Chapter Two
The Contract and the Contract Parties
(A) Form and conditions
1372. Marriage is established – in proposal (ījāb) and acceptance (qobūl) – using any wording that people have been used to using to show the acceptance of the marriage, whether using Arabic or other languages, classical or slang Arabic, perfect or error-laden classical Arabic, by those who have command of Arabic or not; however, it is absolutely better and more perfect, for establishing the contract, to use correct classical Arabic, even if through authorising a proxy to do this on the behalf of one or both of the couple. What is meant by proposal (ījāb) is that one of the two persons offers himself/herself for marriage to the other, while acceptance (qobūl) is the acceptance and satisfaction of the other of that offer. The most perfect form of the permanent marriage contract is as follows:
1- If the two are themselves establishing the contract, in this case the woman says to the man: ‘Zawwajtoka nefsi bi-mahrin qadrohū kathā’ (I am marrying off myself (to you) at a dowry of so and so), then the man says after her immediately: ‘Qabilt’ (I accept.)
2- If those establishing the contract are the authorised proxies, the form is as follows: the woman’s proxy says first: ‘Zewwejto moakkilati folānah moekkileka folāanan bi-mahrin miqdārohū kathā’ (I am marrying off my authorising person so and so to your authorising person so and so at a dowry of so and so), then the man’s proxy says after him immediately: ‘Qabilto ‘an moakkili’ (I accept this on behalf of my authorising person.)
3- If one of them is the proxy while the other is the second party himself/herself, and often the proxy is for the woman, so the woman’s proxy says: ‘Zewwejtoka moekkileti folāneh bil-Mahr al-Ma‘lūm’ (I am marrying off my authorising person at the known dowry), then the man says: ‘Qabilt’ (I accept.)
1373. It is not conditional in marriage contracts that the proposal precedes the acceptance, nor is it conditional that the proposal comes from the woman and the acceptance from the man; so if the woman says to the man: ‘Innani ardā bika zajan li’ (I accept you as a husband for me), then the man says: ‘Zawwajtoki nefsī’ (I am marrying off myself to you) the marriage is established and valid. That said, it is better if the proposal precedes the acceptance and that the proposal is from the woman and the acceptance from the man.
1374. Permanent marriage is valid without mentioning the dowry, intentionally or out of lack of awareness, then once the man has sexual intercourse with his wife, a dowry of a similar woman will be due to her from him, but if no sexual intercourse takes place, nothing is due to her from him until he separates from her; then when if he separates from her through divorce without sexual intercourse, she will have money due from him, which is called ‘mot’ah’ (lit. pleasure), which is a non-specified amount of money that both the rich and the poor pay, each according to his ability. However, if he separates from her through a means other than divorce, such as invalidation of the contract before sexual intercourse, or after the death of one of them before the other, nothing will be due to her from him.
If she cancels the dowry and gives it up, nothing is due from him.
1375. It is not obligatory on someone who is unable to speak to appoint someone who is able to do so as the authorised person in order to establish the contract; if he is able to write, this must be preferred over signs that show what is wanted will be sufficient.
1376. A marriage contract between a man and a woman can never be established in the manner known as ‘mo‘ātāt’ (handling/pursing upon a request); it must, rather, be carried out through a word-based contract (or the equivalent) that shows the acceptance of each one of them to marry the other – using their ability of speech, or using writing, or signs that can replace speech for someone who is unable to speak, as mentioned above.
1377. Conditions of the marriage contract are:
1- Actuality and fulfilment, so it is not valid to establish it pending the occurrence of something which is not certain to happen, such as the return of a traveller, nor something which will definitely happen, such as the birth of the new moon.
2- Succession (mowālāt) of the proposal and acceptance; what is the norm is sufficient in this.
3- Specifying the two spouses in a way that each of them is distinguished from any other by name, description or pointing to them; thus the contract is not valid when the two parties of the contract are not properly identified.
1378. It is not conditional that the contract, i.e. the proposal and acceptance, is done in one place, but it is valid to do it with distant parties – upon meeting the above conditions – in the way which each one of them hears the other, even if by telephone.
1379. It is not conditional, for the validity of the contract to have witnesses to the contract. However, it is recommended (mostahabb).
1380. It is not conditional for the validity of the contract regarding the male who has reached the Islamic legal age (bāligh) and who is of reasonable conduct (rāshid) to have the permission of the father or the grandfather, on the father’s side, nor similarly regarding the female who is bālighah and rāshidah/rashid if she is non-virgin (thayyib – divorcee or widow), also if she is virgin since the father's or grandfather's guardianship on her is cancelled by her bolūgh and roshd; however, it is better for the virgin to obtain the permission of her father or grandfather, on her father’s side, and to abstain from marriage without his permission and acceptance; in fact, she should strive to obtain his permission and do her best in consulting experienced individuals so that she is not fooled (into the wrong choice).
1381. It is allowed for the two contracting persons to put in the marriage contract any reasonable and allowable conditions, except the condition of the choice of invalidation for one or both of them. So it is allowed for the woman to make it conditional on the man to continue her education, or to be a proxy for him to divorce herself from him, absolutely or in some situations, or that he does not marry another woman; or for the man to make it conditional on her to serve him, or to make him a partner with her in assets or business, etc. When the contract is established with all its conditions, it becomes obligatory to meet the conditions, and the person who does not has sinned but the contract does not become invalidated. The person who has set a condition is allowed to make the other meet their commitment to the condition with all legitimate means.
1382. If the marriage contract is established with all its conditions, it becomes binding, so it cannot be invalidated unless there is a defect; if that is the case, it is allowed for the other party to invalidate the contract, if discovered, or if something happens that invalidates the marriage, such as deserting the religion (irtidād), or one of them becoming permanently forbidden to the other by something like breastfeeding, or other things which we shall detail later.
1383. The conditions that should be observed in the contracting persons in the marriage contract are no different to the conditions of all other contracts and transactions – bolūgh, sanity, intention and free will.
1384. The father or the grandfather, on the father’s side, has guardianship over the young male and young female who shows signs of insanity when young, and also over the young male and young female whose unreasonable conduct (safah) started when young. If unreasonable conduct affects all their affairs; the marriage of these young people may take place as follows:
1- It is allowed for the father and the grandfather, on the father’s side, to marry off the young or the insane when there is an advantage or necessity for them to do so. The criterion for this is what sane people regard as an advantage or necessity, not the opinion of the guardian on his own; the knowledge of the guardian as a whole of the norm and trends is sufficient to gauge the opinions of sane people, since he is one of them. If after the marriage, it is discovered that there is no advantage, the contract is invalidated, unless this discovery takes place after the young have reached the Islamic legal age or the insane becomes sane, in which case they may choose between continuing with the contract or invalidating it.
2- It is an obligatory precaution on the person with unreasonable conduct (‘safih) to obtain the permission of his father or grandfather, on the father’s side, when he wants to get married, whether there is an advantage for the ‘safih or not, or whether the marriage is necessary for him or not.
1385. A contract issued by someone who is not permitted to establish it, called a fo ūlī contract (someone else established the contract without her knowledge), depends for its implementation over the person who is the subject of the contract on their permission, or the permission of whoever is acting on their behalf, such as their guardian. If it is assumed that one of the two parties of the contract is the original person and the other is the fodūli, the original person will have the choice of invalidation in the period of waiting that precedes the acceptance of the contract by the other person for whom the contract was established in the fodūli manner: if that person accepts it, the permission goes through and the contract becomes binding, whether it was preceded by a rejection or not.
1386. The implicit acceptance (i.e. without words or acts) is not sufficient for a contract from the fodūli, but words or acts must take place to demonstrate the permission of the person for whom the contract was established in a fodūli manner. It is not conditional for his accepting it that they do that immediately, but it goes through even if they delay it for any reason, however long the period, not to mention if the delay is for consultation and thinking about the matter.
(B) Invalidation (botlān) and revocation (faskh)
Part 1: What leads to obligatory invalidation
First: Irtidād, which is the bāligh Muslim embracing a religion other than Islam, or his denial of one of the three fundamental principles of Islam (Oneness of God, the Prophethood and Day of Judgement), or his denial of some of the necessary beliefs that entails rejection of the words of the Prophet (sawa). The effect of irtidād on the marital relationship falls into two categories:
1387.
1- If the irtidād is‘an fitrah (a born-Muslim deserting Islam after bolūgh), here the marriage is invalidated and the woman must observe a death marriage-abstention period (‘iddah), which means that they cannot return to each other even if he repents – or even if she repents if she deserted Islam with him – unless with new contract.
2- If his irtidād is‘an millah (a born-non-Muslim deserting Islam after embracing it after bolūgh), and the woman has not had sexual intercourse with him, or is young, or has reached menopause, in this case the marriage is invalid and she separates from him without a marriage-abstention period, and if they wish to return to each other after repentance, they must enter into a new contract. However, if she has had sexual intercourse, or is not young or has reached menopause, she must separate from him and observe a marriage-abstention period; then if he repents – and she repents with him if she also deserted the religion – during the marriage-abstention period, they are compelled to stay married; but if the marriage-abstention period elapses before repentance, the marriage invalidation will be regarded from the moment of irtidād, she separates from him completely and she is free to choose what to do after the marriage-abstention period; then if they want to return to each other, they need a new contract.
1388. If the irtidād befalls the wife not the husband, whether ‘an fireh (a born-Muslim deserting Islam after bolūgh) or ‘an millah (a born-non-Muslim deserting Islam after embracing it after bolūgh), here are two scenarios:
1- If she has not had sexual intercourse or has reached menopause, in this case her marriage is invalidated from the moment of irtidād, without the need for a marriage-abstention period. He must enter a new contract with her if she repents after this.
2- If she has had sexual intercourse and has not reached menopause, here her husband must separate from her for a divorce marriage-abstention period; then if she repents during that marriage-abstention period, they are compelled to stay married; but if she does not repent until after the period has elapsed, he is no longer allowed to marry her if her irtidād was to atheism or idolism, even if to one of the People of the Book’s religions as an obligatory precaution.
1389. If two non-Muslim spouses embrace Islam at the same time, their marriage stays as it is unless it is invalid due to other reasons; but if one of them embraces Islam after the other, the ruling regarding this is as follows:
a- If the husband who is from the People of the Book or an atheist embraces Islam while the wife stays with her religion, here:
1- If she is from the People of the Book, their marriage remains valid.
2- If she is an atheist or idolater and he has not had sexual intercourse with her, the contract becomes invalid.
3- If she is an atheist or idolater and has had sexual intercourse with her, he must separate from her and wait the elapse of a divorce marriage-abstention period, then if she embraces Islam during that period they remain in their marriage, otherwise she separates from him.
b- The wife embraces Islam and her husband stays with his religion, here:
1- If she embraces Islam before she has had sexual intercourse with him, her marriage is invalidated.
2- If she embraces Islam after she has had sexual intercourse with him, she must separate from him for a divorce marriage-abstention period, then if he embraces Islam during it, they remain in their marriage; otherwise the invalidity of her marriage is regarded as taking place from the moment that she embraced Islam.
Second: Forbidden breastfeeding relationships, if they create a situation between the husband and his wife which prevents the marriage between them, such as the wife becoming a mother to the husband, a sister or the like. Such a situation is not often suffered except in some circumstances as follows:
1390. If the wife’s biological mother breastfed one of the children of her daughter’s husband, it is better to observe the precaution of separating the daughter from her husband, whether the breastfed baby was a child of her daughter or her husband’s second wife, and whether she breastfed him from the milk of the father of this particular married daughter or the milk of a husband of the mother other than her father. (See note below.)
1391. If a man’s wife breastfed with his milk the son or daughter of the husband of his daughter, biological or through breastfeeding, then it is better to observe the precaution of separating the daughter from her husband.
It must be noted, in this entry and the previous one, that this precaution entails also that she does not marry another man until after she is divorced from him and the elapse of her marriage-abstention period, regardless as to whether the baby was that of the daughter of the husband of the breastfeeding woman or his second wife.
1392. If a woman breastfed one of the children, male or female, of her son, in this case there is no prohibition between the son’s wife and him, although his child will be his brother and some of the kinship consequences come into force.
Third: In terminal illness
1393. If someone who is ill establishes his marriage contract during his terminal illness, the contract will be valid and go through with all its consequences if he has sexual intercourse with her before his death; but if he dies before sexual intercourse, the contract becomes invalidated and it is regarded as non-existent, so there is no dowry for the woman, nor inheritance, nor death marriage-abstention period, not even kinship through marriage, which affects the prohibition of marriage of his children after him etc. It also becomes invalid if the woman dies during his illness – even if she is not ill – before he has had sexual intercourse with her, if her husband dies from his illness after her, she does not get any dowry, nor would he inherit from her.
That said, if the husband is not ill and he marries a sick woman, then she dies before sexual intercourse, in this case the contract is valid with all its consequences.
Fourth: Al-Li’ān and similar matters
This will be detailed later.
Part 2: Causes of revocation
1394. The wife will have the choice of revoking the marriage contract if the husband suffers from one of the following defects:
1- Insanity, even if it comes in bouts, which is the psychological disease that causes the derangement of the mental faculty, but does not include the diseases of the brain and the nervous system, such as epilepsy and the like. The choice of revocation on the basis of insanity is conferred even if the insanity takes place after the contract, even if after sexual intercourse with the wife.
2- Penis amputation (jabb) which is the cutting off of the penis partially or wholly so that nothing is left with which sexual intercourse is possible, whether this takes place before the contract or after it, even if after sexual intercourse.
3- Impotence (‘anan), which is the disease preventing the erection of the male organ so that the man is not able to penetrate for a long time or for any time at all; in this case the choice (of revocation) will be for her if this problem started before the contract, also if it reappears again after the contract but before sexual intercourse; if he manages to have sexual intercourse after the contract then impotence takes place, it is more probable that she would also have the choice, although precaution should be observed in adding divorce to the revocation in this last case. However, if the impotence is temporary and of a nature that may happen to men like him, then she will have no choice. The impotence which gives her the choice of revocation is his inability to get an erection when he wants to penetrate, so the conferment of the choice is not stopped by his erectile ability at times other than the time of penetration.
4- Khisā’ (being castrated) and wijā’, which are two defects of the testicles that cause infertility and impotence; the choice is conferred on the wife in these cases.
5, 6, 7- Leprosy (jothām), albinism (beras) and blindness. Leprosy is a disease in which there is disfigurement and wasting of affected parts, while albinism is a skin condition that comes out as whiteness that spreads across the skin. In all these three, the revocation choice is conferred whether they happened before the contract or happen after it, with knowledge of both of them. It is probable that the choice is conferred when any infectious disease occurs which makes the wife fear catching it herself, such as T.B. or AIDS and the like, although precaution should be observed to include divorce with the revocation in these circumstances.
1395. The choice of revocation of the contract will be conferred on the husband if the wife suffers from one of the following defects:
1- Insanity, in the way described above.
2- Blindness.
3- Disability due to paralysis or diseases that cause this; even limping, even if is not to the extent of disability, if it is obvious.
4- The qorn, which is a piece of additional flesh or bone in the vagina – called (also) ‘al-‘afl’; the criterion is that it should be interfering with the normal sexual relationship, even if not stopping it completely or preventing pregnancy.
5- Ifdā’, which is a deformation in the woman’s vagina resulting from the urine or stool passage forming one passage with the menses passage, or the three forming one passage.
6- Leprosy, albinism, even any infectious disease, as previously mentioned, including the precaution of combining both the revocation and divorce with infectious diseases other than leprosy and albinism.
In conferring the revocation choice for the husband, no distinction is made as to whether the wife’s defect existed before the contract or after it, nor whether it occurred before sexual intercourse or after it. However, it is better to include divorce in revocation in defects reappearing after the contract.
1396. The choice of revocation for cheating is conferred on the husband as in other contracts; this takes place in marriage when the defect of one of the two spouses, other than those that entail a choice of revocation, is deliberately concealed, whether this concealment is of something that is regarded as a defect because it is a deficiency in the body, such as being one-eyed, or an abnormal addition, such as a beard on the woman. Cheating has also taken place if the man wishing to get married is fooled that certain features that he is after are present in the woman, while in fact they are not, such as social status, wealth, virginity etc. Such concealment will have taken place when the description showed that the person was free from defects, or possessed the desired features, when the person doing the describing knew the presence of these defects or the absence of the desired features, so that the description became the basis for fooling of the person seeking marriage. However, if the description was not for marriage, or if it was for marriage but the description was given to someone other than the person seeking marriage, in this case it is not regarded as cheating and he or she is not responsible for cheating, although this is a forbidden form of lying. Cheating will have also taken place by not mentioning the defects in the situation where the other understands from it that the person is free from defects, leading him to go ahead as a result of this understanding, if the contract then takes place based on what the cheated person understood – explicitly or implicitly –, in this case he will have the choice of revocation.
1397. The choice of revocation due to cheating is conferred only when the marriage contract is based on freedom from defects, or on the presence of certain good features, either through declaring them as a condition, or through the agreement between those concerned at the time of the engagement, so that it was in their minds; then if something is discovered , the absence of which was agreed as a condition, or something is found missing, the presence of which was agreed as a condition, in this case the person who set the condition has the choice of either revoking the contract or accepting it as it is.
1398. If the person with the right to the choice relating to defects wants revocation, he must hasten – as is commonly accepted – to use it. But in the case of impotence, it is not valid for the woman to hasten to revoke the contract; instead she must turn to the Islamic authority so that he can give him one year starting from the time of her request; then if the husband manages to have sexual intercourse with her, her right to revocation over this matter will be cancelled; otherwise she can exercise her choice after the elapse of the year.
1399. The permission of the Islamic authority is not conditional for revocation relating to defect, including if the defect is impotence. The woman may turn to the Islamic authority in the case of impotence only to set the date, then if a year elapses she is allowed to revoke the contract on her own, without turning to the Islamic authority.
1400. If the man revokes the contract – in an appropriate situation – because of one of the woman’s defects, here there are two scenarios:
1- If the revocation takes place before sexual intercourse, then no dowry is due, nor a marriage-abstention period.
2- If the revocation takes place after sexual intercourse, then the full dowry is due to her and she must observe a marriage-abstention period, unless she is young (not bālighah) or has reached the menopause.
This is if there is no cheating; but if there is cheating involved and the situation is uncovered by the man after sexual intercourse, then if the woman herself is the cheating person and she chooses revocation, no dowry is due to her and the man has the right to claim it back if he has already paid it to her; but if he chooses to stay, then a full dowry will be due to her from him, unless the cheating concerned virginity and he discovered that she was not virgin. In this latter case, the man may deduct from the dowry the difference between the dowries of similar virgin and non-virgin women. However, if the cheating person is not the wife, in this case the agreed dowry will continue to be due from the husband as long as he had sexual intercourse with her; but he has the right after paying it to her to claim it back from the cheating person.