CHAPTER THREE

CONCEPT OF MARRIAGE AND THE RIGHTS AND DUTIES OF SPOUSES IN

ISLAM

3.1 MEANING OF MARRIAGE

The etymological meaning of the term Marriage. According to dictionary of Islam

is as: A Word which, in its literal sense signifies conjunctions, but which is in the

language of law implies the marriage contract.1

According to Qadri, the word Nikah or marriage literally means “embracing or

bonding” and in the usage of Shari'ah, it means both the contract and cohabitation or a

contract that legalizes cohabitation by words denoting giving in marriage or wedlock by

the contracting parties and witnesses. Thus, marriage is a legalization of a sexual

relationship between man and woman for the legitimization of the children produced by

them.2

However, in Islam two distinct Arabic words are used to denote marriage. These

are; Nikah and Zawaj. The word Nikah literally means embracing or penetrating,

conjunction or uniting. Al Fassi said: “If someone says a certain man (Nakaha) a certain

woman, it means he married her, and if he says a man (Nakaha) his wife, it means he has

sexual intercourse with her”.3

Zawaj literally means; pairing. It also signifies couple, spouse or mate where each

zawj 'pair' is the zawj for the other. Zawj does not have gender: both male and female are

zawj for each other can be called zawj."4 Hence, the word Zawaj became the common

term used for marriage. Thus, the Almighty Allah says:

1
. H.P. Thomaso, Dictionary of Islam, np, 1986, p. 313
2
. A.A. Qadri, Islamic Jurisprudence in the Modern World, Taj printers, New Delhi, 1986, p.11
3
. A.Y Adam, ISL304: Islamic Family Law, Lecture Note 2017/2018 session, Usmanu Danfodiyo University,
Sokoto, p.5
4
. Ibid
 And if you wish to have (one) wife in place of another and
you have given one of them a heap of gold, then take not
from it anything; would you take it by slandering (her) and
(doing her) manifest wrong?.5

On the technical meaning of marriage in Islam, various Jurists (Fuqaha) have

defined it in different ways. Some of these definitions are:

Muhammad Abu Zahrah (a modern scholar) defines marriage as a contract that

leads man and woman living with each other and supporting each other within the limits

of what has been laid down for them in terms of rights and obligations.6

Similarly, Shaykh Muhammad Salih Al-Uthaymeen takes an even more

comprehensive view of the institution of marriage where he defines it as a mutual

contract between a man and a woman whose goal is for each to enjoy the other, become a

pious family and a sound society.7

Marriage, as prescribed by Allah, is the lawful union of a man and woman based

on mutual consent. It is a contract that results in the man and woman living with each

other and supporting each other within the limits of what has been laid down for them in

terms of rights and obligations. It is a mutual contract between a man and a woman whose

goal is for each to enjoy the other, become a pious family and a sound society.

3.2 POSITION OF MARRIAGE IN ISLAM

One of the recognized and indisputable commandments of Islam is that marriage is

sacred union that takes place only between a man and a woman. Marriage is the

foundation of any family which was based on blood relation or marital commitment

talkless of Islam which builds the family on a solid ground that is capable of providing

reasonable continuity, perfect security and mature intimacy. Islam emphasized on blood
5
. Qur'an 4:20
6
. A.Y Adam, Op. Cit., p.4
7
. M.S Uthaymeen, Az-Zawaj Wa Majmu'atu As'ilah fee Ahkamihi, Saudi Arabia, 2012, p.8
relationship of sexual intimacy in which morality, chastity and gratification are joined.

Therefore, marriage and family are central mode of life in Islamic society. 8

Marriage is a legal institution that has basic foundation from the Qur'anic verses

and the oceans of traditions of the Prophet (SAW) as Allah (SWT) says:

And one of His signs is that He created mates for you from
yourselves that you may find rest in them, and He put
between you love and compassion; most surely there are
signs in this for a people who reflect.9

In another verse, Allah the Exalted says:

And if you fear that you cannot act equitably towards

orphans, then marry such women as seem good to you, two
and three and four; but if you fear that you will not do
justice (between them), then (marry) only one or what your
right hands possess; this is more proper, that you may not
deviate from the right course.10

Also, the Prophet (SAW) said in one of his traditions:

Marry and generate for I shall be proud of you among all

other nations on the Day of Judgement.11

In another Hadith, the Prophet (SAW) said:

There is nothing like marriage, for the two who love one
another.12

Similarly, the institution of marriage is among the practice of Prophets as indicated in one

of the Prophet's tradition saying:

Four are from the practices of the Messengers: modesty,

the use of perfume, the use of tooth stick and marriage.13
8
. M.A Meraj, The Importance of Marriage in Islam, International Journal of Research Granthaalayah, Vol. 6
Issue:11, 2018, p.4
9
. Qur'an 30:21
10
. Qur'an 4:3
11
. N. AI-Khattab, English Translation of Musnad Imam Ahmad bin Hanbal, Hadith No. 1228, Darussalam
Publishers, Riyadh, 2012, p.563
12
. N. Al-Khattab, English Translation of Sunan Ibn Majah, Hadith no. 1847, Darussalam Publishers &
Distributors, 2007, p.734
13
. Tirmidhi, Sunan at-Tirmidhi, Hadith no. 996, Maktabalh Darul IImiyyah, Beirut, nd, p.381
 All the above evidences signify the great esteem position of marriage in Islam.

Also, based on these and many more authorities from the Qur'an and Sunnah the Muslims

have unanimously agreed that Marriage is commanded in Islam and is a valid and legal

social institution encouraged by the Shari'ah. However, scholars have differed as to

whether marriage is fard (obligatory), mandub (recommendable), mubah (superogatory),

makruh (not desirable) or haram (forbidden). And after a careful study of some verses

and ahadith, they were able to have the following position of the marriage law:

1. It is unanimously agreed that if a man has a means to pay dowry and maintain a wife

and children and is healthy and fears that if he does not marry he may commit

fornication (zina) then to such a person marriage is Wajib (compulsory) and also for a

woman who has no means of maintaining herself and fears that her sexual urge may

push her into fornication.

2. Scholars also say that marriage is Mandub (recommendable) for a person who has

strong will to control his sexual urge and not prey to fall to evil temptation of Shaytan

and love to have children.

3. Marriage is Mubah (supererogatory) for a person who can control his sexual desires

and has no wish to have children and feels that marriage will not keep him away his

devotion to Allah.

4. Marriage is haram (forbidden) to a man if he does not possess the means to maintain

his wife and children or if he suffers from an illness that is serious enough to affect his

wife and progeny.

5. It is Makruh (not desirable) for a man who possesses no sexual desire at all or who

has no love for children, or who is sure to be slackened in his religion as result of

marriage.14
14
. K.S.S Abu Malik, Saheeh Figh as-Sunnah, al-Maktabah at-Tauqifiyyah, Cairo, 2003, p.732
 Marriage in Islam is recommended as a religious requirement and the way of the

Prophets.15 Some scholars maintain that if a person has the ability to marry and treat his

wife properly and fears strongly that he will engage in unlawful acts if he does not, then

marriage in his case is obligatory; if he does not have the financial or physical means to

marry or feels certain that he will not treat his wife properly then marriage in his case is

forbidden; if he has the means to marry, but feels strongly that he will not treat his wife

properly, marriage in his case is disliked; and if on the other hand, he has the means to

marry and has no fear of mistreating his wife or of committing the unlawful if he does not

marry, then marriage in his case is preferred.

The opinion that marriage is overall preferred seems to be the strongest opinion

even though it may reach the level of obligation for those with the ability to marry and

treat their wives properly and fear strongly that they will engage in unlawful acts if they

did not based on the Prophet's (SAW)) statement: "Whoever has the ability should marry

for it is better in lowering the gaze and guarding one's chastity. Whoever is not able let

him fast for it is for him a restraint”. 16 Also, there is a collective obligation on the Ummah

as a whole to promote, defend and facilitate the institution of marriage. If marriage

suffers from neglect or, for example, unreasonably high dowries which force people to

postpone marriage too long, it is a collective obligation on the Ummah to come to its aid

and to ensure that as many people as possible live within the context of a marriage. Also,

if the Muslims come to have too many single women because of the abandonment of

polygamy, it becomes a collective obligation on the Muslims to address and correct this

situation.

15
. Qur'an 13:38
16
. M.M. Khan, English Translation of Sahih Bukhari, Hadith no. 5066, Darussalam Publishers, Riyadh, 1996,
p.962
3.3 SIGNIFICANCE OF THE INSTITUTION OF MARRIAGE IN ISLAM

In relation to the significance of marriage in Islam, there are many verses in the

Glorious Qur’an and numerous Ahadith that encourage and emphasize on the importance

of marriage for the Muslims. This is not only limited to the young brothers and sisters

who have never been married and are looking for their life mate, but even those who have

been on divorce are encouraged to re-marry in order to complete their faith (Iman). The

following is a highlights on the significance of marriage from both Qur’an and Sunnah

and the views of Jurists.

3.3.1 Qur’anic verses on the importance of Marriage

Allah Almighty created man and woman as company for each other, and so that

they can become parents and live in peace and calmness according to the commandments

of Allah Almighty. Allah says in the Glorious Quran:

And among His signs is this that He created for you mates
from among yourselves, that you may dwell in tranquility
with them, and He has put love and mercy between your
hearts. Undoubtedly in these are signs for those who
reflect.17

In another verse, He says:

And Allah has made for you your mates of your own nature,
and made for you, out of them, sons and daughters and
grandchildren, and provided for you sustenance of the best.18

In another verse, the Almighty Allah ordained those with means to take the

responsibility of marrying the single ones among them, where He says:

17
. Qur’an 30:21
18
. Qur’an 16:72
 And marry those among you who are single and those who
are fit among your male slaves and your female slaves; if
they are needy, Allah will make them free from want out of
His grace; and Allah is Ample-giving, Knowing.19

Besides this, we have so many verses in Quran related to the importance of

Marriage in Islam and in the sight of Almighty Allah. In one place Allah says in Quran:

O mankind, fear your Lord, who created you from one soul
and created from it its mate and dispersed from both of them
many men and women. And fear Allah, through whom you
ask one another, and the wombs. Indeed Allah is ever, over
you, an Observer.20

In this verse by stressing on the equality of all humans men or women and making

it the basis of marriage, Allah in His infinite wisdom has laid the ground rules for

establishing peace, as well as the assigning of different roles to husband and wife as the

functional strategy rather than a question of competence as humans. Allah has made

partners of all human beings on this earth for making a family. In another verse, the

Exalted says:

And if you fear that you cannot act equitably towards

orphans, then marry such women as seem good to you, two
and three and four; but if you fear that you will not do
justice (between them), then (marry) only one or what your
right hands possess; this is more proper, that you may not
deviate from the right course.21

These verses of the Glorious Quran clearly show that in contrast to other religions

like Christianity, Buddhism, Judaism etc. which consider celibacy or monasticism as a

great virtue and a means of salvation, Islam considers marriage as one of the most

virtuous and divine institutions.

3.3.2 Ahadith on the benefits of Marriage

19
. Qur’an 24:32
20
. Qur’an 4:1
21
. Qur’an 4:3
 In Islam, marriage being an obligatory act is so important that it is declared to be

one half of single Muslim’s faith. We can also say that Marriage is Half Deen of

Muslims. It is narrated by Anas that the Messenger of Allah (SAW) said:

When a man marries, he has fulfilled half of his religion, so

let him fear Allah regarding the remaining half.22

The importance of the institution of marriage receives its greatest emphasis from

the following Hadith of the Prophet (SAW) where he said:

Three men came to the houses of the wives of the Prophet

(SAW) to inquire about how the Prophet (SAW) worship.
When they were informed, they considered their worship
insignificant and said: “Where are we in comparison with
the Prophet (SAW) while Allah has forgiven his past sins
and future sins”. One of them said: “As for me, I shall offer
Salat all night long”. Another said: “I shall observe fasting
(Sawm) continuously and shall not break it”. Another said:
“I shall abstain from women and shall never marry”. The
Prophet (SAW) came to them and said, “Are you the people
who said such and such things? By Allah, I fear Allah more
than you do, and I am most obedient and dutiful among you
to Him, but still I observe fast and break it, perform Salat
and sleep at night and take wives. So whoever turns away
from my Sunnah does not belong to me.23

Marriage has great importance in Islam. It discourages the delay in marriage as

there is Hadith of the Prophet (SAW) which he was reported to have said:

Do not delay in three things; i) The offering of the

compulsory prayer. ii) The offering of the funeral prayer
when the dead body is present. iii) The marriage of a woman
when her match is found.24

22
. N. Albany, Sahih at-Targeeb Wa at-Tarheeb, Hadith no. 1916, p.856
23
. M.M Khan, The Translation of the Meanings of Sahih Al-Bukhari, Hadith no. 5063, Darussalam Publishers,
Riyad, 2007, p.345
24
. A. Khalyl, English Translation of Jami’ At-Tirmithy, Hadith no. 171, Darussalam Publishers, Riyadh, 2007,
p.93
 Prophet Mohammad (SAW) stated that: “Men and women are twin halves of each

other”.25 This Hadith also emphasize the fact that men and women are created from single

source. Furthermore, by using the analogy of twin half the Prophet has underlined the

reciprocal nature and the interdependent nature of men and women’s relationship. Since

the family is the foundation of Islamic society, and marriage is the only way to bring

families into existence in Islam.

The Messenger of Allah (SAW) also declared that, "There is no monasticism in

Islam."26 This Hadith shows how Islam gives a marriage high esteem by abandoning the

monasticism.

The Prophet further ordained the young men by saying:

O you young men! Whoever is able to marry should marry,

for that will help him to lower his gaze and guard his
modesty.27

All the above Ahadith mentioned in this sub-heading shows the importance of

marriage in Islam and how Islam encourage both sexes (men and women) to get

marriage so as to attained a high rank which unmarried people couldn’t attain.

3.3.3 Opinions of Muslim Jurists on the psycho-physical benefits of Marriage in

Islam

Among the psycho benefits of marriage mentioned by Ibn Qayyim al-Jauziyyah

there is chastening the soul and protecting the spouses from the slides of the devil. Ibn

Qayyim mentioned an overview of the benefits which is most characteristics of marriage.

One of them is preserving the offspring and the perpetuation of the kind until the kit is

25
. Y. Qadhi, English Translation of Sunan Abu Dawud, Hadith no. 204, Darussalam Publishers, Riyadh, 2008,
p.146
26
. A. Al-San’ani, Musannaf, Hadith no. 15860, Vol.8, p.448
27
. M.M Khan, Op. Cit. Hadith no. 4779
complete, which Allah decreed that it will emerge in this world. Secondly; taking out the

water whose retention and congestion harm the whole body for the man and the woman.28

Similarly, in his book titled “Bada’i’ Al-Fawa’id”, Ibn Qayyim said: “If there was

nothing in it (marriage) but the pleasure of the Prophet (SAW) on the day of showing off

his nation, and if there was nothing in it (marriage) except that he was about to not be

interrupted by his death. And if there was nothing in it (marriage) except that he would

come out from his crucifixion who bore witness to Allah of His oneness, and even if there

was nothing in it except he turned his eye and protected his part from paying attention to

what God Almighty had forbidden. And if there was nothing in it (marriage) but the

immunization of a woman and reward him for making up the righteousness, pamphlet and

honor, then he is in his own right, and his good deeds increase. And if there was nothing

in it (marriage) except the increase in Islam and it’s people and the anger of the enemies

of Islam. And if there was nothing in it except the consequent acts of worship that do not

take place for the one who gives up on the superfluous. And if it was only in it (marriage)

modifying his lustful power that sheds him from the attachment of his heart to what is

more beneficial to him, in his religion and his world”.29

Also, among the psycho-physical benefits of marriage is fulfillment of the Natural

urge. The sexual urge is perhaps the most powerful human inclination. It seems not to be

an end in itself, but a means to bring the mates together for the purpose of fertilization.

Yet, its fulfillment is the most enjoyable and absorbing of human experiences. Failure to

fulfill this urge is likely to lead either to deviation or to maladjustment. Deviation is

dishonourable and is strictly forbidden in Islam.30

28
. Ibn al-Qayyim Jauziyyah, Zaad al-Ma’ad Fee Hady Khair al-Ibaad, Mu’assasah al-Risalah Publishers, 2018,
p.1345
29
. Ibn al-Qayyim Jauziyyah, Bada’i’ al-Fawa’id, Dar-al-Amal Publishers, n.d, Vol.3, p.159
30
. S. Sabiq, Fiqh as-Sunnah, Darul Kitab al-Arabee, Beirut, (n.d), p.587
 Men are inclined toward women and women are inclined toward men by their

nature. Marriage is the institution which fulfills this desire and channels it in ways

pleasing to Allah the Most High. Allah mentions this attraction:

“It has been made attractive to people the love of the

desires for women, children, hoarded heaps of gold and

silver, branded horses, cattle and tillage. That is an

enjoyment of the worldly life; but with Allah lies a

goodly abode to return to.31

The Messenger of Allah (SAW) himself has made clear that the attraction between

the sexes is something natural and not something to be denied or suppressed but it should

be channeled in the ways pleasing to Allah (Most High). He said: "Women and perfume

have been made beloved to me of this world of yours and my peace of mind is in the

prayer."32

The desire of men and women for each other is an urge which needs to be

fulfilled. If it is left unfulfilled, it will be a source of discord and disruption in society. For

this reason, the Prophet (SAW) ordered all men who are capable of meeting the

responsibilities of marriage to do it: “Whichever of you is capable should marry for it will

aid him in lowering his gaze and guarding his body (from sin). As for the one who is not

capable, fasting is his protection.33

3.4 Pillars of Marriage and their Conditions in Islam

31
. Qur’an 3:14
32
. N. Al-Khattab, English Translation of Musnad Imam Ahmad bin Hanbal, Hadith No. 1304, Darussalam
Publishers, Riyadh, 2012, p.648
33
. N. Al-Khattab, English Translation of Sunan An-Nasa’i, Hadith No. 2896, Darussalam Publishers, Riyadh,
2007, p.845
 Marriage in Islam is based on a contract between a man and a woman intending to

be unified in marriage. Thus, as in any contract, in Islam there are elements which are

considered as essential to its existence, which are called “Pillars”, as well as the

possibility of stipulations of different kinds, legal effects of the contract etc. Each of these

must be understood correctly in order to ensure that marriage has been performed

according to the legal conditions and that the rightful effects of the marriage are

guaranteed to each of the contracting parties. There are different views of scholars

concerning the five pillars of marriages in which some of the scholars subtract some

pillars, but in this work, the researcher will discusses all the pillars regardless of the

opinion of the Madhahib.

3.4.1 Sadaq (Dowry)

Sadaq which is also called Mahr, is a required marriage gift given by the groom to

the bride. It is obligatory and makes a component of the marriage contract. It also

represents the groom commitment to take care of all the family expenses those for her

personal needs. Allah says in the Qur’ an:

And give women (on marriage) their dowry as a pure gift.34

In another verse Allah says:

And if you wish to have (one) wife in place of another and

you have given one of them a heap of gold, then take not
from it anything; would you take it by slandering (her) and
(doing her) manifest wrong?
And how can you take it when one of you has already gone
in to the other and they have made with you a firm
covenant?.35

34
. Qur’an 4:4
35
. Qur’an 4:20-21
 Sadaq may be in cash or in kind, but it should be specified in its kind and quantity

in the marriage contract itself. The mahr is the right of the wife , and it is not permitted

for her father or anyone else to take it except with her approval. Similarly, if the wife

foregoes any part of the mahr, the husband is permitted to take it, as Allah says:

…..but if they, of their own good pleasure, remit any part of

it, take it, and enjoy it without fear of any harm (as Allah has
made it lawful).36

3.4.2 Waliy (Guardian)

Waliy (Guardian) is an absolute requirement for a marriage, and any marriage

done without him is null and void according to the majority of scholars based on the

following Hadith:

If any woman marries without the permission of her

guardian, then her marriage is void, then her marriage is
void, then her marriage is void.37

In another Hadith, the Prophet (SAW) said:

There is no marriage except with a waliy (Guradian).38

However, for one to serve as Waliy, he must satisfy the following conditions:

 He should be of sound mind

 He should be an adult

 He should be free (not a slave)

 He should be of the same religion as the bride. A Kaafir cannot be the waliy of a

Muslim, male or female, and a Muslim cannot be the waliy of a Kaafir, male or

female, but a kaafir can be the waliy of a Kaafir woman for marriage purposes, even

36
. Qur’an 4:4
37
. Y. Qadhi, Op. Cit., Hadith no. 2083
38
. Ibid. Hadith no. 2085
 if they are of different religions. An apostate (one who has left Islam) cannot be a

waliy for anybody.

 He should be of good character (‘adaalah – includes piety, attitude, conduct, etc.), as

opposed to being corrupt. This is a condition laid down by some scholars, although

some of them regard the outward appearance of good character as being sufficient,

and some say that it is enough if he is judged as being able to pay proper attention to

the interests of the woman for whom he is acting as waliy in the matter of her

marriage.

 He should be male, as the Prophet (SAW) said:

No woman may conduct the marriage contract of another

woman, and no woman can conduct the marriage contract on
behalf of her own self, because the zaniyah (fornicatress,
adulteress) is the one who arranges things on her own
behalf.39

 He should be wise and mature (rushd), which means being able to understand matters

of compatibility and the interests of marriage.40

The fuqaha’ put possible Waliys in a certain order, and a waliy who is more

closely-related should not be ignored unless there is no such person or the relatives do not

meet the specified conditions. A woman’s waliy is her father, then whoever her father

may have appointed before his death, then her paternal grandfather or great-grandfather,

then her son, then her grandfathers sons or grandsons, then her brother through both

parents (full brother), then her brother through her father, then the sons of her brother

through both parents, then the sons of her brother through her father, then her uncle (her

father’s brother through both parents), then her father’s brother through the father, then

the sons of her father’s brother through both parents, then the sons of her father’s brother
39
. Ibid, Hadith no. 1782
40
. K.S.S Abu Malik, Op. Cit. p.737
through the father, then whoever is more closely related, and so on – as is the case with

inheritance. The Muslim leader (or his deputy, such as a qadi or judge) is the waliy for

any woman who does not have a waliy of her own.41

Below is a table showing the hierarchy of the guardians:

FATHER Father’s
representative

Paternal grand
father

Her son

Her grandfather's son

Her full Brother Her half Brother

Son of her Son of her half brother

Full brother

Her father’s Her father’s half brother

full brother

Son of her father’s full brother Son of her father’s half Then whoever is more
brother related

41
. A.Abdurrazaq, Fatawah al-Lajnah ad-Da’imah Lil-Buhuth al-Ilmiyyah wal Ifta’. Retrieved from
www.islamqa.info Fatwah no. 2127
3.4.3 Shahidayn (Witnesses)

For marriage to be recognized as valid, a minimum of two witnesses must be

present to testify the marriage contract. Among those to serve as witnesses are the

children of the spouses, or son of the couple. However, according to Hanafi, a son of an

enemy can witness a marriage contract but cannot testify before a court of law. On the

issues of a witness being just, majority of the scholars maintain that anyone who is free

from blame of committing either major sin or minor sin can serve as a witnessed. 42

3.4.4 Muhal (Couples)

Designating the two spouses is also one of the essentials in marriage, and their

consent must be sought. None of them should be forced to give his/her consent. Both the

virgin and the non-virgin, must first give their permission before giving them in marriage.

The virgin’s permission is her silence when asked, while the non –virgin’s permission is

her verbal consent. This is based on the Hadith of the Prophet (SAW) which said:

A matron should not be married until her consent has been

sought, and a virgin should not be married until her
permission has been sought. They said: O Messenger of
Allah, what is her permission? He said: Her silence
(indicates her permission).43

3.4.5 Sigah (Offer and Acceptance)

Offer and acceptance are among the pillars of marriage. Marriage contract is a

transaction in which the husband asked and the wife or her representative responded

“su‘al ijab” (offer) and “qabul” (acceptance). Offer must be explicit, definite, final and

unequivocal. This means, it must use the word of marriage Zawaj or Nikah and usually

42
. K.S.S Abu Malik, Op. Cit. p.738
43
. N. Al-Khattab, English Translation of Sahih Muslim, Hadith no. 1419, Darussalam Publishers, Riyadh, 2007,
p.631
takes the form ‘marry me your daughter’ or ‘I marry your son’ or ‘I give my daughter in

marriage to you’….. among others.44

3.5 Introduction and betrothal in Islamic Marriage

The Arabic word Khitbah is translated into English as ‘betrothal’ which signifies

proposal or engagement. It also means a mutual promise, engagement or contract in

future. That is a way to get to know about a woman so that the man will learn to

understand more about the woman he intends to marry.

It is however defined by Jurist as a prelude to marriage contract which is the

request by a man for the hand of a certain woman in marriage, or an approach to a woman

or her kin with a view to describe his status and to negotiate with them the subject of the

contract and their respective demands in that connection. 45

In Islam, Al-Khitbah is not only allowed but also emphasized just for the sake of

sustainability of the marriage. In fact, it is the basic rule that a man proposes engagement,

and this is mentioned in the Qur’an and the Sunnah. Allah the Exalted Says:

And there is no blame on you respecting that which you

speak indirectly in the asking of (such) women in marriage
or keep (the proposal) concealed within your minds; Allah
knows that you win mention them, but do not give them a
promise in secret unless you speak in a lawful manner, and
do not confirm the marriage tie until the writing is fulfilled,
and know that Allah knows what is in your minds, therefore
beware of Him, and know that Allah is Forgiving,
Forbearing.46

44
. S. Sabiq, Op. Cit.
45
. Hammuda, A, The Family Structure in Islam, American trust Publications, U.S.A, 1977, p.109
46
. Qur ‘an 2:235
In Hadith, it was narrated that the Messenger of Allah (SAW) said:

When one of you proposes to a woman, if he could look at

her to see what urges him to marry her then let him do that.47

There are different views of fuqaha concerning the areas which he is allowed to look up,

some said he is allowed to look at her face, hands and forearms while some say that he

may look at her face and hand only, while others said he may look at what usually

appears such as the neck, calves and so on. But the majority of scholars say that a man is

allowed to look at her face and hands, because the face indicates beauty or ugliness, and

the hands indicate the slimness or plumpness.48

It is permissible for a woman to propose to a man that she approves of as a husband

through either authorizing her guardian or sending someone to him who she trusts. In

Islam al-Khitbah is made to a woman who satisfied the following conditions:

 That she must be free from all impediments of marriage which can deny one to

marry her, and

 That someone does not propose her

It is generally forbidden for a Muslim to propose a woman who is serving her

Iddah (waiting period), this is whether for a death husband or divorce and whether for a

revocable or irrevocable divorce. Islamic Jurists have extensively discussed concerning a

woman serving an Iddah for a death husband and unanimously agreed that she can be

betrothed impliedly based on the reason from the statement of the Almighty Allah which

was cited above.

Looking at partner is very essential before marriage as the Prophet (SAW)

command Jabir bn Abdullah (RA) to do so in one of his tradition in which Jabir narrated:
47
. Y. Qadhi, Op. Cit., Hadith no. 2081
48
. Ibn Qudama, Al-Mughni, Darul-Hadith, Al-Qaherah, Vol.7, p.454
 When one of you asked a woman in marriage, if he is able to
look at what will induce him to marry her, he should do so.
He (Jabir) said: I asked a girl in marriage, I used to look at
her secretly, until I looked at what induced me to marry her.
I, therefore married her.49

Shari’ah wants the bonds of marriage to be strong and everlasting therefore it is

recommended to look at the person before hand and it is permitted to look at her in secret.

However, looking should be with the intention of marrying and not for evil purposes.

3.6 POSITION OF HUSBAND IN ISLAM

The advantage of men over woman as stated in the Glorious Qur'an refers to the

authority of men over woman, which encompasses the added responsibilities and duties

asked of men rather than woman. The husband is the manager of the household affairs

and the only person held responsible for supporting his wife and children with adequate

food, clothing and shelter, and for providing them with the security necessary in life. 50

The wife is not obligated to share in the financial support of the family or herself.

By their characteristics, men are made to fit their position of authority and responsibility

with the many characteristics that Allah the Creator has bestowed upon them. 51

The position of the husband in Islam is one of leadership, responsibility, and

protection. He is the head of the household and is responsible for providing for his wife

and children. He is also responsible for their moral and spiritual upbringing. The Qur'an

teaches that the husband should be kind and compassionate to his wife. He should treat

her with respect and dignity. He should also be fair and just in his dealings with her. 52

49
. Y. Qadhi, Op. Cit., Hadith no. 2082
50.
A. Hammuda, The Family Structure in Islam, American Trust Publications, U.S.A, 1977, p.72
51.
Ibid.
52.
. S.S Sharmin and M.M. Azad, Laws of Muslim Marriage from the concept of the Glorious Qur'an,
International Journal of Engineering and Applied Sciences (IJEAS), Vol.5, No.7, 2018, p.29
 The husband is also responsible for protecting his wife and children from harm.

He should provide them with a safe and secure home. He should also protect them from

physical, emotional, and spiritual harm. The husband is the leader of the household, but

he is not a dictator. He should consult with his wife on important matters and should take

her opinions into account. He should also work with her to create a loving and supportive

home environment.

3.7 POSITION OF WIFE IN ISLAM

Within the Islamic tradition, there is a strong emphasis on the position of the wife,

as our narrations and the lives of the holy personalities demonstrate. In this day and age

where women are often objectified, Islam makes the necessary reforms to allow for the

progress and growth of family life by honoring the status of the wife. The Prophet (SAW)

states,

My brother Gabriel has not stopped informing [me] about

the rights of women so much [so] that I thought [perhaps]
a husband does not have the rights to utter 'uff’ to her.53

The methods employed to protect the rights of wives in Islam include the

establishment of laws in regard to respect, dowry, and financial obligations.

The position of wife in Islam is one of honor, respect, and love. The Qur'an

teaches that the husband and wife are equal partners in marriage. They are both

responsible for contributing to the well-being of the family. The wife is expected to be a

good companion to her husband. She should be supportive and understanding. She should

also be kind and compassionate to the children. The wife is also responsible for managing

the household. She is responsible for cooking, cleaning, and taking care of the children.

She is also responsible for creating a loving and supportive home environment. 54

53.
Tirmidhi, Sunan at-Tirmidhi, Hadith no. 1025, Op. Cit., p.417
54
. A. Hammuda, Op. Cit. p.73
3.8 RIGHTS OF HUSBAND FROM HIS WIFE

The rights of the husband over his wife are among the greatest rights; indeed his

rights over her are greater than her rights over him, because Allah says sated his in the

Glorious Qur'an:

And they (women) have rights (over their husbands as

regards living expenses) similar (to those of their
husbands) over them (as regards obedience and respect)
to what is reasonable, but men have a degree (of
responsibility) over them.55

The Messenger of Allah (SAW) said:

If I were to command anyone to prostrate to anyone other

than Allah, I would have commanded women to prostrate
to their husbands. By the One in Whose hand is the soul
of Muhammad, no woman can fulfil her duty towards
Allah until she fulfils her duty towards her husband. If he
asks her (for intimacy) even if she is on her camel saddle,
she should not refuse.56

In another version of the hadith, the Prophet (SAW) said:

If I were to instruct anyone to prostrate to anyone, I

would have instructed women to prostrate to their
husbands, because of the rights that Allah has given them
over them.57

55
. Qur'an 2:228
56
. Ibn Majah, Sunan lbn Majah, Hadith no. 1853, Maktabah Darul lImiyyah, Beirut, nd, p.827
57
. N. Al-Khattab, English Translation of Sunan Abi Dawood, Hadith no. 2140, Darussalam Publishers, Riyadh,
2007, p.727
The husband's rights include:

a) The Obligation of Obedience

Allah has made the man a Qawwaam (protector and maintainer) of the woman by

commanding, directing and taking care of her, just as guardians take care of their charges,

by virtue of the physical and mental faculties that Allah has given only to men and the

financial obligations that He has enjoined upon them. Allah says:

Men are the protectors and maintainers of women,

because Allah has made one of them to excel the other,
and because they spend (to support them) from their
means. Therefore the righteous women are obedient to
Allah and their husbands, and guard that which Allah has
ordered them to guard (their chastity and their husbands
property) in the absence of their husbands.58

Ali ibn Abi Talhah said, narrating from Ibn Abbas (RA):

Men are the protectors and maintainers of women means,

they are in charge of them, i.e., she should obey him in
matters of obedience that Allah has enjoined upon her,
and obey him by treating his family well and taking care
of his wealth. This was the view of Muqaatil, al Saddi
and al-Dahhaak.59

The trait of a righteous woman is clear from this ayah, she obeys Allah and her husband.

b) Making herself available to her husband

One of the rights that the husband has over his wife is that he should be able to enjoy

her (physically). If a wife refuses to respond to her husband's request for intercourse, she

has done something haram and has committed a major sin, unless she has a valid shar'i

excuse such as menses, obligatory fasting, sickness, etc.

58
. Qur'an 4:34
59
. Ibn Kathir, Tafseer lbn Katheer, Vol. 1, Darul Fajr Publication, Cairo, nd, p.492
The Prophet (SAW) was reported to have said in one of his Traditions:

When a man calls his wife to his bed and she refuses, and
he went to sleep angry with her, the angels will curse her
until morning.60

The Husband should also respond to the call for intercourse by his wife. It is not

permissible for a man to forsake his wife and thus harm her, except in the case of nushooz

(rebellion) and disobedience. But he is not committing a sin if he does not lie with her

without intending to harm her. The curse mentioned in the hadith is specific for a wife.

c) Not admitting anyone whom the husband dislikes

One of the rights that the husband has over his wife is that she should not permit

anyone whom he dislikes to enter his house. The Messenger of Allah (SAW) said:

It is not permitted for a woman to fast when her husband

is present without his permission, or to admit anyone into
his house without his permission. And whatever she
spends (in charity) of his wealth without his consent...61

This also includes the relatives of the wife, if the husband does not like them then

she has to oblige. She can try and convince him to allow the relatives so that she can meet

them (Mahrams only), but she has to obey the order whether or not the reason for the

husband forbidding is right or not. He is answerable for his actions, the wife will be

rewarded for patience but if the wife fights and let her relatives in without the consent of

her husband then she is disobeying and is answerable to Allah for her actions.

d) Not going out of the house except with the husband's permission.

One of the rights of the husband over his wife is that she should not go out of the

house except with his permission. The basic principle is that a woman should not leave

her husband's home without his permission, and if she leaves without his permission, then

60
. M.M. Khan, Op. Cit., Hadith no. 3065
61
. Ibid. Hadith no. 4899
she is being disobedient and willfully defiant (nushooz). She loses the right to

maintenance and is sinning thereby. But an exception is made in cases of necessity and

the fuqaha' have given several examples of that, such as if she goes out to buy flour,

bread or other necessities, or she is afraid that the house may collapse, and so on. 62

e) Discipline

The husband has the right to discipline his wife if she disobeys him in something

good, not if she disobeys him in something sinful, because Allah has enjoined

disciplining women by forsaking them in bed and by hitting them, when they do not obey.

The evidence that it is permissible to discipline one's wife includes the following

Qur'anic verses:

As to those women on whose part you see ill-conduct,

admonish them (first), (next) refuse to share their beds,
(and last) beat them (lightly, if it is useful).63
O you who believe! Ward off yourselves and your
families against a Fire (Hell) whose fuel is men and
stones.64

Ibn Katheer said: Qataadah said: you should command them to obey Allah, and forbid

them to disobey Allah; you should be in charge of them in accordance with the command

of Allah, and instruct them to follow the commands of Allah, and help them to do so. If

you see any act of disobedience towards Allah, then stop them from doing it and rebuke

them for that. This was also the view of al-Dahhaak and Mugaatil: that the duty of the

Muslim is to teach his family, including his relatives and his slaves, that which Allah has

enjoined upon them and that which He has forbidden them.65

f) Serving her husband

62
. Asna al-Mataalib ma'a Haashiyatihi, Vol.3, p.239
63
. Qur'an 4:34
64
. Qur'an 66:6
65
. Tafseer Ibn Katheer, Vol. 4, p.392
 First of all by carrying out what is required in his house, such as bringing up and

educating the children, preparing the meals and the beds and so on. Shaykh al-Islam Ibn

Taymiyah said:

She is obliged to serve her husband according to what is

reasonable among people of similar standing. That varies
according to circumstances: the way in which a Bedouin
woman serves (her husband) will not be like the way of a
town-dweller, and the way of a strong woman will not be
like the way of a weak woman.66

Here is an example of how Asmaa' bint Abee Bakr (RA) served her husband. She said:

Az-Zubayr married me and he did not have any property

or slaves or anything upon the earth except for a camel
which drew water from the well and his horse. So I used
to feed his horse, draw the water, stitch his water bucket,
and prepare the dough, but I was not proficient in baking
bread so ladies from the Ansaar who were my
neighbours and were honourable used to bake the bread
for me. I also used to carry the date-stones upon my
head, from the land given to az-Zubayr by Allaah's
Messenger (SAW) and it was about two miles away. One
day when I was coming with the date-stones on my head,
I met Allah's Messenger (SAW) and a group of the Ansar
were with him. So he called me and said, Ikh, ikh.' In
order to carry me behind him upon the camel. But I felt
shy to proceed along with the men, and I thought of az-
Zubayr and his sense of jealousy, and he was one of the
most jealous of the people. So Allah's Messenger (SA
W) saw my shyness and so passed on. So I came to az-
Zubayr and said, Allah's Messenger (SAW) met me
while I was carrying the date stones upon my head and
with him were a group of his Companions. He caused his
riding camel to kneel, but I felt shy and remembered
your sense of jealousy.' So he said, By Allah your having
to carry the date-stones is harder upon me than that you
should ride along with him.” She said, Then later on
Aboo Bakr sent me a servant to look after the horse, so it
was as if he had set me free.67

66
. Ibn Taymiyyah, al-Fataawa al-Kubraa, Vol.4, p.56I
67
. Fathul Baari, Vol.9, p.319
In the commentary on the Hadith of Asma, it says: "From this incident we may

understand that it is the woman's duty to take care of everything that her husband needs

her to take care of. This was the opinion of Abu Thawr.

Another evidence of a woman is responsible in serving her husband is the Hadith of

Fatima (RA) the daughter of the Prophet (SAW). Imam al-Bukhari narrated in his Sahih

that Fatimah (RA), the daughter of the Prophet (SAW) asked him for a servant. He said,

Shall I not tell you of something that is better for you than
that? When you go to sleep, say Subhan-Allah (Glory be
to Allah) thirty three times, AI-Hamdu Lillah (praise be to
Allah) thirty three times, and Allahu Akbar (Allah is Most
Great) thirty four times.68

What we learn from the Hadith is that when Fatimah (RA) asked her father (SAW)

for a servant, he did not command her husband to find her a servant or hire someone to do

these tasks, or to do these tasks himself. If it were Ai's duty to do these things, the Prophet

(SAW) would have commanded him to do them.

3.8 RIGHTS OF WIFE FROM HER HUSBAND

Islam has enjoined upon the husband duties towards his wife, and vice versa, and

among these duties are some which are shared by both husband and wife. In this heading

the researcher will highlights the rights of wife from her husband which are being

categorized into two, financial and non-financial rights.

FINANCIAL RIGHTS

a) The Mahr (dowry)

This is the money to which the wife is entitled from her husband when the marriage

contract is completed or when the marriage is consummated. It is a right which the man is

obliged to pay to the woman. Allah (SWT) says in the Glorious Qur'an:

68
. Ibid. Vol 9, p.506
 And give to the women (whom you marry) their Mahr
(obligatory bridal-money given by the husband to his
wife at the time of marriage) with a good heart.69

The prescription of the mahr demonstrates the seriousness and importance of the

marriage-contract, and is a token of respect and honour to the woman.

b) Spending

What is meant by spending is providing what the wife needs of food and

accommodation. She has the right to these things even if she is rich, because Allah says:

But the father of the child shall bear the cost of the
mother's food and clothing on a reasonable basis.70

In another verse, the Exalted ordained husbands to spend based on their ability, where He

says:

Let the rich man spend according to his means; and the
man whose resources are restricted, let him spend
according to what Allah has given him.71

The Prophet (SAW) said to Hind bint Utbah - the wife of Abu Sufyaan - "Abu Sufyan is a

miserly man and I need to take some money of his wealth. The Prophet (SAW) said:

“Take reasonably what is sufficient for you and your children”.72

It was also narrated from Jabir bin Abdullah (RA) that the Messenger of Allah (SAW)

said in his Farewell Sermon:

Fear Allah concerning women! Verily you have taken

them on the security of Allah, and intercourse with them
has been made lawful unto you by words of Allah. You
too have rights over them, and that they should not allow
anyone to sit on your bed [i.e., not let them into the
house] whom you do not like. But if they do that, you can
chastise them but not severely. Their rights upon you are

69
. Qur'an 4:4
70
. Qur'an 2:233
71
. Qur'an 65:7
72
. Sahih al-Bukhari, Hadith no. 5364
 that you should provide them with food and clothing in a
fitting manner.73

The scholars are agreed that it is obligatory for husbands to spend on their wives,

on the condition that the wife makes herself available to her husband. If she refuses him

or rebels, then she is not entitled to that spending. The reason why it is obligatory to

spend on her is that the woman is available only to her husband, because of the marriage

contract, and she is not allowed to leave the marital home except with his permission. So

he has to spend on her and provide for her, and this is in return for her making herself

available to him for his pleasure.

c) Accommodation

This is also one of the wife's rights, which means that her husband should prepare for

her accommodation according to his means and ability.

Allah (SWT) says:

Lodge them (the divorced women) where you dwell,

according to your means.74

NON-FNANCIAL RIGHTS

a) Kind Treatment

The husband must have a good attitude towards his wife and be kind to her, and offer

her everything that may soften her heart towards him, because Almighty Allah says:

...and live with them honourably.75

In another verse, He says:

And they (women) have rights (over their husbands as

regards living expenses) similar (to those of their
husbands) over them (as regards obedience and respect)
to what is reasonable.76
73
. Narrated by Muslim, 1218
74
. Qur’an 65:6
75
. Qur'an 4:19
76
. Qur'an 2:228
The Messenger of Allah (SAW): “Be kind to women”.77

He also enjoined kind treatment and honouring of one's wife, and he described the best of

people as those who are best to their wives. He (SAW) said:

The best of you are those who are the best to their wives,
and I am the best of you to my wives.78

He (SAW) spoke some more beautiful words concerning kind treatment of one's wife,

stating that when the husband feeds his wife and puts a morsel of food in her mouth, he

earns the reward of doing an act of charity. The Prophet (SAW) said:

You never spend anything but you will be rewarded for

it, even the morsel of food that you lift to your wife's
mouth.79

b) Not harming one's wife

This is one of the basic principles of Islam. Because harming others is haraam in the

case of strangers, it is even more so in the case of harming one's wife.

Allah says:

Men are the protectors and maintainers of women,...80

Not harming her, not only includes the physical harm, but husbands should make

sure that she is not harmed psychologically. Unfortunately, we see men exploiting the

power bestowed by Allah upon them as a husband and abuse their wives with constant

rejection, reviling, allowing his relatives to oppress her.

c) Satisfying her Physical needs

This is importance rights of wife over her husband. It is something that keeps the

relation happy and healthy and saves her from the fitnah. So husbands should be mindful

77
. Narrated by al-Bukhaari, 3153; Muslim, 1468
78
. Narrated by al-Tirmidhi, 3895; Ibn Maajah, 1977; classed as saheeh by al-Albaani).
79
. Narrated by al-Bukhaari, 63S2; Muslim, 1628
80
. Qur'an 4:34
of giving this right to her knowing very well that if she is satisfied she will surely make it

more pleasurable for him.

d) Fair Treatment of Co-wives

One of the rights that a wife has over her husband is that she and her co-wives should

be treated equally, if the husband has other wives, with regard to nights spent with them,

spending and clothing.