Muslim Marriage as a Contract
It is said that marriage under Muslim law is simply a contract that unites the bride and groom, fulfilling certain conditions like consent, witness, etc. But what I want to ask is, “how can a marriage be a contract?”
Why are we putting a sacrament called marriage into the shutter of contract! Is it only because its essentials correlate or are similar to that of a contract. Is this why we have termed it as a contract?
The revelation of the holy Quran was made in 610 CE, and the Indian Contract Act came in the year 1872. Then how come the essentials of marriage are similar to conditions of contract. Prophet Mohammad revealed the requisites for Muslim marriage in the early centuries.
At-Tirmidhi Hadith 3096 Narrated by Anas ibn Malik Allah’s Messenger (peace be upon him) said,
“When a man marries, he has fulfilled half of the deen (din, creed, religion), so let him fear Allah regarding the remaining half.”
In my view, marriage is purely a sacrament irrespective of any religion.
“It is said that when a man marries, he completes half of his religion.”
By this, we can relate how marriage is considered a sacrament in Hadiths.
The Prophet had called talaq the most abhorrent practices made permissible by the holy Quran. It was supposed to be the last resort of a couple who found they could no longer live together and when all attempts at reconciliation and counselling failed. In such a case, it was better that the woman was “allowed to go with kindness” [Qur’an, 2:229] and left free to remarry.
Nikah Halala in India
The concept of Nikah Halala is practised in different parts of India, deteriorating the honour of women.
Halala means a man can remarry the same woman if she first marries another man, consummates the marriage (that is, have sexual intercourse), and only if the man dies or willingly asks for a divorce, can the woman go back to her first husband and remarry him.
The holy Quran nowhere sanctions the Halala of a woman. It says,
“And if he has divorced her (for the third time), then she is not lawful to him afterwards until (after) she marries a husband other than him. And if the latter husband divorces her (or dies), there is no blame upon the woman and her former husband for returning to each other if they think that they can keep (within) the limits of Allah. These are the limits of Allah, which He makes clear to people who know.” (Quran 2:230)
It was to ensure that a man does not divorce his wife at any resort as marriage is a bond for whole life, but the purpose of the above words failed. This practice is misused and is against Islam as no religion teaches immorality. After giving divorce to wife and in wish of remarrying, her practising Halala is not just. It is against the spirit of Islam as well as humanity. How can a woman be a tool for satisfying the unjustified wishes of a man (husband)!
Why is there such a thing in practice in a country like India, where we proudly denote that the Constitution is the supreme guardian of citizens’ rights?
Recent Halala Case in India
In a recent case in Bareilly, a woman was given triple talaq twice and was forced to sleep with her father-in-law to facilitate her remarriage to her first husband. But the woman’s ordeal did not end here. She was pronounced triple talaq again by her husband after remarriage and was again forced to sleep with her brother-in-law in order to consummate her marriage. What nonsense is this! Where do we see in the above lines that wife was being treated as ‘wife.’ She was treated like a free prostitute living inside the boundaries of a house and used only as a ‘tool’ to satisfy the lust of three blood-related men! Is this humane?
There have been sting operations by reporters at various places like Hyderabad, Delhi, Mumbai, etc., where the mosque officials and other prominent Muslim holy figures have been caught on camera explaining the process of Nikah Halala and terming it as too easy. These people ask for huge sums of money (even going up to rupees 100000), and they assure that after one night, they would divorce the woman so that her first husband can remarry! Is this the 21st century we live in? The prevalence of these practices takes us many centuries back! (You can watch these by web searching for ‘Nikah Halala Sting Operation’)
Islam and Woman Rights
Ironically Islam was among the first religion to give women rights of inheritance. (This ‘being the first’ has contradictions, and there can be a debate around this. Nonetheless, it is established that Islam gives inheritance rights to women.)
Islamic law made girls’ education a sacred duty and gave women the right to own and inherit property.
Islam also imposed women’s consent as a condition for legitimate marriage.
But what people do and what religion prescribes are two different things.
In fact, the Prophet denounced it-
“Curse be upon the one who marries a divorced woman with the intention of making her lawful for her former husband and upon the one for whom she is made lawful.”
– Abu Dawud, Book 005, Hadith Number 2071, narrated by Ali Ibn Abu Talib.
A practice that deteriorates a woman’s dignity, attacks the identity of being a woman, and treats marriage just a contract and not anything beyond contract is a bane and should be abolished.
Original publication: September 2018
Revised for grammar: September 2021
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This article has been written by Arushi, who is a final year law student from New Delhi, India. Views expressed are solely theirs. You are also welcome to write.