad Ahmed that says if one of you proposes to a woman, there is no harm at looking at her and he can look at her even if she is unaware of his looking at her.  This hadith has been graded Sahih by Al Albani and Shuaib al Arnaut.  It does look like the chain is authentic in Sheikh Jamaal’s opinion.  This hadith says that you can look at her even though she is unaware that you are looking at her.  

There is a big difference between spying and looking at her without her knowing.  One can arrange with the wali to see the woman in a situation where she is not aware that someone is looking at her for the purpose of marriage.  For example, nowadays the wali can take his family out to a public location like a restaurant and the wali can text the interested brother and let her know that she is wearing this and is sitting with the family.  This does not indicate spying of any kind.  The hadith says that she can be seen without her knowledge; this can be done with the knowledge and coordination of the wali.

Why would you do something like that?  Why would you go to such an extent to see her without her knowledge?
Maybe she is very shy and would avoid being seen if told. You want to see her in her natural state. Also, one might choose to do this as you do not want to hurt her feelings if you decide not to marry her after seeing her.

Conclusion: So her foreknowledge and her permissible is not required, but this does not mean that you can go spy on people.  It is better to coordinate with the wali to arrange to see her in the appropriate situation. This is a recommendation from the shaikh that it is better that you coordinate with her wali in order to remove any suspicion to fall upon your act.

Is it a requirement that her wali knows that she is being looked at for the intention of being married?

The evidence to support spying is weak and spying can open the door to a lot of fasad. The sheikh recommends that the brother should arrange with the girl’s wali to arrange an opportunity to see the girl. However, we are not saying it is wajib to get the wali’s permission.

When you look at the woman for the purpose of marriage, can you look at her with lust and desire? (ie taking some joy from this look)

Keep it professional.  The long term effects of looking with lust and desire can be harmful and can be a fitnah for the individual.  

The scholars differ on this point as well.  Some scholars go to the point where they say one cannot look a the woman unless you feel that you are in a situation where you are free of shahwah.  That’s a difficult position to be in as one does not know what will happen when one looks as a woman.

Other scholars use a shari’ah principle; if you are looking at the woman and the intention and action is proper in and of itself, if something else comes along with it then that is overlooked.  In general, the sheikh feels that the intention needs to be clear and that one doesn’t have to go overboard in looking at her to make the decision.  You are looking at her for the purpose of deciding whether you want to marry her.

What about having someone to go look at the woman on your behalf?
The scholars only encourage this if for some reason you cannot see her.  The big question here is whether the sister can come back to you and describe to you more than what is permissible for you?

Since she can look at her more closely than you possibly can, for example she can look and describe things that you might not be able to see yourself.

In general, the Prophet (saws) forbade a woman to describe another woman to a male that is not mahram.

Can we ask your sister to report on her khulaq or character? This is not the question, we are describing the look. She is free to report about the character of a person.

There is a text in Musnad Ahmed in which the Prophet saas sent Umm Sulaym to go look at a woman.  In particular, he told her to inspect the molar teeth and also to look at the portion of her leg just above the ankles.  The hadith uses a very specific word to describe the anatomy it is called urkoon, it is basically the area of the achilles heel. Shuyab al Arnaut says that this hadith is sahih, but al Albaani says that it is munkar. It seems that Arnaut missed something in the chain and Al Albani’s comment on the hadith is correct, eg the chain is weak.

The majority of the scholars say that the one who is describing can describe more than what the man can see on his own; these scholars are basing their opinion on this weak hadith.

Conclusion: There is no strong evidence suggesting that a woman can describe her in more detail than what a man can see of her. There are no restrictions on reporting about khulaq or character. However reporting something more than you can see, such as roots of her hair or how she smells are not allowed, or there is no evidence that these acts are allowed.

There is a well-known fabricated hadith:  If you propose to a woman, ask about her hair as her hair is one of the sources of her beauty.

One of the manners related to looking at the woman is that, especially if you are displeased with the way the woman looks, it is best to remain silent.  Here the scholars are giving some advice about manners and good etiquette, you don’t want to hurt the woman’s feelings.  The scholars emphasize this point for the sake of the brotherhood and the relationship between all Muslims.  Looks can have a big psychological effect, especially if someone is seen as ugly.

Her hair is outside of what you can see according to the sheikh’s opinion and should not be described.

What about the woman looking at the man?

All of the hadith have been describing looking at the woman.  A basic principle in the shariah is that every law that applies to men applies to women unless there is evidence to show otherwise.

Obviously, what a woman can see of the man is differently of what a man can see of a woman as the awrah is different for a man. There is explicit evidence about the differences in the awrah.

The scholars say that in general, the women were not going out in public much while the men were going out in public and they were easier to see for the woman as opposed to vice versa. To see the woman, a man had to make special arrangements and these ahadith are emphasizing points related to that.

In general, as the verse in Surat an Noor that was referred to earlier, the woman are also ordered to lower their gaze.  They are not allowed to look at men what shahwah or lust.  In general, the effect of looking at a man for a woman is different than the effect of looking at a woman has on a man.

The sheikh is not aware of any scholar that describes the limitations as being different for the woman.  In general, it is easier for the woman to see the man. Some scholars emphasize that it’s more important that the woman sees the man than vice versa.  The reason some of them has said that is because the right of talaq is easier to pursue for the man; the woman must be completely prepared regarding what she is getting into, even more so than the man.

You can see how tall a woman is, so knowing the height is not a problem. What about weight?  The sheikh is not sure about this.  What would the benefit be for knowing this?

Divulging figures needs to be avoided as it can describe the awrah that is supposed to be covered.

What about giving pictures?

Nowadays, the picture is in the other person’s possession and there is nothing you can do to control that picture once it is transferred.  

The two parties must be trustworthy and legitimately interested in pursuing marriage.It must also be a serious point in the process.

It would be interesting to know in the process are pictures allowed to be exchanged with these online websites for matrimonial services.

Be careful about the following ruling about pictures:
There are those who say that looking at pictures is not the same as looking at the person physically. The conclusion from this is that you can freely look at any pictures you want but you cannot look at the person physically. The Sheikh says that this opinion is dead wrong and needs to be avoided.

2012-04-15 Class Notes

We are still in the process of discussing the meeting with the prospective spouse and how must that meeting needs to take place; we will cover the regulation of those who are meeting.

Being alone (khalwa) with prospective spouse
One issue is being alone with the prospective spouse. The Prophet saas said in two ahadith which discuss the topic of men and women in each other’s presence.

1. A man should not be alone with a woman except within the presence of the woman’s male relatives.  Recorded by Bukhari and Muslim. Recorded by Bukhari.  The word that the Prophet saas used here refers to the masculine; so the female relatives do not meet this requirement; it would not offer the same protection as such.  some scholars say that this is sufficient; however, this female must be a mature woman, someone who in her presence, neither man or other woman would do anything.  It must be someone who they both respect so that nothing is done in her presence.

2, Another hadith recorded in Musnad Ahmed: none of you should be alone with a woman or else the shaytan will be the third amongst you.

Ibn Hajjar al Haitami has a very famous book called the major sins and staying with them.  One of those major sins is being alone with a woman that you are not related to.  He said being in private with a woman in itself is haram even if there is no fear of committing zina and even if it’s not done with lust/desires.  This is a typical opinion among the Shafi’s in particular (Ibn Hajjar was a Shafi’).

Discussion of Al Khalwa
From a shariah point of view, khalwa is haram.  What is the shariah definition of al khalwa?
Al Khalwa means for a man to be alone with a woman who he is not related to in a place where they are free from being seen by anyone.  

Interestingly in most of the definitions the Sheikh saw, it is said that khalwa is being in a place where no one can see you but do not mention people not being able to gain access to where you are (some discussion about door and locked doors).  

In our situation, this might be an important condition to add.  

Suppose for example you have to see a doctor, or a dentist, chances are the assistants may be of the opposite gender.  Even if you make sure you get a male dentist, you could be left alone with his female assistant.  you may be alone in the room where no one can see you but at any time someone can see you.  You want to avoid both situations where you can’t be seen and where no one has access to the room (the latter case being unquestionably haram).

Some scholars say that it cannot be a place which is not accessible by others and also place in which you cannot be seen by others. Some scholars define it only a place in which you cannot be seen by others.

For example, the hallway in a community center or in a marketplace, these are not considered khalwa as you can be seen in general.  there may be other haram things going on between men and women in those situations but that does not fall under the definition of khalwa.

Another exemption for our purposes: Suppose for example you are in a large masjid such as the MCA and there is a large open courtroom or a ballroom.  A sister needs to ask the Imam a question that is somewhat sensitive.  If the sister and the Imam move off to the side slightly (they can still be seen but can’t be heard), this is not considered khalwa.  If there is some need for this, it is permissible.  There is an example where one of the women of the Ansar came to the Prophet saas and they went aside so he could answer the question.

If there is a case that falls under the rule of necessity, this is also does not fall under the definition of khalwa. Such as the emergency room of a hospital.

Mixing of men and women in public and private places
If you look at the different cases of men and women mixing in public and private, the scholars have said that there are cases in which this is clearly haram, acceptable and where there are mixed opinions.

Some scholars differentiate between the woman being old or young; the sheikh believes that the strongest opinion is that the age doesn’t matter.

Haraam mixing of men and women
1. Khalwa with a prospective spouse is clearly haram, by agreement.

Permissible mixing of men and women
1. The khalwa which is permissible is that which is done due to necessity or need; eg doctor’s office, etc.
2. To be in private with female relatives that are maharam is permissible.

Difference of opinion about mixing of men and women
Those cases where there are some differences in opinion amongst the scholars:

1.  For a man to be alone with more than one woman who are not related to him.

Most scholars say that it’s permissible for a woman to be in the presence of more than one man that is not related to her.  This seems like a contradiction but this is more based on a distinction drawn from ‘urf.  Why do you think that this distinction is made?  Basically if you read what the fuqahah say, it’s based more on the ‘urf; the presence of the other men, as seen by the fuqahah, will prevent a man from doing anything improper with the woman.  This might not be the case now but this was the case during the time of these fuqahah. Shaikh mentioned an example of three high school boys in a presence of a girl, the presence of the other boys is no longer an impediment for them to not do something improper, so this is a case of urf.

if you keep in mind the maqasid of the law, the regulations are to protect both people from being in a situation where they could cause harm to each other.  

What about the case of the salaat, where one man is the Imam for a group of women who are not related to him?  Aside from being in the masjid, say in a private place like an MSA meeting where only one brother shows up.  Some scholars say that it is not allowed for this one man to be an imam for these unrelated women; this shows you how strict the scholars were to protect people from causing harm to themselves.

Again, these regulations are to protect the prospective spouses from doing something that they would not ordinarily do when in public and something that would cause harm to them.

Many scholars say that if there is another woman presence, say one man and two women, strictly speaking that does not fall under the definition of khalwa strictly speaking, even if it’s vice versa.  There is a hadith of the Prophet saas to support this; the Prophet saas said that it is not permissible for a man to visit the Prophet’s saas house unless he has one or two more men with him.  It was the culture of the Arabs at the time to allow the man into the house even if the Prophet saas is present to sit in a waiting room/lounge area.

The circumstances must be taken into consideration; who they are, what level of maturity are they, what risk of harm is there, etc.

Q: What if you are in khalwa for a few moments where no one can reach you?  eg. the case of the elevator?
A: This may be a case of necessity.  If it’s feasible to avoid being in a situation like this, like catching the next elevator, that would be better.  But this may not be a case of khalwa according to the definition.

Q: What about the case of female coworkers and you have to spend time with them under close meetings?
A: This may be unavoidable in the workplace today but should be avoided if possible.  Generally, this does not mean the doors will be locked and windows would be shuttered.  If you are in a conference room with one or two other women and the room has shades towards an open place; make sure these shades are open or leave the door partially open.  Do what you can.  You have to develop your taqwa and watch yourself very well.

Q: What about taxicabs?
A: They have a bad reputation but in general you are seen by others outside of the car.  You might be in a taxicab and can be seen but maybe what you are saying or doing in the cab is allowable.  This is not a good situation to be in and is a totally different situation that may not be khalwa.

Q: What about giving a female coworker a ride from a male perspective (or for a male coworker from a female perspective)?
A: You have the strict definition of khalwa but it is pretty darn close to it.  you are putting yourself in a situation where you could potentially do something haram.  Less people may see you and you may even be more tempted by someone you know.  In a cab, you will most likely be sitting in the back.  If you are giving a coworker a ride, he or she might hop in the front seat next to you and talk about who knows what.

Private communication (phone and medium that are not records of themselves) are a fitnah and there is some interest between two prospective spouses; the more privacy is allowed, the more temptations and disputes can result later.

Khalwa is one thing, close to khalwa is another but these both need to be avoided, particularly when people are interacting as prospective spouses.

In the case of the first hadith mentioned in this situation, the male relative must be respected and of a quality where nothing would be done in front of him.

Touching a prospective spouse
Touching each other is haram as well.  This applies before or after the proposal and acceptance.  You are not married until you are married. This includes long-distance private conversations with a fiance.

Discussion of Voice or Verbal communications
The voice of a woman is not awrah in general, according to what the sheikh believes is the strongest opinion.  However, anything that leads to lust and desire must be avoided.

If there is some need to discuss something of a serious nature, the woman and man can speak to each other but it should not be private, not necessarily because it meets the definition of khalwa but obviously if it’s private, restrictions are lost and you can end of saying something that can be denied later (as it was not witnessed).

Advice from Sh. Jamaal: Throughout the process, make sure that the wali or someone appropriate is involved. This way you can be sure to do things in the correct way according to the Shariah and you will be protecting yourself from doing something wrong.

The Proposal

Say that you met the sister and you know the qualities that you are looking for in a sister (the same goes for the brother).  Now of course some of the steps that should be taken before making a proposal.

Two very important steps to follow before making a proposal:

Steps before making proposal #1: Make shura (to consult with others)

This is a shariah concept.  The Prophet (saas) was guided to implement this concept of consulting with people concerning their matters. Two verses in the Quran

فَبِمَا رَحْمَةٍ مِّنَ اللَّهِ لِنتَ لَهُ  وَلَوْ كُنتَ فَظًّا غَلِيظَ الْقَلْبِ لَانفَضُّوا مِنْ حَوْلِكَ فَاعْفُ عَنْهُمْ وَاسْتَغْفِرْ لَهُمْ وَشَاوِرْهُمْ فِي الْأَمْرِ ۖ فَإِذَا عَزَمْتَ فَتَوَكَّلْ عَلَى اللَّهِ   ۚ إِنَّ اللَّهَ يُحِبُّ الْمُتَوَكِّلِينَ

Sahih International (3:159)
So by mercy from Allah , [O Muhammad], you were lenient with them. And if you had been rude [in speech] and harsh in heart, they would have disbanded from about you. So pardon them and ask forgiveness for them and consult them in the matter. And when you have decided, then rely upon Allah . Indeed, Allah loves those who rely [upon Him].

وَالَّذِينَ اسْتَجَابُوا لِرَبِّهِمْ وَأَقَامُوا الصَّلَاةَ وَأَمْرُهُمْ شُورَىٰ بَيْنَهُمْ وَمِمَّا رَزَقْنَاهُمْ يُنفِقُونَ

Sahih International (42:38)
And those who have responded to their lord and established prayer and whose affair is [determined by] consultation among themselves, and from what We have provided them, they spend.

It is also part of the description of the believers as a whole (that they conduct themselves by conducting shura).  The example of Fatimah bint Khuais telling the prophet saas that she was proposed to by two people and the Prophet (saas) suggested a third.

Steps before making proposal #1.1: Whom should you make shura with?

1. People of knowledge who have experience with the subject.  They might ask you what you have done so far.  They may correct you when they see that you may not have gone far enough.  

2. One of the groups to make shurah with that the scholars have advised (note that this is not necessarily based on clear ahadith) is to seek the advice of your prospective mother-in-law.  When you bring them into the project, now it’s like game theory; they have a vested interest to try to make it work. Sometimes in-laws can be obstacles in the process as they might feel left out.  This includes discussing with your parents. Now they are partially responsible for bringing about this marriage; now tjhey will work towards making the marriage successful.  This is not necessarily based on any direct text of the Qur’an or from the Sunnah. It does make a lot of sense.

3. In the process of making shura, you want to turn towards those people who are trustworthy and who you feel that they have your best interest at heart and they are sincere with what you need from them.  

What should you do if somebody asks you for advice before the proposal?
That leads to the question, both for yourself and the people you ask for advice; what are some of the defects about yourself that you are required to point out and what are recommended to be pointed out when giving advice about someone?

Advice to yourself before the proposal:
With respect to yourself, if you have (one scholar wrote in very harsh words but in an argumentative way, this was Ibn Qayyim by the way)

You have some shortcomings and you still want to get married (if you have qualities that make you incapable of fulfilling the obligations of being a husband or wife, these defects must be made clear; if this is not done, it is a type of deception or cheating.

For example, if the man or woman know they cannot have children. One of the goals behind marriage is the idea of having children.Put yourself in the other person’s shoes; if there is something that you would like to know and they did not tell you, that would be considered deception and scholars have said that is a reason to annul a marriage.

What is obligatory for you to disclose before the proposal?
Some scholars also mention things like having a bad temper or if you have some character flaws (e.g. stinginess).  These things are at the least mustahab to mention.

First and foremost, the person you are marrying is your brother or sister in Islam. You should be honest and frank about yourself.  We know that if these show up later, they will cause both parties a lot of harm.

There are things that you must be upfront about and there are things that you should be upfront about.

Another obligatory thing to let someone know about is if you have some kind of sexually transmitted disease. This will save harm from happening later.

Behavior of person giving advice
1. For those people who you ask for advice, when giving advice, one has to be honest in your description.
2. Mentioning the faults of others when being asked for the purpose of married is not considered a forbidden ghibah; at the same time, you should restrict yourself to what needs to be said and what will get the point across.
3. The intention behind doing so is sincere for the sake of both parties. There may be cases where you may be obligated to make the advice and other cases where it may be suggested for you to give advice.  
4. If you are the only one who knows about something that will harm the marriage, some scholars say that it is obligatory upon you to share that knowledge as advice as you are the only one who has that knowledge.

Steps before making proposal #2: Perform Salaatul Istikharah

After you make shura and everything looks good and you are seriously considering proposing to this person for the sake of marriage, another important step is to perform salaatul Istikharah.

The Prophet saas taught the Sahabah to pray Istikharah as he taught them a surah of the Qur’an.  They used to do it in all important matters.  In fact, in Sahih Muslim, when the Prophet saas proposed to Zainab, she did not accept until she made istikharah.  An Nawawi explains this in particular as she thought that she might be able to fulfil the rights of the Prophet saas and be a good wife for him.

So istikharah should be made before a proposal is made. The one making the proposal should pray istikharah and the one accepting should make istikharah (this includes the wali).

Q: Should you go with instinct after making istikharah?
A: There is no basis for waiting for a dream after praying istikharah.  You should do the decision that you feel good about based on your shura.  One of the signs of istikharah that the scholars refer to is the ease of the matter.  If after making istikharah, if this thing becomes difficult to achieve, this is the most obvious sign that maybe one should turn away from this decision.  

Dreaming is not part of istikharah. You can make istikharah at any time during the process. There is no waiting period for when you pray istikharah and make a decision. You can make istikharah after dhuhr and say that you will contact the wali after Asr prayers for example. There is no need to sleep on the matter. (And then some jokes about not being able to find the wali or his email bounces, as examples of things not being easy and an indication for you.)

When can you not make the proposal?

One last thing concerning the time of the proposal; it is disliked to do this while you are in a state of ihram.  The Prophet saas said that the one who is in the state of ihram should not get married and not propose.  The scholars have said that proposing while being in a state of ihram is disliked (the sheikh is not sure what their evidence is but this is what he has seen from the ulimah, even those who he did not expect such an opinion from).

What about proposing to a woman that is in her waiting period?

Does it matter what kind of id’a (waiting period)? There is idda’ after death, or after a revocable divorce, or after a irrevocable divorce? In the case of Revocable divorce, it is absolutely haram, she is still his wife. In the case of death, the proposal must be indirect.

2012-04-22 Class Notes

We will discuss some relevant hadith related to the topic of our discussion.

Hadith: Prophet warned us about marrying beautiful dangerous or harmful woman and when asked about who it was, he replied one who is raised in a impious family..... or one whose actions are similar to ......

There is no question that this is not an authentic hadith. Albaani says that it is a very weak hadith.

Another weak hadith, do not marry woman for her beauty, for it may lead them to doom, not marry for wealth, otherwise it may lead to sin, but marry for her religion. And a ... woman who is religious is better. This hadith can be found in Sunan ....

Another hadith that is quoted often, do not marry from immediate relations, for offsprings of such marriages will be weak. This hadith has no basis and there are no chains going back to the prophet. It can be attributed as a statement of Umar ibn Khattab.

Some in the West, did study of such marriages and found it to be statistically insignificant.

Suppose you happen to meet someone and they reveal some defect about themselves and that led you to abandon your proposal. Of course they mentioned to you in confidence, you should not go ahead and reveal it to others and spread it to others.

Requesting blood tests from prospective spouse

We know of genetic diseases. On this topic, there is a hadith of the Prophet, .... al arq or blood (which can be translated as heretic diseases) is transmitted to the offsprings.  However this part of the hadith is fabricated.

Prophet referred to genetics long before the science of genetics was discussed and studied. For example, somebody came to the prophet and complained about the dark complexion of his child and he was worried about whether he was indeed the child’s father. Prophet asked him about camel’s offsprings and asked him whether he has ever seen dark and light complexioned camels. And the person replied yes. Later they went and found that the mother of the child had ancestors who were dark complexioned.

Today we are worried about AIDS, hepatitis, sickle cell anaemia which are diseases transmitted by blood. Can these tests be requested or not? If they refuse to test, does that mean this is the end of conversation?

It might be determined by the place you are in. Being cautious about the diseases is not against the Shariah. From the shariah perspective, there is hadith that you should flee from the leper like you flee from a Lion. Another hadith was quoted by the shaikh.....

Wanting children that would be healthy, even before you get married, and taking the steps there is nothing wrong with it. Prophet Zacharriah (saaw) made a similar duaa. Similarly, the dua that you make is for healthy children is similar to the action. And the dua from the quran (in Surah al Furqan) about offsprings that are pleasing to the eye.

There is nothing wrong with the idea of the blood test, there is nothing wrong with it what so ever. However if there is no need to call for it, then you should avoid it. If you are concerned, then you have the right to ask for it. And if the other party is worried, then you can discuss it. And you can break off discussions if the other party to refuses to do the blood test.

Proposal - Khitba

Next step is the proposal. Proposal is referred to as khitba. And it has to be different from the marriage contract. The proposal is a non binding promise.

Proposal should differ from the Aqd of Marriage

In some Muslim countries, a proposal is actually the Aqd of marriage at that time (the offer and the acceptance). Once they do the marriage contract and they are entering college and their idea is to be together after college, they are husband and wife and they are free to know one another. They can talk and visit and travel. They can consummate the marriage. However, this practice has caused some issues, since this is a legal “limbo” since each spouse is not fulfilling the rights of the other. In case of divorce, she gets half Mahr, there is no idda for woman, etc. So such a thing is actual marriage contract, and if someone does not consummate the marriage, the man does not maintain her as so forth. This is a sound and valid marriage contract but it is not completely analagous to the Aqd of Prophet (saaw) and Aisha (ra).

Is proposal a necessary step before marriage?

In fact, there is no need for promise/engagement. One can skip this and go straight to the marriage contract. The engagement does not mean the two can be alone or touch one another. The only thing about engagement is that now no one can come and propose to this particular woman.

Some Ulema recommend proposal.. It gives you time to prepare for marriage and allows many things to work out before marriage. The problem is related to certain customs that are there with engagement, where there is a ceremony, recite Surat al Fatiha, etc. In some Arab cultures they have a party and announce the engagement and recite Surat al Fatiha to emphasize the commitment to this engagement. Of course, it has no effect on the Shariah position of it.

In many cultures there is an invitation and party and dinner. This also has no basis in Shariah. Some Ulema say that sharing good news is not problematic, however, it becomes a burden. The Shariah has made the marriage very easy and such customs put burden on top of burden for marriage. It also causes lots of social problems in regards to envy, riya, financial burden for poor. Sh. Jamaal recommends not to do it if it is violating the Maqasid of Shariah.  

Q: Some people hold a grudge if you do not invite them?
A: Shaikh commented that in reality there should be no burden at all on the girl’s family. We will talk about ahqaam of the marriage and waleema later on, we will discuss what are the obligations. Otherwise we will be adding a great burden and maybe commit sins. In some communities, the bride’s family has to pay dowry to the groom, which is totally unacceptable.

Footnote: The actual proposal, this can come from the man or the wali or the woman herself. All of these are fine in Shariah and we have example for all of these cases. Sh. Jamaal gave evidences of these quickly in the passing.

Giving gifts during the time of the Proposal

The act of giving gifts during proposal has become part of Urf, that it has made it into the books of fiqh, i.e. to give gifts at the time of proposal and during the engagement. There is something which goes back to the time of Jahilliyah but it is sanctioned and accepted in Shariah.

There are two different aspects of gift giving that we need to discuss, one is Hadiya and second is Hiba. The tricky one here is Hiba. The Hadiya means to give a gift, however Hiba means to give a gift. However, technically speaking they are both giving something without receiving something else at that moment. Scholars recommend to give gifts at time of proposal/engagement. Prophet (saaw) recommended gift giving in general and it was sunnah of Prophet (saaw) to accept gifts. Based on this Ulema recommend this to bring the hearts together.

In particular in Jahiliyyah, there was Hiba given with understanding that you will get one in return.

However, it is also considered a sunnah???? that when you receive a gift you also give back a gift in return. There are some incidences where Prophet (saaw) received and gave gifts. It is recommended to give gifts to the in-laws as well.

Status of gifts if the proposal is abandoned

The main issues during the time of engagement, gifts are exchanged and then later engagement does not work out then who do the gifts belong to, since it you exchange gifts that are expensive, such as Jewelry. Gifts like chocolate and sweets are easy to deal with since they finish in a short time. However, the jewelery is given with the understanding that the woman is going to be her wife and now the engagement is off, then what? If it is understood that the gift is part of Mahr but I am giving it to you now, then if engagement does not work out then it is to be returned. The issue is the question of if it was not given as part of the Mahr, then what should be done? Here there is a difference of opinion among Fuqaha.

Another point is that woman’s family does not accept marriage unless they receive some kind of gift then it is considered bribery and it is one of the Kabair in Islam and it is Haraam to ask for such gifts.

Discussion about engagement rings

Incidentally, one other thing which should not be there is the wearing of the ring as sign of engagement.Or a particular type of ring and giving it significance. Many scholars say that it is haraam,since it is imitation of the kufar. It does not mean that a gift of ring cannot be given at engagement or later but it should not be with the intention of the imitation and understanding of the Kuffar. It should not be considered the essential part of the engagement process.

The Christian practice of wearing the gift on the left hand is because they consider the left hand to be closer to the heart. And then the shaikh demonstrated why it was the that particular finger, they start with the left index finger and they say in the name of the father, the son and the holy ghost and the ring moves on from the index finger onwards to the eventual finger on the left hand.

Now with secularization, the lines are being blurred, however Muslim should have his own identity and try to avoid imitation. The goal of the muslim is to remain unique, to be distinct.

Abandoning a proposal

Proposal is a non binding promise, which means according to all of the madhab, any party may withdraw from the promise.
Whether a promise is legally or morally binding has been abused a lot by many of the Islamic financial schemes and you can refer to the notes of Islamic finance to learn more.

You cannot sue somebody for emotional distress. But is a person committing sin by breaking the promise, is it a morally binding? Since it is a promise, you should try to fulfill the promise unless some circumstances come up. This is not a game and treat it with disrespect, this is not proper.

Before making the proposal, you should be serious and give it proper consideration. But if you come upon some new evidence or there was some circumstance, then you can call off the proposal.

The fuqaha are in difference whether the gift can be returned or not. If it is Hadiya then one should not ask for that back. If it is hiba and you got a gift in return then you have received the gift, you do not have the right to ask for the gift back. More on this aspect next week inshaAllah.

2012-04-29 Class Notes

Gift giving during the time of the proposal
During the time of Jahiliyah there was practice of gift giving called heeba, and it is also discussed in surah al mudatheer in the first few verses, where Allah swt reminds us not to do favor on others expecting something in return. So this verse was in response to the practice of Jahiliyah.

In some Arab cultures, they have a tendency to give money at wedding. They give money in envelope, and amount is recorded so when your child gets married, you get back that amount. By Urf but by not law.

Returning gifts if the proposal is broken
The question is, if the engagement doesn’t go through, what happens to the gifts that were given. Can the person request the gift being returned. We are discussing durable gifts and not consumable gifts, such as jewelry. Even in US, there are court cases of this nature. The person wants the ring back etc. Very common here in US.

If you gave something of hiba, according to some scholars you cannot ask for it in return (meaning you received a gift in exchange). This is mostly based on a hadeeth that looks weak. All of the narrations of this nature (from Prophet, Umar, Abu Bakr or Ali) are all weak. Some are even borderline fabricated.

Hadeeth, “If someone gives a gift, he has more right to it as long as he does not get a reciprocal gift.” you can find the same kind of narration from Umar bin al-Khattab. Fuqaha differentiate b/w Hiba and Hadiyah, from the looks of it, it existed from the time of jahiliyyah but didn’t exist in Islam, according to Sheikh’s understanding.

Those who say, you cannot ask for your gift back, that idea is based on hadeeth which are much stronger. Prophet (saw) gave an example of someone giving a gift and taking it back, is like the dog that vomits and it goes back and eats its vomit.
Recorded in Sahih Bukhari. (Edit: This is not an unusual act for a dog.)

Based on this kinds of hadith, many scholars say that it is not permissible to ask the gift to be returned, if you have received it during the engagement. In general, if you give a gift, you should not seek to take it back, and it belongs to the other individual.

Can gifts be part of Mahr?
This question about giving gifts goes back to some other issue. What was the understanding of that gift? If the understanding is that the gift is part of mahr and the woman is getting it as a result of the marriage, then something of that nature should be returned but if it’s something just as hadiya, to build relationship, these gifts should be given without taking them back.

Exception to gift returns based on valid causes for breaking the proposal
Last point that scholars bring up. Suppose you have given some gifts of monetary value, and then in the process of the engagement one of the spouses changes the parameter of the marriage.

For example, they agreed on getting married, brother promises on not moving overseas and then all of a sudden, the brother says, I have changed my mind, I’m going to move back to Malaysia after I get married. Now what has happened?

Now there are good ground to break the engagement, if one of the parties has given of some value and the other party is changing things, in this case, for the one that has been kind of wronged, to ask for gifts back that are of value.

Engagement can be broken without any cause
The same is true if, we said for example, an engagement is a non-binding promise. Legally speaking. What that means, any of the two parties is allowed to break up anytime for any reason (or no reason).

Engagement is Meethaq Ghaleez and you should strive to fulfill it
The default case is they’re not going to break up unless there’s a reason to do so. Because you should take seriously before you agree to marry someone. It is Meethaq Ghaleez, very important concept. You need to be very serious about it, realize that you’re making a promise and you should do your best to fulfill it.

Expenses related to wedding arrangements are not a gift
We have gifts but now we also have expenditures. Suppose marriage is agreed upon and set for some date in the future. Many times, you rent a hall, and you have to put a deposit down on a big hall and it’s non-refundable. Expenditures parties may go through leading up to the wedding. Should the party breaking the promise be legally held responsible for the expenditure for the expenses. This is not a gift anymore. It can be a really substantial expense, let us say that it is $10,000.

Promise becomes legally binding if you take actions based on that promise, according to Maliki Madhab
Imam Malik’s position, if you tell someone for example, if you renovate the house, I’ll give you $10k. person takes the step and you say, I change my mind. The promise becomes legally binding because the person has taken steps based on the promise in the maliki school. Especially if in this case, they’ve been engaged and they keep promising and more and more expenditures take place.

They have the right to change their mind, but if expenses incurred based on promise made, and it was not a business transaction, it was more like a donation/contribution on your part then you can be held legally responsible. But there’s a condition, you have to look at who caused the engagement to be broken. The man’s family is the one spending $10k and man decides, I don’t want to get married, then he is the one who is financially responsible. The other party should not be held liable.

What’s the other possible scenario, what if the parameters change, either new info or parameters change. Then the other party cannot be held liable for expenses. Or a DEAL-BREAKER comes into play.

Among contemporary authors who discuss this issue, there are three opinions:
1. Under no circumstances, neither party can ask for covering the expenses that they have incurred. They also say that if you did not deceive or cause any harm, then you are not financially responsible.

2. Under all circumstances, you can ask for reimbursement of expenses from the party that breaks the engagement. This is based on the hadith that .... there is no harm and there is no reciprocating of harm.... daraar......  

And there is principle of shariah that even if you have the right to do something, you cannot use your rights in such a way that you can harm someone else. Meaning that you have the right to call of engagement, but because you have the right it does not mean you can harm others. Or another example, you can build one more floor to your house, but you cannot exercise it in such a way that you block the sunlight of your neighbor. So one cannot exercise one’s right in such a way that one harms others.

3. It is based on case to case. You have to see whether there was a cause to the end of the engagement, was it justified?

Moral question is separate from the legal question. In moral issues   , you would advise them to forgive and forget it and ask them to put yourself in the other party’s shoes.

Footnote: There is no such thing as “legal conditional marriage”. e.g. one cannot say that we will marry our daughter if you get the visa of US for us or you will get here this much gold etc...

So now we will move on to the topic of marriage. What is marriage in Shariah? Marriage is a contract (An Aqd). As a contract it is abiding by principles of contract in Islamic Law. A contract in Islamic Law have things which are known as Rukn (pl. Arkan) and Shart (pl. Shuroot).

Rukn = Essential Component
Shart = Condition or Pre-requisite

Same words are used for Salat (Arkan and Shuroot).

Rukn of Marriage Contract
The Rukn of Marriage Contract (essential components of the marriage contract), the Hanafi and others disagree. For Hanafi’s the two parties are a Shart and not a Rukn.

For example, the existence of the Bride for the Hanafi is something external to the contract hence it is a prerequisite (Shart). For Hanafis the Arkan of marriage contract is simply the offer and the acceptance.Anything else is outside of the contract itself. In the Hanafi school the offer and the acceptance can be from either side. Offer can be something similar to the statement “I offer to marry your daughter” and the other side has to have a statement similar to “I accept”.

For the other three madhab there are three rukn. The first rukn is the offer and acceptance just like the hanafis, the offer must be from the woman’s side and the acceptance from the man’s side. Shaikh does not know of any strong evidence for this type of requirement for the offer and acceptance.

A second rukn, is that there must be two parties to the contract. It must be the prospective husband and the guardian of the woman. For the Hanafis, this is not a rukn, but it is a shart.

A third rukn for some madhab and for others it is a shuroot, the presence of witnesses for the contract.

So these are the basic arkaan of the marriage for the Hanafis and the non-Hanafis.

Wording (Seegha) of the contract

The Hanafis and Hanbalis are very strict, it must contain the words Nakaaha or Tazawaja. For the other madhab, anything from the context that makes it clear that it is a marriage contract is sufficient, and the witnesses know that the marriage contract is taking place. They based it on the following verse of the Quran, she presents herself to the Prophet (saaw), and in a Hadith, ..... (Footnote: The hadith?? has two pronoun suffixes and it is something we don’t use in Modern Standard Arabic).

يَا أَيُّهَا النَّبِيُّ إِنَّا أَحْلَلْنَا لَكَ أَزْوَاجَكَ اللَّاتِي آتَيْتَ أُجُورَهُنَّ وَمَا مَلَكَتْ يَمِينُكَ مِمَّا أَفَاءَ اللَّهُ عَلَيْكَ وَبَنَاتِ عَمِّكَ وَبَنَاتِ عَمَّاتِكَ وَبَنَاتِ خَالِكَ وَبَنَاتِ خَالَاتِكَ اللَّاتِي هَاجَرْنَ مَعَكَ وَامْرَأَةً مُّؤْمِنَةً إِن وَهَبَتْ نَفْسَهَا لِلنَّبِيِّ إِنْ أَرَادَ النَّبِيُّ أَن يَسْتَنكِحَهَا خَالِصَةً لَّكَ مِن دُونِ الْمُؤْمِنِينَ ۗ قَدْ عَلِمْنَا مَا فَرَضْنَا عَلَيْهِمْ فِي أَزْوَاجِهِمْ وَمَا مَلَكَتْ أَيْمَانُهُمْ لِكَيْلَا يَكُونَ عَلَيْكَ حَرَجٌ ۗ وَكَانَ اللَّهُ غَفُورًا رَّحِيمًا

Sahih International
O Prophet, indeed We have made lawful to you your wives to whom you have given their due compensation and those your right hand possesses from what Allah has returned to you [of captives] and the daughters of your paternal uncles and the daughters of your paternal aunts and the daughters of your maternal uncles and the daughters of your maternal aunts who emigrated with you and a believing woman if she gives herself to the Prophet [and] if the Prophet wishes to marry her, [this is] only for you, excluding the [other] believers. We certainly know what We have made obligatory upon them concerning their wives and those their right hands possess, [but this is for you] in order that there will be upon you no discomfort. And ever is Allah Forgiving and Merciful.

Requirements for a sound contract
You have to be very explicit, precise in the contract to remove any confusions and doubts. So if you use the terms that are very clear and everyone knows the terms that you are using mean marriage, then it is sufficient and you don't have to use any specific words. This contract should be done verbally. However, if there is some need for it to be done in writing, meaning by written communication, it is okay, but it is preferable to be done verbally. You could also use sign language if the parties are deaf. (BTW: This is different from the written part which is for documentation).

According to the majority of scholars, the terms do not have to be in Arabic, even if one is able to speak Arabic. However, according to some of the Hanbali’s if you have the ability to speak the Arabic language then one has to do it this way.

You want a contract that is sahih, which is sound, legally binding contract, which meets all of the prerequisites and arkaan of the marriage contract. The opposite of sahih is baatil or a void contract, which means one of the prerequisites or the arkaan were not met properly.

For most of the schools there is only two categories of contract. The Sahih (valid) contract and the Batil (void) contract however for Hanafis there is a third category which is Fasid (defective) contract. There are shuroot for initiating the contract, and there are shuroot for the soundness of the contract. If the initiating conditions are not met then the contract is Batil according to the non-Hanafis and according to Hanafis it is Fasid. There are also shuroot for executing the marriage contract. Even after you have met those first two conditions (initiation and soundness) one has to fulfil the execution conditions as well. If not then the contract is called Mawquf (suspended) e.g. the marriage of a minor girl, the initiation and soundness of contract may be fine but execution can only take place only after girl is ready and has reached puberty.

What does it mean the marriage contract is Ghayr Lazim? It means that either party has the right to annul the marriage contract. For example, after marriage one party finds out that there is a defect which was not mentioned then this contract annulled. Since here the rights of the contracting party has not been met, then the marriage is annulled (Fasq). If one accepts the new situation that occurred then the marriage is binding again. Next time we continue to discuss this topic.   

2012-05-06 Class Notes

We were discussing the different types of shuroot (conditions) for contacts, and it is true for any contract in general and not just for marriage contract.

Shuroot for initiating a marriage contract
Parties to the contract must meet qualifications for legal capability. They must be adult and sane, and if they are not then the marriage will not be valid. The woman cannot be from the category from which she is forbidden for the man to marry. And also for the case for the man. This was mentioned as two separate shuroot, because of the condition of marrying from the people of the book does not apply for a muslim woman.

Who is considered an adult from Islamic shariah perspective?
Adulthood starts at puberty and once they are adults they are bound to follow the shariah. But they might not be completely mature in order to understand the marriage contract. Some madhab try to give an age for adulthood, Hanafi madhab say for a woman it is 15 or 16 and for a man it is ????

Most countries set a minimum age of consent. Even some shariah scholars were in favor of laying out the minimum age for marriage in order to make it easy for the people, but some scholars rejected this notion. This is subjective by culture.

A Muslim woman marrying a non-Muslim man, no matter what they did, from the perspective of the shariah, the basic requirements of the contract were not fulfilled and the marriage contract has no legal bearing whatsoever. It is not a marriage, but is haraam relationship.

Shuroot for the soundness of the marriage contract
Scholars agree upon the conditions for the soundness and they are from the basics of contract theory.

1. Offer and acceptance must be done in one sitting
The response for the offer of marriage contract must be immediate. If the groom does not respond to it in affirmative right way but wait for one week, then the contract is no longer valid and your response is not valid either. Acceptance has to be immediate to the offer. Once you leave the sitting, then the offer is no longer valid.

2. Acceptance must correspond to what is being offered
For example, when I say is that “I offer my daughter A” and you say that “I accept your daughter B”, then this is not a valid contract. Similar to the amount of Mahr mentioned in the contract,  “..I offer my daughter with Mahr of $5000” and you say “I accept it with Mahr of $2000...”.  

3. Once the offer is accepted, the offerer cannot rescind the offer
You cannot take back the contract once you offer it.

4. Marriage contract must be a done deal at that time.
You cannot say I will marry in one month or if it rains tomorrow.

Question: Suppose I get married to a girl overseas and we wait for consummation until after she gets visa to come to the US. There might be some uncertainty that she won’t get a visa.
Answer: Consummation of the marriage could be much later. As long as they did aqd, then it is an aqd. You cannot lie and say that you are married, you are either married or not. Once you are married and if the bride is unable to cohabitate with you in the US, then it is still a marriage. It is still an aqd.

Adding stipulations or pre-nuptials to the contract
These usually come from the woman’s side. Why is this so? Because the man is the head of the household, but what he concludes is what happens.
There are times when a man can stipulate, for example, he might say that the woman cannot ask to work after she gets married.

Suppose a woman asks for a stipulation that the man is not allowed to marry any other woman. Some people claim that you are making something that was halaal into haraam. There is a problem with this logic, what is it? Because any time you enter into a contract, you are going to restrict your behaviour from what was permissible.  Example in a lease contract, you can say that there cannot be more than four people living in the household. There is no shariah restriction on how many people can live in a household, and yet this stipulation is valid. So this argument of making halaal, haraam is not a valid argument.

There are some stipulations directly built into the contract. You don’t have to spell those out, such as the maintenance of the woman, fulfilling of the sexual desires etc.
Some of the stipulations are based on urf or custom. In the western culture, it is understood that that man and woman would live separate from their in-laws. If this is the understood practice of the community, then it has the same status as it was written into the contract. If there are known customs/practices that are known throughout the society, then they are respected by Shariah.

There are some conditions to the urf stipulations:
Laid down by one of the two parties and accepted by both the parties

1. The urf cannot contradict the Shariah.
For example,  the custom of the dowry being given by the woman in certain custom is not acceptable. Another example is if it is known that the woman will have to be without hijab in front of the male members of the in-laws and it is known then it is not acceptable as well the custom should not go against the shariah.

2. The Urf applies as understood at the time of the Aqd: For example, if it was custom 20 years ago to live with the in-laws and now it is not, then the woman who married 20 years ago cannot demand it as her right to move out of the house of in-laws.

These stipulations must be understood prior to the offer and acceptance or at the time of the offer and acceptance. You cannot have the stipulations after the marriage contract.

It is important for Muslims to live up to and fulfill those conditions.

Hadith: Prophet said that the conditions that you have to fulfill are the sexual relationship of your wife. So this includes the maintenance of the woman. And we will come back to this hadith later. Allah swt describes the true believer as one who fulfills their covenant when they make it.

Hadith: Prophet said that the muslim should act according to the stipulations that they have agreed to.

Different opinions about stipulations of marriage contract
The idea of making stipulations or making some additional requirements is debated among scholars. Some say that anything that you add to it will be considered void, so the contract itself is valid, but those additional conditions to the contract are void. This is the opinion of majority of hanafis, shafees and the malikis. This is also reported as the opinion of Ali (ra), Ibn Mundhar, and lots of other people.

There is opinion among Malikis that it is mustahab but not required.

Evidences for the different opinions about stipulations
Those who say that these conditions should be upheld is Umar (ra, ) Saad ibn abi waqqas(RA), Omar ibn Abdul Aziz and is also one of the opinion amongst the Malikis (at least one narration in Sahih Bukhari), and  Al Auzai. The problem here is that from Umar (ra) we have two authentic narrations in which one approves of fulfillment of such conditions and on the other he did not approve the fullfilment of such conditions. So both sides of this question have their evidence:

Evidence of those who say that such conditions are not binding or valid:
One evidence is story related to Aisha (ra) where a slave girl known as Bareera. Aisha (ra) was going to buy that girl and set her free. The selling party put the condition, that we will sell her if the Wala belongs to us (which is relationship of special bond which includes the inheritance relationship with the slave). When she (ra) mentioned to Prophet (saaw) told her to go and buy her and free her for the Wala is for the one who sets the slave free. Then Prophet (saaw) gave a public speech which basically admonished people for laying down a condition which is not in the book of Allah (swt). He basically said that even if 100 such conditions were written, then they are all void.

“What is with people that they lay conditions that is not in the book of allah,then those conditions are not for them even if they lay down a hundred conditions”
(Saheeh Bukhari)

Their argument is that the stipulations are not part of the contract, even if they laid down a hundred conditions.

They also quote a hadith that says, Muslims must abide by their conditions, except those that make something permissible haraam.  ....  This is a weak hadith, except for the first part of the hadith which says that Muslims must abide by their contracts.

The first evidence of Aisha (ra) that as long as the pre-nuptial contract does not contradict the stipulations of Quran and Sunnah then it may be fine. This is a Shariah rule that Wala belongs to the one who frees the slave, so if something does not contradict a Shariah rule then it may be fine.

Evidence of those who say that such conditions are binding:

This side will use the case of Aisha (ra) to infer that stipulations which do not contradict the Shariah.

The strongest opinion is that such stipulations is allowed, because things are permissible in contract unless there is ruling that they are not permissible.

Hanbali position: Hanbilis are the most permissible in allowing

Some of the Shafiee position: Shafiee are against it on the other side of the Hanbali position and restrict (while not forbidding) such stipulations heavily.

Hanafi position: According to Abu Hanifa and Hanafis in general, these stipulations or additions are void, but the contract is valid, unless the condition is against the nature of the contract.

Some other Shafiee and the Maliki position: It is permissible to have such conditions and one may fulfill them.

Misusing your madhab to deceive the other party is egregious
If you know that those conditions are not valid and because of your madhab you are not going to honor them, yet agree to the stipulations and the contract, then you are deceiving the other party. You should clearly state that you have no intention of upholding the contract. Once you agree to the stipulations, then you have to abide by them.

Footnote: How many of you are familiar with masyar of marriages? We will discuss it later

What happens when one of the parties breaks the stipulations of the contract? What is the legal effect of these stipulations?

If the condition is violated, it does not mean that the marriage has ended, but it gives legal cause for the other party to end the marriage.

These conditions are in the interest of the party, then if you violate them, then you are violating the rights of the party. And now the party whose rights have been violated, agrees without any force, that they agree to the violation, then the injured party gives up their right.

Contracts not allowed in Islam:

Nikaah al Shigaar: One such condition is nikaah al Shigaar, where the woman is not going to receive a mahr, because two walis have agreed to exchanging two of their daughters. Here the wali are violating the rights of their daughters. And this type of contract is haraam and it is as if this contract did not occur. This contract is void (as if it did not occur). It is allowed if the Mahr is arranged properly and Mahr goes to the woman.

Nikaah al Mutah: Nikaah al Mutah is  where the contract is agreed upon for some time only. According to the sunni scholars say that this contract is haraam, it does not matter how long is the contract.

Nikaah al Tahlil: Nikaah al Tahlil is also a haraam contract. Suppose man has irrevocable divorce and he can no longer marry her until she has divorced again. And if the woman marries (fake marriage) another man and divorces in order to get back to her previous husband, then this contract is haraam i.e the fake marriage is Nikaah al tahlil and is haraam.

If man says that I accept your woman if the stock price goes up tomorrow. This contract is not valid, because the offer and acceptance has to be immediate as discussed earlier.

Marriage on the condition that the man will divorce his other existing wives is also an invalid contract. There is a hadith of the prophet that clearly states such a contract is invalid where the woman will ask for other women to be divorced. We will continue next week inshaAllah from here.

2012-05-13 Class Notes

We will discuss some aspects of marriage contracts. When you add any kind of clauses or conditions, they can be either sound stipulations or they can be faasid or improper or voided stipulations.

When you have sound stipulations, the contract is sound. When you have faasid stipulations, there are two ramifications, the contract still remains sound but the stipulation is void. For example, when you lease a car, you might have some stipulations that are faasid, the lease contract is valid, but you cannot try to benefit from the faasid stipulation.

However there might be some faasid stipulations that void the entire contract, since it goes against the nature of the entire contract. For example, if I sell you something and say that when you die, I will get it back.  This voids the entire contract of selling an item.

There are rights of Allah and rights of human beings. Rights of Allah swt are built into the nature of the contracts that human beings cannot touch. But the rights of human beings in the contract are free for human beings to adjust, such as the price of an item, or the amount of mahar.

There are future rights, or rights that come into existence in the future, and you cannot drop those rights until they come into existence, and if you give up your claim to it once it comes into existence, you cannot try to recover the rights if you give them up.

Conditional contracts are void because the offer and acceptance has to be void. But because it is so common, such as waiting for visa, shaikh double checked it and found out that some scholars say that both the conditions and contract is void, but in Hanbali school you can find two opinions, they say that contract is sound but the stipulation is void. Shaikh finds this opinion to be not very practical. Another opinion is that both are void.

Example of valid conditional contract according to some Hanbalis
If a man says that I will marry my daughter to you, if her mother agrees. Hanbalis say that if the mother is present when you made this offer, then this type of conditional contract is okay. But if she is not present, then both the condition and the contract are void.

Example of invalid condition, voiding the entire marriage contract
Marrying someone on the condition that the man is going to divorce his existing wives, this is a faasid stipulation. We have a hadith of the prophet that states that you cannot ask for your sister in Islam to be divorced.

Does this stipulation have an effect on the essence of this contract, although it is is sinful? The question we are trying to answer is that does the contract itself become void because of this stipulation.

If you have a clause in your contract and if it violates a law, then the contract does not become void, but if the contract was of importance to the basic nature of the contract, then the clause makes the entire contract void.

The Hanafis, Shafi'is and Hanbalis say that the contract is valid in the above case, but the stipulation is void. Among the Shafi'is there is an opinion that states that this contract itself is void.

Malakis if this marriage takes place and if this condition is spotted before consummation then the marriage is annulled however if it is recognized afterwards then the marriage continues but that condition is void.

The strongest opinions is that both the aqd and stipulation are void for the above case.

Invalid pre-nuptial agreement stipulations
Many times Muslim men make a stipulation in their prenuptial agreement with their non Muslim spouses, that they should raise their children as Muslim. You cannot make such a stipulation, because you cannot restrict what has not yet occurred. This stipulation is void according to state laws, such as California. So even if you make this stipulation, this would void in the state of California.

Zawaaj al Misyyar (Nikah Misyar)#
This practice has started in Eastern Saudi Arabia and now it has spread to central Najd. Many of the ulema don’t have a problem with it. Shaikh is surprised.

Some scholars say that it is permissible but it is disliked. Opinion of Yusuf al Qardawi, Wahba al Suhaili, Saud al Sharaim, Abdullah ibn Munir. They say it meets all of the requirements of the marriage contract but they do not like it.

Some scholars say that it is permissible and do not voice any opinion. This is the opinion of Nauman al Sumari, bin Baaz, ibn Uthaymeen, etc.

Some scholars say that it is haraam, this is opinion of Albaani, Umar al Ashqar and also Sh Jamaal Zarabozo. Shaikh seems mystified, especially how it is described, and cannot even fathom how it can become permissible.

This has to do with a certain cultural situation in certain parts of the Muslim world, since it is very difficult for divorced, widowed women to get married, have career, age of 25-30 or orphans. Opportunity for them to have a husband, the woman gives up all of her rights to maintenance, equitable visiting to her parents, the husband can visit here anytime, at her parents, hotel, can have relations and take her back. Sometimes he keeps it hidden from his 1st wife. The sisters end up looking like prostitutes. as well as no distribution time. However, in this kind of marriage, there is a mahr, witnesses and a wali.

In fatwa, the only argument was given that the women were happy so it is a good thing according to fatwa. Given the husband is not even required to see his wife regularly, then how often will he see the children. We discussed it last quarter, that the maqaasid of marriage which are love mercy, stable household. What is surprising, that these ulema criticize families in the west at the same time they consider this halal. The advantages mentioned are that she doesn’t have to commit zina? Is this a benefit. From a contract point of view it is not correct, giving up these rights afterwards is different, but not from the get go. This is the Right of Allah.

The way shaikh described it, it was like a hook-up, man conveniently has sexual relationships when he desires, without fulfilling any other of his roles as a husband, since the woman gives up all of her rights.

Is Mahr essential to the nature of marriage?
None of the Ulema say that absence of Mahr is valid contract or valid condition. Mahr has to be there however, after the marriage it is wife’s right and she can give up on her own free will.

The same applies to maintenance. The woman can give up the right after the contract.
Sahih International [An-Nisa 4:34]
Men are in charge of women by [right of] what Allah has given one over the other and what they spend [for maintenance] from their wealth. So righteous women are devoutly obedient, guarding in [the husband's] absence what Allah would have them guard. But those [wives] from whom you fear arrogance - [first] advise them; [then if they persist], forsake them in bed; and [finally], strike them. But if they obey you [once more], seek no means against them. Indeed, Allah is ever Exalted and Grand.

Can husband put condition in the contract that wife cannot visit her family? No, it is obligation for woman to keep ties with her family. Does the answer change if husband feels her family has bad influence on her? No, husband can advise her. What if the family has enmity to Islam which has no positive signs of changing? He can still advise her only.

What if the woman stipulates that the divorce be in her hands? Is this a valid condition?

This condition is not valid, since the legislation of divorce is one of rights of Allah (swt).

According to the Hanafis and Shafiees this stipulation is invalid but the contract is valid. And the Malakis state that if spotted before consummation of the marriage, the marriage is annulled, otherwise it continues, but the condition is void. Some among the Hanbalis say that the aqd is sahih and the condition is sahih also. When it comes to contract, the most flexible madhab is the Hanbalis. The strongest opinion is that this is the right of Allah swt and it has been bestowed on the men.

Footnote: A Shaikh in England said when talking to the men, that if the right of divorce was given to women, you would all be divorced.

Condition to keep the marriage secret
We will discuss this later since there have been cases of this nature in the US.

Conditions for the soundness of the marriage contract

#1: Woman must be permissible for the man
Some scholars would put it in the arqaan of the marriage contract, but irrespective of whether it is arkaan of marriage contract or it is a condition for soundess, it results in the same.

#2: The offer and acceptance must be of the permanent nature and cannot be construed in any way to be temporary.
According to Ahl us Sunnah it voids the contract completely if there is any time limit added.
When somebody gets married with the intention of getting divorced, such as a visiting student who intends to get married while he is studying in the US and intends to divorce when his studies are over. We will discuss this case later.

#3: The condition of witnesses to the contract.
Are witnesses required for marriage contract? There are four different opinions
1. Marriage must be announced (no requirement for witnesses)
Suppose man marries his daughter to someone, and then announce it publicly, even though they were not there during the offer and acceptance. According to Imam Malik, Dhahiris and one narration from Imam Ahmed, it is sufficient, even though there were no witness for the marriage contract.
2. There must be two witnesses, regardless whether the contract is publicly announced or not. View of Abu Hanifa, Shafiees, and statement of Imam Malik. Also mentioned by Umar ibn Khattab, Said ibn Jubayr, and a number of others.
3. Both witnesses and a public announcement is necessary. This is the opinion of Imam Ahmad.
4. Either witnesses or a public announcement is necessary. One must have one of the two. This is another statement of Imam Ahmad.

There is a hadith that says there is no marriage except with a guardian and two just witnesses. It seems that it is authentic according to al Albaani. However, ibn Taymiyah s was of opinion that an announcement of marriage is sufficient and there is no need for witnesses. Sh Jamaal mentions that if ibn Taymiyyah were not to know that this is a sahih hadith and this is a sahih hadith, then he would have mentioned that two witnesses are required for a marriage contract.

Now we have to discuss the qualities of the witnesses. What qualities should they have? What is it that they have to witness to? Can the two witnesses be women? Do the witnesses have to be muslims? Can you just pick any two random individuals to be witnesses to your marriage contract? We will discuss it next time.

2012-05-20 Class Notes

One final point about jawaziz al misyaar, some of the scholars who are approving it, are seeing it as a solution for divorced women or widowed women or older women. The solution is to remove these poor attitude of treatment of older unmarried women or divorced women, that has appeared over the centuries, we should try to remove these rather than sanction something that is not allowed by the shariah.

In general shariah, everything is halaal unless it is proven haraam. But in the case of marriage, everything should be considered haraam until it is proven halaal. So if you have doubt, you have to treat it as haraam.

During the time of Imam Ahmad, there was a practice called daytime marriage, where you approach your wife only during the daytime. And Imam Ahmad was asked whether this practice is permissible. And he responded in a rhetoric manner, whether it is even Islamic.

Jawaziz al Misyaar would not be sanctioned by majority of the madhab, except the Hanbali madhab and some contemporary scholars. You cannot force a woman to give up her rights, and it is enforced in the contract, she has no recourse.

From a disputed hadith, but it is authentic, which says there is no marriage except with two witnesses and a guardian. In addition to the two witnesses, the contract should be made in public. The bear minimum is two witnesses, but it is safest is to have two witnesses and it should be public.

Four opinions:
1. announced and made public regardless whether the marriage contract is witnessed
2.  witness regardless of the  public announcement
3.  witness + public announcement
4. Either one of the above
We have it above in the previous class notes.... Br Junaid

Imam Ahmad said that if the two witnesses are told to keep the marriage secret, then it is haraam. He says that the marriage would be baatil or false, and it is voided. In this country, it happens a lot, maybe because it is a second marriage or they want to keep it hidden from their families back home, but this is haraam.

The idea of the walima shows that the contract should be made public. We will discuss walima later on.

What is it that the witnesses are witnessing?
They should be witnesses to the offer and acceptance. Do they have to be witness to the mahar? No they do not have to be witness, except if it is part of the marriage contract, but it is better if they are a witness to it.

The Mahr is right the wife in Islam but it is not necessary to have it mentioned in the marriage contract. The witnesses have to see the offer and the acceptance. They have to recognize and identify the two parties in the future, so the witnesses have to see both parties. So they have to see the face of the woman, for in this case due to greater maqsad of Shareeah this is allowed. The witnesses have to see that the woman is also approving of the marriage.

Some say that the witness should be from uncles or family members, while some say that it is haraam for them to be your uncles? The reason why the say it is not allowed, because of reasons of dispute. Whereas the people who say it is from family, say it is better, because they know the boy or the girl properly.

Difference between something that is wholesome and something that is forbidden (zina) is nikah, so the responsibility of the witness is very grave. You cannot just grab somebody in the Islamic Center and say become a witness to my marriage contract, we are in rush to leave and please witness this marriage contract? How can you agree to be a witness when you don’t truly know the parties. These witnesses need to take their responsibility seriously.

You can have more than two witnesses. Everybody in the room can be a witness. You don’t necessarily have to say these witnesses are from the girls side or the boys side. For the purpose of the recording the contract, it can be done whenever. What is important is that you have to witness the offer and acceptance and be able to identify the two parties properly. A witness has to be able to look and identify the parties later.

Burden is not on the witness, but it should be on the Islamic Center, and they should make sure that the contract is done in the proper way. Suppose you have a problem later on, and one of the party denies that they were ever married. It is difficult to go and find the witnesses later on, since people move so much.

Being a witness is a responsibility on your shoulders, and if you feel that you will have difficulty recognizing the party, then you should not become a witness. Witness has to be Adl (a righteous) person and with ability to retain what he has witnessed. That is why in business the witness of two women is equal to one man, since men in general are good in witnessing the business deals and in case of women if one woman forgets the other reminds her.

We will discuss later on what are the deal breakers to the marriage contract.

Requirements for the witnesses
According to the three madhabs, the witnesses have to be muslim. There is evidence for all of it and then between different schools counter arguments but we do not have to go through that for this class. Abu Hanifa and Abu Yusuf say that the witnesses can be non Muslims living under Islamic law, but this is a minority opinion.

The witnesses should be men. According to Abu Hanifa, it is permissible for one man and two women to witnesses the contract, by analogy to the business contract witnesses. The vast majority of scholars do not accept that analogy. BTW, the hanafi do not allow 4 women as witnesses either (it has to be one man and two women).
Shk JZ: There might be some strength to this opinion/analogy though this is not a majority opinion.
They don’t allow four women to be witnesses.

Witnesses should be adl, people of integrity and righteousness. If the witnesses are evil doers, according to Imam Shafiee this marriage does not take place. If you have a witness that is willing to lie, then it defeats the purpose of a witness.

Let say we have three kind of people: You have person who is adl, and you have person who is known as faasiq. But majority of the people are mastur al haal, outwardly they are muslims but we don’t really know them. We consider them to be good unless something is known about them. So we treat them as good witnesses unless we know something about them. Which is different in the topic of narrating hadith, where we have to know the narrators.

Due to the large amount of interruptions and questions asked, shaikh skipped his notes and now is moving on to the next topic.

Consent of the parties
We are discussing the soundness of the marriage contract, and the next topic is the consent of the two parties. We really have three parties, the groom, the wali of the woman, and the woman.

The consent of the man is clearly seen is by his acceptance of the offer. So that is not the issue. The major question is whether the wali can marry off his ward, without getting her consent. The first wali is the father, and he is supposed to have the best interests of his daughter.

Is it permissible for wali to get his ward married without her consent?
We will discuss two cases. A woman who is non-virgin, one who has been married before and the woman that is virgin. The Prophet (saaw) distinguished between them in a hadith. He said that the non-virgin woman should not be married until she requests it, and the virgin should not be married without her consent.

In those days, the women were very shy. So her silence would be her consent, and if she had problem with it, then she would speak up.

Suppose you willingly agreed to buy a malfunctioning car, you knew about it and willfully bought it. You cannot go later and say that you were coerced into buying such a car.

If the woman is not willing to get married, and her family insists that you should marry. And she finally says that I agree to it. Is this coercion or is that just her changing her mind? Remember this is a legal issue. Once she consents to the contract, you cannot go and undo it later, saying that she was coerced. Your consent should be a sign of your approval in the legal sense. If this was not done so, then every legal system will run into lots of trouble, since someone can always come and say that such and such person talked me into it and coerced me into marriage through talking. Each person should know that the statements and actions have lots of ramifications in the legal world.

An authentic hadith from Ibn Abbas (ra) that a girl came to Prophet (saaw) that she was not married by her consent by her father and she disliked the marriage, so the Prophet (saaw) gave her the right to keep the marriage or finish it.

There is some dispute that in some madhab the wali can marry off a girl without her consent. Ibn Taymiyyah and ibn Uthaiymeen have written extensively against it. The hadith above is evidence enough that it is not allowed to marry her off without consent.

The two parties need to be identified and one of the two parties cannot be in state of Ihraam. Neither of the contracting parties may be on their death-bed, since it can be for purposes of harming the rightful heirs.

On the question of the Wali of the woman, there are 7 different opinions on this. They can be broken down to 3 basic opinions

1) The presence of the wali and his approval is condition of the soundness of the marriage contract under all circumstances.  
2) The presence of the wali and his approval is not a condition of the soundness of the marriage /or under no circustances is that a condition of marriage
3) Some of the madhab distinguish between whether the Wali is required depends on the quality of the woman herself. For example, the non-virgin previously married woman is different from the case of a virgin not previously married woman and may not need a wali.

All scholars agree that it is more becoming and for the honor of the woman that Wali be there for the task.  We will discuss the requirement of the wali for the soundness of the marriage in the next class.

2012-05-27 Class Notes

This is the last class for this quarter.

Q: Many students nowadays rely on student loans, would it be acceptable for a parent to inquire whether the other party has other debts when discussing a proposal?

The majority opinion is that wali is required under all circumstances, this is the opinion of maliki, hambalis, shafiee and ...  and a number of early and later scholars. This is based on the hadith, that there is no marriage except with a wali.

The main outlier on this opinion are the Hanafis. There is no doubt that this hadith is authentic, but the Hanafis try to make an argument that it is weak. Sh is upset that they rely on much weaker hadith for their rulings, and now they are picking and choosing the evidence and rejecting this hadith. They have many other opinions that are much weaker. So they are trying to justify their madhab which goes against the ruling of the hadith.

When they are forced to accept this hadith, they make an argument that there is no perfect marriage without a wali. Here they are making taawil, since they are saying that there is another meaning of the hadith that is different than the apparent meaning of the hadith.

Some more evidence for requiring a wali.

There is another hadith that says ... fornicator marries a fornicator, ....

Al Albaani describes it as sahih, and some say that it is a statement of Abu Hurairah and not a statement of the prophet.

Surah Baqarah verse 221, Allah swt ..... do not prevent them from marrying their previous husbands.... And most scholars say that this statement is directed towards a wali, to show that a wali is required for a marriage contract.

وَلَا تَنكِحُوا الْمُشْرِكَاتِ حَتَّىٰ يُؤْمِنَّ ۚ وَلَأَمَةٌ مُّؤْمِنَةٌ خَيْرٌ مِّن مُّشْرِكَةٍ وَلَوْ أَعْجَبَتْكُمْ ۗ وَلَا تُنكِحُوا الْمُشْرِكِينَ حَتَّىٰ يُؤْمِنُوا ۚ وَلَعَبْدٌ مُّؤْمِنٌ خَيْرٌ مِّن مُّشْرِكٍ وَلَوْ أَعْجَبَكُمْ ۗ أُولَٰئِكَ يَدْعُونَ إِلَى النَّارِ ۖ وَاللَّهُ يَدْعُو إِلَى الْجَنَّةِ وَالْمَغْفِرَةِ بِإِذْنِهِ ۖ وَيُبَيِّنُ آيَاتِهِ لِلنَّاسِ لَعَلَّهُمْ يَتَذَكَّرُونَ

Sahih International (2:221)
And do not marry polytheistic women until they believe. And a believing slave woman is better than a polytheist, even though she might please you. And do not marry polytheistic men [to your women] until they believe. And a believing slave is better than a polytheist, even though he might please you. Those invite [you] to the Fire, but Allah invites to Paradise and to forgiveness, by His permission. And He makes clear His verses to the people that perhaps they may remember.

Ayesha was the wali of her niece in absence of her brother. And Hanafis use this hadith as evidence that a woman can be a wali. But this hadith is incorrectly understood, Ayesha made preparations for the wedding, but her brother was present as a wali during the aqd, she did not act as a wali during the aqd.

Even among the hanafis they accept the idea that .... a wali can ....

Role of the wali

The root word implies love and closeness. In general the wali for a woman would be her father or a grandfather. In their absence it would be somebody else, and we will discuss it later. A wali has to act in the best interests of his guardian. It is an obligation to act in her best interests, he should not act in a way that makes him look the best, he should not act on his best interests.

He is not out there to look for a husband for his daughter who will make wali look the best. Unfortunately the cultural aspects has brought forth situations where wali acts under pressure of culture rather than the interest of his daughter. The wali are as much concerned about themselves as they are for the woman.

If you have a proposal from a man who is qualified and is of sound character and the woman is interested then he should try to facilitate this marriage. In fact a wali should take an active role in finding a person who would be good for his daughter, we had Umar (ra) who actively looked out for a husband for his daughter. Actually there is hadith of Prophet (saaw) which says that you should marry off your daughter to men of deen and khuluq otherwise there will be tribulation and mischief on this earth. Allah swt tells us in the Quran, a wali should look out and find a husband for his daughter.

Wali should take into consideration the needs of his daughter. Nowadays a walis are causing harm to their daughters in many Muslim and non Muslim countries. You find that the father is refusing to get his daughter married, the daughter is willing, but he is not taking steps to get his daughter married. There is no other avenue for a daughter, she cannot go out and seek a husband on her own, so it is incumbent upon the father to seek a husband. And if he does not do so, then he is committing a grave sin, and there is ijmaa that this is from a kabaair sin. It is a different situation if one cannot find someone qualified but otherwise one should not delay marriage.

Moreover some fathers who refuse a proposal, this is also a sin, when it is not based on the welfare of his daughter. If a father makes conditions, that the boy should earn a certain amount of money or if he is a doctor or an engineer, he refuses the proposal, even if the daughter is willing. If you have a proposal from a person who is of sound character and making enough money, and if the girl is willing, then the wali does not have the right to reject the proposal.

Removing a wali who is performing dhulm to his daughter

If the wali does this, then there are steps that can be taken in order to replace this wali.

Children want to please their parents, they do not want to do anything that would harm them. And the parents should not perform dhulm on their children. Even though it is the father who is the wali, but if he defers to his wife, who refuses proposals not based on the welfare or interest of the daughter, then it is the mother who is committing the sin.

A woman cannot remove the wali, in an Islamic country, she could petition the state to remove the wali. So it is the state that can remove the wali, a daughter cannot remove the wali by herself. There were cases in England, where the MSAs would act and remove the wali on behalf of the girl. Here our situation is that we can take it to the imam of the community or the mosque and discuss the situation with the imam.

Hypothetical example
In 1950s or 1960s, there were some states in the US, where it was illegal for a white woman to marry a black man, or vice versa. There were laws in the states against mixed race marriages. After the civil rights movement the laws were removed, but the culture had not accepted it. So a white girl wants to marry a black man. The father says “no” since he is racist, then father’s position is not acceptable. However, if there is issue in marriage where father believes that his daughter is not going to be happy or her life is going to be in jeopardy. Then this is justified reason.

So the imam of the mosque has to look for reasons of fathers rejection. If it is a genuine Shariah acceptable reason then imam has to uphold the father’s decision. If it is the custom which is not sanctioned directly in Quran and Sunnah while at the same time causing Dhulm, then this custom cannot be accepted or sanctioned.

Who becomes the Wali: One opinion is that the authority of the state becomes the Wali. Other opinion is that Grandfather or brother becomes the Wali. However, problem with the second opinion is that Grandfather or brother may be of the same opinion.

The Prophet (saaw) said that there are three issues whether they are done jokingly or seriously, they will be considered done seriously, they are nikaah, divorce and raja (i.e. return after first or second divorce).

So here the intention of the action does not matter, nor that you were doing it in jest, it will be considered as done seriously.

This concludes the conditions for the soundness of the marriage contract.

Conditions for sound execution of the marriage contract

1. Both the bride and groom must be legally of age for marriage.
2. They must be both rightly guided (Rushd).
3. Before the execution of marriage the father has to approve of it.

Conditions for the marriage contract to be binding

If these conditions are met, neither party can annul the contract.

1. Husband is socially compatible and acceptable. If they find out that man is not socially compatible then girl has to accept the marriage otherwise it can get annulled.

2. No defect in either spouse. After the marriage contract, if you find that either party is unable to perform the sexual acts. Or if either party finds out that they were told that they are marrying a virgin, but after the marriage contract, they find out that the party is not virgin.

What happens when some of the conditions for the marriage contract are not met?

1. If the contract fails to meet the arqaan of the marriage contract, such as the offer and acceptance is not valid, then the marriage is void.

2. If the contract fails to meet the initiation, for example if they are not allowed to marry each other, then that marriage contract is void or baatil.

3. If the contract fails to meet the soundness of the marriage contract, then for the hanafis the marriage contract is faasid and not baaitl, while for other schools it is batil. For hanafis what it means is that girl may get the mahr and children are legal and the faasid part can be fixed later.

4. If contract fails to meet the execution of the marriage contract, then the hanafis and ... consider it to be a suspended contract.

5. If the contract fails to meet the conditions for the contract to be binding, then the ....

6.  ...... this we will cover in the next quarter.

Final Exam

The two issues that we will discuss are the civil marriages and marriages with the intention of divorce (visiting students get married in the US with the intention of divorcing because they fear that they will fall into sin while they are temporarily visiting a place and have no intention of remaining married to the same individual after finishing their education).

Civil marriages do not require a wali for a marriage contract. So if the two parties get married in a civil court without a wali, is this a valid marriage contract? Even if you bring wali along, he does not play a role, he has no meaning in this context. Even if the wali is present, he is not involved in the marriage contract.

Civil marriages also provide witnesses for it, is there an issue there? Do they have to be muslims?

So definitely there is an issue with civil marriages. But some people go for a civil marriage in order to provide a legal justification. If you have no proof of marriage, then it might be a problem in cases involving hospitals, care providers, etc.

Is the marriage contract with the intention of divorce valid?
How can somebody know what is in a person’s heart? This is a big problem. This is a case of deception.

There can be three possible conclusions,
#1 Marriage contract is valid and person has not committed a sin
#2 Marriage contract is valid and person has committed a sin
#3 Marriage contract is not valid

This happened in earlier times, when a trader travelled to distant places. Some scholars said that the person can get married during his travels. Some scholars said that he might have this intention in his mind, and he might change his mind, if the woman become very pleasing to him etc.

If he declares ahead of time, then this contract is not valid.

The well established opinion in the Hanbali madhab is that it is sinful and it is like that he has intention of zawj al muttaa.

He is deceiving and causing harm to the Muslim woman, because if the woman was a virgin and then divorces her, he has destroyed her, because it might be difficult for her to get married again.

You have to ask the question would you like it, if somebody did this to your sister or your daughter, then it is a sign that there is something wrong with it.  And you should not do it.

The problem is the legal ruling of this type of contract. You cannot really make a ruling since he might not express his intention which is in his heart.

A lot of people put their individual desires above the rest. How many people park in neighbor’s yards when they come for Friday prayers. So these kind of people do exist.