Marriage

موضوع: Marriage 26/7/2010, 08:37

Marriage (Part I of II)

Marriage Cd236c9cd3a4e03dccb61578094b19d44g

* The relation between man and woman becomes lawful by contracting marriage. There are two kinds of marriages:

(i) Permanent marriage

(ii) Fixed-time marriage

In a permanent marriage, the period of matrimony is not fixed, and
it isforever. The woman with whom such a marriage is concluded is called
da'ima (i.e. a permanent wife).

In a fixed time marriage (Mut'ah), the period of matrimony is fixed,
for example, matrimonial relation is contracted with a woman for an
hour, or a day, or a month, or a year, or more. However, the period
fixed for the marriage should not exceed the span of normal lives of the
spouses, because in that case, the marriage will be treated as a
permanent one. This sort of fixed time marriage is called Mut'ah or
Sigha.
Marriage Formula

2372. * Whether marriage is permanent or temporary, the formal
formula must be pronounced; mere tacit approval and consent, or written
agreement, is not sufficient. And the formula (Sigha) of the marriage
contract is pronounced either by the man and the woman themselves, or by
a person who is appointed by them as their representatives to recite it
on their behalf.

2373. The representative should not necessarily be a male. A woman
can also become a representative to pronounce the marriage formula.

2374. * As long as the woman and the man are not certain that their
representative has pronounced the formula, they cannot look at each
other as Mahram (like husband and wife), and a mere probable suspicion
that the representative might have pronounced the formula is not
sufficient. And if the representative says that he has pronounced the
formula, but his assertion does not satisfy the parties concerned, it
will not be deemed sufficient.

2375. If a woman appoints a person as her representative so that he
may, for example, contract her marriage with a man for ten days, but
does not specify the day from which the period of ten days would
commence, the representative can contract her marriage with that man for
ten days from any day he likes. However, if the representative knows
that the woman intends a particular hour or day, he should pronounce the
formula according to her intention.

2376. One person can act as the representative of both sides for
reciting the formula of permanent or temporary marriage. It is also
permissible that a man may himself become the representative of a woman
and contract permanent or temporary marriage with her. However, the
recommended precaution is that two separate persons should represent
each side, for the formula of marriage contract.
The Method of Pronouncing the Marriage Formula

2377. * If a woman and a man themselves want to recite the formula
of permanent marriage, the woman should first say: Zawwajtuka nafsi
'alas sidaqil ma'lum (i.e. I have made myself your wife on the agreed
mahr), and then the man should immediately respond thus: Qabiltut tazwij
(i.e. I accept the marriage). In this way, the marriage contract will
be in order. And if a woman and a man appoint other person to act as
their representatives for pronouncing the formula of marriage, and if,
for example, the name of the man is Ahmad and that of the woman is
Fatimah, the representative of the woman should first say: Zawwajtuka
muwakkilaka Ahmad muwakkilati Fatimah 'alas sidaqil ma'lum (i.e. I have
given to your client Ahmad in marriage my client Fatimah on the agreed
mahr) and thereafter the representative of the man should immediately
respond thus: Qabiltut tazwijali Muwakkili Ahmad 'alas sidaqil ma'lum
(that is, I accepted this matrimonial alliance for my client Ahmad on
the agreed Mahr). Now the marriage contract is in order. And, on the
basis of recommended precaution, it is necessary that the words uttered
by the man should conform with those uttered by the woman; for example,
if the woman says: Zawwajituka ...... (i.e. I have made myself your
wife) the man should also say: Qabituttazwija ......(i.e. I accept the
matrimonial alliance) and not Qabitun Nikaha.

2378. * It is permissible for a man and a woman to recite the
formula of the temporary marriage (Mut'ah), after having agreed on the
period of marriage and the amount of Mahr. Hence, if the woman says:
Zawwajtuka nafsi fil muddatil ma'lumati 'alal mahril ma'lum (i.e. I have
made myself your wife for an agreed period and agreed Mahr), and then
the man immediately responds thus: Qabiltu (i.e. I have accepted), the
marriage will be in order. And the marriage will also be in order if
they appoint other persons to act as their representatives. First, the
representative of the woman should say to the representative of the man
thus: Matta'tu muwakkilati muwakkilaka fil muddatil ma'lumati 'alal
mahril ma'lum (i.e. I have given my client to your client in marriage
for the agreed period and the agreed Mahr), and then the representative
of the man should immediately respond thus: Qabiltut tazwija li
muwakkili hakaza (i.e. I accepted this matrimonial alliance for my
client this way).
Conditions of Pronouncing Nikah

2379. * There are certain conditions for the Nikah recited for marriage. They are as follows:

(i) On the basis of precaution, the formula (Nikah) of marriage
contract should be pronounced in correct Arabic. And if the man and the
woman cannot pronounce the formula in correct Arabic, they can pronounce
the Nikah in any other language, and it is not necessary to appoint any
representatives. But the words used in translation must convey strictly
the meaning of "Zawwajtu" and "Qabiltu".

(ii) The man and the woman or their representatives, who recite the
Nikah, should have the intention of Insha' (i.e. reciting it in a
creative sense, making it effective immediately). In other words, if the
man and the woman themselves pronounce the formula, the intention of
the woman by saying: Zawwajtuka nafsi' should be that she effectively
makes herself the wife of the man; and by saying: "Qablitut tazwija" the
man effectively accepts her as his wife. And if the representatives of
the man and the woman pronounce the Nikah, their intention by saying:
'Zawwajtu' and 'Qablitu' should be that the man and the woman who have
appointed them as their representatives, have effectively become husband
and wife.

(iii) The person who pronounces the Nikah (whether he pronounces it
for himself or has been engaged by some other person as his
representative) should be sane, and as a precaution, he should be baligh
also.

(iv) If the Nikah is pronounced by the representatives or the
guardians of the man and the woman, they should identify the man and the
woman by uttering their names or making intelligible signs towards
them. Hence, if a person has more than one daughters, and he says to a
man: Zawwajtuka Ihda Banati (i.e. I have given away one of my daughters
to you as your wife) and the man says: Qabiltu (i.e. I have accepted)
the marriage contract is void, because the daughter has not been
identified.

(v) The woman and the man should be willing to enter into a
matrimonial alliance. If, however, the woman ostensibly displays
hesitation while giving her consent, but it is known that in her heart,
she is agreeable to the marriage, the marriage is in order.

2380. If, while reciting the Nikah, even one word is pronounced
incorrectly, as a result of which its meaning is changed, the marriage
contract would be void.

2381. * If a person pronouncing Nikah comprehends its general
meaning, and has a clear intention of effecting that meaning, the Nikah
will be valid. It is not necessary for him to know the exact meaning of
each word, or to know the laws of Arabic grammar.

2382. If Nikah of a woman is pronounced to a man without her
consent, but later both man and woman endorse the Nikah, the marriage is
in order.

2383. If the woman and the man, or any one of them, is coerced into
matrimony, and they give consent after the Nikah has been pronounced,
the marriage is in order, although it is better that the Nikah be
repeated.

2384. * The father and the paternal grandfather can contract a
marriage on behalf of his minor son or daughter, or on behalf of an
insane son or daughter, if they are baligh. And after the children have
become baligh or the insane has become sane, he can endorse or abrogate
it, if the contracted marriage involves any moral lapse or scandal. And
if the marriage contract does not involve any moral lapse or scandal,
but the na-baligh son or daughter calls off the marriage, then as an
obligatory precaution, a Talaq or a renewed Nikah, whatever the case may
be, must be recited.

2385. * If a girl has reached the age of bulugh and is virgin and
mature (i.e. she can decide what is in her own interest) wishes to
marry, she should, obtain permission from her father or paternal
grandfather, although she may be looking after her own affairs. It is
not, however, necessary for her to obtain permission from her mother or
brother.

2386. * In the following situations, it will not be necessary for a
woman to seek the permission of her father or paternal grandfather,
before getting married:

(i) If she is not a virgin.

(ii) If she is a virgin, but her father or paternal grandfather
refuse to grant permission to her for marrying a man who is compatible
to her in the eyes of Shariah, as well as custom.

(iii) If the father and the grandfather are not in any way willing to participate in the marriage.

(iv) If they are not in a capacity to give their consent, like in the case of mental illness etc.

(v) If it is not possible to obtain their permission because of
their absence, or such other reasons, and the woman is eager to get
married urgently.

2387. * If the father or the paternal grandfather contracts marriage
on behalf of his na-baligh son, the boy, upon attaining bulugh, should
pay maintenance of his wife. In fact, he should start paying her
maintenance before becoming baligh, when he is able to consummate the
marriage. And the wife should not be too young to have any ***ual
relation with the husband. And in the situation other than these, there
is a strong indication that she is entitled to maintenance from the
husband, therefore a compromise should be carried out as a precaution.

2388. * If the father or the paternal grandfather contracts a
marriage on behalf of his na-baligh son, they should pay the Mahr if the
boy does not own any means, or if either of them undertakes to pay the
Mahr himself. In other situations, the father or the paternal
grandfather can pay Mahr from the boy's wealth, but it should not exceed
the proper usual Mahr customarily given in similar cases. But if the
circumstances demand that higher Mahr be paid, they can pay it from the
boy's wealth, and not otherwise, unless the boy approves it after having
become baligh.
Occasions When Husband or Wife Can Nullify Nikah

2389. * If the husband comes to know after Nikah that his wife had,
at the time of Nikah, any one of the following six deficiencies, he can
annul the marriage:

(i) Insanity, even if it is intermittent.

(ii) Leprosy

(iii) Leucoderma

(iv) Blindness

(v) Being crippled, even if it is not to the extent of immobility.

(vi) Presence of flesh or a bone in the woman's uterus, which may or
may not obstruct ***ual intercourse or pregnancy. And if the husband
finds that the wife at the time of Nikah, suffered from 'Ifdha' -
meaning that her urinary and menstrual tract have been one, or her
menstrual passage and rectum have been one, he cannot annul the
marriage. As an obligatory precaution, he will have to pronounce talaq
if he wants to dissolve the marriage.

2390. * A woman can annul the Nikah in the following cases, without obtaining divorce:

(i) If she comes to know that her husband has no male organ.

(ii) If she finds that his penis has been cut off before or after the ***ual intercourse.

(iii) If he suffers from a disease which disables him from ***ual
intercourse, even if that disease was contracted after the Nikah, or
before or after the ***ual intercourse.

2390. * In the following situations, if a wife refuses to continue
with the matrimony and wishes to dissolve the marriage, then as a matter
of precaution, the husband or his guardian will solemnise the divorce:

(i) If she comes to know after the Nikah, that the husband was
insane at the time of Nikah; or if he becomes insane after the Nikah,
before or after consummation of the marriage.

(ii) If she finds out that at the time of Nikah, the husband had been castrated.

(iii) If she learns that he suffered at the time of Nikah from leprosy or leucoderma.

Note: And if the husband is incapable of ***ual intercourse, and she
wishes to annul the marriage, it will be necessary for her to approach
the Mujtahid or his representative, who may allow the husband a period
of one year, and if it is found that he was not able to have ***ual
intercourse with her or with any other woman, the wife can annul the
marriage.

2391. * If the wife annuls the marriage because of the husband's
inability to have ***ual intercourse, the husband should give her half
of her Mahr. But, if the man or the wife annuls the marriage because of
one of the other deficiencies enumerated above, and if the marriage has
not been consummated, he will not be liable for anything. But if the
marriage was consummated, he should pay her full Mahr. If the husband
annuls the marriage due to the deficiencies mentioned in rule 2389, he
will not be liable for anything if he has not had ***ual intercourse
with her. But if he has had ***ual relation with her, then he has to pay
full Mahr.
Women With Whom Matrimony is Haraam

2393. Matrimonial relation is haraam with women who are one's
Mahram, for instance, mother, sister, daughter, paternal aunt, maternal
aunt, niece (one's brother's or sister's daughter) and mother-in-law.

2394. If a man marries a woman, then her mother, her maternal
grandmother, her paternal grandmother and all the women as the line
ascends are his Mahram, even if he may not have had ***ual intercourse
with the wife.

2395. If a person marries a woman, and has ***ual intercourse with
her, the daughters and grand-daughters (daughters of sons, or of
daughters) of the wife and their descendants, as the line goes low,
become his Mahram, irrespective of whether they existed at the time of
his marriage, or were born later.

2396. If a man marries a woman, but does not have ***ual intercourse
with her, the obligatory precaution is that as long as their marriage
lasts, he should not marry her daughter.

2397. The paternal and maternal aunt of a man, and the paternal and
maternal aunt of his father, and the paternal and maternal aunt of his
paternal grandfather, and the paternal and maternal aunt of his mother,
and the paternal and maternal aunt of his maternal grandmother, as the
line ascends, are all his Mahram.

2398. The husband's father and grandfather, however high, are the
wife's Mahram. Similarly the husband's sons and the grandsons (son of
his sons or of daughters), however low, are her Mahram, regardless of
whether they existed at the time of her marriage or were born
afterwards.

2399. If a man marries a woman (whether the marriage be permanent or
temporary) he cannot marry her sister, as long as she is his wife.

2400. If a person gives a revocable divorce to his wife, in the
manner which will be explained under the rules relating to 'Divorce', he
cannot marry her sister during the Iddah. But if it is an irrevocable
divorce, he can marry her sister. And if it is the Iddah of temporary
marriage, the obligatory precaution is that one should not marry his
wife's sister during that period.

2401. A man cannot marry the niece (brother's or sister's daughter)
of his wife without her permission. But if he marries his nieces without
his wife's permission, and she later consents to the marriage, it will
be in order.

2402. * If the wife learns that her husband has married her niece
(brother's daughter or sister's daughter) and keeps quiet, and if she
later consents to that marriage, it will be in order. If she does not
consent later, the marriage will be void.

2403. * If before marrying his maternal or paternal aunt's daughter,
a person commits incest (***ual intercourse) with her mother, he cannot
marry that girl on the basis of precaution.

2404. * If a person marries his paternal or maternal aunt's
daughter, and after having consummated the marriage, commits incest with
her mother, this act will not become the cause of their separation. And
the same rule applies if he commits incest with her mother after the
Nikah, but before having consummated the marriage with her, although the
recommended precaution is that in this circumstance he should separate
from her by giving her divorce.

2405. * If a person commits fornication with a woman other than his
paternal or maternal aunt, the recommended precaution is that he should
not marry her daughter. In fact, if he marries a woman, and commits
fornication with her mother before having ***ual intercourse with her,
the recommended precaution is that he should separate from her, but if
he has ***ual intercourse with her, and thereafter commits fornication
with her mother, it is not necessary for him to get separated from her.

2406. * A Muslim woman cannot marry a non-Muslim, and a male Muslim
also cannot marry a non-Muslim woman who are not Ahlul Kitab. However,
there is no harm in contracting temporary marriage with Jewish and
Christians women, but the obligatory precaution is that a Muslim should
not take them in permanent marriage. There are certain sects like
Khawarij, Ghulat and Nawasib who claim to be Muslims, but are classified
as non-Muslims. Muslim men and women cannot contract permanent or
temporary marriage with them.

2407. If a person commits fornication with a woman who is in the
Iddah of her revocable divorce, as a precaution that woman becomes
haraam for him. And if he commits fornication with a woman who is in the
Iddah of temporary marriage, or of irrevocable divorce, or in the Iddah
of death, he can marry her afterwards, although the recommended
precaution is that he should not marry her.

The meaning of revocable divorce and irrevocable divorce, and Iddah
of temporary marriage, and Iddah of death, will be explained under the
rules relating to 'Divorce'.

2408. * If a person commits fornication with an unmarried woman and
who is not in Iddah, as a precaution, he cannot marry her till he has
sought forgiveness from Allah, and repented. But if another person
wishes to marry her before she has repented, there is no objection. If a
woman is known as a lewd person, it will not be permissible to marry
her till she has genuinely repented, and similarly, it is not
permissible to marry a man known for his lustful character, till he has
genuinely repented. If a man wishes to marry a woman of loose character,
he should, as a precaution, wait till she becomes Pak from her menses,
irrespective of whether he had committed fornication with her, or anyone
else had done so.

2409. If a person contracts Nikah with a woman who is in the Iddah
of another man, and if the man and the woman both know, or any one of
them knows that the Iddah of the woman has not yet come to an end, and
if they also know that marrying a woman during her Iddah is haraam, that
woman will become haraam for the man forever, even if after the Nikah
the man may not have had ***ual intercourse with her.

2410. If a person contracts Nikah with a woman who is in the Iddah
of another man, and has ***ual intercourse with her, she becomes haraam
for him forever even if he did not know that she was in her Iddah, or
did not know that it is haraam to marry a woman during her Iddah.

2411. * If a person marries a woman knowing that she has a husband,
he should get separated from her, and should also not marry her at any
time afterwards. And the same rule will apply, as a precaution, if he
did not know that the woman was already married, and had ***ual
intercourse with her after Nikah.

2412. If a married woman commits adultery, she on the basis of
precaution, becomes haraam permanently for the adulterer, but does not
become haraam for her husband. And if she does not repent, and persists
in her action (i.e. continues to commit adultery), it will be better
that her husband divorces her, though he should pay her Mahr.

2413. In the case of the woman who has been divorced, or a woman who
contracted a temporary marriage and her husband forgoes the remaining
period of marriage, or if the period of her temporary marriage ends, if
she marries after some time, and then doubts whether at the time of her
second marriage, the Iddah of her first husband had ended or not, she
should ignore her doubt.

2414. * If a baligh person commits sodomy with a boy , the mother,
sister and daughter of the boy become haraam for him. And the same law
applies when the person on whom sodomy is committed is an adult male, or
when the person committing sodomy is na-baligh. But if one suspects or
doubts whether penetration occurred or not, then the said woman would
not become haraam.

2415. * If a person marries the mother or sister of a boy, and
commits sodomy with the boy after the marriage, as a precaution, they
will become haraam for him.

2416. If a person who is in the state of Ehram (which is one of the
acts to be performed during Hajj) marries a woman, the Nikah is void,
and if he knew that it was haraam for him to marry in the state of
Ehram, he cannot marry that woman again.

2417. * If a woman who is in the state of Ehram marries a man who is
not in the state of Ehram, her Nikah is void. And if she knew that it
was haraam to marry in the state of Ehram, as an obligatory precaution,
she should not marry that man thereafter.

2418. * If a man does not perform Tawafun Nisa (which is one of the
acts to be performed during Hajj and Umrah Mufradah) his wife and other
women become haraam for him. Also, if a woman does not perform Tawafun
Nisa, her husband and other men become haraam for her. But, if they (man
or woman) perform Tawafun Nisa later, they become halal.

2419. * If a person contracts Nikah with a non-baligh girl, it is
haraam to have ***ual intercourse before she has completed her nine
years. But if he commits ***ual intercourse with her, she will not be
haraam for him when she becomes baligh, even if she may have suffered
Ifza (which has been described in rule 2389), though as a precaution, he
should divorce her.

2420. A woman who is divorced three times, becomes haraam for her
husband. But, if she marries another man, subject to the conditions
which will be mentioned under the rules pertaining to 'divorce', her
first husband can marry her again after her second husband dies, or
divorces her, and she completes the period of Iddah.
Rules Regarding Permanent Marriage

2421. * For a woman with whom permanent marriage is contracted, it
is haraam to go out of the house without the permission of her husband,
though her leaving may not violate the rights of the husband. Also she
should submit herself to his ***ual desires, and should not prevent him
from having ***ual intercourse with her, without justifiable excuse. And
as long as she does not fail in her duties, it is obligatory on the
husband to provide for her food, clothes and housing. And if he does not
provide the same, regardless of whether he is able to provide them or
not, he remains indebted to the wife.

2422. * If the wife does not fulfil her matrimonial duties towards
her husband, she will not be entitled for the food, clothes or housing,
even if she continues to live with him. But if she refuses to obey
occasionally, the common verdict is that even then she cannot claim any
entitlement from her husband. But this verdict is a matter of Ishkal. In
any case, there is no doubt that she does not forfeit her Mahr.

2423. Man has no right to compel his wife to render household services.

2424. * The travelling expenses incurred by the wife must be borne
by the husband, if they exceed her expenses at home, and if she had
travelled with the husband's permission. But the fares for travel by car
or by air etc. and other expenses, which are necessary for a journey,
will be borne by the wife, except when the husband is himself inclined
to take her along with him on a journey, in which case he will bear her
expenses also.

2425. * If the husband who is responsible for the wife's
maintenance, does not provide her the same, she can draw her expenses
from his property without his permission. And if this is not possible,
and she is obliged to earn her livelihood, and she cannot take her case
to the Mujtahid, who would compel him (even by threatening him with
imprisonment) to pay the maintenance, it will not be obligatory upon her
to obey her husband while she is engaged in earning her livelihood.

2426. * If a man, for example, has two wives and spends one night
with one of them, it is obligatory on him to spend anyone of four nights
with the other as well; in situation other than this, it is not
obligatory on a man to stay with his wife. Of course, it is necessary
that he should not totally forsake living with the wife. And as a
precaution, a man should spend one night out of every four with his
permanent wife.

2427. * It is not permissible for the husband to abandon ***ual
intercourse with his youthful, permanent wife for more than 4 months,
except when ***ual intercourse is harmful to him, or involves unusually
more effort, or when the wife herself agrees to avoid it, or if a prior
stipulation to that effect was made at the time of Nikah by the husband.
And in this rule, there is no difference between the situations when
the husband is present, or on a journey, or whether she is a wife by
permanent or temporary marriage.

2428. If Mahr is not fixed in a permanent marriage, the marriage is
in order. And in such case, if the husband has ***ual intercourse with
the wife, he should pay her proper Mahr which would be in accordance
with the Mahr usually paid to women of her category. As regards
temporary marriage, however, if Mahr is not fixed the marriage is void.

2429. If at the time of Nikah for permanent marriage, no time is
fixed for paying Mahr, the wife can prevent her husband from having
***ual intercourse with her before receiving Mahr, irrespective of
whether the husband is or is not able to pay it. But if she once agrees
to have ***ual intercourse before taking Mahr, and her husband has
***ual intercourse with her, then she cannot prevent him afterwards from
having ***ual intercourse without a justifiable excuse

الموضوع الأصلي : Marriage الكاتب : AlexaLaw المصدر : منتديات عالم القانون

التوقيع

توقيع العضو : AlexaLaw

**تاريخ التسجيل** : 03/03/2010

Marriage (Part II of II)
Mut'ah (Temporary Marriage)

Marriage Cd236c9cd3a4e03dccb61578094b19d44g

2430. Contracting a temporary marriage with a woman is in order, even if it may not be for the sake of any ***ual pleasure.

2431. The obligatory precaution is that a husband should not avoid
having ***ual intercourse for more than four months with a wife of
temporary marriage.

2432. * If a woman with whom temporary marriage is contracted, makes
a condition that her husband will not have ***ual intercourse with her,
the marriage as well as the condition imposed by her will be valid, and
the husband can then derive only other pleasures from her. However, if
she agrees to ***ual intercourse later, her husband can have ***ual
intercourse with her, and this rule applies to permanent marriage as
well.

2433. A woman with whom temporary marriage is contracted, is not entitled to subsistence even if she becomes pregnant.

2434. * A woman with whom temporary marriage is contracted, is not
entitled to share the conjugal bed of her husband, and does not inherit
from him, and the husband, too, does not inherit from her. However, if
one or both lay down a condition regarding inheriting each other, such a
stipulation is a matter of Ishkal as far as its validity is concerned,
but even then, precaution should be exercised by putting it into effect.

2435. If a woman with whom temporary marriage is contracted, did not
know that she was not entitled to any subsistence and sharing her
husband's conjugal bed, still her marriage will be valid, and inspite of
this lack of knowledge, she has no right to claim anything from her
husband.

2436. * If a wife of temporary marriage goes out of the house
without the permission of her husband, and the right of the husband is
in anyway violated, it is haraam for her to leave. And if the right of
her husband remains protected, it is a recommended precaution that she
should not leave the house without his permission.

2437. * If a woman empowers a man that he may contract a temporary
marriage with her for a fixed period, and against a specified amount of
Mahr, and instead, that man contracts a permanent marriage with her, or
contracts a temporary marriage with her without specifying the time or
amount of Mahr, the marriage will be void. But if the woman consents to
it on understanding the position, then the marriage will be valid.

2438. In order to become Mahram (with whom marriage contract becomes
haraam and is treated to be one of the close relatives), a father or a
paternal grandfather can contract the marriage of his na-baligh son or
daughter with another person for a short period, provided that it does
not involve any scandal or moral lapse. However, if they marry a minor
boy or a girl who is not in anyway able to derive any ***ual pleasure
during the period from the spouse, then the validity of such a marriage
is a matter of Ishkal.

2439. If the father or the paternal grandfather of an absent child,
marry it to someone for the sake of becoming Mahram, not knowing whether
the child is alive or dead, the purpose will be achieved only if during
the period fixed for marriage, the child can become capable of
consummating marriage. If it later transpires that it was not alive at
the time the marriage was contracted, it will be considered void, and
the people who had apparently become Mahram will all become Na-Mahram.

2440. If a husband gifts the wife of Muta'h with the period of her
temporary marriage, thus releasing her, and if he has had ***ual
intercourse with her, he should give her all the things he agreed to
give her. And if he has not had ***ual intercourse with her, it is
obligatory on him to give her half the amount of Mahr, though the
recommended precaution is that he should give her full amount of Mahr.

2441. If a man contracted a temporary marriage with a woman, and the
period of her Iddah has not ended yet, he is allowed to contract a
permanent marriage with her or renew a contract for temporary marriage
with her.
Looking At Non-Mahram

2442. * It is haraam for man to look at the body or hair of the
Non-Mahram women, regardless of whether it is with the intention of
pleasure or not, and whether there is a fear of falling into sinful act
or not. It is also haraam to look at the faces and the arms, upto the
wrists, of such women with the intention of pleasure, or if there is
fear of falling into sinful act, and the recommended precaution is that
one should not look at their faces or arms even without such an
intention. Similarly, it is haraam for a woman to look at the body of
Non-Mahram man, except places which are customarily not covered, like,
his face, hands, head, neck and feet. She can look at these parts of a
man without the intention of deriving any pleasure, or if there is no
fear of being entrapped in any sinful act.

2443. * To look at the body of a woman who would not care for Hijab,
even if she were advised, is not haraam, provided that it does not lead
to sinful act or ***ual pleasure, and excitement, nor is it with that
intention; and in this rule, there is no distinction between a Muslim
and a non-Muslim woman; and also between those parts, like their faces,
their hands which they normally do not cover, and other parts of their
bodies.

2444. * Woman should conceal her body and hair from a man who is
non-Mahram, and as an obligatory precaution, she should conceal herself
even from a Na-baligh boy who is able to discern between good and evil,
and could probably be ***ually excited. But she can leave her face and
hands upto wrists uncovered in the presence of Na-Mahram, as long as it
does not lead him to casting a sinful, evil glance or her to doing
something forbidden; for in both these cases, she must cover them.

2445. It is haraam to look at the private parts of a baligh Muslim,
even if it is seen behind the glass or reflected in the mirror, or clean
water etc. As an obligatory precaution, it is also haraam to look at
the genitals of a non-Muslim, and of a discerning Na-baligh child.
However, wife and her husband can look at the entire body of each other.

2446. If a man and woman who are Mahram of each other, do not have
the intention of ***ual pleasure, they can see the entire body of each
other excepting the private parts.

2447. * A man should not look at the body of another man with the
intention of ***ual excitement, and also, it is haraam for a woman to
look at the body of another woman with the intention of ***ual
excitement.

2448. A man who is acquainted with a Na-Mahram woman, should not, as
a precaution, look at her photograph etc., provided that the woman is
not a heedless, commonplace person.

2449. *If a woman wants to give an enema to another woman, or to a
man other than her husband, or to clean her/his private parts with
water, she should cover her hand with such a thing that her hand would
not touch the private parts of the other woman or man. And the same
applies to a man who wants to give an enema to another man or a woman
other than his wife, or to clean his/her private parts with water.

2450. * If a woman is rendered helpless by her disease, and if the
only helpful treatment to her can be given by a male doctor, she can
refer to him. And if that male doctor must look at her to be able to
treat her, or to touch her for that matter, there is no objection.
However, if he can treat her by looking at her, he should not touch her
body, and if he can treat her by touching her body, he should not look
at her.

2451. * If a person is obliged to look at the private parts of a
patient for his/her medical treatment, he should, on the basis of
obligatory precaution, place a mirror opposite him/her and look into it.
However, if there is no alternative but to look directly at his/her
private parts, there is no objection. Similarly, if the duration of
regarding the genitals in the mirror would be longer than looking at
them directly, the latter method be adopted.
Miscellaneous Rules Concerning Marriage

2452. If a person gets entangled in haraam acts owing to his not having a wife, it is obligatory for him to marry.

2453. * If the husband makes it a condition before Nikah, that the
woman should be a virgin, and it transpires after Nikah that she is not
virgin, he can repudiate the marriage. However, he can deduct and take
the difference between the Mahr usually paid for a virgin woman and the
one who is not a virgin.

2454. * It is haraam for a man and a woman who are not Mahrams, to
be together at a private place where there is no one else, if it is
feared to lead to immorality and scandal, even if it is a place where
another person can easily arrive. But if there is no fear of any evil,
there is no objection.

2455. If the man fixes the Mahr of the woman at the time of Nikah,
but intends not to give it, the marriage contract is in order, but he
will be indebted to her.

2456. * A Muslim who renounces Islam and adopts a non-Muslim faith,
is an apostate, and they are of two types: Fitri and Milli. Fitri
apostate is one whose parents or one of them were Muslims when he was
born, and he himself was also a Muslim, till after having reached the
discerning age, and thereafter he converted to become a non-Muslim. A
Milli is exactly the opposite.

2457. * If a woman becomes an apostate after marriage, her marriage
becomes void, and if her husband has not had ***ual intercourse with
her, she is not required to observe any Iddah. And the position will be
the same if she apostatises after ***ual relation, but she had reached
menopause (Ya'isa), or if she was a minor. And if she had not reached
menopause, she should observe Iddah as will be explained in the rules of
'divorce'. And it is commonly held that if she becomes a Muslim during
her Iddah, her marriage remains intact. However, it is improbable that
this should be valid, and therefore, precaution should not be abandoned.
A Ya'isa is a woman who has reached 50 years of age, and because of
that advanced age, stops seeing Haidh and does not expect to see it
again in her life.

2458. * If a man becomes a Fitri apostate after Nikah, his wife
becomes haraam for him and she should observe Iddah of death in the
manner which will be explained in the rules relating to 'divorce'.

2459. * If a man becomes a Milli apostate after Nikah, his marriage
becomes void. And if he has not had ***ual intercourse with his wife, or
if she has reached menopause, or if she is a minor, she need not
observe Iddah. But if he apostatises after having ***ual intercourse
with his wife, who happens to be of the age of women who normally have
menstrual discharge, she should observe Iddah of 'divorce' which will be
mentioned under the rules relating to 'divorce'. And it is commonly
held that if her husband becomes a Muslim before the completion of her
Iddah, their marriage remains intact. However, it is improbable that
this be correct, but, precaution should not be abandoned.

2460. If the woman imposes a condition at the time of Nikah that her
husband will not take her out of the town, and the man also accepts
this condition, he should not take her out of that town against her
will.

2461. If a woman has a daughter from her former husband, her second
husband can marry that girl to his son, who is not from this wife. Also,
if a person marries his son to a girl, he himself can marry the mother
of that girl.

2462. * If a woman becomes pregnant as a result of fornication or
adultery, it is not permissible for her to have an abortion.

2463. * If a man commits fornication with a woman who has no
husband, nor is she in any Iddah, and later marries her, and a child is
born to them, and they do not know whether the child is the outcome of
legitimate relation or otherwise, the child will be considered
legitimate.

2464. * If a man does not know that a woman is in her Iddah and
marries her, and if the woman, too, does not know (that she is in her
Iddah) and a child is born to them, the child is legitimate and
according to Shariah belongs to both of them. However, if the woman was
aware that she was in her Iddah, and that during Iddah marriage is not
permissible, the child according to Shariah belongs to the father, and
in either case their marriage is void, and they are haraam for each
other.

2465. * If a woman says that she has reached menopause, her word may
not be accepted, but if she says that she does not have a husband, her
word is acceptable, except when she is known to be unreliable, in which
case, investigation will be necessary.

2466. * If a man marries a woman after her assertion that she does
not have a husband, and if some one claims later that she was his wife,
his claim will not be heeded unless it is proved to be true according to
Shariah laws.

2467. * Until a son or a daughter completes two years of his/her
age, his/her father cannot separate him/her from his/her mother. And as a
precaution, a child should not be separated from its mother till it is
seven years of age.

2468. * If a person proposing marriage is known for his virtues and
faith, then it is recommended that his proposal should not be rejected.
The Prophet (s.a.w.a.) is reported to have said: "Whenever you receive a
proposal for marriage on your daughter from a man whose virtue and
piety pleases you, then give her hand in his in marriage. For if you do
not do this way, great scandals and lapses will fill the earth."

2469. * If a woman compromises her Mahr with her husband, on a
condition that he will not marry another woman, it is obligatory upon
him that he does not marry another woman, and that the wife should not
claim her Mahr.

2470. If an illegitimate person marries, and a child is born to him, that child is legitimate.

2471. If a man has ***ual intercourse with his wife during fast in
the month of Ramadhan or when she is in her menses, he commits a sin,
but if a child is conceived, it is legitimate.

2472. If a woman who is sure that her husband died while on a
journey, marries another man after completing the Iddah of death, (which
will be explained in the rules relating to 'divorce') and later her
first husband returns from journey, she should immediately separate
herself from her second husband, and she will be halal for her first
husband. But, if the second husband has had ***ual intercourse with her,
she should observe Iddah and the second husband should give her proper
Mahr equal to that of the women similar to her category, but she is not
entitled to subsistence during Iddah.
Rules Regarding Suckling a Child

2473. * If a woman suckles a child with the conditions which will be
mentioned in rule 2483, that child becomes Mahram of the following
persons:

(i) The woman herself (i.e. the woman who suckles it) and she is called Riza'i mother (milk mother).

(ii) The husband of the woman (for the milk belongs to him); he is called Riza'i father (milk father).

(iii) Father and mother of that woman and all in their upward line, even if they are milk father and milk mother.

(iv) The children born of that woman, or those who are born to her later.

(v) The children of the children of that woman, however low,
regardless of whether they are born of her children or her children had
suckled them.

(vi) The sister and brother of that woman, even if they are her milk sister and milk brother.

(vii) Paternal uncle and paternal aunt of that woman, even if they are by milk, i.e. suckling.

(viii) Maternal uncle and maternal aunt of that woman, even if they are by milk i.e. suckling.

(ix) The descendants of the husband of that woman, (to whom milk belongs) even if they may be his milk children.

(x) Father and mother of that husband (to whom milk belongs), however high.

(xi) Sister and brother of the husband, (to whom milk belongs) even if they may be his milk sister and brother.

(xii) Paternal uncle and paternal aunt and maternal uncle and
maternal aunt of the husband, (to whom milk belongs) however high, even
if they are his milk uncles and aunts.

There are other persons also (details regarding whom will be given
in the following rules) who become Mahram on account of sucking milk.

2474. If a woman suckles a child with the condition which will be
mentioned in rule 2483, the father of the child cannot marry the
daughters of that woman, but it is permissible for him to marry her milk
daughters, although the recommended precaution is that he should not
marry them. Moreover, he cannot marry the daughters of the husband also
(to whom milk belongs), even if they may be his milk daughters. And if
any one of them happens to be his wife already, his marriage becomes
void.

2475. If a woman suckles a child with the conditions mentioned in
rule 2483, the husband of that woman (to whom milk belongs) does not
become Mahram of the sisters of that child, but the recommended
precaution is that he should not marry them. Also, the relatives of the
husband do not become Mahram of the sister and brother of that child.

2476. If a woman suckles a child, she does not become Mahram of the
brothers of that child. Moreover, the relatives of that woman do not
become Mahram of the brother and sister of the child suckled by her.

2477. If a person marries a woman who has suckled a girl fully, and
if he has had ***ual intercourse with her, he cannot marry that milk
girl.

2478. If a person marries a girl, he cannot marry the woman who has suckled her fully.

2479. A man cannot marry a girl who has been suckled fully by his
mother or paternal grandmother. Also, if his step-mother suckles a girl
from the milk belonging to his father, he cannot marry that girl. And if
a person contracts Nikah with a suckling girl, and thereafter, his
mother or his paternal grandmother or his step-mother suckles that girl,
the Nikah becomes void.

2480. A man cannot marry a girl who has been suckled fully by his
sister, or by his brother's wife. And the position is the same if that
girl is suckled by that man's niece (sister's daughter or brother's
daughter) or the granddaughter of his sister or the granddaughter of his
brother.

2481. If a woman suckles the child of her daughter i.e. her
granddaughter, or grandson, the daughter will become haraam for her own
husband, and the same applies if she suckles the child of the husband of
her daughter from another wife. But if a woman suckles the child of her
son, the wife of her son who is the mother of the suckling child, does
not become haraam for her husband.

2482. If the step mother of a girl suckles the child of her husband,
with the milk that belongs to the girl's father, the girl becomes
haraam for her husband regardless of whether the child is the offspring
of that very girl or of some other woman.
Conditions of Suckling Which Causes to be Mahram

2483. The following are the eight conditions under which suckling child becomes the cause of being Mahram.

(i) That the child sucks the milk of a woman who is alive. It is of
no consequence if milk is drawn from the breast of a woman who is dead.

(ii) That the milk of the woman should not be the product of
fornication or adultery. Hence, if the milk for an illegitimate child is
breastfed to another child, the latter will not become Mahram of
anyone.

(iii) That the child sucks milk directly from the breasts of the
woman. Hence, if milk is poured into its mouth, it has no consequence.

(iv) That the milk be pure and unadulterated.

(v) That the milk be of one husband only. Hence, if a breast-feeding
woman is divorced and then she marries another man by whom she becomes
pregnant, if the milk of the first pregnancy still continues from the
breast till she gives birth to the other child, and she feeds any child
eight times with the milk from her first pregnancy before giving birth,
and feeds the same child seven times with the milk from the second
pregnancy, after giving birth, that child will not become Mahram of
anyone.

(vi) That the child does not throw up the milk due to illness. If it vomits the milk, the suckling has no effect.

(vii) The suckling should be of such quantity that it could be said
that the bones of the child were strengthened and the flesh allowed to
grow. And if that cannot be ascertained, then if a child suckles for one
full day and night, or if it suckles fifteen times to its fill, as will
be explained later, it will be sufficient. But if it is known that in
spite of the child having suckled for one full day and night, or for
fifteen times, the milk has not had any effect on the bones and the
growth of flesh of the child, then one should not ignore exercising the
precaution.

(viii) That the child should not have completed two years of his
age, and, if it is suckled after it has completed two years of its age,
it does not become Mahram of anyone. In fact, if, for example, it sucks
milk eight times before completing its two years, and seven times after
completing its two years, it does not become Mahram of anyone. But, if
milk continues from the breast for more than two years since a woman
gave birth to her child, and she suckles the child continuously, that
child will become Mahram of those who have been mentioned above.

2484. It is necessary that the suckling child should not have taken
any other food, or sucked milk from any other person, during one full
day and night. However, it it takes very little food, so little that one
may not say that it has taken any food in between, there is no harm in
it. Also, it should have suckled the milk of only one woman fifteen
times, and during these fifteen times, it should not have sucked the
milk of any other woman. And it should have sucked milk every time
without a gap, though, if while suckling milk it pauses to breathe, or
waits a little, in a manner that from the time it started till the end,
it is taken as one suckling, there is no objection.

2485. If a woman suckles a child from the milk of her husband, and
when she later marries another man, suckles another child from the milk
of her second husband, those two children do not become Mahram of each
other, although it is better that they do not marry each other.

2486. If a woman suckles several children from the milk of one
husband, all of them become Mahram of one another, as well as of the
husband, and of the woman who suckled them.

2487. If a man has more than one wife, and every one of them suckles
a child in accordance with the conditions mentioned above, all those
children become Mahram of one another, as well as of that man, and of
all those wives.

2488. If a man has two nursing wives, and if, for example, one of
them suckles the child eight times and the other suckles it seven times,
the child does not become Mahram of any one of them.

2489. If a woman gives full milk to a boy and a girl from the milk
of one husband, the sisters and brothers of that girl will not become
Mahram of the sisters and brothers of that boy.

2490. * A man cannot marry without the permission of his wife, those
women who became her nieces (sister's daughter or brother's daughter)
owing to the suckling of milk. Also, if a person commits sodomy with a
boy, he cannot marry his milk daughter, sister, mother and paternal
grandmother by means of sucking milk. This rule applies also in the
situation where an active partner in sodomy is not baligh, or when the
passive partner is baligh.

2491. A woman who suckles the brother of a person, does not become
Mahram of that person, although the recommended precaution is that he
should not marry her.

2492. * A man cannot marry two sisters even if they may be milk
sisters, that is, they have become sisters by means of suckling milk. If
he marries two women and understands later that they are sisters, if he
married them at one and the same time, both the Nikah will be void. But
if he did not marry them at one time, the first marriage will be valid,
and the second will be void.

2493. * If a woman suckles the following persons from her husband's
milk, her husband does not become haraam for her, although it is better
to observe precaution.

(i) Her own brother and sister.

(ii) Her own paternal uncle and paternal aunt, and maternal uncle and maternal aunt.

(iii) The descendants of her paternal uncle and her maternal uncle.

(iv) Her nephew (brother's son).

(v) Brother or sister of her husband.

(vi) Children of her sister, or children of her husband's sister.

(vii) Paternal uncle and paternal aunt and maternal uncle and maternal aunt of her husband.

(viii) Grand children of another wife of her husband.

2494. If a woman suckles the paternal aunt's daughter, or maternal
aunt's daughter of a man, she (the woman who suckles) does not become
Mahram of that man. However, the recommended precaution is that he
should refrain from marrying that woman.

2495. If a man has two wives, and one of them suckles the paternal
uncle's son of the other wife, the wife who suckled does not become
haraam for her husband.
How To Breast Feed A Child

2496. The child's mother is the best person to suckle a child. It is
better that she does not claim any award from her husband for suckling
the child, although it is good that he should reward her for that.
However, if the mother demands more payment for suckling than a
wet-nurse, her husband can entrust the child to the wet-nurse.

2497. It is recommended that the wet-nurse, whose services are
obtained for a child, should be Shia Ithna-Asheri, sane, chaste, and
good looking; and it is Makrooh for a wet-nurse to be a non-Shia
Ithna-Asheri or ugly, ill-humoured or illegitimate. It is also Makrooh
to entrust the child to a wet-nurse who has given birth to an
illegitimate child.
Miscellaneous Rules Regarding Nursing a Child

2498. * It is recommended that a woman avoids suckling any and every
child, because it is possible that she may forget as to which of them
she has suckled, and later the two persons, who are Mahram to each
other, may contract marriage.

2499. It is recommended, if possible, that a child is suckled for
full 21 months. And it is not preferred that it be suckled for more than
two years.

2500. * If the right of the husband is not in any way violated by
suckling, a wife may suckle the child of another person without the
permission of her husband.

2501. * If a man contracts Nikah with a suckling girl, and the wife
of that man suckles her, then it is considered that the wife becomes the
mother-in-law of her husband, and therefore, becomes haraam for him.
Although this consideration is not free from Ishkal, yet precaution
should not be ignored.

2502. * If a person wants that his sister-in-law (his brother's
wife) may become his Mahram, he may contract a temporary Nikah with a
suckling girl, for example, for two days, and during those two days, the
wife of his brother may suckle that girl as mentioned in rule no. 2483.
By so doing, she will become his mother-in-law, and thus be Mahram. But
if the woman suckles the girl from his brother's milk, it is a matter
of Ishkal.

2503. If a man says before marrying a woman, that the woman he is
marrying is his milk sister, she is haraam for him, if his statement is
verified as true. And if he says this after the marriage, and the woman
also confirms his word, the marriage is void. Hence, if the man has not
had ***ual intercourse with her, or has had ***ual intercourse but at
the time of ***ual intercourse the woman knew that she was haraam for
him, she is not entitled to any Mahr. And if she learns after ***ual
intercourse that she was haraam for the man, the husband should pay her
Mahr according to the usual Mahr of other women like her.

2504. If a woman says, before marriage, that she is haraam for a man
because she is his milk sister, and if it is possible to verify her
statement as true, she cannot marry that man. And if she says this after
marriage, it is like the man saying after marriage that the woman is
haraam for him, and the rule in this situation has been given in the
foregoing clause.

2505. * Suckling a child, which becomes the cause of being Mahram, can be established by the following two ways:

(i) Information in this behalf by a number of persons whose word is

reliable.

(ii) Two just men testify to this fact. It is, however, necessary
that they should also mention the conditions of suckling the child. For
example, they should be able to say, "We have seen the child for twenty
four hours, sucking milk from the breasts of a woman, and during this
time he has not eaten anything else." And similarly, they should also
narrate in detail, the conditions which have been mentioned in rule no.
2483. Witness by one man or two or four women, even if they are Adil, is
a matter of Ishkal for establishing that the child has suckled from a
particular woman.

2506. If it is doubted whether or not a child has sucked the
quantity of milk which becomes the cause of becoming Mahram, or if it is
considered probable that it might have sucked that quantity of milk,
the child does not become Mahram of anyone, though it is better to
observe precaution.

الموضوع الأصلي : Marriage الكاتب : AlexaLaw المصدر : منتديات عالم القانون

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توقيع العضو : AlexaLaw

Marriage

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