Family Laws of Islam

The family laws of Islam are based upon the principles of natural justice and public welfare. Islam has provided dignified and respectable roles and rights to both men and women keeping into consideration their physical and mental structure. Islam has provided women their due rights in each and every sphere of life. Before Islam women were deprived of their fundamental rights such as share in inheritance. They were exploited in various aspects of family matters: divorce, guardianship, maintenance etc. Even female infanticide was common in Pre-Islamic Arab society. Islam abolished all anti-women attitudes and practices. Islam made it incumbent upon every Muslim man and woman to acquire knowledge.

The family laws of Islam are concentrated on the institution of Nikah or Marriage which establishes the paternity of children and derives consanguinity and affinity. Through legalization of sexual relation between two members of opposite sexes,  the institute of marriage preserves human species, fixes descent, refrains man and woman from debauchery, encourages chastity and promotes love and union between husband and wife. Through the institution of marriage, the marriage partners owe certain rights to each other. About the relationship between spouses the God Almighty says in verse No. 187 of Sura Baqara/ Chapter the cow ‘they (your wives) are as a garment to you and you are as a garment to them.

The Holy Prophet (PBUH) laid it down once for all ‘Marriage is my sunnah (way of life) and whosoever turns away from my sunnah is not of me’

The Islamic family is based on the patriarchal principle i.e., the family should be headed by a male. Each member of the family enjoys complete legal capacity and joint-family system of holding property is not recognized. A marriage like any other contract is comprised of proposal and acceptance. In addition to it two male witnesses or one male and two female witnesses are required for the purpose of publicity, as marriage cannot be kept secret. In the same way marriage cannot be made contingent on a future event. Nor can marriage be expressly limited for a time. Every Muslim who is not a minor whether male or female is competent to contract marriage and cannot be given in marriage without her or his consent by any relative including the parents. In this regard the Holy Prophet (Peace be Upon Him) has said,  ‘No widow should be married without consulting her and no virgin be married without her assent and her assent is her silence’ (Bukhari and Muslim).

Guardianship for the purposes of marriage is allowed because of necessity for proper and suitable match may not always be available. The Malikis confer this right only on the father and the Shafiies also recognize the right of grandfather whereas the Hanafiies also include some other close male relatives. But when a minor is given in marriage by a guardian other than the father or the grandfather, he or she can in the exercises of what is called option of puberty (Khayar-ul-Bulugh) refuse to be bound by the marriage and ask the court to pass a decree annulling the marriage. In certain conditions the court can annul the marriage of a minor even contracted by father and grandfather if it is proved that the welfare of the minor has not been taken into consideration.

Although like other religions Islam accords permission for polygamy but promotes monogamy.  In fact, Islam did not introduce polygamy. This practice was present in Arab society in its worst form. An Arab, in pre-Islamic Arabia, was allowed to have as many wives as possible, but Islam imposed restrictions on this practice. In this regard the Almighty Allah declares in Verse No. 3 of Sura Nisa / Chapter the women, “Marry the women that seem good to you: two or three or four. If you fear that you will not be able to treat them justly, then marry one. Similarly in Verse No.129 of Sura Nisa/Chapter the Women, it has been declared that You will not be able to treat your wives with (absolute) justice not even if you keenly desire to do so. (It suffices in order to follow the Law of Allah that)You do not wholly incline to one, leaving the other in suspense. If you act rightly and remain God-fearing, surely Allah is All-Forgiving, All-Compassionate’. The favour of Islam for natural course of monogamy is evident from the fact that from age of 25 to 50 years the Holy Prophet (Peace be upon him) was having only one wife named Hazrat Khadija (Allah be pleased with her) who was 15 years older than him. All the other marriages of the Holy Prophet (Peace be upon him) were contracted after the age of 50 years and were aimed at abolishing un-Islamic anti-women customs and traditions from society. Except Hazrat Aisha (Allah be pleased with her), the remaining ten wives of the Holy Prophet (peace be upon him) were either widows or divorced by their previous husbands. Therefore, the marriages of Holy Prophet (peace be upon him) were not for the purpose of joy seeking and merrymaking.

According to Muslim family Laws there are certain persons between whom marriage is forbidden. Persons so prohibited from inter marrying are called Muharim. Some of such prohibitions are of permanent nature such as on account of blood and other close relations. There are some obstacles to enter marriage of a temporary character such as difference in religion. Hence a Muslim cannot marry a Polytheistic women but a Muslim can marry a Christian woman or a Jewess, though a Christian or a Jew cannot marry a Muslim woman. This bar can be got rid of by the women embracing Islam.

An important aspect of Muslim marriage is Dower (Mahar). It is a sum of money or other form of property to which the wife becomes entitled by marriage. It is an obligation imposed by law on the husband as a mark of respect for the wife. Dower may be either prompt that is payable immediately at the time of marriage or deferred till demand. The minimum amount of Dower is 10 Dinars or value of 32 Grams of silver. There is no maximum limit.

The Muslim family laws also prescribe methods for dissolution of marriage or divorce. Basically this right belongs to husband; however, the wife can also acquire it through Khula or Mubarat. In certain conditions she may approach the court of law for dissolution of marriage. The dissolution of the marriage by the court of law is known in Islamic terminology as Furqat. If the marriage is annulled by the court due to some cause imputable to the wife it is called Fasakh-e-Nikah.

Some aspects and aftermath of marriage even continue after the dissolution of marriage for a limited period known as Period of Probation or Iddat. Iddat is the period of time during which a woman is not allowed to contract another marriage after the dissolution of her previous marriage. The basic object of Iddat is to establish the paternity of child that may be born after the dissolution of marriage. The period of Probation according to the Hanafis is the period covered by three menstrual cycles and according to the Shafiis and Malikis the period covered by three intervals and in the case of an old woman or of a girl of immature age it is three months. Iddat of a widow is four months and ten days, of a pregnant woman whether divorced or a widow the period of probation does not end until delivery.

Islam condemns all kind of brutal and inhuman anti-women acts such as acid-throwing, honour-killing, Wani and Swara etc. Even in cases of extreme resentment and provocation, the spouses are not allowed to take law into their own hands. Even if the husband accuses his wife of adultery, he is having no authority to cause harm to the wife. In such a situation, Islam prescribes the procedure of Laan that has been elucidated in detail in the Holy Quran in Sura Noor. As per this procedure the husband would swear in a court of law for four times that his wife has committed adultery.  For the fifth time he would say that he may be cursed by the Almighty Allah if he is telling lie. In response the wife is having the right to deny these allegations. In such a situation she would say for four times that her husband is telling lie and for the fifth time she would say that she may be cursed by the Almighty Allah if she is not speaking the truth. The court would then dissolve the marriage.

All the segments of the society are required to make sincere and dedicated efforts for removing the lacunas that are present in the implementation procedure of these laws and for giving an end to certain anti women traditions and customs that exist in different parts of the country.