Last Updated: Wednesday January 07, 2009
General injunctions for family life.
The
injunctions for family life are given in more details than any other subject in
the Holy Quran. In the social life of man 'home' is of utmost gravity. What is
it that we call Society The doors of different homes open daily and the
individual dwellers get dispersed in different directions; that is what makes a
society. In the evening the same people, return to their respective homes.
These very homes keep developing the future community. The upbringing of
children depends upon their internal atmosphere. The fate of the future of
nation is thus directly connected with the way children are brought up.
The
concept of Nizaam-e-Rabubiyyat (the economic system laid down in the Quran) is
based on the principle that every earning member of the society shall work
according to his capacity and all that is gained by their collective efforts,
shall be spent in fulfilling the needs of all the individuals of the society.
In a miniature form, this system takes shape within the four walls of a home.
The earning member of the family does not keep to himself what he earns, nor
does he give priority to his own needs over the needs of the other members of
the family. His earnings are spent by all the members of the family. In so
doing, the earner does not bestow a favour upon the recipient, nor does the
recipient receives it as charity. The donor considers it to be his
responsibility and the recipient considers it to be his right. Based on the
principle of the division of labour, all keep themselves busy in the
performance of their respective duties. From this arises the feeling of mutual
co-operation and thus a pleasant atmosphere prevails. The result of this
delightful prevalence produces the occurrence of deep relationship of love and
attraction which lasts for the rest of their lives. Thus a good home presents
an example for the good society.
That
is why the Holy Quran has accorded such great importance to family life and has
provided detailed injunctions to make it examplary: and this aspect takes
precedence in our order of priority too in connection with Quranic injunctions.
INJUNCTIONS - FAMILY LIFE (1): THE STATUS OF MAN AND WOMAN.
Basically,
according to the Holy Quran, there is no difference or distinction between one
child and another by virtue of his birth: (17:70) "We have made every
human being equally worthy of respect" is the ground rule. It is apparent
that both men and women are included in "humanity" and both of them
are equally worthy of respect. In pre-Islamic
The
result of this degraded status of girls in the Arab society of that era, was
that they were kept devoid of literacy and art. They were considered foolish
and ignorant. There was no value of their opinions and they were considered
unworthy of consultation in settling affairs. It is apparent that when they are
kept in this position in successive generations, their intellect would
gradually degenerate. These were the women whom the Quran describes as: (43:18)
"One brought up among ornaments and unable to give a clear account in a
dispute". This was the abatement in a woman, on the basis of which the
Quran had advised that when a woman has to appear before a court of law, a
second woman shall stand by her side to remind her if she forgets or is
confused. (See under the heading "Evidence"). (2:282) "If one of
them gets confused or forgets, the other may remind her."
The
Quran raised woman from this level and with proper education and upbringing
brought her to the level of man in all walks of life. Men were instructed not
to look down on women because: (3:194) The one of you is from the other".
However, in relation to certain natural functions, like 'childbirth' and the
nurturing and upbringing of children, there is their own distinct 'division of
labour'. From this point of view, in the 'allocation' of labour, men are
superior to women in some affairs, and women are superior to men in others.
This is what is meant by: (
Since
in family life the fulfillment of the needs of the wife and children is the
responsibility of man, in the inheritance of the property of parents a
daughter's share is half that of a son. (Details will be found in the chapter
of Inheritance).
Besides
the difference described above, the status of men and women is equal in all
affairs of daily life; equal to the extent that the Quran has used the word
Zauj for them. If two parts of a certain object are such that one remains
incomplete without the other, each one of these two parts is called Zauj i.e.
one serves as a means to complement the other, e.g. the two wheels of a cart:
if one is missing, or is weak, or comparatively smaller, the other shall become
useless. That is the relationship between a wife and her husband and their
positions in the vehicle of life. As far as belonging to different sexes is
concerned, there in no special competency that men possess and women do not.
Observe how the Holy Quran has described their qualities as parallel to one
another when it is said; (33:35) "It is a fact that as men can bow down to
the Divine Laws so can women; as men can be the believers in truth, so can
women; as men are capable of attesting and verifying their 'belief' by their
personal acts, so are women; as men possess the capability of not losing heart
in the event of trials, so are women; as men can go on submitting to the
feelings of their responsibilities, so do women possess this capability; as men
are equipped with the quality of self-sacrifice, so are women; as men can keep
complete control over themselves, so can women; as men possess the capability
of keeping themselves subservient to the Divine Laws, so do women.
As
men and women both possess all the above qualities, the fruits of their deeds
should also be similar for each other. For the same reason Allah has prepared
protection and reward for both."
It
can thus be seen from the above that there is no aspect of life in which men
are competent but the women are not. The Quran says: (4:124) "If having
professed Eemaan, any does deeds of righteousness (constructive and positive),
whether male or female, both shall get the life of paradise and not the least
injustice will be done in their recompense."
At
another place the Quran states: (3:194 ; 16:97) "Never shall We deprive
any of you of the fruits of your efforts _ whether male or female. You are the
individuals belonging to the same kind: so why should there be any distinction
or classification between you"
To
enjoin what is lawful according to the Divine Laws and prohibit what is
unlawful is the basic duty (function) of an Islamic State; and men and women
both can take part in the performance of this duty: (9:71) "The believing
men and women, are friends and associates (companions) of one another on
account of their sharing the motto of life, they enjoin what is just and forbid
what is evil; they establish the System of 'Salaat' and provide means of
nourishment to humanity, and obey Allah and His Rasoole - (the Divine Order).
These are the people who shall benefit from the means of nourishment provided
by Allah and the whole world shall witness the power and wisdom of the Divine
Laws."
Thus
a woman cannot be declared ineligible for taking part in state affairs merely
on account of her being a woman.
It
is apparent from the principles laid down in the Quran that any law that
discriminates between men and women only on the basis of sex, is repugnant to
the Quran (Except in those matters where the Quran has specifically said so,
e.g., share in inheritance).
INJUNCTIONS - FAMILY LIFE (2): RELATIONS BETWEEN HUSBAND AND
WIFE
1. NIKAAH - (MARRIAGE CONTRACT).
Nikaah
is a mutual contract between a man and a woman. It appears in Surah An-Nisa: (
2. AGE FOR NIKAAH.
According
to the Holy Quran, the age for Nikaah is the age of puberty. The Quran has
specifically mentioned: (4:6) "You should, as their guardians, keep
monitoring the orphans till they reach the age of Nikaah."
However,
the Quran has not determined as to what can be the age of puberty besides other
factors, as it differs in different climatic conditions. At yet another place
it is stated as age of adolescence: (6:153) : (17:34) "until they reach
the age of adolescence." What this age is, has been explained by the Quran
at another place while pointing towards the different stages of human life. It
is said: (40:67) "Then He brings you forth as an infant, then lets you
reach the age of adolescence, then lets you become old."
Keeping
the above verses in view, the matter becomes quite clear. In Surah An-Nisa
(4:6) was said i.e., till they reach the age of Nikaah (adolescence) and in
Surah An'aam has been said (6:153) ' till they reach the age of adolescence and
in (40:67) this age has been interpreted as an age (6:153) between childhood
and old-age i.e. the adolescence; it thus becomes evident that according to
Quran, the age of Nikaah is the age of puberty (adolescence). Thus the Quran
has laid down the age of marriage as the age of puberty both for the boy and
the girl.
Therefore
the question of marriages of immature people (before they reach adolescence)
does not arise. It is up to the Islamic Government to determine this age
(according to its environmental circumstances).
3. MUTUAL CONSENT.
Just
as the age of puberty of both boy and girl is essential for the contract of
marriage, likewise their mutual consent is also mandatory: without it the
contract of marriage cannot take place. About men it is said: (4:13)
"Marry the woman of your liking."
About
women it is said: (4:19) "It is not lawful for you to bring women into
your wedlock forcibly (without their consent)."
Since
the Nikaah cannot be solemnised in childhood, the question of appointing a
guardian does not arise. However if the woman so desires she can appoint an
attorney in order to settle affairs on her behalf. The statement in Surah
Baqarah, (2:237) "In whose hands is the marriage tie", means the
attorney appointed by the woman, or the court itself having the power of
dissolution of marriage.
4. CEREMONY FOR NIKAAH (MARRIAGE).
The
Quran has not laid down any specific ceremony for marriage. There is not even a
mention of any special person who solemnises Nikaah. Since this is a contract,
whatever laws are laid down by the government for the ratification of
contracts, this contract should also be ratified (confirmed) according to the
prevalent laws.
It
is essential for the government to make definite laws for the purpose.
Moreover, it is equally important to proclaim the solemnisation of Nikaah. A
marriage kept secret is not tenderised by the Quran. (5:5)
5. FORBIDDEN FOR MARRIAGE (MUHARRAMAAT).
The
Holy Quran has declared in detail those men and women who cannot marry each
other. The list is as follows:
a)
Marriage between a Muslim man or woman (monotheists) and polytheist man or
woman is unlawful. It is said: (2:221) "Do not marry unbelieving woman
(idolaters) until they profess Eemaan. A captive Muslim man is better than a
free Mushrik man regardless of how pleasing he may appear; it is because
marriage between persons of different ideologies makes family life a veritable
hell. This is why Allah's Law prevents you from such a union. On the other
hand, marriage between spouses with a similar ideology creates a paradisiacal
family life. Divine Law wants to bestow on you the contentments of paradisiac
life and protects you from various pitfalls. Allah explains to mankind His Laws
clearly so that they may see the truth laid open before them."
At
another place it is said: (5:5) "Chaste Mu'min women", which means
that it is necessary for the woman to be a Muslimah.
b)
Muslim men can marry women from amongst the people of the Book:(5:5)
"Chaste
women from amongst the people of the Book are also made lawful to you"
under conditions laid down for marrying the Muslim women. But a Muslim woman
cannot marry a non-Muslim man (5:5). It clarifies the issue that Muslim men can
marry woman from the people of the Book but Muslim women cannot marry their
men.
It
therefore implies that:
i)
Muslim men can marry Muslim women or women from people of the Book, and
ii)
Muslim women can marry only Muslim men.
Remember
that marriage between a Muslim man and a woman from the people of Book is only
permitted; it is not an injunction. An Islamic State can suspend this
permission for a period for the sake of social exigencies or those pertaining
to 'Deen'. However, it cannot repeal this injunction (it can only suspend it
for a period); for example, the prohibition of selling meat for two days every
week as it is practised in Pakistan these days.
c)
According to verses (4:20-24) the following women are declared unlawful for
marriage (with Muslim men): "Mothers (real or foster, those who have
suckled you), daughters, sisters, father's sisters, mother's sisters, brother's
daughters; sister's daughters, women who have suckled you and girls with whom
you have shared the suck, (your foster sisters); your wives mothers; your step
daughters under your guardianship, born of your wives to whom you have gone in
_ no prohibition if you have not gone in: (those who have been) wives of your
sons proceeding from your loins; and two sisters in wedlock at one and the same
times, except for what is past; for Allah is oft-forgiving, most
merciful."
[The word Muhsanah means pious and chaste women, it also means 'married women'.
The latter meaning is applicable here].
The
Holy Quran has not given the details of (breast feeding) itself i.e. as to how
the condition of suckling is fulfilled; neither has it laid down how the
condition of being a foster sister (sharing one mother's milk with you) is
satisfied. Its details shall be ascertained by the Islamic State. Remember that
only that woman shall be unlawful to you who has suckled you or the girl who
has shared the suck.
It has been said above that those women who are already married are also
unlawful, yet the Quran did make an exception in it. The women who had migrated
from Makkah and their husbands were present (it is apparent that those husbands
were non-Muslims, otherwise they could also have migrated) were also permitted
for marriage (6:10); an Islamic State can issue special orders in the light of
this exception, if such circumstances re-occur in any country.
Note:
Adopted relations do not become real: thus it is said: (33:4) "Nor has He
made your adopted sons as real sons". (It shall be applicable to all
adopted sons as real sons). (It shall be applicable to all adopted relations).
It shows that the Quran gives no legal status to adopted relations.
In
Surah An-Noor, a verse says: (24:3) "A man guilty of adultery or
fornication marries only a woman similarly guilty or a Mushirkah woman; and a
woman guilty of adultery or fornication can be married only by a man similarly
guilty or by a Mushrik man, that is unlawful for Mu'mineen."
But
we do not consider this purport as true. The ensuing results from this are
apparent. In our view, the word Nikaah in this verse has been used for
cohabitation which is its basic meaning. Thus the verses mean as follows - If
any of the believing man or a believing woman is determined to remain chaste,
adultery or fornication cannot occur. It can occur only by their mutual
consent. [the question of Zina bil jabr (rape) is different]; only those people
commit this crime who do not believe in the Divine Laws; believers cannot act
as such. Thus this verse emphasises and vividly explains the abomination of the
act of fornication. That is why we have not given it in the list of
"Muharramaat" ( ) (persons between whom marriage is unlawful).
As
stated before, in the early days of Islam there were such women in Makkah as
had embraced Islam themselves but their husbands did not and they had migrated
to Madina leaving their husbands; believing men should marry them (60:10). From
this it can be deduced that by abandoning Islam, the marriage automatically
gets dissolved. But its legal decision lies with the Islamic Government.
6. POLYGAMY.
The
Quran has prescribed monogamy (one wife at a time), as a matter of rule. In
case of constancy becoming extremely difficult with the wife, (details shall be
discussed under the heading 'Divorce'), a second wife is allowed in her place:
(4:20) "And if you decide to take a wife in the place of another..."
Let
it be made clear immediately that it does not mean that you are free to divorce
your wife any time you like and bring another one in her place. The conditions
under which divorce can be resorted to are being described in a separate
chapter. Monogamy; is the principle laid down by the Quran. But if any
particular circumstances crop up in society (for example on account of war)
when the number of widows and young girls increases and there is no
satisfactory remedy for it is in view, the Islamic Government can allow a man
to marry more than one woman (up to four) making an exception in the 'one wife'
rule. But there are two essential conditions under which it can be allowed:
firstly, that the man doing so can do justice with his wives; and secondly,
that he is capable of supporting this large family. If any of these two
conditions cannot be fulfilled, the second marriage is not allowed. Surah
An-Nisa states: (4:3) "If ever such circumstances occur (for example on
account of a war) that in the society men are lost (perished) and widows and
orphans (boys and girls) increase, especially women without husbands (4:127)
and an equitable and just solution cannot otherwise be found; under such
circumstances it is allowed, for the sake of protection of these widows and
orphans, that you can marry out of these women whom you like [those who are
willing to marry you (4:19)]. For this purpose exception is given in the principle
of 'one wife at a time'. In such an event, as the circumstances require and as
the society decides, two or three, or four wives at a time, can be taken in
marriage. But if you feel that in so doing you shall not be able to keep the
scales of justice balanced amongst the different family members, then one man
and one wife shall remain the law or the female slaves that you already possess
(have brought in your Nikaah). After the advent of Islam, the custom of
acquiring captives was abolished. In respect of possessing female captives, the
words "you already possess", are to be taken special note of.
Limiting to one wife is a much better course to avoid injustice in the family
and to avoid additional encumbrance due to abundance of progeny.
This is the only verse in the Quran that allows polygamy and, as can be
observed, it is conditional: "if you fear that you shall not be able to
deal justly with the orphans, then only one wife is allowed". Without the
occurrence of this condition, polygamy is disallowed. Let it be made clear that
the word is not limited to mean only orphan boys and girls; the unmarried girls
and women are also included in it. (see Lughatul-Quran). In the Quran itself
you find the word (4:127) i.e. orphan (widow) women. As regards the condition
of maintaining 'justice' it is not possible in this respect. Here justice means
that you do not become so deeply inclined towards one wife that the other is
left unattended to and uncured for! (4:129)
"Remember
that under the circumstances explained in verse (4:3), when you marry more than
one wife you shall have to deal with them justly. As far as love and affection
is concerned, it is impossible to deal with different wives equally. You will
not be able to dos so, no matter how much you desire it, because such things
are related to emotions and equality in sentiments is just not possible. Here
the 'justice' which is aimed at and which is possible, is that you do not
become so much devoted to one wife that the other remains totally neglected.
However, in social matters deal with them on the basis of equality. This shall
meet the demand of justice according to the Divine Law; and by so doing you
shall be protected against the pernicious effects of emotional inbalance. The
Divine Law in this manner makes room for your protection and nourishment."
Remember
that when a nation feels the urgency to solve the problem of widows and
orphans, the women also shall take equal part in this decision; men alone shall
not decide it. It shows that even under the extraordinary circumstances the
consent of the first wife shall be mandatory, otherwise the home shall turn
into a hell.
Except
under the circumstances described above a second wife is not allowed.
7. FEMALE CAPTIVES.
During
the period when the Quran was revealed, the slaves (captives), both men and
women, were part of the Arab society. The Quran closed the door of slavery, and
captive women who were part of the household, were either made a part of the
respective families (were taken into wed-lock) or were gradually freed. The
words whenever they occur in the Quran, mean 'those captive women who were
present in those days.' Now the question of slave women does not arise.
8. FACILITATIONS FOR MARRIAGE.
The
society ought to provide facilities to those who possess competence for
marriage. The Quran addresses the Islamic society by saying: (24:32) "Make
proper arrangement for the marriage of those men or women who have not got the
adequate facilities for marriage."
But
to get married is not an injunction; it is not necessary that men or women
"must" get married. Those who wish to lead an unmarried life and for
whom the means to get married are not available, should control their passions
(abstain): (24:33) "Those who prefer a celibate life or have not the
wherewithal for marriage, should exercise self-control."
During
a state of extreme hunger, the Holy Quran has allowed the eating of unlawful
things (according to need), but has not allowed fornication or adultery to
satisfy one's sexual passions. Obviously man does not possess control over
hunger, but on the other hand sexual urges are purely thought-motivated.
Therefore the question of sexual constraint (helplessness) does not arise. An
Islamic Society creates an environment in which sexual stimulations are least liable
to occur.
9. SEXUAL INTERCOURSE.
Sexual
intercourse is prohibited under the following conditions:
a)
During menstruation;
b)
While fasting, however, it is permitted during nights, in the month of Ramadaan
(before the start and after termination of the "fast");
c)
While one is "in retreat" (I'tikaaf) in the mosques. (during the
month of Ramadaan).
10. OBJECT OF SEXUAL INTERCOURSE.
The
Quran says: (2:223) "Your wives are as a tilth unto you, so approach your
tilths when you so desire."
This brings forth an important fact: one goes to the tilth in order to sow the
seeds, therefore the object of sexual intercourse ought to be the augmentation
of human race, not pleasure alone. This augmentation ought to be thoughtfully
planned; it should not only meet personal requirements but also collective
social exigencies. 'Approach the tilth' means, that you have sexual intercourse
when you desire to have a child. This system (of controlled mating) prevails in
nature. At yet another place the words (4:24) have been used for it; which
means that the object of marriage is fortification of your procreative energies
within the bounds of wedlock and not the mere satisfaction of your lust (not to
let your semen flow out purposelessly).
However,
this is our deduction from the verses of the Quran.
11. THE OBJECT OF MATRIMONIAL LIFE.
The
object of matrimonial life is that a husband and a wife cultivate love and
companionship, so as to make life tranquil at home (life of peace and solace);
thus it is said: (30:21) "Among His signs is that He created for you mates
from among yourselves, that you may dwell in tranquillity with them and as such
He has created such a deep relationship between yourselves, as a means of
actualisation of potentialities for both of you. Verily in that are signs for
those who reflect."
As
to how much concord is present in the relationship between husband and wife,
the Quran has beautifully described a metaphor, when it is said: (2:187)
"They are an apparel for you, and you are an apparel for them."
As
far as the mutual rights and obligations are concerned, the Quran has condensed
it in one comprehensive sentence when it said: (2:228) "The obligations of
women shall be equal to their rights, one obligation against each right*."
It
has been described earlier that in view of the duties incumbent upon women, on
account of their biological structure, the responsibility of earning sustenance
for them rests upon men (4:34).
The relationship also expand through marriages Relationships of marriage
(in-laws) come into existence in addition to the relationship of lineage:
(25:54)
"In
it are included both relationships of lineage and of in-laws."
12. DOWER.
a)
In Surah An-Nisa, after giving the details of those between whom marriage is
unlawful, it is said: (4:24); (5:5) "Except such women, others are lawful
provided you seek (them in marriage) with gifts from your property."
The
term "Mahr" (dower) is used for these gifts in Fiqh (jurisprudence).
The
word "Mahr" does not occur in the Quran, instead the words
"Ajoor" or "Saduqaah" have been used. The Quran has
explained it further that (Mahr) is not a compensation for anything. This is a
gift, without the concept of remuneration or reward. The Quran has also used
the word "Nihlah" for it: (4:4) "And give the women (on marriage)
their dower as free gift". In giving a "gift" is no concept of
gain or compensation.
b)
No amount for 'dower' has been stipulated by the Quran. Anything decided by
mutual consent is "Mahr" but because its payment is essential, it has
also been termed a 'duty' (Divine Command) (2:236-237), therefore it ought to
be proportionate to one's economic status. In this connection guidance is also
available in (2:236). It might expand to a heap of gold (4:20), In this verse
Qintaar means a heap of gold.
c)
The payment of dower ought to be made soon after Nikaah at the time of
marriage. But it is evident from the verse 236 of Surah Al-Baqarah that an
(Occasion may arise when the amount of dower could not be fixed at the time of
marriage, In this verse it has been explained) (2:236)
"There
is no blame on you if you divorce women before consummation or the fixation of
their dower."
It means that if for some reason the amount of dower could not be fixed at the
time of marriage, it can be determined later on.
d)
Dower is the property of the woman; no one has the right to deprive her of this
amount. However, a woman can remit a part thereof if she so desires. (4:4)
"Pay the dower of your wives without any notion of a reward, like the
honeybee giving her honey (there is no concept of reward in it). Since dower is
a gift and not an exchange, woman cheerfully remits a part of it, you can by
all means use it for yourself."
A
little later in the same Surah has been said that the amount of dower can be
altered by mutual consent. In the words of the Quran: (4:24) "But if you
agree mutually to vary the dower after it has been prescribed, there is no
blame on you."
e)
After marriage if divorce occurs before consummation, then:
i)
If dower has not been fixed, then the man ought to pay something according to
his economic status. Surah Al-Baqarah says: [(2:236; 33:49)]
"There
is no blame on you if you divorce women before consummation or the fixing of
their 'dower', but bestow on them (a suitable gift), the wealthy according to
his means: and the poor according to his means (so that the loss she has thus
suffered may be made good to a certain extent); gift of reasonable amount is
due form those who wish to do the right thing."
ii)
If dower was fixed, half of it shall have to be paid; but if the woman or her
agent so agrees, or if the court of law thinks it necessary under certain
circumstances, it can also be remitted fully: (2:237)
"And
if you divorce them before consummation, and the dower had been fixed, half of
the dower (is due to them) unless they forgo it willingly; or it is remitted by
him in whose hands is the marriage tie. And to forgo what is due to you is more
near to Taqwa (adherence to Allah's Law). And forget not that you have to act
with grace towards one another. Surly Allah sees all what you do."
Verse
(2:237) should be kept in mind: "In whose hands is the marriage tie".
It is often deduced from this that the marriage tie is in the hands of the
husband, keeping in mind the common concept that only the man has a right to
divorce. But in our viewpoint this deduction is not correct. We shall elaborate
on that later. According to the Holy Quran the right to divorce belongs equally
to the man as well as to the woman. Here the meaning of the words can mean the
woman's agent in the court of law, or the court of law itself. (See also
chapter on 'Talaaq'-Divorce).
f)
If a woman is guilty of immodesty, something can be deducted from her dower:
(4:19) "O you who believe! (As has been said in 4:3, that a man should
exercise his choice in marrying a woman likewise the consent of woman is also
necessary for marriage). You are forbidden to become masters of women forcibly
(against their will, nor is it justifiable for you to keep them against their
will with the intent of bargaining to recover a part of what you have paid
them; this is not permitted except where they have been guilty of open
immodesty". (In such a case the court can allow you a part of it).
It
is apparent that a case like this can only be decided by the law-court.
g)
If a woman demands divorce (and the court of law agrees), she shall have to pay
something for it (2:229); it may not necessarily be out of the dower money.
(This is only for reference sake; details shall come under the heading
'Divorce').
Note:
(Dowry __ the paraphernalia of a bride __ is merely a custom which has not been
ordained by the Quran. It is extremely unfair on the part of man to demand
'Jahez' (dowry). The Quran has ordained man to give something; not to take
anything from the woman. (This is a HINDU custom which Muslims have
appropriated!).
13. MAINTENANCE.
a)
As has been stated earlier, the provision of sustenance of the wife is the
responsibility of her husband (4:34). Therefore as long as she remains in his
wedlock, he shall be responsible. This includes the place of residence as well.
b)
During the waiting period of a divorced woman i.e. during Iddat, the above
stated responsibility shall lie on the husband [(2:241); (65:1); (65:6-7)]
except when she is guilty of immodesty (65:1). (Details shall be found under
the heading "Iddat" _ waiting period of a divorced woman).
c)
As regards a widow, the responsibility for her maintenance still lies on the
man for a period of one year. Therefore he ought to leave a will for her; but
this responsibility remains no more if and when she leaves the home of the
deceased husband of her own free will. (Details shall be given under the
heading 'Inheritance').
14. STRAINED RELATIONS.
i)
As described earlier, the object of marriage is to lead a life full of love and
tranquillity; thus a careful selection of partners is an utmost necessity. Yet
circumstances may arise when mutual relations become strained. In some events
unpleasantness may be temporary, owing to tempers being volatile; for example,
a person, while angry, begins to talk absurdly or on account of ignorance,
calls his wife "mother", or anything like that; this is termed
"Zihaar" in technical terms; and when the rage cools down he feels
ashamed. The Quran says that such foolish talk an oaths should not be taken
seriously. (2:225) "Allah will not call you to account for absurd oaths,
but you will be accountable for such oaths that are taken with the intention of
your hearts. (Also 5:89) By calling your wife 'mother', she does not actually
become your mother: (33:4) "Nor has He made your wives, when you express
so by 'Zihaar', your mothers". Such foolish behaviour makes family
atmosphere venomous. The Quran, therefore, considers it necessary to penalise
such behaviour. In such cases before the resumption of sexual relations, the
Quran ordains (a) freeing a slave (this relates to the period when slaves were
present); (b) if slaves are not found, fasting for two months; (c) if one lacks
endurance (for fasting for two months), them feeding sixty indigents. In Surah
'Mujaadilah' it is said: (58:3-4) "But those who call their wives mothers
(or something like that), then wish to go back on the words they had uttered,
(it is ordained that such a one should free a slave, before they copulate. To
this you are exhorted; and Allah is well acquainted with (all) that you do. And
if anyone who has not the means, he should fast for two months consecutively,
before he copulates. But if one is unable to do even that, he should feed sixty
indigent ones: this is to ensure that you do profess (Eemaan), a firm belief in
the Divine System which has been established by the Rasoole."
It
is essential for a believer to keep himself bound by the limits laid down by
Allah. (In case one makes a mistake, its compensation lies in the steps described
above). But the people who reject these limits are non-believers and there is a
tormenting chastisement for them.
ii)
The above relates to absurd oaths while in a state of anger. But if someone
willfully takes an oath, not to go to his wife (the term EELA is used for it in
Arabic). Such a state cannot be allowed to continue indefinitely. The Quran has
ordained that such a person should decide within four months whether he wants
to keep his wife in wedlock or not: (2:226-227) "For those who take an
oath of abstention from their wives, a waiting period of four months is
ordained (because a woman cannot be left in this condition for an unlimited
period). If then they return (to their ordinary life), they are allowed,
because a room has been left for forgiveness and protection in such falterings
[(95:89); (33:4); (58:3)]; i.e. like penalty for breaking an oath. But if their
intention is firm for divorce, they should proceed in accordance with the
Divine Law, which is from Allah Who is All-Hearing, All-Knowing. He knows that
separation is the better course in such cases."
An
Islamic state can formulate necessary laws for those who do not want to keep
their wives with them or for those whose whereabouts become unknown. The aim is
to provide protection to the rights of a woman and not to leave her entirely at
the mercy of her husband.
15. DIVORCE.
'Nikaah'
is a contract between a sensible and mature man and woman to lead a married
life. The Quran provides such instructions under which this contract is
fulfilled with beauty and proportion, because the social life of a nation
depends on agreeable and favourable environments within the home itself. This
forms the basis for the proper up-bringing of a nation. But if in spite of all
that, occasion arises when it becomes impossible for them to live together, the
Quran allows separation, after the dissolution of the contract of marriage.
This act is called Divorce. (Keep in mind this meaning of the word divorce).
The case of marriage was left to the mutual consent of both parties on account
of its being a personal affair, but the dissolution of marriage remains no more
a personal affair because it affects the opposite party as well as their
offsprings in most cases. Thus it becomes a collective society affair, for
which instructions have been laid down by the Quran. There is one thing in this
case which is important and which needs clarification: whereas mutual
discretion of both parties was essential for marriage, as such the dissolution
of marriage cannot take place by the consent of one party alone. The husband
cannot be allowed to declare "Divorce, Divorce, Divorce" of his own
free will whenever he so likes and turn his wife out from the house; while on
the other hand the other party (wife) be made so helpless that she is compelled
to bear many hardships in order to be able to get rid of this commitment. The
Quran has ordained equal rights and obligations for a husband and a wife; their
position is equal in this respect also. Let us look at the instructions it
gives to society. It says: (4:35) "If you fear a breach between them (the
couple), the concerned authority should constitute a board of arbitration
consisting of two members, one from his family and the other from hers. Thus if
the husband and the wife make up their minds for reconciliation, the two
arbiters should attempt to bring them close to each other. The Divine Law shall
bring about reconciliation because the law is based on Allah's Knowledge, Who
is acquainted with all things."
The
term includes both man and woman. The complainant may be the man or the woman;
in both cases it is the duty of society to appoint an arbitration board.
If
the woman feels an excess or disinclination from her husband, even then they
try to patch up their differences amongst themselves or ask for a board of
arbitration to be appointed. Thus it said: (4:128) "And if a woman fears
ill-usage from her husband or desertion, no blame is on them if they effect a
reconciliation between them for amicable settlement is always good", (or
otherwise ask for the appointment of a board of arbitration).
In
Surah 'Al-Mujaadilah' (58th Chapter of the Quran) it is said: (58:1)
"Allah
has indeed heard the woman who was disputing with you concerning her husband,
and complaining to Allah (about the maltreatment she was receiving at the hands
of her husband) and Allah was hearing the contentions of both of you. Surely
Allah hears and sees (all things)."
This
also makes it clear that a woman can take her case to a court of law and has
full right to apply for divorce; however, the first priority of the court of
arbitration shall be to bring about reconciliation between them.
Remember,
the Quran has used the term "Talaaq" (Divorce) both in respect of the
husband and the wife. The term "Khul'ah" (divorce obtained by a wife
against a ransom by herself or through an attorney) is nowhere to be found in
the Quran. Moreover, when it is said that a husband has delegated his right of
divorce to his wife this is not correct; according to the Holy Quran because
husband and wife have equal rights of divorce. Delegating the right of divorce
by husband ("Tafweez" in juristic terminology) makes no sense.
If
reconciliation cannot be brought about, the court which has convened the board
of arbitration shall declare dissolution of marriage. This shall be known as
Divorce. It is said in Surah At-Talaaq (65th Chapter of the Quran): (65:1)
"O Rasoole! When you pronounce decisions on divorce cases, tell the people
concerned that after this (the divorce) the issue of 'counting period' (Iddat)
is a matter of great importance and must be completed."
The
Rasoole has been addressed in the verse (65:1) by the words : "When you
divorce women". Here the word used is "Tallaqtum" which is
plural. Thus the matter does not concern the divorce of any wife of the Rasoole
himself. Such a question never arose. As a matter of fact it is the status of
the Rasoole as a judge that is being addressed. Thus the word
"Tallaqtum" means: "When you decide the divorce cases of
women". It makes clear that divorce is not an individual affair allowing a
man to divorce his wife any time he likes. Such decisions shall only be
announced by duly authorised courts. The court first appoints a board of
arbitration and if reconciliation fails, then it decrees the divorce.
Because
the calculation of the period of Iddat defends upon the number of menstrual
periods, the execution of divorce ought to take place after the last menstrual
period is over. In the above said verse (65:1) after the words come the words
meaning 'to count (accurately)'. The court shall make this point clear in its
decision.
If
the court finds that the husband does not want a reconciliation, it shall grant
a divorce, without taking anything back (of the dower money) from the wife. It
is thus said in Surah An-Nisa (4th Chapter of the Quran): (4:20-21)
"If
you intend to take another woman in place of your present wife (it does, in no
way, mean that the desire to bring in a new wife can become a reason for
divorce ___ it only means that if, according to the conditions laid down which
were mentioned earlier _ the matter reaches the stage of divorce) and you have
given the latter a whole treasure (heap of gold) as dower, you should not take
back even a portion of it. (However, if the demand for a divorce was initiated
by the wife (2:229) or the wife is guilty of immodesty (4:19), a part can be
retrieved from her. In case no such conditions prevail, then you should not
slander her or accuse her of open wrong in order to compel her to surrender a
part of her dower. How can you do such a thing when your wives have taken a
solemn covenant from you, and you also have enjoyed marital relations with each
other."
But
if the woman is guilty of a shameful act which leads to adultery or
fornication, then: (4:19) "It is not lawful for you to try to detain them
forcibly so that you may fraudulently take away part of the dower that you have
given them, except when they have been guilty of open immodesty."
Or
if she herself is unwilling to live with her husband, the court can order some compensation
to be paid to the husband. (2:229) "(In case of dissolution of marriage),
it is not lawful for you (men) to take back any of your gifts (from your
wives), except when a situation arises that this money is blocking the way to
the finalisation of divorce; and on the other hand on account of strained
relations, in case of the continuation of their marital relationship both
parties fear that they would not be able to safeguard the limits ordained by
Allah (in faithfully discharging their obligations) and the society's judicial
system also reaches the same conclusion, there is no blame on either of them if
she gives something for her freedom from the bonds of marriage."
Such
conditions may arise that a woman gets married with ill intentions, and having
received the dower money, takes steps to seek divorce. In such cases, forgiving
a part of the dower shall serve as a deterrent against such nefarious designs.
After
the court declares divorce, the period of 'Iddat' shall begin. 'Iddat' means
the prescribed period before the end of which the woman cannot marry again
(Details are given under the heading 'Iddat'). It may be termed as
"waiting period". During this period (of Iddat), the divorced woman
shall continue to reside in her ex-husband's house and he is responsible of her
maintenance. What the Quran has said further, in this regard, needs careful
attention. It is said in Surah At-Talaaq (65th Chapter of the Quran): (65:2)
"Then
when they (the divorced women) complete their appointed term, either take them
back in the recognised manner or part from them according to the law."
In
Surah 'Al-Baqara' (2nd Chapter of the Quran) It is said: (2:229) "After
that either keep them according to the law or separate them with
benevolence."
Again
it is said: (2:228) "And their husbands have a better right to take them
back in that period, if they wish for reconciliation."
It
is apparent from the above that during the period of 'Iddat' a chance is given
to rebuild the marital relationships. This clarifies two issues:
(a)
If the wife is the one to initiate the divorce, then this means she does not
want to live with her husband and he then cannot keep her back forcibly.
However it is a different thing if she changes her mind.
(b) If it is the husband who initiates the divorce, although she wants to live
with him, the relationship can be re-established if he changes his mind. In
such an event, the Quran has warned the husband not to keep the wife back with
the intention of vexing her: (2:231) "Do not take them back with the
intention of causing them harm or to transgress the limits (imposed by Allah).
If any one does so, he only wrongs his own self."
The
question now arises: is a renewal of the contract of marriage needed, or the
previous contract shall be considered sufficient In this respect the Quran has
used the term "Bil-ma'roof" which means a procedure recognised by the
Islamic Society in the light of the Quranic Guidance. Thus if the Islamic
Society thinks that a renewal of the contract of marriage is unnecessary, it shall
be the correct decision. And if it decides that a renewal is called for, that
too shall be a correct decision. After all, 'Nikaah' (the contract of marriage)
is nothing more than the recognition of the consent of a husband and his wife.
However, in verse (2:232) the Quran has used the word 'Nikaah', when it is
said: (2:232) "When you divorce women, and they are near the completion of
the term of their 'Iddat' and both man and the wife are desirous to resume
their matrimonial life, O Members of the society! Do not prevent them from
marrying their (former) husbands, if they mutually agree.
Here
again the world "Bil-ma'roof" is used: which means 'according to the
way recognised by the system of the state'. However, the government ought to
keep it in mind that the renewal of marriage during the period of 'Iddat' ought
to be carried out in a way which may be considered a contract of marriage.
If they have made up their minds to live together again, it shall be carried
out according to the above procedure; but if they decide on separation, two
witnesses shall be required: (52:2) "Then, when they approach the end of
the term appointed (look at the whole issue in a cool, dispassionate manner and
if constancy appears possible, why resort to separation). Get united in a
recognised manner; (but if constancy is not possible), part from them on the
recognised terms: and take for witness two persons from among you imbued with
justice i.e. those who are not inclined to any one party, and establish
evidence as a duty ordained by Allah."
After
this the facilities available to them (the women) in the period of 'Iddat'
shall come to an end.
Thus
the husband and the wife may reunite during the period of 'Iddat' or may get
separated. This shall be counted as ONE DIVORCE.
If
this couple again becomes husband and wife (during or after the period of
'Iddat') but again decide to separate, its procedure shall be the same as
described above. This shall be the SECOND divorce.
After
this second divorce if they once again decide reunion but this also results in
THIRD divorce, they cannot become husband and wife again, neither during the
period of 'Iddat', nor any time thereafter because: (2:229)
"A
divorce is only permissible twice; after that the parties should either hold
together on the recognised terms or separate with kindness."
That
is, after the third divorce, remarriage is not permissible.
However,
if after the third divorce the woman gets married to some other person but here
also the union ends in divorce (or if she becomes a widow), she can again
establish the contract of marriage with the first husband. This has been
explained as such in the verses (2:229) and (2:230) (2:229-230)
"Remember!
During the married life of a husband and wife, it is possible only twice to
either hold together on the recognised terms or separate with kindness. [But if
the divorce between them takes place the third time, they shall not be able to
remarry _ (2:230)] In case of dissolution of marriage, you are not permitted to
take back anything of what you have given to the wife. However, if an occasion
arises that this very factor becomes an impediment in the way of dissolution of
marriage and at the same time there is an apprehension that in case of living
together as husband and wife they shall not be able to keep the limits laid
down by the Divine Law, on account of their deranged relations; and also the
society's system of justice reaches the same conclusion that the husband ought
to get some recompense, in that case there is no harm that the wife may agree
to forego a part of what is rightfully hers and get herself rid of the martial
contract. These are the limits imposed by Allah; do not transgress them, and
whosoever does so, would be held guilty by the Divine Order.
"So
if a husband divorces his wife (irrevocably) he cannot, after that, remarry her
until after she has married another husband and he has divorced her. In that
case, there is no blame on either of them, if they reunite, provided they feel
that they can keep the limits ordained by Allah. Such are the limits ordained
by Allah, which He makes plain to those who possess the knowledge of the
exigencies of social life."
These
are the verses which are produced as an evidence to prove that if somebody says
'Divorce, Divorce, Divorce', three times, they shall have to go through the
process of 'Halaalah'. This interpretation of the above verse is against the
Quran. As explained earlier, divorce means freedom from the contract of
marriage. The dissolution of marriage can take place only by following the
details described above. Divorce does not become valid by the verbal utterance
of the word 'Divorce' whether it is repeated once, thrice or a hundred times.
Three divorces mean the dissolution of Nikaah between a husband and his wife,
three times during their married life spread over a period of time. After two
dissolutions there still remains a chance for reunion; but after the third
dissolution there is no chance: it is final, except under the condition
described above. Even in that case marriage with another husband does not mean
sexual intercourse for one night (Halaalah); it means to live the life of a
husband and wife in a regular normal way.
As
it has been said earlier, the dower ought to be paid during the process of
marriage contract. But if the wife ha postponed its receipt for a later period,
it shall now become an urgent recovery after the dissolution of the marriage.
(See heading 'Dower')
16. WAITING PERIOD FOR A DIVORCEE (IDDAT).
(a)
'Iddat' is the name given to a period in which a divorced woman or a widow
cannot remarry. In fact it is meant to make sure if she is pregnant; and in
case of pregnancy, the would-be child shall be the legitimate offspring of the
former husband. There is no 'Iddat' for man. The Quran says: (2:228)"Women
have the right relative to their obligations, but men have an advantage over
them". The advantage is that there is no 'Iddat' for man. He can marry
another woman immediately after divorce.
b) The 'Iddat' for a divorced woman is three menstrual periods (2:228). The
divorce comes into effect after the menstrual period comes to an end. This is
for the sake of certainty in the counting of 'Iddat' (65:1).
c) For old women who have reached menopause or for those who do not menstruate
on account of a disease, 'Iddat' shall be three months:(65:4)
[As
stated in verse (2:228) __ the period of Iddat, normally, is three
menstruations, but] "such of your women as have attained the age of
menopause, for them the prescribed period is three months; and for those who
have no courses, (on account of disease) it is the same".
d)
'Iddat' for a pregnant woman is until the termination of pregnancy. (65:4)
"For those who are pregnant, 'Iddat' is until they deliver (their
burdens)." They should declare, in the event of divorce, that they are
pregnant: (2:228) "Nor is it lawful for them to hide what Allah has
created in their wombs."
e) There is no 'Iddat' for a woman who is divorced before sexual intercourse:
(33:49) "O You who believe! When you marry believing women and then
divorce them before you have touched them, it is not required of you to count
the Iddat in respect of them (during which period the responsibility of their
sustenance lies with you and the women cannot marry any other husband), so give
them suitable provision and part from them in a goodly manner". [Marriage
is a contract. When you find it difficult to carry out the contract, end it in
a lawful manner. There is no need to create bitterness __ (2:228-236);
(65:1-4)].
f)
'Iddat' for a widow is four months and ten days. (2:234)
"If
any of you dies and leaves his widows behind, they shall wait for four months
and ten days (for second marriage). When the 'Iddat' ends, they are free to
make a decision about themselves according to law. They have the right to do
so. There shall be no blame on them that they have done this way or that way.
Remember, Allah knows all that you do."
In
case she is pregnant, there is no separate injunction in the Quran for it. But
it can be deduced from the injunctions regarding divorced (pregnant) women,
that their Iddat shall also be until they give birth.
g) During the period of 'Iddat' the responsiblity for providing daily
requirements and shelter shall be on the man and its standard shall be the same
as during normal life. It is said in Surah At-Talaaq (65th Chapter of the
Quran): [(65:6-7); (2:241)] "Let the women live (during 'Iddat' period) in
the same style as you live, according to your means; annoy them not so as to
tease them. And if they are pregnant, you have to provide their sustenance until
their delivery, and if they suckle your (offspring) for your sake [i.e., if you
cannot make any arrangement for the suckling and by mutual consent it is
settled that she herself shall suckle], give them their due recompense, and
enjoin one another to do good; and if you disagree, another will suckle for
him."
In
determining the scope of providing sustenance to divorcees or compensation for
suckling, be considerate of the financial status of the husband. Let the man of
means spend according to his means: and the man whose resources are restricted,
let him spend according to what Allah has given him. Allah puts no burden on
any person beyond what he has been given. If a difficulty arises for the man on
account of the extra expenses, a relief can be obtained according to the Divine
Law. (The court shall keep this in view).
But
if during this period the woman commits an act of immodesty, the man then, is
no more responsible. (65:1) "O Nabi! When you decide the cases of divorce,
tell the people that the matter of 'Iddat' is of great importance. It must be
accomplished adequately. For this, it is necessary that an accurate count of
the prescribed period be kept, so as to submit totally to the injunctions laid
down by your Sustainer (2:228-236; 33-49). During this period do not turn out
the divorced women from your houses (65:2)."
During
the period of 'Iddat' these are still their own homes. Nor shall they
(themselves) leave without a proper excuse. However, in case they are guilty of
some open immodesty, they can be turned out of the house. These are the limits
laid down by Allah, and any one who transgresses the limits of Allah, besides
doing wrong to others, he also wrongs his own self.
As
stated above, the woman should not leave home and go to some other place during
Iddat. But if conditions are not favourable to stay there, she can stay at some
other place by permission of the court. This is our deduction from the Quranic
verse, in which it is said: (4:130) "And if they separate, Allah will
render them both free from want out of His ampleness". Allah shall make
arrangement for the fulfillment of their needs, i.e. the society (established
under the Divine Order) shall shoulder this responsibility.
h) For one year's provision of daily needs and residence, the husband should
leave a testament. But if before this, the widow leaves, of her own choice to
some other place, this responsibility (of the late husband) comes to an end:
(2:240) "Those of you who die and leave widows, should make a bequest for
their widows for a year's maintenance and residence, but if they leave (the
residence) of their own and make some other arrangement for themselves
according to the law, there is no blame on you for what they do with
themselves. Remember! The Divine Law is exalted in power and is based on
wisdom."
i) During 'Iddat' a widow is not allowed to marry another person but there is
no restriction on discussing the possibility of marriage in the meantime:
(2:235) "There is no blame on you if you make an offer of betrothal or hold
it in your hearts. Allah knows that you would fancy to marry them: but do not
take any hidden promise of marriage from them, negotiate with them in a
recognised manner, but do not resolve on marriage during the period of Iddat:
and always remain conscious of the fact that Allah is aware of the ideas that
flash across your mind. You should know that Allah does not want to inflict any
hardship on you by means of these limitations. The object of these restrictions
is to protect your society from the injuries of wrong attitudes. He does not
get angry by your mistakes, so as to entangle you in strict laws. This is done
by tyrant rulers, not by Allah.
If
(during 'Iddat' or afterwards) a woman intends to re-marry her former husband,
do not stand in her way: (2:232) "When you divorce women and they are
nearing the completion of their Iddat do not prevent them form marrying their
former husbands if they mutually agree to do so in the recognised manner."
Note: This does not apply after the third divorce).
17. SUCKLING.
The
Holy Quran does not specify the period during which the mother should suckle
the child. The husband and the wife can mutually take a decision subject to the
requirements of the child's health. However, the Quran has said that it takes
two and a half years for a mother to keep the foetus in her womb followed by
the suckling of the child. (46:15) "We have enjoined upon man to be
gracious to his parents: in pain did his mother bear him and in pain did she
give him birth. The carrying of the (child) to his weaning is a period of
thirty months."
Even
animals take part in the upbringing of their offsprings; but later on, their
grown up offsprings do not even recognise their parents. Thus the man is asked
to rise above the animal level during his life. "One of the demands of
human life is that he should treat his parents with benevolence. His mother
bore him and gave him birth with difficulty which she experienced day and
night. This continued not for a day or two but it took at least thirty months
from pregnancy to weaning. [(2:233); (13:14)].
At
another place the suckling period is described as two years: (31:14) As regards
a divorced woman who carries a child in her lap, the Quran says:
i)
The father of the child shall give the mother recompense for suckling the
child. (65:6) "And if they suckle the offspring for you, give them their
recompense and take mutual counsel together according to what is just and
reasonable. If any of you feels that the arrangement is heavy on him/her,
arrange for some other woman to suckle the child."
ii).
Though the period of suckling is two years, but if by mutual consent they want
to reduce this period they are allowed to do so.
During
the period of suckling, the expenses of food and clothing shall be provided for
the woman by the father of the child. The standard of this maintenance shall be
according to the financial position of the father. For so doing, it ought to be
kept in mind that neither the father nor the mother are put in to difficulty
for the sake of their child. If it is thought advisable that the suckling be
given by some other woman in place of the mother, it is permitted: (2:233)
"If, in the case of a divorce the wife is suckling a child, the mothers
should give suck to their offspring for two whole years, if the father desires
to complete the term. But he shall bear the cost of their food and clothing on
the prescribed terms. No person shall have a burden laid on him greater than he
can bear. (The court ought to keep this mind): the mother shall neither be
treated unfairly on account of her child nor the father. (If however, the
father dies in the meanwhile), his heir shall be incharge in the same way as
had been decided by both of them. On the matter of weaning; if you both agree
on premature weaning and make alternative arrangements, there is no blame on
them provided the husband pays the settled compensation to the mother."
(Anyhow)
you should always adhere to the Divine Law and keep this reality in mind that
Allah's Law of Requital oversees what you do. (For this' neither observe the
law as a mere custom, nor try to evade it).
18. CUSTODY (OF CHILDREN OF DIVORCED PARENTS).
There
is no specific injuction in the Holy Quran as to who will have custody of the
underage children after the separation of their parents. The court can decide
on it according to the prevailing circumstances. The principle that ought to be
observed in this case is that neither the father nor the mother shall be put to
unnecessary hardships. An inference can be drawn for this rule in the light of
verse (2:233) described above. To achieve this objective the Islamic Government
shall also decide as to who shall bear the expenses of the children, till they
reach the age of maturity.
19. PROGENY.
a)
Besides mutual companionship the basic object of married life is the
augmentation of the human race. Even animals increase their progeny, but the
case is different with man. A young animal needs nourishment, after which it
becomes what it is destined to become. But a human child, in addition to
sustenance, needs education and upbringing which lifts him from the stage of
animal life to the stage of human life. Thus the parents undertake a dual
responsibility. It is the duty of an Islamic State to frame laws for the
purpose and make such arrangements that no child is deprived of sustenance, as
well as education and upbringing. The Islamic State shall issue necessary
guidance to the parents as to what extent their co-operation is required. The
objective is that no child is left without the development of his human
potentialities on account of negligence, ignorance, laziness, or mismanagement
on the part of parents or an incompetent system of government. Every child
shall be provided with an equal opportunity for upbringing. The Quran says:
(17:31); (6:152) "Do not kill your offsprings for fear of being reduced to
poverty."
Here
killing does not actually mean putting to death. (Murder in itself is a crime,
even if it is of one's own children). Here killing children means depriving
them of proper education and upbringing. In this regard an Islamic State shall
furnish surety that: (6:152) "We are responsible for your sustenance as
well as that of your children."
Remember
in an Islamic Social Order, providing the mans of sustenance is the foremost
duty of the State.
b) A healthy, sound and sturdy child is a bounty from Allah (7:189-90) and an
intelligent and a chaste youth, with a loving heart and subservient to the
Divine Laws, is a 'Rahmat' from Him (19:12-14). In Surah 'As-Shoora' (42nd
Chapter of the Quran) it is said: (42:49-50) "Allah is the Supreme
Sovereign in the heavens and the earth, and the whole system of the universe
functions under His Laws only; so much so that even the physical life of man is
not excluded from its ambit. The astonishing Order of Creation including
creation of man is controlled by His Laws. According to this Law He bestows
some with girls, while others with boys and yet some with both boys and girls
and some remain childless. All this takes place according to His Laws. He is
replete with knowledge and full of power to control the destinies according to
His measures and standards."
Thus
whereas the creation of sex is controlled by the Divine Laws, to consider a
girl inferior to a boy was a mentality peculiar to the Arabs of pre-Islamic days.
Islam eradicated this. The Quran criticises it as follows: (16:58-59)
"When news is brought to one of them of (the birth of) a female (child),
his face darkens and he is filled with grief. (He thinks the birth of a female
child so disgraceful that) he hides himself from his people because of the bad
news he received. He begins to think whether he should suffer this contempt or
bury the new born alive in the dust Ah! What an evil choice they decide on
their innocent girls!"
c)
Wives and children have been made means of elegance in life by Allah; thus they
are worthy of the parents' kind attention: (3:13) "Love for women and
children has been made fair-seeming for people."
Yet one must not commit any act for their sake, which goes against the Divine
Laws and the Permanent Values ordained by Allah. (See 63:4; 8:28; 64:14-15). If
one does that it becomes a sedition for him. Thus whenever there is a tie
between a particular benefit for the wife and children on the one hand, and a
Quranic Value on the other, the Quranic Values shall be given preference:
It
is said in Surah "At-Taubah" (9th Chapter of the Quran); (9:24)
"(O Rasool)! Say unto these people that if it be that your fathers, your
sons, your brothers, your spouses or your kindred, or the wealth which you have
gained, the commerce in which you fear a slump, or the dwellings in which you
delight, are dearer to you than Allah and His Rasool (i.e. dearer than the
establishment and maintenance of the Divine System); wait until the results of
such a behaviour become manifest unto you according to the Divine Law. Remember
Allah guides not those who, leaving aside the right path, go astray."
It
is so, because offsprings relate only to the physical life of man, they have no
value against the Divine Law: (58:17) An unrighteous offspring is not even
considered a member of one's family by the Quran. This has been explained in
the story of Noah in (11:45-46).
d)
As long as the children are under the care and upbringing of their parents,
they should act under the parents' guidance, but when they are capable of
deciding their own affairs they should begin to act as such. The maxim "To
obey the parent is a duty" that has not been ordained by the Quran. The
Quran has repeatedly asked only to do good to the parents (4:36).
The
Quran states: (36:68) "If We grant long life to any, We reduce him to an
abject state in creation". Man begins to forget what already was in his
knowledge. (16:70) As such his condition becomes pitiable. Therefore he shall
be treated gently and not rebuked. Thus it is said in Surah Bani-Israel (17th
Chapter of the Quran): (17:23-24) "Thy 'Rabb' has decreed that you should
be subservient to none but Allah: (be subservient only to the Divine Law).
Further it is ordained that you be kind to parents, whether one or both of them
attain old age in your life. Say not to them a word of contempt, nor repel
them, but address them in terms of honour. When they were youthful and active,
they provided you with sustenance (in addition to their own); now they have become
old and are not capable of earning. It is your duty to make good their
deficiency."
Give
them protection with all the affection (as they did when you were young) and
say: my Rabb! Enable me to provide them with means of nourishment as they had
cherished me in my childhood.
(To
look after the young is even practised by the lower animals, but the practice
of looking after the parents in old age is peculiar only to a human being. That
is why he has been instructed as such.)
But
if the parents are following a wrong path, it must be brought to their notice.
This has been made clear in the story of Abraham: (19:41-45)
e)
It is essential for an Islamic Government neither to leave the small children
at uncared for the mercy of their parents, nor to leave the aged parents
uncared for and dependent on their offsprings to the extent that they become
the object of scorn and degradation. For this an Islamic State ought to provide
proper guidance and make the necessary arrangements.
20. Orphans.
The
basic meaning of the word "Yateem" (orphan) is the one who somehow or
other is left alone and helpless in society; he may be of any age. But in the
context of the subject under discussion, "Yateem" shall mean the
children whose father (or both parents) have died. The provision of sustenance,
education and upbringing of such children is the responsibility of an Islamic
State. But the question is not of upbringing alone: the real problem is that
they should be brought up in such a manner that the dignity of their 'self'
does not get injured. To keep such children in orphanages, fed on charity, is
the destruction of their human 'self'. This leads to the downfall of nations.
In Surah 'Al-Fajr' (89th Chapter of the Quran) it is said that one of the
reasons for the destruction of nations in that they do not treat orphans with
honour: (89:17) . Thus the real question is the cultivation of their
self-respect. They should not be brought under undue pressure: (93:9).
A
satisfactory arrangement for their proper nurturing is essential. They should
be treated as your own brethren: (2:220) "They ask thee about orphans.
Say: settling their problems is a deed that produces 'good'. Hence you live
together and if during the period of mutual living you have but to conduct
their affairs with your own, always keep in mind that they are your brethren.
Allah knows which of you means their good and which of you creates mischief.
You are being given such instructions because without it you could have fallen
into difficulties; but Allah wants to make things easy for you."
This provision of facilities does not mean that you go on doing what you like
without any hindrance.
Allah's
Law of Requital is exalted in power, yet it is based on wisdom.
Their
wealth and property, if there be any, must be protected with utmost care. The
one managing their affairs, if he is wealthy enough, should not take any
remuneration; but if he is needy, he can take a compensation for it. When they
reach the age of maturity and they become capable of handling their own
affairs, their wealth and property should be handed over to them in the
presence of witnesses: (4:5-6) "Remember! Allah has made wealth, the
mainstay of a nation's economy, therefore place it not in the custody of those
who are weak of understanding; feed them and clothe them therewith and speak to
them words f kindness and justice."
Also
make arrangements for the upbringing of orphans; and keep checking as to how
far their potentialities are developed, until they reach the marriageable age.
(6:153; 17:34; 40:67). If then you find them of sound judgement, deliver their
property over to them. [But if they are not fit for it yet, act according to
(4:5)]. But in the meantime do not consume their property wastefully, nor in a
haste, fearing that they shall demand it when they become grown up. If the
guardian is well off, let him claim no remuneration, but if he is poor, let him
have what is just and reasonable. When you release their fortune to them, take
witnesses. While counting, keep it in mind that you are submitting the account
to Allah who knows what is hidden as well as manifest; therefore He is the Best
of all those who take account.
This
point has been emphasised further in (6:153) and (17:37).
Do
not take a single pence from their wealth unlawfully. It has been ordained in
Surah An-Nisa (4th Chapter of the Quran): (4:2) "According to this law no
difference remains between your own children and the orphans, therefore take
care of their rights and benefits like those of your own offsprings. Keep their
property safe with utmost care; do not exchange (your) worthless things for
their good ones; do not eat up their assets, keep their assets separate from
yours; embezzlement in their substance (by mixing it up with your own) is most
unjust. One who is left alone in the society, he ought to be helped rather than
his rights usurped."
It
is said further: (4:10) "Those who unjustly eat up the property of the
orphans, they are filling their bellies with fire which leaves their passions
of greed ablaze". They being always dissatisfied, run after unlawful
wealth like a lunatic and thus put their own potentialities into a blazing
fire.
If
widows and orphans are left behind in society, marrying more than one wife may
be allowed by making exception to the law of monogamy, in order to give them a
respectable place in society. (Details were given earlier).
For
an Islamic State it is essential to frame necessary laws under the guidance of
the Quran. According to the Arabic dialect, a boy is called "Yateem"
(orphan) till he reaches the age of maturity; and a girl continues to be called
an orphan till she gets married. Even widows can be included in the category of
orphans. (4:127).
REMOVAL OF A MISCONCEPTION
The
injunctions and guidance for family life as stipulated in the Quran have been
stated, but the conventional meaning of a verse in Surah 'Nisa' (4th Chapter of
the Quran) remains yet to be corrected. The verse is as follows: (4:34) It is
usually translated thus: "Men are the masters of women because Allah has
given superiority to one over the other; for the reason that they spend their
money. Then those women who are pious and thus obedient, look after what Allah
has protected in them in the absence (of their husbands) with the protection of
Allah, but those who are feared to be of bad temper, you advise them, keep
their beds separate and beat them. After this if they obey you, do not seek a
way to accuse them. Allah is indeed the Greatest". (Translation by late
Maulana Mahmood Al-Hasan).
By virtue of this translation the following is deduced:
o
Men are the masters of women.
o
Pious women are those who are obedient to their husbands.
o
If a women is not obedient to her husband:
i)
the husband shall advise her and if she is still disobedient,
ii)
keep her separate from his bedroom (which means discontinuation of conjugal
relations); and if she is still disobedient,
iii)
beat her.
It
is obvious that this sort of relationship between a husband and his wife goes
against the very grain and purpose of the teachings of the Quran which have
been explained in the previous pages. As a matter of fact, the purport of this
verse is as follows:
"As
far as the natural duties of men and women are concerned, some of their
capabilities are different from each other. In some of them men have the
superiority, and in others, the women. As a result of the execution of these
duties, for a major portion of her time a woman becomes incapable of earning
her livelihood and thus it becomes the duty of her husband to provide her means
of the necessary sustenance. This is what is meant by the words . After such
arrangement, the women can give full time, satisfactorily, to their own duties
(such as bearing the children and their upbringing) so the women are required
to take care of their latent potentialities. But if an occasion arises that in
spite of all this a woman revolts and refuses to carry out her specific
functions without any sufficient cause, it shall not remain a personal affair.
It shall become a collective national issue, because it concerns the protection
and augmentation of the (human) race. Thus society should first admonish such a
woman. But if this procedure remains ineffective, her husband should be asked
to terminate copulation with her for a while so that its psychological effect
may bring about a change in her attitude. But if that also remains ineffective,
a court can order even physical punishment for her".
You
must have noticed that this matter concerns the collective life of a nation and
it is of great importance. In this respect if women refuse to co-operate and
thus rise against the collective benefit of humanity, it becomes imperative for
society to take adequate steps to put a check on this revolt. It is a social
crime for which even punishment can be given. But that does not mean that men
are free to beat the women on account of being their masters. This concept is
utterly un-Quranic.
* In this verse it is said that the right of man is
superior. For this see the heading "Iddat".
Testament
1. It is enjoined (directed, ordered) upon every Muslim to make a testament as regards his bequest before he dies. The last will ought to cover the entire property and all persons to whom he wants to give something without any distinction of heir or non-heir: (2:180) "It has been enjoined upon you that when you approach death and you are leaving behind your personal property, make a testament according to law for your parents and others close to you. This has been enjoined upon Muttaqeen as a duty from Allah. (The distribution of left-over property shall take place after the provisions of the 'will' have been fulfilled (4:11)."
Note that this verse starts with the words "you are commanded" and ends with the words "that it has been made incumbent upon those who guard the Divine Law". Moreover the 'will' shall be for the entire property. The verse also clarifies that the 'will' can also be made for parents and near relatives and also for non-relatives; whom the testator considers nearer to himself.
2. The Quran has given so much importance to the making of will that even (minute) details for it have been prescribed. The following verses of Surah Al-Maaidah (5th Chapter of the Quran) invite pondering: (5:106-108) "O you who believe! When death approaches any of you, take witnesses amongst yourselves while making testament; two just men of your own (brethren); or others from outside, if you are journeying through the land and your own men are not available and the chance of death befalls you.
Afterwards when witnesses are needed, your judges shall detain them (in the mosque) after prayers (because mosques are your court-rooms). If you doubt their truth, let them both swear by Allah: we wish not to take in this any worldly gains, even if the beneficiary be our near relative; we shall not hide evidence before Allah; if we do, we shall become censurable.
If after the witnesses have been recorded, it is found that they have deviated from the truth, two witnesses from among those against whom the witness has been given should come forward and upon an oath in the name of Allah, state that their statement is truer than the previous witnesses and that they shall not deviate a bit from the truth and if they do, they shall be liable to censure.
In Divine Law witness over witness is allowed, so as to make certain that they speak the truth. By so doing, the first two witnesses shall fear that in case they give false evidence, the other two witnesses shall prove it to be wrong and thus they shall become guilty of the perjury and this shall also bring them shame in society.
It is necessary for you to remain conscious of the Divine Laws and do not forget that, deviating from the course set out by Divine Laws and treading upon some other course, it shall not lead you to the goal.
It has been strongly emphasised that the witnesses shall not make a change in the contents of the testament: (2:181) "If any one changes the content of the will after hearing it, such people shall be guilty in the eyes of law and they ought to know that Allah hears and knows everything."
It is further stated that: (2:182) "But if any one fears partiality or wrongdoing on the part of the testator, and thinks that he is inclined towards someone unjustly, he should advise the testator to do the right thing and bring about compromise between (the parties concerned) so as to protect those whose rights are being encroached. There is no wrong in doing so. To make a room for it in the Divine Law is clemency (Rahmat) from Allah."
But it is obvious that this shall only be an attempt for making compromise, otherwise the final word shall be that of the testator.
Inheritance
The injunctions for inheritance are given collectively in two verses of Surah 'An-Nisa' (4th Chapter of the Quran). It seems proper to begin with both the verses quoted together and then describe their details afterwards: (4:11-12) The law of inheritance is made clear in the light of these verses. In it the offspring is given the first place; and for it, Allah has ordained:
1. "As regards your children's (inheritance), to each boy a share equal to that of two girls, i.e. one girl = 1/3 and one boy = 2/3; [that is because a male is responsible for the maintenance of the family, not the female]. In the verse the words used are (4:34) i.e. male or female. It means, where Allah Himself has not fixed up the portions and both males and females are included among the heirs, this very principle shall be applicable, i.e. man's share being twice that of a woman.
2. If the girls are two or more than two, the portion of all of them together shall be 2/3; if it is one girl, the portion shall be half. It means that if there are no boys and the heirs are only girls, their portions shall be divided as above.
3. For parents, one-sixth share (1/6) of the inheritance to each, in case the deceased left children as well. If no children are left and the parents are the only heirs, the mother's, share shall be 1/3 and the father's share shall be 2/3. If the deceased left brothers and sisters, the mother's share is 1/6 (Read it in combination with item 5).
Remember that this distribution in all cases shall take place after the fulfillment of the will and the payment of debts against the deceased. If the will does not cover the entire property of the deceased or the deceased has not left a will, the distribution of the left-over property shall be according to what has been stated above. This is because you do not know whoever from among your parents or offspring is closer to you in matter of being beneficial to you, therefore Allah Himself (Who knows all) has fixed their shares. It means that although the deceased had the knowledge as to whoever was more deserving (the reason, leaving a testament was made incumbent); but since he could not leave a will or his will does not cover the entire property, Allah, instead of leaving the matter to you, has Himself determined the shares.
4. Now we come to the relations through marriage:
i). In what your wives leave, your share is one-half in case she leaves no children; the share of the husband is 1/4 after the processing of the will and the payment of debt against the deceased.
ii) In the bequest of a husband the share of the wife is 1/4, if he has no children, but if he has children, the share of the wife is 1/8 after the processing of the will and payment of debt against the deceased.
5. (See in continuation of item {3} above. If the deceased has no children {known as 'kalaalah') but he has parents, brothers and sisters too, then:
i) If there is one brother or one sister, each one of them shall receive 1/6.
ii) If the number of brothers and sisters is more than one, then together they shall be entitled to 1/3.
iii) The share of father and mother has been described in item (3).
This shall also be after the processing of will and the payment of debts.
6. If the deceased has neither children nor parents but has only brothers and sisters, the distribution of shares shall be according to verse (4:177) which shall be described later on.
In the light of these injunctions, the following principles of distribution are tabulated:
i) From the bequest of the deceased, first of all his debts ought to be paid and the rest shall be distributed according to his will. Details regarding the will have already been described. There is however, one more (verse) related to it: (4:33) "To every one of the beneficiaries We have appointed shares in the bequest left by parents and relatives; these are not restricted to family lineage only; the in-laws are also included in them; give them their due shares. For Allah is a Witness to all things, including their details."
In this category (relations through marriage), husband and wife come first, because their mutual relationship is through matrimony and not by lineage; then come those with whom a contract was made to pay something. Apparently this contract shall be through a will.
ii) If the deceased left no will or something has been left after the processing of the will, the distribution of this surplus property shall be according to verses (4:11-12).
It is more practicable that the distribution of those shares, which have been fixed by the Quran, ought to take place first and others shall follow later on.
If a surplus is still left after the distribution has taken place according to the above laws, it shall be transferred to the Islamic Government, as is the case with those who die without leaving heirs.
The verse in which the word "Qalaalah" occurs, who leave neither parents, nor offspring is as follows: (4:176) (In the beginning of this Surah in which the law of inheritance were described and in which the word 'kalaalah' was mentioned (those who die issue-less) such a deceased kalaalah was mentioned: who had left parents, brothers and sisters (4:12). "O Rasool! You are being asked to give further details. Tell them that Allah ordains:
If a person dies leaving no parents or children as heirs, the distribution of his property (wealth) shall be as follows:
o If the deceased is a male and has only one sister, her portion shall be half of his bequest;
o If there are two sisters (or more), their (combined) share shall be 2/3 (also see 4/11 for share in case of more than two sisters);
o If both the inheritors are brothers and sisters, the entire left-over property shall be theirs. The principle of "share of two females equal to share of one male" shall apply (4/11);
o If the deceased is a woman, the heir of her left-over property shall be her brother.
[This distribution shall take place after the payment of debts and the processing of will (4/12)].
"Thus does Allah make clear to you (His laws) lest you err, and Allah's knowledge encompasses everything."
It is clear from the aforesaid verses that KALAALAH (issueless deceased) can be of two kinds: (i) those who leave parents (ii) and those who do not leave parents.
If at the time of distribution of the bequest there are such people who have no share in the left-over property, but deserve help, the court can allow them something for their relief: (4:8) "If at the time of division of the bequest, other relatives, or orphans or the poor are present (who have no share in it) pay them also a little out of this (property); but make it clear to them that according to law they are not entitled to anything and what has been given to them is by way of comforting them."
Those who distribute the left-over property, must exercise utmost care: (4:9) "Let those (disposing of an estate) do it correctly according to law and they should keep in mind that if they themselves leave behind helpless orphans, they would never have liked that they be dealt unjustly. Thus they should always keep before them the Divine Law and in such affairs speak words clear and sure."
These are the limits laid down by Allah with which an Islamic State shall frame its by-laws remaining within these hints. "Limits" means the framework within which an Islamic State is legally authorised to make by-laws. These limits are immutable but the by-laws framed within these limits shall be changeable according to the exigencies of the changing times.
That which is ordained by Allah is immutable whereas that which is man-made is changeable.
The inheritance of an orphaned grandson.
As regards inheritance, one important point ought to be kept in mind: we use the word "Waalid" for father only and the word Wald for sons and daughters, but in the Arabic language (and according to the Holy Quran), the word "Wald" includes father, grandfather and all others above (in the line of ascent). Similarly the word "Waalid" includes, sons, grandsons and great-grandchildren, all of them in the line of descent. Keeping in view these meanings of the above words, the distribution of the left-over property can be explained by the following example:
Zaid -> Umar -> Rashid
Here Umar is the son of Zaid and Rashid is the son of Umar. Thus Rashid is the grandson of Zaid. On the death of Zaid his son Umar shall get a share from the left-over property. But if Umar died before Zaid, Rashid shall get the share left-over by Zaid, because he is now the son of Zaid. It means that an orphaned grandson shall get his share from the grandfather. According to the Holy Quran, he cannot be deprived of inheritance.
Similarly on the death of Rashid, his father Umar shall get his share from the left-over property. But if Umar died earlier, Zaid will get the share from the property left over by Rashid (instead of Umar) because he is his father now. The same principle shall apply to grandmother, mother's father, mother's mother, daughter's son and daughter's daughter.
Courtesy: Idara Tolu-e-Islam
Go to Index | LL. B. – I | LL. B. – II | LL. B. – III | Home