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Welcome to the Ask Zahra advice column!  Sister Zahra is ready and willing to answer your questions about Islam.  Her answers are based on years of studying Islamic scholarship and culture throughout the Muslim world.  Zahra welcomes your questions, and looks forward to providing balanced and credible access to information on the many issues that are important to Muslim women.

Ask Zahra

Do you have questions about Islam or Islamic law?

Is it Islamically permissible for a woman to receive a pension or alimony from her ex-husband upon divorce? And is it permissible for her to take a share of the marital wealth/property especially if the woman did not have a job outside the house during the marital life while her husband worked?

Divorce is a last resort in Islam for couples who cannot live in kindness: “A divorce is only permissible twice: after that, the parties should either hold together on equitable terms, or separate with kindness.” 2: 229.

 

Marriage is a solemn covenant in Islam and is supposed to last. It is however permissible for couples who can no longer live with each other in harmony to resort to divorce. There are different forms of divorce with different legal and financial consequences, which also vary from one school of legal thought to the other and from Sunni to Shi’i traditions. While it is very important to keep in mind that both the husband and the wife have the right to initiate divorce through different procedures, we will only focus on the divorce initiated by the husband through no fault of the wife’s own, which appears to be the case in the question and is also very common within Muslim communities.

 

When it comes to women’s financial rights upon divorce, Muslim scholars agreed on a few points and disagreed on others. The first subject of unanimous agreement among them is that once the marriage is consummated[1], women are entitled to their deferred mahr, mu’akhar, which is the part of mahr that the husband chooses, with his prospective wife’s consent, not pay immediately upon the contraction of marriage. Hence, deferred mahr is automatically granted to divorced women in all Muslim countries’ family courts. Second, women’s property is not divided upon divorce and is not part of the assets that could be part of litigation. Whatever a woman owns, earns or is given as a gift before and during the course of marriage remains her sole property when the marriage ends:

 

“But if you want to replace one wife with another and you have given one of them a great amount [in gifts], do not take [back] from it anything. Would you take it in injustice and manifest sin? And how could you take it while you have gone in unto each other and they have taken from you a solemn covenant?” 4: 20-21

 

Post-divorce financial support is another story. The Qur’an stated very clearly in more than one instance that divorced women are entitled to maintenance and financial gratification, mut’ah:

 

“For divorced women maintenance (should be provided) on a reasonable (scale). This is a duty on the righteous.” 2:241

However, while Muslim scholars unanimously agreed that the woman’s right to maintenance arises upon marriage, they widely disagreed on whether this right is extendable after the marriage ends. As far as the Qur’an is concerned, they differed on whether mut’ah is meant as real compensation or simply a consolation to the heartbroken wife. They also disagreed on whether such compensation and/or consolation is mandatory (wajib) or only recommendable (mandub). The reason for their disagreement can be found in the wording of the above mentioned verse. The original Arabic word for maintenance in the verse is mataa’, sometimes also referred to as mut’ah[2], which literally refers to what is enjoyable and useful in life. In the context of divorce, it refers to a one-time payment made by a husband to his wife upon divorcing her. Some Qur’an interpreters, along with the majority of Muslim men, unhappy and culturally unfamiliar with this new protection granted to women, took the literal wording of the verse to address only “the righteous” not regular Muslim men and therefore claimed that it is optional not mandatory for Muslim men to pay mut’ah to their divorced wives. However, many authorities in the field of Qur’an’s interpretation ruled otherwise. Imam at-Tabari, for instance, stated that: “God almighty revealed [the verse] to His subjects as a proof that every divorcee is entitled to mut’ah.”[3] He also ruled that if the husband dies before he pays his ex-wife her mut’ah, it becomes a senior debt against the husband’s estate.

 

Following in the steps of Qur’an interpreters, the four Sunni Schools of legal thought have also differed on the subject. The Shafi’is stand alone in ruling that mut’ah is mandatory for divorced women with few exceptions. The Hanafis stated that it is mandatory in some cases and just recommendable in others whereas the Malikis ruled that it is just recommendable in all cases except when the divorce occurs before the marriage is consummated. However, Imam al-Qurtubi, a Maliki scholar and Qur’an interpreter, parted from this view and ruled that it is mandatory on men for all divorced women. Finally, the Hanbalis ruled that all divorced women are entitled to mut’ah except those who were divorced after mahr was agreed upon and before the marriage was consummated. It is worth noting however that even for scholars and jurists who believed that post-divorce financial support or mut’ah is obligatory on the husband, have not developed any mechanisms or rules to enforce it.

Ibn Hazm al Andalussi, in his Muhalla bi al-Athaar, offers a different perspective on the matter. He rules that: “mut’ah is a duty upon every man divorcing (his wife)… whether he consummated the marriage or not, whether he agreed on a set mahr or not … and the ruler must force (the husband) to pay it whether he likes it or not… Mut’ah is not nullified in the event of the husband revoking the divorce before the end of the waiting period, ‘iddah, nor is it nullified by the husband’s death or the wife’s death. It still goes to her or her heirs and is taken from his capital.”[4]

 

Most jurists agreed that the divorce mut’ah could be monetary or/and property and must be proportionate with the ex-husband’s financial means in accordance with the Qur’anic verse:

 

“But bestow on them (A suitable gift), the wealthy according to his means, and the poor according to his means; – a provision according to what is acceptable, a duty upon the doers of good.” 2: 238

 

Except for the deferred mahr and the mut’ah, there is very little in Islamic jurisprudence on the subject of assessment of post-divorce financial support and almost nothing on marital property settlement. One exception stands out in the North African Maliki jurisprudence and tradition: the right of Kadd and Si’ayah, one’s right to the fruit of their striving, hard work, and contribution to accumulating the family wealth.

 

Literally, the word “si’ayah” means striving, hard-working, and acquiring property and wealth. In the context of marriage, the right of Kadd and Si’ayah refers to the management and distribution of property acquired during marriage upon divorce or death of one of the spouses. According to this long standing jurisprudential tradition, the wife, and in some cases siblings, are entitled to a share of the accumulated marital wealth proportionate to her efforts and contribution to the financial well-being of her family. They did not limit the wife’s contribution to her work outside the house, in agricultural or commercial activities for instance, but also included her work in the house.

 

Contrary to what one might think, the principle of Kadd and Si’ayah is not the product of Moroccan customary law. It is also totally different from community property law as known in some American states. The concept is deeply rooted in Islamic law and jurisprudence and draws from the Qur’anic principles of justice, equity and fairness. As explained above, when divorce occurs, except for the deferred mahr and a symbolic mut’ah set by the judge, women often find themselves outside the marital home, with no income or resources, forced to start over. Their hard work during the marriage goes un-rewarded. The husband, on the other hand, solely benefits from the wealth accumulated during the marriage, especially that most of the time all property is acquired in his name. The right of Kadd and Si’ayah addresses this injustice.

 

In establishing the principle of Kadd and Si’ayah, Moroccan jurists built their argument on the Qur’anic verse:

“That man can have nothing but what he strives for; That (the fruit of) his striving will soon come in sight: Then will he be rewarded with a reward complete.” 53:39-41.

From the records of the sahabah, jurists pointed out the story of Habibah bint Zurayk, a seamstress who worked hard with her husband, al-Harith Ibn Amr, making and selling clothes until they accumulated significant wealth. When the husband died, because the couple was childless, his heirs claimed three quarters of the inheritance leaving Habibah with only one fourth of the wealth in accordance with Islamic inheritance law. Habibah, feeling prejudiced, took her case to Khalifah Omar Ibn al-Khattab, who ruled that in addition to her inheritance share, the widow deserves half of the couple’s wealth in return for her contribution in accumulating it. The rest of the estate was then divided among the other heirs.[5]

 

Subsequently, Imam Malik developed the concept of si’ayah into a jurisprudential rule that applies in the cases of divorce or death of one of the spouses. Great Maliki Moroccan scholars, like Mohamed Ibn ‘Ardoon al-Kabeer, Abou al-Kacem Ibn Khajjou and Imam Abdullah El Habti from Northern Morocco all applied this principle in their fatwas and legal rulings. Other scholars from the South, such as al-‘Abbassi and Ibrahim al Martini applied it systematically in their rulings.

 

In a famous fatwa, Ibn ‘Ardoon, for instance, who was also an esteemed judge, ruled in favor of a woman who complained that her husband passed away and his heirs refused to give her more than her inheritance share. He also stated that any woman who helps her husband in tending to the land and in the house is entitled to a part of the wealth. Ahmad Ibn ‘Ardoon, the brother, later on completed the fatwa and applied it to divorce cases as well.

 

Imam al-‘Abbassi, a southern scholar and mufti, issued the same fatwa: “ it is customary among the jurists of Masmouda and Jezoula tribes (two southern Moroccan tribes) that the wife is a partner to her husband in the wealth they accumulate through their work and efforts during the time they spend together and cooperate. The husband should not monopolize the wealth by registering it in his name. His wife is his partner through her efforts and partnership, if he divorces her she has an equal share in it.”[6]

 

Although most of these fatwas are based on cases of rural women who are known for working side by side with their husbands in agricultural activities, modern Moroccan jurists deducted that a wife’s work inside her house, such as doing household shores and raising the children, is worthy of the same treatment. Building on the jurisprudential rule that: “forcing a woman to do household chores is baseless, for the consensus is that the husband must tend to her needs;”[7] they concluded that if the wife does household’s chores anyway, her work grants her a share of the wealth accumulated during the marital life. It is refreshing to see that Moroccan family law have embraced this view in the 2004 reform and granted women the right to claim a share of the marital wealth and property accumulated during marriage.

 

Since then, many legal rulings in Moroccan family courts have enforced this principle.[8] The similarities between these jurisprudential/legal precedents and post-divorce support/settlement of marital property as legally defined and practiced in some western societies are obvious.

 

In a world that does not value the work of women and their contribution to the well-being of their families, some Muslim jurists set an unprecedented example in making women’s work and role in the family visible and rewarded. It is our duty, as modern Muslim societies and communities, to follow this example and elevate some of the injustice that weighs on Muslim women in many parts of the world.

 

And God knows best.

Raja El Habti

Director of Research

 

[1] When divorce occurs before the marriage was consummated or at least before the two prospective spouses had the opportunity to consummate it (had been alone in a legal khulwah, solitude, the woman only gets half her mahr.

[2] Mut’ah in the context of divorce is different from mut’ah in the context of marriage. The latter used to refer to temporary marriage as practiced in the Shi’i tradition.

[3] At-Ṭabarī Mohammad b. Jarīr, Jaami‘ al-Bayān fi Ta’wīl Aayi al-Qur’an , Taḥqīq Aḥmad Shākir, vol.2 (Mu’assassat al-Risālah:2000), pp.80-82.

[4] Ibn Hazm, al Muhalla bi al-Athaar, 10:245. (in Arabic)

[5] The story can be found in Muwatta’ Malik n. 2429 and also in a fatwa of Sheikh Ibrahim ibn Ali al-Martini al-Wardani, (1293, Manuscript). It was also reported in Omar al-Jeedi, Ibn ‘Ardoon al-Kabeer: His Life, Work, Opinions and Fiqh. 1987. 1:198.

[6] Fatawa al-‘Abbassi (11th centary), manuscript. (in Arabic)

[7] Ibn Hajar al-‘Asqualaani, Fath al-Bari ‘ala Sharh Sahih al-Bukhari:  http://library.islamweb.net/newlibrary/display_book.php?idfrom=9790&idto=9791&bk_no=52&ID=2992

[8] For more on the subject see: al-Maliki al-Hussein ibn ‘Abd as-Salaam, Nidham al-Kadd wa as-Si’ayah. 2002. (in Arabic)

Could you provide some insight into the mother’s right to the custody, hadanah, of her children, male and female, in the case of divorce in Islamic law? Does she have the right to keep them with her? Is there an age limit as to how long she can do so? What if the mother wishes to remarry? Does she loose her right to the custody of her children?

In the event of divorce, the term hadanah in Islamic law refers to the upbringing of a minor child by the mother or by someone who is legally entitled to it. The Arabic root of the word hadanah, literally means to hold in one’s arms, to embrace, and to place on the lap. A broader definition of the word refers to nursing, bringing up and raising a child. The concept of hadanah therefore refers to taking physical care of a child who is not able to do so by him/herself. It includes protection, love and care, education, and sheltering. In this context, Hadanah does not entail any legal responsibility or rights over the child. Legal and financial guardianship is referred to by the term wilayah, and has different rules in Islamic law.

The Qur’an did not address the question of hadanah directly, but general guidelines can be found in verses such as “And whatever the messenger has given you take, and whatever he has forbidden you refrain from”[1] . There are however numerous hadiths that dealt with the issue, in one instance for example, a woman came to the prophet and complained that her husband divorced her and wishes to take her child away from her. She said: “Messenger of God, this is my son, my womb contained him, my lap held him, and my breasts nurtured him; but his father divorced me and wishes to take him away from me. The prophet said: “You have the first right to him as long as you do not remarry.”[2] Subsequently, records of the sahabah show that the mother was always given preference over the father in matters of hadanah in the early stages of her children’s life. In an interesting incident, Abu Bakr, the first khalifah, ruled in favor of Omar’s ex-wife, Um ‘Assim, and granted her the custody of her child saying: “I heard the prophet say: a mother should not be separated from her child.” [3]

Needless to say that the emphasis in dealing with all hadanah matters is on the best interest of the child. Giving priority to the mother is therefore based on the assumption that it serves the child’s best interest, the mother being best at nurturing her child and meeting his/her needs. In fact, Muslim scholars have been so driven by the child’s best interest that they concluded that hadanah is the right of the child not the parents. Subsequently, it falls on the shoulders of the parent who is best qualified to meet the physical, emotional and educational needs of the child, the mother being better qualified during the early stages of life. The Shafi’is parted from this view and decided that it is a joint right of the mother and the child.

Muslim Sunni schools of legal thought differ on the age limit of hadanah.  Here again as in other instances where women’s status and rights are an issue, cultural influences have transcended Qur’anic principles in shaping Muslim scholars’ understanding and rulings. The Hanafis for instance, ruled that in case the mother has the hadanah of her children, she keeps her daughter until the age of nine (9), at which age the girl becomes the object of sexual desire for men and needs her father’s protection. Worst yet, the Hanbalis define the age limit of hadanah for the girl at seven (7), at which age her hadanah goes to the father. The latter is in their view more trusted to protect and preserve his daughter until she gets married.  Surprisingly, the Malikis differ from both views and rule that the girl stays with her mother until she marries. Their reasoning, however, falls in the same patriarchal trap as they justify their ruling by the fact that the mother is more likely to understand her daughter’s needs as she steps into womanhood and teach her the skills that would enable her to be a good wife.  Only the Shafi’is steer away from this line of thinking and state that the child, female or male, stays with his/her mother until the age of seven (7), at which age they can choose whether to stay with the mother or live with their father.  Modern scholars generally agree that the age limit for the mother’s hadanah is seven years for boys and nine for girls, after which they move to their father’s care.

There is a consensus among Muslim scholars from all Sunni schools that the mother always comes first in the line of females granted the hadanah of a child in the early years of life unless she is morally unfit to assume such responsibility or she willingly forfeits it. Hadanah moves in this case to the next female in the line, generally the maternal grandmother or the maternal aunt. The father comes after a long line of females alternating between the maternal and the paternal sides.  The Hanafis for instance give priority to the mother, her mother, the father’s mother, then come the sisters: sister from the mother and father, maternal sister, and paternal; then the maternal aunt, and finally the paternal aunt.

The Malikis give priority to the mother, the mother’s mother, then the maternal aunt. Hadanah goes next to the females from the father’s side, starting by his mother then her mother, his sister, his aunt, and finally it goes to his niece.  The Shafi’is start with the mother, then her mother and the mother’s mother, then it is transferred to those who inherit of her mother, then the sister, the maternal aunt, and finally the paternal aunt. Finally the Hanbalis state that after the mother, hadanah goes to her mother, then grandmother after which it goes to the father and females from his side.

In case the mother wishes to remarry, Most Sunni scholars rule that she loose her right of hadanah, which moves to the next female in line, unless she marries someone related to her child, his/her paternal uncle for instance.  This puts the mother between a rock and a hard place as she has to choose between her children and starting a new life for herself. Imam Ibn Hanbal slightly parts from this view and rules that in case the mother remarries, the boy’s hadanah goes to the father, but the girl stays in the care of her mother.[4] They justify their ruling by the fact that caring for children is a big responsibility that no man will tolerate sharing his wife’s attention with her children from a previous marriage. However, this consensus has been questioned by two great Muslim scholars, first al-Hasan al-Basri, states that the mother keeps the right to the hadanah of her children, male and female, regardless of whether she remarries or not[5].

The second scholar, Ibn Hasm al Andalussi, engages in a long counter-argumentation to refute the arguments used to rob the mother from her right to care for her children and yet have a new life for herself.  He starts by the strong affirmation that: “The mother is more entitled to the hadanah of her young son and young daughter until they reach puberty and they are mentally able and physically fit whether she (the mother) is a free woman or a slave, got remarried or not, and whether the father lives in the same city or moves to a different one.[6]” After this strong introduction, he exposes the flaws in the Muslim scholars’ consensus about this issue. Not only there are no valid arguments from the Qur’an or Sunnah that support their position, but to the opposite, there are verses and hadiths that support the mother’s right to keep her children’s hadanah even in the event of her remarriage. First, the Qur’an says: “Mothers shall suckle their children for two full years.[7]” It therefore the mother’s divine right to keep their children for the whole breastfeeding period regardless of whether they remarry or not and it is not permissible for anyone to take away a right granted by God. Second, there are many hadiths that imply that mothers are entitled to their childern’s hadanah even after they remarry. In one instance, the step father of Anas ibn Malik came to the prophet and asked him to take Anas as a personal assistant. Anas was 10 years old at the time and he was living with his mother and her husband Abu Talhah, the step father in question. In another instance, hadith shows that Umm Salamah married the prophet and yet kept her children from her previous marriage with her. Finally, there is no hadith sahih [authentic hadith] stating that the mother loses her children’s hadanah if she remarries[8].  As to the hadiths that are usually quoted to support the argument that the mother’s remarriage cancels out her right to hadanah, Ibn hazm dismisses them for obvious flaws in the chain of narration or the credibility of narrators, including the record involving Abu Bakr and Omar.  He then concludes: “We therefore state that the mother’s remarriage does not cancel out her right to hadanah provided she is trustworthy and her new husband is trustworthy as well and this is supported by the texts to which we referred[9].”

And God knows best.

Raja El Habti

Director of Research


[1] The Qur’an, 59:7.

[2] Sunan Abi Dawood, hadith 2276 (Hassan).

[3] Al-Bayhaqui, as-Sunan al Kubraa, 8:5. In Arabic.

[4]  Ibn al-Qayyim al Jawziyyah, Zaad al-Ma’aad fi Hadyi Khayre al-‘Ibaad, 5: 455 (in Arabic)

[5] Ibn Abi Shaybah al ‘Absi, Musannaf ibn Abi Shaybah, 5:327 (in Arabic)

[6] Ibn Hazm, al-Muhalla, 10:323.

[7] The Qur’an 2:233

[8] Ibn Hazm, al-Muhalla, 10: 325-327.

[9] Ibn Hazm, al-Muhalla, 10:325

Could you explain what mahr is in the context of the Islamic marriage contract?

Mahr is the obligatory gift given by the husband to the wife at the time of marriage. It is an expression of the man’s love, respect, and serious commitment to his wife to be and to married life. It is the right of the woman, and hers alone. She may do with it as she chooses. The Qur’an enjoins men to give their prospective wives a mahr upon contracting the marriage: “And give the women [upon marriage] their gifts graciously (saduqaatihinna nihlah). But if they give up willingly to you anything of it, then take it in satisfaction and ease.”1

 

The Qur’an and books of fiqh refer to mahr in different terms, including:

* An-Nihlah: unconditional donation (not expecting anything in return)

* Al-Faridhah: obligation or prescribed amount

* Al-Hibah: gift or present

* Al-Ajr: payment or compensation

* As-Saduqah: sincere gift or charity

 

Amount of mahr: Mahr can vary from a symbolic piece of jewelry to a substantial amount of money, it may also be as simple as teaching the wife a surah of Qur’an. Muslim scholars unanimously agree that no one can impose an upper limit to mahr not even the state, as is the case in many Muslim countries, but they agreed on a minimum. The Hanafi School states that mahr should not be less than ten Dirahms (around ten US Dollars). The Malikis on the other hand consider that the minimum mahr should not be less than three Dirhams (or three US Dollars.)  These minimum amounts stress the symbolic, as opposed to monetary, value of the marital gift.

Muslim Sunni schools of legal thought differ on the definition of mahr and its purpose.  It is however clear that cultural and patriarchal influences have shaped their understanding of the Qur’anic pronouncements on mahr. This appears in their definitions of the purpose of mahr in ways that are degrading to women. The Hanafi School for instance, defines mahr as the amount of money given by the husband to his future wife in return for her staying home (ihtibaass.)2 Worst yet, a Hanafi scholar defines mahr as the obligatory amount of money that the husband pays to his prospective wife in return for benefiting from her reproductive parts, manafi’ al-bud’3. Other schools of thought, like the Malikis and Shafi’is, view mahr as part of an exchange due to the prospective wife in return for sexual enjoyment. 4

 

The Hanbalis, on the other hand, define mahr as “the money paid by the husband for the purpose of nikah (marriage5).   In this regard, they were more faithful to the Qur’anic spirit in considering mahr as an obligatory unconditional marital gift.  Some other jurists such as As-San’aani, a great mujtahid from the 12th century, explains that sadaaq, another term for mahr comes from the word Sidq or truthfulness because “it indicates the sincerity of the husband’s desire for his wife.”6 Modern scholars also reject the idea of mahr in return of sexual enjoyment, because sexual enjoyment is mutual between the spouses.  They adopt a view similar to that of as-San’aani7.

 

Mahr must be stipulated in the Islamic marriage contract. Although mahr is not considered a condition for the validity of the marriage contract in most Islamic schools of thought, the amount and nature of mahr has to be stipulated in the marriage contract. Mahr becomes binding upon the husband once the marriage is contracted unless the wife herself waives it. It can either be paid in total at the time of contracting the marriage or deferred in total or in part to a later time or times depending on the agreement between the prospective spouses. Under current custom in most Muslim countries, Mahr is divided into two parts. The first is called “prompt Mahr” or muqaddam and is due immediately at the signing of the marriage contract. The second part is deferred, mu’akhar, and is due at either divorce or death of the husband.

 

If the marriage contract does not include a provision for mahr, it is still considered to be valid. Hanafis, Shafi’is and Hanbalis agree that mahr is a provision not a condition for the validity of the marriage contract. They believe that mahr is an obligation upon the husband regardless of whether it is stipulated in the marriage contract or not.  Accordingly, if the signed marriage contract has no provision for mahr, or if the prospective spouses agree on a mahr that is considered to be unlawful under Islamic law (such as a bottle of wine), or if the parties agree not to include a mahr provision, in all these cases the conditions are null and void, the contract is valid and the husband must give his wife a mahr proportionate to her social status and qualities, which is called mahr al mithl, meaning a mahr similar to that of her peers. If the man   stipulates not paying a mahr as a condition for the marriage, the condition is null and void and the contract valid. The man has to pay mahr al mithl to his wife.

 

The Maliki School view differs from these views discussed above and considers the mahr provision in the contract necessary. However, if the marriage was consummated, Malikis consider it valid and the husband has to give his wife mahr al mithl. If it was not, they consider the marriage to be null and void.

 

One thing that all schools of legal thought agree on is that if the man does not pay a mahr to his wife at the time of contracting the marriage, whether the mahr was stipulated in the contract or not, it shall be considered an outstanding debt of the man to his wife, unless she unequivocally waives it. If the husband dies before he pays his wife her mahr, the unpaid mahr becomes a senior debt against the husband’s estate.

 

It is very important to note that the man may not demand the mahr back if he decides to divorce his wife. The Qur’an states: “And it is not lawful for you (men) to take back anything of what you have given them (your wives) unless both fear that they will not be able to keep [within] the limits of Allah.”[1]

 

And God knows best.

 

Raja El Habti

Director of Research



1 Qur’an, 4:4. An-Nisa’ (The Women)

2 As-Sarakhsi, al Mabsoot, 5:62-63. In Arabic

3 Ibn al-Humaam Muhammad Ibn Abdelwaahid, Sharh Fath al-Qadeer, 3:304. In Arabic

4 For Maliki jurisprudence see: Al_Hattab Muhammad ibn Muhammad Ibn Abderrahman al Maghribi, Mawahib al Jaleel li Sharh Mukhtassar Khaleel, 5:172 and for Shafi’i fiqh see: an-Nawawi, Kitab al Majmu’. 18:605.

5 Ibn Qudamah, al Mughni, 6:679 (in Arabic)

6 As-San’ani, Subul as-Salaam, 3:147. 4thed. 1960.

7 See for instance al-Qaradawi: http://www.qaradawi.net/supportus/6363.html

 

[1] The Qur’an, al-Baqarah (the Cow): 229.

Could you please tell me whether I am “unclean” during menstruation?

A menstruating woman is not unclean. What is unclean is her menstrual blood. This is an important distinction, as we shall see below.

 

To enlighten the questioner, we shall examine the sunnah of the Prophet Muhammad as well as relevant verses from the Qur’an. The sunnah is very clear. For example, the Prophet rested his head on his wife Aisha’s lap and read the Qur’an while she was menstruating. (SM 3:211) Furthermore, when the Prophet was in seclusion, he asked Aisha to bring to him the prayer carpet from the mosque. Concerned, she informed him that she was menstruating. He replied: “Your menstruation is not in your hand.” (SM 3:209-10)

 

Because of this incident, some jurists have concluded that a menstruating woman may enter a mosque if there was no fear of her menstrual blood staining it. Indeed, Hanbalis permitted a menstruating woman to sit in the mosque, after performing woudu’ ( the washing ritual required before prayer from everyone), so long as she had stopped bleeding. The reason for this permission is that so long as there was no fear of staining of the mosque with menstrual blood, the menstruating woman can enter it. (al-Zuhaili,1:627)

 

According to Aisha, the Prophet allowed her to touch him and wash his hair while she was menstruating. (SM 2:209) In fact, they drank from the same glass and ate the same food. (SM 3:210-11)

 

The Companions of the Prophet asked him about the following verse in the Qur’an (2:222):

They ask you about menstruation,

Say: it is a harm,

So keep away from women

In their courses and do not

Approach them until

They are clean.

 

The famous jurist, Muhammad Rashid Ridha, notes that the verse starts by providing the ‘illah (rationale) for the prohibition, namely potential harm (al-Manar 2:359). The prohibition of “keeping away from women” is explained by the Prophet himself as referring to intercourse only. Indeed, the Prophet emphasized that a husband and wife may continue all forms of intimacy during menstruation, except in the area between the belly button and the knee, or more explicitly, intercourse (SM 3:203, al-Zuhaili 1:627-8). Based on Prophetic precedent, jurists have concluded that the menstruating woman’s body, perspiration, cooking and baking, even her leftovers are all clean, including any liquids she touches with her hands (SM 3:207, al-Zuhaili 1:633). Ridha further noted that the word “clean” at the end of the verse refers to the cessation of bleeding (al-Manar 2:360).

 

There is one more Prophetic precedent that would be helpful to examine. When Aisha joined the Prophet on his trip to perform hajj, she came crying to him one day because she began menstruating. He told her that she could perform all that a pilgrim performs of the Hajj rituals, except tawaf (circling the Ka’ba, and going between Safa and Marwah), which she could do after her menstruation was over (SM 8:153, 156,159). So she did.

 

This raises the question as to the rationale for this Hajj rule which segments the rituals. The answer is clear to menstruating women. Menstrual periods tend to be physically demanding and tawaf in particular is quite demanding. As the Prophet stated, “This [menstruation] is something God has ordained for the daughters of Adam” (SM 8:146). So, God the All-Merciful gave them some ease to accompany what he had ordained. For example, menstruating women are not required to pray, fast or perform tawaf during Hajj (al-Zuhaili, 1:625-6). Furthermore, a husband may not divorce his wife while she is menstruating (al-Zuhaili 1:631).

 

Additionally, while the menstruating woman is required to make up fasting days missed during menstruation, she is not required to make up missed prayers. The first requirement is much less demanding than the second because Ramadan occurs only once a year (al-Zuhaili 1:625). All of these examples list important breaks designed to protect menstruating women not only from physical burdens but also emotional ones. Similar breaks are extended to pregnant women and new mothers.

 

The breaks given by God to menstruating women have been interpreted by some men as indications that the menstruating woman is herself unclean during these periods. There is no support for this conclusion, which is contradicted by the sunnah mentioned above.

 

In conclusion, Islam did not it treat menstruating women as “unclean.” Only the menstrual blood is unclean. Muslim communities, influenced by their own customs and prevalent patriarchal attitudes at that time, ignored this important distinction. Their view contradicts the Prophetic precedent and must be abandoned in favor of a more enlightened view consistent with that precedent.

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This article relied on:

1. The Meaning of the Holly Qur’an: ‘Abdullah Yusuf ‘Ali, (Amana Publications, Maryland 2004), with revisions by Karamah to make the translation more accurate and accessible.

2. Sahih Muslim bi Sharh al-Nawawi (SM), (Dar Ihya’ al- Turath al-Arabi, Beirut, 9th century reprint with 13th century commentary, n.d.)

3. Al-Fiqh al-Islami wa Adillatuh, Wehbah al-Zuhaili (Dar al-Fikr: Damascus 1997)

4. Muhammad Rashid Ridha, Tafsir al- Qur’an al-Hakim, al-Shaheer bi al-Manar (Dar al-Ma’rifah, Beirut. Early 20th century reprint, 2nd printing n.d.)

What are the differences between a Civil marriage and an Islamic marriage?

We receive regular inquires about the differences between a civil marriage and an Islamic marriage. Many ask whether American law recognizes an Islamic marriage. In addition to this, many ask whether American law would protect the rights of a Muslim woman without a civil marriage. To answer these questions, we need to distinguish a foreign Muslim marriage from a domestic Muslim marriage.

 

Foreign Marriage

 

A foreign marriage occurs when a couple marries outside of the United States – regardless of whether or not either party is a U.S. citizen. Two simple examples: (1) bride and groom from Maryland decide to travel to Bangladesh to get married; (2) Jordanian bride and groom living in Jordan get married in Jordan; shortly after their marriage, they immigrate to the United States.

In these two scenarios, the law of the country where the marriage was performed governs the validity of their marriage. Bangladeshi law governs in the first example and Jordanian law governs in the second example. Some states, like New York, provide that the law of the marital domicile would govern the validity of a foreign marriage. In other words, assume that in example #1 and #2 the married couple resided in New York for ten years. New York marital domicile law potentially would apply for purposes of the validity of the parties’ marriage. This approach highlights the public policy in New York that provides a presumption in the validity of marriages so the state that would validate would receive deference. In these examples, a Muslim marriage performed in accordance with the laws of the place of marriage is recognized and enforced in the U.S. However, this only applies to the marriage itself. As to the consequences of the marriage – custody, child support, martial property and alimony – the law of the marital residence governs. So, in the example with the couple that married in Jordan and immigrated to the U.S. residing in the United States for several years before filing for divorce, the law of their state of residence would govern all of the consequences of the marriage – custody, alimony and equitable distribution.

 

Domestic Marriage

 

In the majority of states, to be valid, a marriage requires a couple to obtain a marriage license from the state and then take that marriage license to a person authorized to solemnize marriages. American law authorizes certain government officials, such as mayors and judges, and most religious officials, to solemnize marriages. The majority of Americans choose to have their religious official solemnize their marriage.

 

What are the legal consequences if you only marry religiously without obtaining a marriage license as required under the law?

 

The answer depends on the state you live in. There are three approaches to this issue. Some states still recognize common law marriages. Most states abolished common law marriage. While the elements of a common law marriage differ from the ten or so states that recognize it (Alabama, Colorado, Iowa, Kansas, Montana, New Hampshire-posthumously-, New Mexico, Rhode Island, South Carolina, Texas, Utah, and the District of Columbia), most have three basic elements: intent to be married, continuous cohabitation, and public declaration that the parties are husband and wife. Therefore, if the Muslim couples with only a religious marriage contracted in the United States reside in a state that recognizes common law marriage, their religious marriage is likely to be valid because the Muslim marriage contract is an intent to be married, live together and the public know the couple to be husband and wife. In this case, the wife’s marital rights would be protected under state law (alimony, equitable distribution/community property, child support).

The other states take one of two approaches: the marriage is void or the marriage is voidable. The void states say that if you fail to obtain a marriage license, then your marriage is void; therefore, no rights or privileges arise therefrom. This means a wife would not be entitled to alimony or to a share in marital assets. Furthermore, if the husband dies– naturally or because of a third party’s negligence, the wife in these circumstances would not inherit nor would she be able to sue on behalf of her husband. Of course, children are entitled to child support whether the marriage is valid or not. Some states allow a legal action called palimony. In an action for palimony, the party asserting the claim must prove to the court that his or her partner promised to take care of him or her for life. The parties moved in together, worked together and then the party promising to care for the claimant decides to pick up and leave. In this case, the court would award the injured party damages for the breach of the promise to take care of the partner for life. These cases are very difficult to win and some states now require that such promises be in writing.

The voidable states, on the other hand, provide that a marriage without a marriage license would render it voidable. If you prove to the court that a person authorized to solemnize your marriage performed the solemnization, the court is willing to recognize the marriage being valid and effective as of the date of solemnization. In this case, the law protects the palimony claimant’s rights arising out of his or her voidable marriage.

The best practice is to follow local law and obtain a marriage license before you go to your Imam to solemnize your marriage. This is the best route to protect your rights and the validity of your marriage.

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