Marriage and Divorce

Marriage, as a social institution, is essentially a civil contract. And as a civil contract it rests on the same footing as other contracts. Its validity depends on the capacity of the contracting parties, which according to Islamic law, consist in having maturity (bulugh) and discretion. Mutual consent and public declaration of the marriage contract are its essentials. The law does not insist on any particular form in which this contract is entered into or on any specific religious ceremony, although there are different traditional forms prevalent amongst the ?Muslims in different parts of the world and it is regarded advisable to conform to them. As far as the Shari’ah is concerned, the validity of the marriage depends on proposition on one side (ijab) and acceptance (qubul) on the other. This offer and the acceptance can take place directly between the parties, or through an agent (wakil). In a traditional Muslim marriage, the bride’s consent is procured through her representative. Normally there are at least two witnesses to this matrimonial contract, entered into at a family ceremony. There is also a dower (mahr) which the husband pays to the wife and which is for her sole and exclusive use and benefit. This last (i.e. dower) is an important part of the scheme, but it is not essential for the legality of the marriage that its amount must be pre-fixed. As such its absence would not render the marriage invalid, although the husband is expected to pay it according to custom.

Being a civil contract, the parties retain their personal rights as against each other as well as against others. The power to dissolve the marriage-tie rests with both parties and specified forms have been laid down for it.

Marriage in Islam is not a temporary union and is meant for the entire span of life. Dissolution of marriage is, however, permitted if it fails to serve its objectives and has irretrievably broken down.

Family arbitration is resorted to before final dissolution. This has been laid down in the Qur’an and the Sunnah. If this fails, then steps are taken for dissolution of the marriage. There are three forms of dissolution: divorce by the husband (talaq), separation sought by the wife (Khul’) and dissolution of the marriage by a court of an arbiter. Detailed laws and by-laws have been laid down by the Qur’an and the Sunnah in respect of these and have been codified in the fiqh literature to regulate different aspects of marriage and family life.

Muslim marriage is usually a contracted marriage. Although marriage is primarily a relationship between the spouses, it, in fact, builds relationship between families, and even more. That is why other members of the family, particularly the parents of the spouses play a much more positive role in it. Consent of the bride and bridegroom is essential; in fact, indispensable. Despite the fact that free mixing of the sexes is forbidden, it is permitted for the intending partners in marriage to see each other before the marriage. What, however, stands out prominently is that marriage in Muslim society is not merely a private arrangement between the husband and the wife. That is why the whole family contributes effectively towards its arrangements, materialization and fulfillment.