Chapter 3
The Consequences of Marriage
First: The dowry
1401. A dowry is not conditional for the validity of a permanent marriage contract, intentionally or out of lack of awareness; even if the husband intended not to pay it to her, this will not stop the validity of the marriage. The dowry should have a financial value as custom dictates, something which a Muslim is allowed to own, and the work – if the dowry is in the form of work to be done – must be allowed; the contents of dowry must be neither unclear nor unspecific (to be selected from among two or more things).
1402. The agreed dowry is due to the woman and she owns it as a result of the contract on its own; however her ownership of the whole of it will not be permanently confirmed unless with sexual intercourse – in the vagina or the anus – or whatever is similar, such as if he removes her hymen (defloration) by a method other than intercourse, even without her acceptance. However, if the man divorces his wife before sexual intercourse, half of the agreed dowry will be cancelled, leaving the other half of it for her.
Second: Maintenance (nafaqah) and having pleasure (istimtā’)
1403. Two things are conferred as rights on the woman by her husband within valid permanent marriage:
1- That he meets the expenses of what she needs in her new life, including her food and drink, clothing, housing, make-up etc, cleaning and the needs of her visitors, who will be her relatives, and the like; also the needs of providing her with servants and equipment, the furniture she needs for her sleeping, sitting and the rest of her activities, and the rest of things which women in her society and country are accustomed to have in her situation, according to age, education and social status.
2- Sexual right, in which the husband is obliged to respond to her needs, if they are similar to what women like her normally need, regardless as to whether she is capable of refraining from sex and abstaining from forbidden acts when she is left sexually unsatisfied. 1404. It is not obligatory for the husband to live with his permanent wife, nor to spend the night at her house, not to mention the term (mot‘ah) wife. Also, if he has more than one permanent wife, it is not obligatory for him – in the beginning– to spend the night at their houses; but if he does spend the night at the house of one of them, he is obliged to spend the next night with the second, then the following night with the third, and so on, then on the fourth night he is not obliged to spend the night at the house of any of them, and is allowed to choose any one of them over the others.
1405. Sexual right is conferred on the husband by his wife, which is to make herself available for him and enable him to have pleasure with her in the way he likes with the scope of normal pleasure practices, except intercourse in the anus, which is an obligatory precaution to abstain from, even during her menses or nifās or otherwise. In this regard, he has the right over her that she does not leave his house except upon his permission if that contradicts his right to have pleasure sexually or just to have her company; so if her going out does not contradict this right, then it is not forbidden for her to go out without his permission, such as if he is out of the house for work, travel or the like.
1406. It is not obligatory for the wife to meet her obligation towards her husband in his right of having pleasure with her in the following situations:
1- If she has made it conditional not to let him indulge in any or some forms of pleasure, whether explicitly or implicitly, such as not letting him do this during the period between the contract and the wedding and her moving into the marital home, which in some countries is called the engagement period.
2- When ill, during which she has the right to refuse to the extent which the illness prevents it.
3- If the husband is not able to meet her expenses, or able but refuses to do that.
4- If what he wants are abnormal types of pleasure, even if they do not hurt. In all this, their relationship should be based on good company, love and observing the other’s desires and tastes.
1407. It is not allowed for the husband in a permanent marriage to ejaculate semen outside the vagina except upon the permission of his wife; this is called ‘‘azl’ (lit. isolation/separation). Also she has no right to make it binding on him to do this, since it contradicts with his right to having pleasure – although she is not bound to pregnancy – unless she makes ‘azl conditional within a binding contract, in which case she can make it binding on him.
1408. For the establishment of a valid permanent marriage that meets all conditions between them, it is conditional to make it obligatory on the man to meet his wife’s expenses; but he is not obliged to meet the expenses of a term wife, even if he lives with her and has children by her and their marriage continues for a long time, unless she has made this conditional in their term marriage contract.
Meeting the expenses of the woman – when all conditions are met – is due from the moment the contract is established and the marital bond is formed, even if he has not taken her as a bride to his house, unless he has made it conditional not to meet her expenses before her wedding, as will be explained. And if the woman was married off in the fodūlī manner (someone else established the contract without her knowledge) then she accepted her marriage contract after a period of time, her maintenance will be counted from the moment of the contract, not the moment when she later accepted it.
1409. For the maintenance to be due to the wife, she must meet her obligation regarding the husband's rights – as explained earlier – without rebelling (noshūz) against him, so if she carries out her duties regarding these two rights without rebellion, her maintenance becomes obligatory; but if she rebels against him and refuses him one of these two rights – not to mention both of them – no maintenance is then due to her until she repents and returns to obedience and good company.
1410. The woman’s maintenance is due during the period between establishing the contract and the wedding, which is a period that might last for a long time, despite the fact that she is not living with the husband and despite the fact that the husband might not get the whole of his right to pleasure. However, if he had made it conditional on her not to pay any maintenance – explicitly or implicitly, even if outside of the norm that is clear, known and recognisable when making the contract – in this case maintenance will not be due from him.
1411. It is obligatory for the husband to meet the expenses of the woman in the different areas of her life, including food and drink, clothing, housing, make-up, cleaning and the hospitality needs of her relatives and similar visitors; he also needs to provide her with servants and equipment, in addition to the furniture that she needs for her sleeping, sitting and the rest of her needs and activities. The criterion of a thing being a need for her, and also its type and amount, is what the people in her society and country are accustomed to expect for women of her status. What is meant by ‘status’ is: her situation regarding age, education and social status, which are the things that dictate the difference in the type and amount of what meets her needs in these things that we mentioned. A country girl, for instance, might consider a modest type of housing and furniture sufficient, while a girl who has been raised in the city might not be content with that, and so on in similar things in the various areas that differ a great deal according to people and places. What is regarded as obligatory maintenance are the expenses of childbirth and treatment of the various illnesses, whether common illnesses or difficult ones that require a lot of money for treatment, unless this is intensely difficult for the husband, in which case he spends whatever does not cause intense difficulty to treat her in the case of severe illnesses. This, also, has to be in a manner that conforms to her status regarding the type, place and method of treatment.
1412. Since the criterion in what must be spent as maintenance is its being a living need, it is then not obligatory on the husband to pay off the debts of his wife, nor the costs of her learning in any branch of knowledge or profession, nor what may become obligatory on her regarding the maintenance of her parents or children from another husband, nor what she must spend to carry out a duty such as a fidyah (exchange for days that she cannot fast), kaffārah (atonement), arsh (compensation) for an offence or an obligatory pilgrimage, not to mention the expenses of recommended acts of worship, such as visiting the sacred tombs and the like.
1413. If the wife does not get all – or some – of the obligatory maintenance in type or amount, either due to the husband’s inability or refusal, the amount which he must pay to her is not cancelled and it stays as a debt owed by him that must be paid to her (whenever he can while she remains alive, then if he dies, his heirs are obliged to pay it from his original estate like his other debts; if she dies, the debt is transferred to her heirs with the rest of her estate, whether she was still claiming the maintenance from him at the time or not, and whether she turned to the Islamic authority to estimated it for her and give a ruling for her or not, and whether or not she lived in difficult circumstances or spent money on herself or others volunteered to spend money on her. If someone else spent money on her in place of her husband, or as a debt owed by him upon the permission of the Islamic authority, in this case nothing is owed by the husband to her, but rather her husband will owe the person who had spent on her as a debt.
Third: Rebellion (noshūz)
1414. If the husband refuses to meet his obligation towards his wife regarding her rights or maintenance or having pleasure, he has sinned and disobeyed if he was able to perform these tasks, and this is regarded as rebellion (noshūz) on his side; in this case, to deal with this situation, she is allowed to resort, , to the following solutions:
1- To solve the matter in the best way using moral methods.
2- To encourage him towards what is good and forbid him what is evil through her appreciation of how much he may respond to the successful manner that serve her goal.
3- To turn to the Islamic authority, who would summon him and order him to be just and to her and give her her right; if he does not change, the Islamic authority has no right of disciplinary punishment using beating or imprisonment to force him to be just to her, but the wife has the choice either to be patient with him or to ask for a divorce; then if she asks for divorce and the husband refuses to divorce her, the Islamic authority will carry out the divorce for her and the dowry will be due to her.
1415. If the wife refuses to meet her obligations towards the right of her husband in having pleasure, she is regarded as rebellious (nāshiz), and has sinned and disobeyed, and the husband may deal with this situation in the following ways:
1- To solve the matter in the best way using moral methods
2- To advise her and try to make her fear sinning and order her to be God-fearing; he must repeat this in diverse ways.
3- To abandon her by sleeping in a room other than her room, for example, as psychological pressure to deter or restrain her.
4- To use force, and this is a non-binding choice; it is not allowed for him to resort to this until after the advice and abandoning the bed and when it is obvious to him that she insists on rebelling and has no excuse, especially when he has good morals and is meeting his obligations towards her rights, in addition to showing hope of a positive response from her and that she might abandon the sin, and that this use of force is for correction not revenge. Finally it should be limited to the extent which is probably going to be effective without, in any case, causing any harm.
5- Stopping her maintenance when her rights have been cancelled due to her rebellion.
Addendum on īlā’
1416. Īlā’ is when the man swears to abandon sexual intercourse with his permanent wife with whom he as had intercourse for a period of more than four months or for good, with the aim of hurting her, and although the aim is not reasonably acceptable, it is established as an oath (yamin). However he must break it, but without sinning (when doing so), and he has to give kaffārah (atonement).
The īlā’ does not become established except when using the name of Allah, the Most High, or a name that is specific to Him or a name which, if unspecified, is understood that it is Him who is being sworn by, in the same way as the oath.
In addition, for the īlā’ to be valid, the following elements must be present:
1- The wife must be a permanent wife.
2- She must have had sexual intercourse with him – even if in the anus.
3- The thing that he is swearing to do is to abandon sexual intercourse with her in the vagina, so it is not established if he simply abandons sexual intercourse with her in the anus.
4- The smallest period of abandonment is four months.
5- The aim must be to hurt her.
1417. The conditions of īlā’ is that the man is of the Islamic legal age, has sanity, free will and intention, so it is not established if sworn by the young, the insane, someone forced to do it, as a joke, the drunk or someone from whom anger is so intense that it takes away his intention, neither is it established if sworn by someone who is not capable of sexual intercourse for jabb (see no.1394) or impotence so that he cannot achieve sexual intercourse when he is given he choice between it and divorce, as will be explained below.
1418. If the īlā’ is established in the manner we described, the husband is allowed to stay true to his oath and continue in his abandonment up to four months; if she requests her sexual right before then, he is allowed to meet his obligation towards her and break his oath, in which case he must pay atonement on breaking the oath, without having sinned for this oath breaking, which is: freeing a slave, or feeding ten miskīns or clothing them, but if he cannot do either of these two he must fast for three days. The same applies if he had sworn to abandon sexual intercourse for good or absolutely, but did have sexual intercourse after that.
This is if he retracts from his oath; however if he keeps to his refusal and does not want to divorce her and she cannot stay like this, she is allowed to turn to the Islamic authority who will summon him and encourage him to respond to her, advising him that he would be a sinner if he does not give her her right, but if this does not succeed and he keeps to his refusal, the Islamic authority allows him four months starting from the date when īlā’ was established, then if he retracts before the elapse of the period and has sexual intercourse with her, the matter is solved and he has to pay the atonement for breaking the oath. But if he does not retract before the four months have elapsed, the Islamic authority will force him to choose between going back to her or divorcing her if the wife has asked for it; then if he does one of these, the matter is solved, otherwise the Islamic authority may imprison him and pressurise him, without forcing him towards a particular choice of the two, through his food and drink until he chooses one of the options ; but if he continues to refuse to do either of the two, the Islamic authority can carry out the divorce for her; the divorce is a revocable one if he has had sexual intercourse with her, and if she has not reached menopause, otherwise the divorce will be irrevocable.
Whatever the result of the case proceedings (at the Islamic authority), if he returns to his wife and has sexual intercourse with her within the period which he has sworn to abstain from sexual intercourse, in this case atonement for oath-breaking will be due on him, whether he returns within the waiting period which the Islamic authority specified, before it or after it. However, if he returns to her after the elapse of the period during which he had sworn to abstain from sexual intercourse, in this case no atonement will be due because no oath was broken, even if she had turned her case to the Islamic authority and her husband continued to refuse to respond until the ilā’ period elapsed.