Three weeks ago, Iran revealed that it had a uranium-enrichment facility near the holy city of Qum. The U.S. began working with its allies, mainly France and Great Britain for a fresh round of sanctions against Tehran. This article addresses the effect of sanctions on Iran
Iran’s nuclear program has been a matter of international concern ever since the discovery in 2003 that it had concealed its nuclear activities for 18 years in breach of its obligations under the Non Proliferation Treaty (NPT). In March 2007, the United Nations Security Council acted unanimously to tighten sanctions against Iran, imposing a ban on arms sales and expanding the freeze on assets, in response to the country’s uranium-enrichment activities, which Tehran says are for peaceful purposes, but other countries, including USA, France and Great Britain, contend are driven by military ambitions.
On the last Friday of August, the U.N. International Atomic Energy Agency (IAEA) released its latest report on Iran’s nuclear-energy program, announcing that it “does not consider that Iran has adequately addressed the substance of the issues.” U.S. State Department spokesman Ian Kelly said in response to the report, “it seems clear that Iran continues to not cooperate fully and continues it enrichment activities.”
Since 1987, U.S. government agencies have implemented numerous sanctions against Iran: U.S. Treasury oversees a ban on U.S. trade and investment with Iran. This ban may be circumvented by shipping U.S. goods to Iran through other countries; The U.S. State Department administers laws that sanction foreign parties engaging in proliferation or terrorism-related activities with Iran. The State Department and Treasury can use financial sanctions to freeze the assets of targeted parties and reduce their access to the U.S. financial system. In addition, the U.S. imposes travel and sanctions to Iran. But do these sanctions work?
U.S. politicians have talked up for months that U.S. can block sales of refined gasoline to Iran as a way of ratcheting up pressure on the government of Mahmoud Ahmadinajad. During last year’s U.S. presidential campaign, the idea of blocking refined gas to Iran was raised by the candidate Obama as “putting the squeeze” on Ahmadinajad. In April of this year, the U.S. Senate introduced a bipartisan Iran Refined Petroleum Sanctions Act, which would expand the sanctions imposed by President Bill Clinton in 1996. The Act gives the White House the authority to sanction companies that export gas to Iran. But how effective is this action?
Iran sits on a vast source of energy reserves –about 136 to 140 billion barrels of oil and some 14 trillion cubic meter of natural gas. But because its refineries are too few and too old to meet the demand at home, the country refines just two-thirds (440,000 barrels/day) of the gas it needs to keep the economy working for 66 million people. The remaining one-third, or about 120,000 barrels/day has to be imported from a fairly small number of Swiss, Indian, Malaysian and Chinese firms. Major Western oil companies operating in Iran, including Total, Royal Dutch and ENI, have held off from signing new deals with the Iranian government for several months.
Iran‘s government of Ahmadinajad, keen to keep voters happy, have subsidized gas. Iranians are entitled to 26 gallons of fuel a month at a price of 38 cents per gallon. If U.S. blocked imports of refined gas, the Iranian government could simply ease its subsidies and blame the U.S. for the suffering of its people. Subsequently, the demand for refined oil will dip.
On the other hand, China’s booming population and its increased demand for oil has been working on massive upgrades of Iran’s refineries. If Iran can upgrade its refineries, they will be self sufficient for few years to come. China estimates that crude oil imports will rise to meet 60 percent of its demand by 2020. That led Beijing in the midst of the nuclear debacle with Iran, to strike a deal with about $2.5 billion. Last month, the China National Petroleum Corporation sealed an agreement with the National Iranian Oil Company, a state-run enterprise, to develop an oil field in Southwestern Iran.
Recently, Iran’s ties with China have accelerated rapidly. In December 2007, the Chinese oil giant Sinopec Group signed a $70 billion deal to begin drilling in Iran’s Yadavaran field. Its estimated reserves can reach 17 billion barrels. In January of this year, China’s largest energy producer, CNPC, agreed to develop an oil field in the North Azadegan, a deal worth $2 billion. In August, Iranian oil officials flew to China to negotiate a $5 billion deal with CNPC for the development of South Pars gas field near the Arabian Gulf. Combine that with the fact that Iran already provides about 14 percent of China’s oil needs. Having invested tens of billions of Dollars in Iran’s energy sector, China, a permanent member of the United Nations Security Council, may veto any new tough sanctions against Iran.
On Thursday China said is was seeking to increase cooperation and high-level exchanges with Iran, suggesting a remote possibility of agreeing to additional punitive measures of Iran’s nuclear program.
Russia, for its part is preparing to sign a deal for the sale of anti-aircraft technology to Iran, and has less appetite to agree on tough sanctions, despite the initial jubilant reaction of President Dmitry Medvedev over Mr. Obama’s scrapping of the Eastern European missile shield program. In his meeting with President Obama at the United Nations last month, President Medvedev said that “sanctions rarely lead to positive results, but sometimes, sanctions are inevitable.” He reiterated his views to Secretary of State Hillary Clinton in Moscow on Tuesday, American officials said. Russia’s Prime Minister, Vladimir V. Putin, said that sanctions were “premature” and two days after its foreign ministry, Sergey V. Lavrov, said that threatening Iran while talks were under way would be “counterproductive.”
So far, Iran has managed since June 2007 to reduce its gasoline imports from 40 percent of total domestic consumption to 25-30 percent without political fallout. Moreover, with Russia and China willing to supply Iran with gasoline, a situation over which the United States has limited leverage, it would seem difficult for the U.S. to enforce any embargo short of military-backed blockade, or a military strike on Iranian nuclear facility by the U.S. or by Israel.
Military blockade or strike may encourage Iran to sabotage the oil fields in southern Iraq, risking 1.8 million barrels/day of oil export for several weeks and possibly months. In addition, Iran can sabotage the oil fields in the Arabian Gulf or even close the Straight of Hurmuz, through which about 20 percent of the world’s oil export passes. In either situation, the price of energy will spike and that will reflect on the U.S. fragile economic recovery, and may cause the U.S. Department of Energy to release the Strategic Petroleum Reserve (SPR), which stores about 700 million barrels of crude oil, capable of supplying 4.4 million barrels a day for up to 90 days.
No matter how tough the sanctions are, there is always room for American products to find its way into Iran. Most U.S. exports are found in the markets of Tehran, from GE refrigerators to Apple laptops and other items. They are smuggled via the Arabian Gulf States. In addition, the sanctions have restricted U.S. companies from doing business in Iran and opened the door for Russia, Chinese and other European firms to do business in Iran.
Gabriel Sawma is Professor of Middle East Constitutional Law; Author of “The Qur’an: Misinterpreted, Mistranslated, and Misread. The Aramaic Language of the Qur’an.” http://www.syriacaramaicquran.com; Expert consultant on Islamic divorce in US courts; Editor of International Law blog: http://www.gabrielsawma.blogspot.com; Email: gabrielsawma@yahoo.com
Friday, October 16, 2009
Tuesday, October 06, 2009
Annulment of Islamic Marriages
According to Islamic jurisprudence, a man can divorce his wife at any time, in any place, and for any or no reason. However, a woman is given the right to request the religious judge (qadi) to annul (faskh) her marriage if she can prove that the marriage exhibits certain defects that make achieving the purposes of the marriage impossible.
A husband’s impotence is ground for termination of marriage, provided that the condition lasts more than one year according to the Hanafi School of thought in Sunni Islam. In some cases, if the husband contracts leprosy, the wife may seek separation. At the spouse’s request, the religious judge may issue an order of annulment if the other party contracts serious communicable illness, whereby it becomes barrier to the enjoyment of marriage.
Religious unsuitability is another barrier. According to Islamic Shari’a (law), a Muslim woman is not allowed to be married to a non-Muslim (Jewish or Christian or Hindu). A marriage of Muslim woman to non-Muslim man is subject to annulment by the religious court. Should a non-Muslim married woman convert to Islam; the religious judge may force the couple to separate and the marriage to be terminated. The non-Muslim husband is obligated to pay the necessary mahr and nafaqa (spousal support).
A woman coerced, by person other than her father or paternal grand-father, to marry, may ask the religious judge to annul the marriage on the basis of “unsuitability” in class, education, wealth or others. She may also request an annulment if she was made to agree to an arranged marriage during her legal minority. In this case, she can ask a religious judge to annul her marriage provided the following conditions are met: (1) the marriage was arranged by a person other than her father or paternal grand-father; (2) she has to request the annulment as soon as she becomes in her majority.
Request for termination of a marriage by the wife is permissible when the husband doe not support his wife with food, shelter and clothing (nafaqa) either due to poverty or he disappeared without leaving his wife with adequate support. However, opinions differ on this matter from one School of thought to another. The Hanafi School of jurisprudence does not encourage a divorce based on the husband’s inability to provide for spousal support (nafaqa). The Hanbali and Shafi’i Schools, for the purpose of maintaining a wife or let her go, agree with a request of termination of marriage by the wife.
The Hanafi School allows a wife to be separated and her marriage be annulled only if she received confirmed news that her husband has divorced her legally, died, or changed his religion and became apostate, otherwise, the wife is considered still married no matter how long the husband is absent.
Publication or reprinting this article is hereby authorized by the author.
Gabriel Sawma is a lawyer with Middle East background; Professor of Middle East Constitutional Law and Arabic. Admitted to the Lebanese Bar Association; Associate Member of the New York State Bar and the American Bar Associations. Editor of International Law web log, http://www.gabrielsawma.blogspot.com; Email: gabrielsawma@yahoo.com
A husband’s impotence is ground for termination of marriage, provided that the condition lasts more than one year according to the Hanafi School of thought in Sunni Islam. In some cases, if the husband contracts leprosy, the wife may seek separation. At the spouse’s request, the religious judge may issue an order of annulment if the other party contracts serious communicable illness, whereby it becomes barrier to the enjoyment of marriage.
Religious unsuitability is another barrier. According to Islamic Shari’a (law), a Muslim woman is not allowed to be married to a non-Muslim (Jewish or Christian or Hindu). A marriage of Muslim woman to non-Muslim man is subject to annulment by the religious court. Should a non-Muslim married woman convert to Islam; the religious judge may force the couple to separate and the marriage to be terminated. The non-Muslim husband is obligated to pay the necessary mahr and nafaqa (spousal support).
A woman coerced, by person other than her father or paternal grand-father, to marry, may ask the religious judge to annul the marriage on the basis of “unsuitability” in class, education, wealth or others. She may also request an annulment if she was made to agree to an arranged marriage during her legal minority. In this case, she can ask a religious judge to annul her marriage provided the following conditions are met: (1) the marriage was arranged by a person other than her father or paternal grand-father; (2) she has to request the annulment as soon as she becomes in her majority.
Request for termination of a marriage by the wife is permissible when the husband doe not support his wife with food, shelter and clothing (nafaqa) either due to poverty or he disappeared without leaving his wife with adequate support. However, opinions differ on this matter from one School of thought to another. The Hanafi School of jurisprudence does not encourage a divorce based on the husband’s inability to provide for spousal support (nafaqa). The Hanbali and Shafi’i Schools, for the purpose of maintaining a wife or let her go, agree with a request of termination of marriage by the wife.
The Hanafi School allows a wife to be separated and her marriage be annulled only if she received confirmed news that her husband has divorced her legally, died, or changed his religion and became apostate, otherwise, the wife is considered still married no matter how long the husband is absent.
Publication or reprinting this article is hereby authorized by the author.
Gabriel Sawma is a lawyer with Middle East background; Professor of Middle East Constitutional Law and Arabic. Admitted to the Lebanese Bar Association; Associate Member of the New York State Bar and the American Bar Associations. Editor of International Law web log, http://www.gabrielsawma.blogspot.com; Email: gabrielsawma@yahoo.com
Monday, August 17, 2009
The Wali (Guardian) in Islamic Marriages According to the Hanafi Jurisprudence
In Islamic marriages, the wali (guardian) has an important role to play. This article discusses the responsibility of the wali according to the Hanafi jurisprudence.
The “wali” or guardian in Islam is a Muslim individual responsible for the well being of the bride before her marriage. His duty is to ensure that the groom is reliable and trustworthy to marry the bride and carry out his obligations as husband.
The Hanafi School of jurisprudence assigns the “wilayah” (guardianship) to the following individuals: the son of the bride if she was previously married, his son, and the grandson’s descendants. If the bride was not married before, the succession of guardianship goes to: the father, her paternal grandfather and above in the paternal succession, the brother from her parents, brother from her father, son of the brother from her parents, his paternal descendants, the uncle from the father’s parents, uncle from the father, her male cousin from his parents, cousin from his father, the cousin’s son, his paternal descendants, father’s uncle from parents, father’s uncle son from father, his paternal descendants, etc.
The above mentioned individuals have “wilayah” (guardianship) over the bride when she is under age. Not only minors could be married off by their guardians, other legal incompetents, including the insane, could be married off too by the guardians. Guardianship ends at the age of legal majority except for the mentally challenged children, male or female.
In the event none of the paternal “wali” listed above is available for guardianship, the Hanafi School allows any member of the family to be guardian, provided that he or she is entitled to inheritance in accordance with Islamic Sharia. In such a situation, the “wilaya” may go to the mother, her daughter, the daughter of the grandson, daughter of the daughter’s daughter, etc.
If there is no family member available, the “sultan” (the ruling sovereign), the “qadi” (religious judge), or whoever the “qadi” chooses, can be assigned to have guardianship.
Types of the “wilayah” (Guardianship)
In Islam, there are two types of “wilayah” (guardianship), one is called “wali mujbar” (or mandated guardianship) and the other is “wali ghayr mujbar” or not-mandated guardian. In the Hanafi jurisprudence, the only guardianship acceptable is the former. Thus, the job of mandated guardian is to protect the well being of their under-age children, to choose the suitable husband for marriage and to negotiate the “mahr” agreement. (See our discussion of the “mahr” at http://gabrielsawma.blogspot.com/2009/07/mahr-provision-in-islamic-marriage.html. It is within the context of guardianship that we may understand the stress it places on the special responsibility of the “wali” of the minor in the process of arranging her or his marriage even before the child reaches puberty.
A “wali” is entrusted with furthering the well-being of his or her child and protects the child’s interests including the arrangement of an early marriage. This role extends to the mentally ill, because like the rest of society, they too benefit from being in the married state.
The “wali’s responsibility is to look that the rule of “kafa’a” (suitability) of the would-be spouse in terms of lineage, legal status, social class, and moral standards are met. A highly educated girl needs to be married to a person who is at her level or better. A girl from rich family should marry a man who is as wealthy as her family is.
Under the rule of the Hanafi School, the father and grandfather may give the minor for marriage, such arrangement is considered legal. If the partner chosen by the father or grandfather turned to be “faseq” (unjust, lack of morality) or “ghayr kafu’” (unsuitable), the marriage will still be considered legal; the minor cannot request separation when he or she reaches puberty. However, should the father or grandfather enters into a marriage contract on behalf of a second minor; the rule is that the second marriage may be dissolved when that minor requests it at the age of puberty.
If the ‘wali mujbar’ (mandated guardian) is someone other than the father or grandfather, who gives the minor for marriage to someone who is known to be “faseq” (unjust, lack of morality) or “ghayr kafu’” (unsuitable), then the minor may request “faskh” (separation) upon reaching puberty; in this case, the “qadi” (religious judge) will order separation.
The Role of the Guardian in the Marriage Contract
According to the Hanafi School, the presence of a guardian in the marriage of the minor is essential and mandatory. His absence during the negotiations leading to marriage causes the marriage to be null. This rule applies as long as the spouse is minor; however, the guardian’s absence does not nullify the marriage if the spouse is no more minor, provided that the he or she is getting married to a person who is considered “kafu’” (suitable). If that person is found to be “ghayr kafu’” (unsuitable), the guardian may step in and requests the annulment of the marriage.
Gabriel Sawma is a Professor of Middle East Constitutional Law, Islamic Shari’a, Arabic and Aramaic. Expert Consultant on Islamic divorce, inheritance, child custody, banking, and finance. A lawyer with Middle East background; admitted to the Lebanese Bar Association of Beirut; Associate Member of the New York State Bar and the American Bar Associations. Editor of International Law website at http://www.gabrielsawma.blogspot.com. Author of “The Aramaic Language of the Qur’an, http://www.syriacaramaicquran.com. Email: gabrielsawma@yahoo.com; Email: gabygms@gmail.com.
The “wali” or guardian in Islam is a Muslim individual responsible for the well being of the bride before her marriage. His duty is to ensure that the groom is reliable and trustworthy to marry the bride and carry out his obligations as husband.
The Hanafi School of jurisprudence assigns the “wilayah” (guardianship) to the following individuals: the son of the bride if she was previously married, his son, and the grandson’s descendants. If the bride was not married before, the succession of guardianship goes to: the father, her paternal grandfather and above in the paternal succession, the brother from her parents, brother from her father, son of the brother from her parents, his paternal descendants, the uncle from the father’s parents, uncle from the father, her male cousin from his parents, cousin from his father, the cousin’s son, his paternal descendants, father’s uncle from parents, father’s uncle son from father, his paternal descendants, etc.
The above mentioned individuals have “wilayah” (guardianship) over the bride when she is under age. Not only minors could be married off by their guardians, other legal incompetents, including the insane, could be married off too by the guardians. Guardianship ends at the age of legal majority except for the mentally challenged children, male or female.
In the event none of the paternal “wali” listed above is available for guardianship, the Hanafi School allows any member of the family to be guardian, provided that he or she is entitled to inheritance in accordance with Islamic Sharia. In such a situation, the “wilaya” may go to the mother, her daughter, the daughter of the grandson, daughter of the daughter’s daughter, etc.
If there is no family member available, the “sultan” (the ruling sovereign), the “qadi” (religious judge), or whoever the “qadi” chooses, can be assigned to have guardianship.
Types of the “wilayah” (Guardianship)
In Islam, there are two types of “wilayah” (guardianship), one is called “wali mujbar” (or mandated guardianship) and the other is “wali ghayr mujbar” or not-mandated guardian. In the Hanafi jurisprudence, the only guardianship acceptable is the former. Thus, the job of mandated guardian is to protect the well being of their under-age children, to choose the suitable husband for marriage and to negotiate the “mahr” agreement. (See our discussion of the “mahr” at http://gabrielsawma.blogspot.com/2009/07/mahr-provision-in-islamic-marriage.html. It is within the context of guardianship that we may understand the stress it places on the special responsibility of the “wali” of the minor in the process of arranging her or his marriage even before the child reaches puberty.
A “wali” is entrusted with furthering the well-being of his or her child and protects the child’s interests including the arrangement of an early marriage. This role extends to the mentally ill, because like the rest of society, they too benefit from being in the married state.
The “wali’s responsibility is to look that the rule of “kafa’a” (suitability) of the would-be spouse in terms of lineage, legal status, social class, and moral standards are met. A highly educated girl needs to be married to a person who is at her level or better. A girl from rich family should marry a man who is as wealthy as her family is.
Under the rule of the Hanafi School, the father and grandfather may give the minor for marriage, such arrangement is considered legal. If the partner chosen by the father or grandfather turned to be “faseq” (unjust, lack of morality) or “ghayr kafu’” (unsuitable), the marriage will still be considered legal; the minor cannot request separation when he or she reaches puberty. However, should the father or grandfather enters into a marriage contract on behalf of a second minor; the rule is that the second marriage may be dissolved when that minor requests it at the age of puberty.
If the ‘wali mujbar’ (mandated guardian) is someone other than the father or grandfather, who gives the minor for marriage to someone who is known to be “faseq” (unjust, lack of morality) or “ghayr kafu’” (unsuitable), then the minor may request “faskh” (separation) upon reaching puberty; in this case, the “qadi” (religious judge) will order separation.
The Role of the Guardian in the Marriage Contract
According to the Hanafi School, the presence of a guardian in the marriage of the minor is essential and mandatory. His absence during the negotiations leading to marriage causes the marriage to be null. This rule applies as long as the spouse is minor; however, the guardian’s absence does not nullify the marriage if the spouse is no more minor, provided that the he or she is getting married to a person who is considered “kafu’” (suitable). If that person is found to be “ghayr kafu’” (unsuitable), the guardian may step in and requests the annulment of the marriage.
Gabriel Sawma is a Professor of Middle East Constitutional Law, Islamic Shari’a, Arabic and Aramaic. Expert Consultant on Islamic divorce, inheritance, child custody, banking, and finance. A lawyer with Middle East background; admitted to the Lebanese Bar Association of Beirut; Associate Member of the New York State Bar and the American Bar Associations. Editor of International Law website at http://www.gabrielsawma.blogspot.com. Author of “The Aramaic Language of the Qur’an, http://www.syriacaramaicquran.com. Email: gabrielsawma@yahoo.com; Email: gabygms@gmail.com.
Friday, July 31, 2009
Islamic Marriage Contract in the Hanafi Jurisprudence
The Hanafi School of Jurisprudence is one of the four Schools in Sunni Islam. It was founded by Nu’man abu Hanifa (d. 767) in Kufa in modern Iraq. Abu Hanifa (father of Hanifa) is considered one of the “tabieen” (followers) of the companions of the Prophet Muhammad. He had the good fortune to have lived during a time when some of the companions of the Prophet were still alive
The Hanfi School became prominent under the Abbasid Dynaty and later under the Ottoman Empire, during which the Hanafi “madhhab” (school of jurisprudence) became the only authoritative code of law in the public life and official administration of justice in all the vast territories of the Ottoman Empire.
Today, the Hanafi School of thought has followers among Muslim population in Turkey, Albania, the Balkans, Central Asia, Afghanistan, Pakistan, China, India, Iraq, Egypt and Lebanon.
Marriage Contract in the Hanafi Jurisprudence
According to this School, the “nikah” (marriage) is a contract by which the husband gets “the intended sexual relation” from the woman. This School believes that, the husband enjoys the “bid’” (body of the woman) and all of the “badan” (organs) for the purpose of “taladhudh” (enjoyment). The right to “sexual enjoyment” is given to the man only. This “enjoyment” does not extend to the woman. According to this School, the man may force his wife to exercise his “haqq al-isstimta’a” (the right to enjoy sex), while the woman may do so “one time only.” (See Al-Jazeery, Kitab al-Fiqh, vol.4, p. 2. Dar al-Irshad lil-tibaa’a wal-nashr, Egypt ).
The marriage contract can be in writing or orally, and could also be done by correspondence.
Conditions of the Marriage Contract
A marriage contract is valid, according to the Hanafi School, if the following conditions are met: (1) “Ijab” (propose to marry) and “qubul” (accept to marry) by both parties or their “wali” (guardians). Both “ijab” and “qubul” must be expressed clearly; the term “nikah” or “zawaj” (i.e marriage) must be pronounced during the negotiations of the marriage agreement. (2) “Ijab” and “qubul” must occur in one meeting. If for example the father of the girl offers her for marriage “ijab” by saying: “I give you my daughter for marriage”, the “qubul” (acceptance of the groom or his guardian) must be pronounced in the same session. In other words, if the groom, or his guardian, responds at a later time, his response does not meet the requirements of the Hanafi; thus the marriage does not occur. (3) Bothe “ijab” and “qubul” must be in total agreement on the specifics; if, for example the father of the bride offers her for marriage demanding $200 for “mahr”, the groom agrees to the marriage but does not agree to the amount of “mahr”, then the terms of the contract is not agreed upon, and there is no marriage. (4) Both “ihab” and “qubul” must be heard clearly by the parties involved in the discussion. (5) There must be no time limitation for the period of the marriage. A marriage done for a specific period of time is called “mut’ah” (marriage for pleasure only) and is considered illegal in the Hanafi School.
Gabriel Sawma is Professor of Middle East Constitutional Law, Islamic Shari’a, Arabic and Aramaic. A lawyer with Middle East background; admitted to the Lebanese Bar Association of Beirut; Associate Member of the New York State Bar and the American Bar Associations. Expert Consultant on Islamic divorce in US courts, Islamic banking and finance. Editor of International Law website at http://www.gabrielsawma.blogspot.com. Author of the Aramaic Language of the Qur’an http://www.syriacaramaicquran.com. Email gabrielsawma@yahoo.com; Email gabygms@gmail.com.
The Hanfi School became prominent under the Abbasid Dynaty and later under the Ottoman Empire, during which the Hanafi “madhhab” (school of jurisprudence) became the only authoritative code of law in the public life and official administration of justice in all the vast territories of the Ottoman Empire.
Today, the Hanafi School of thought has followers among Muslim population in Turkey, Albania, the Balkans, Central Asia, Afghanistan, Pakistan, China, India, Iraq, Egypt and Lebanon.
Marriage Contract in the Hanafi Jurisprudence
According to this School, the “nikah” (marriage) is a contract by which the husband gets “the intended sexual relation” from the woman. This School believes that, the husband enjoys the “bid’” (body of the woman) and all of the “badan” (organs) for the purpose of “taladhudh” (enjoyment). The right to “sexual enjoyment” is given to the man only. This “enjoyment” does not extend to the woman. According to this School, the man may force his wife to exercise his “haqq al-isstimta’a” (the right to enjoy sex), while the woman may do so “one time only.” (See Al-Jazeery, Kitab al-Fiqh, vol.4, p. 2. Dar al-Irshad lil-tibaa’a wal-nashr, Egypt ).
The marriage contract can be in writing or orally, and could also be done by correspondence.
Conditions of the Marriage Contract
A marriage contract is valid, according to the Hanafi School, if the following conditions are met: (1) “Ijab” (propose to marry) and “qubul” (accept to marry) by both parties or their “wali” (guardians). Both “ijab” and “qubul” must be expressed clearly; the term “nikah” or “zawaj” (i.e marriage) must be pronounced during the negotiations of the marriage agreement. (2) “Ijab” and “qubul” must occur in one meeting. If for example the father of the girl offers her for marriage “ijab” by saying: “I give you my daughter for marriage”, the “qubul” (acceptance of the groom or his guardian) must be pronounced in the same session. In other words, if the groom, or his guardian, responds at a later time, his response does not meet the requirements of the Hanafi; thus the marriage does not occur. (3) Bothe “ijab” and “qubul” must be in total agreement on the specifics; if, for example the father of the bride offers her for marriage demanding $200 for “mahr”, the groom agrees to the marriage but does not agree to the amount of “mahr”, then the terms of the contract is not agreed upon, and there is no marriage. (4) Both “ihab” and “qubul” must be heard clearly by the parties involved in the discussion. (5) There must be no time limitation for the period of the marriage. A marriage done for a specific period of time is called “mut’ah” (marriage for pleasure only) and is considered illegal in the Hanafi School.
Gabriel Sawma is Professor of Middle East Constitutional Law, Islamic Shari’a, Arabic and Aramaic. A lawyer with Middle East background; admitted to the Lebanese Bar Association of Beirut; Associate Member of the New York State Bar and the American Bar Associations. Expert Consultant on Islamic divorce in US courts, Islamic banking and finance. Editor of International Law website at http://www.gabrielsawma.blogspot.com. Author of the Aramaic Language of the Qur’an http://www.syriacaramaicquran.com. Email gabrielsawma@yahoo.com; Email gabygms@gmail.com.
Tuesday, July 28, 2009
The Jihaz in Islamic marriages
Jihaz (dowry) or trousseau is the amount of clothes, household linen, furniture and other belongings contributed by the bride and/or her family to the marriage. It has to be distinguished from the mahr, which is an agreement between the wali (guardian) of the bride and her future husband by which the groom pays certain sum of money or its equivalent to the bride at the signing of the marriage agreement. The mahr is an obligation on the groom, stipulated by the Quran, to be given to the future wife, while the jihaz is not an obligation on the part of the bride or her family. (For more information on the mahr agreement, see our article on http://www.gabrielsawma.blogspot.com.
The Jihaz is not nafaqa (support) either, because nafaqa is the material support given by the husband to his wife as soon as the marriage is consummated. The nafaqa covers clothing, food and shelter for the wife. (For more on the nafaqa, see our article on http://www.gabrielsawma.blogspot.com
In the Middle East, as elsewhere, the brides are often given house furnishings and clothing by their parents or family members when embarking on marriage. There is no obligation in the Islamic Shari’a to fulfill the jihaz, however, in most cases, brides bring such jihaz to their houses once they are married.
Consequently, the groom cannot force his future wife to bring the jihaz as part of the household, and if her family is asked to contribute such jihaz, they may decline the demand.
Once the jihaz is given to the bride, it becomes her own property. Her family cannot claim it as part of their estate unless the jihaz was given as a loan agreement. Under such circumstances, they may demand the return of the jihaz.
The groom cannot have claim on the jihaz, unless it was purchased by the bride or her family, with monies given by the groom as part of the mahr agreement, where the jihaz becomes a mahr and therefore belongs to the groom.
The bride’s father may have a legal agreement with his daughter stating that certain pieces of the jihaz she took with her upon marriage were in fact a loan, and therefore revert to her family upon death. Otherwise the jihaz is considered a private property of the bride and becomes part of her estate.
The jihaz contributed by the bride and /or her family endorses the idea that she enters into marriage as an empowered individual. The marriage arrangements in the Middle East involving jihaz, predate the rise of Islam.
There is no provision in Islamic Shari’a that forbids the exercise of women’s right to contribute jihaz to their marriages. In fact, under Islamic law, married women have legal rights to share in family estate. They may own properties, or be named as beneficiaries of religious waqf (endowment) assets.
Gabriel Sawma is a lawyer with Middle East background, professor of Middle East Constitutional Law, Islamic Shari’a, Arabic and Aramaic. Expert Consultant in matters related to recognition and enforcement of Islamic divorce, child custody, banking and finance in US courts. Admitted to the Lebanese Bar Association; Associate Member of the New York State Bar and the American Bar Associations. Editor of http://www.gabrielsawma.blogspot.com
Author of the Aramaic Language of the Qur’an http://www.syriacaramaicquran.com
Author of an upcoming book on Islamic Divorce in US Courts.
Email: gabrielsawma@yahoo.com
Email: gabygms@gmail.com
Republishing and reprinting this article is hereby granted by the author.
The Jihaz is not nafaqa (support) either, because nafaqa is the material support given by the husband to his wife as soon as the marriage is consummated. The nafaqa covers clothing, food and shelter for the wife. (For more on the nafaqa, see our article on http://www.gabrielsawma.blogspot.com
In the Middle East, as elsewhere, the brides are often given house furnishings and clothing by their parents or family members when embarking on marriage. There is no obligation in the Islamic Shari’a to fulfill the jihaz, however, in most cases, brides bring such jihaz to their houses once they are married.
Consequently, the groom cannot force his future wife to bring the jihaz as part of the household, and if her family is asked to contribute such jihaz, they may decline the demand.
Once the jihaz is given to the bride, it becomes her own property. Her family cannot claim it as part of their estate unless the jihaz was given as a loan agreement. Under such circumstances, they may demand the return of the jihaz.
The groom cannot have claim on the jihaz, unless it was purchased by the bride or her family, with monies given by the groom as part of the mahr agreement, where the jihaz becomes a mahr and therefore belongs to the groom.
The bride’s father may have a legal agreement with his daughter stating that certain pieces of the jihaz she took with her upon marriage were in fact a loan, and therefore revert to her family upon death. Otherwise the jihaz is considered a private property of the bride and becomes part of her estate.
The jihaz contributed by the bride and /or her family endorses the idea that she enters into marriage as an empowered individual. The marriage arrangements in the Middle East involving jihaz, predate the rise of Islam.
There is no provision in Islamic Shari’a that forbids the exercise of women’s right to contribute jihaz to their marriages. In fact, under Islamic law, married women have legal rights to share in family estate. They may own properties, or be named as beneficiaries of religious waqf (endowment) assets.
Gabriel Sawma is a lawyer with Middle East background, professor of Middle East Constitutional Law, Islamic Shari’a, Arabic and Aramaic. Expert Consultant in matters related to recognition and enforcement of Islamic divorce, child custody, banking and finance in US courts. Admitted to the Lebanese Bar Association; Associate Member of the New York State Bar and the American Bar Associations. Editor of http://www.gabrielsawma.blogspot.com
Author of the Aramaic Language of the Qur’an http://www.syriacaramaicquran.com
Author of an upcoming book on Islamic Divorce in US Courts.
Email: gabrielsawma@yahoo.com
Email: gabygms@gmail.com
Republishing and reprinting this article is hereby granted by the author.
Saturday, July 25, 2009
The Nafaqa in Islamic Marriage
Under Islamic Shari’a, a man is obligated to support his wife with food, clothing, and shelter. His obligation starts as soon as the marriage is consummated. This article discusses the issue of nafaqa in the Islamic marriage.
In Islamic Shari’a, nafaqa is defined as an obligation of material support for the wife and children. This is a gendered entity in Islamic marriage, as long as the marriage has been consummated. When the marriage is consummated, the husband becomes responsible for providing his wife and children born of the marriage with food, clothing, and shelter regardless of the wife’s own resources. This obligation is stated in the Qur’an; it reads the following: “Men are protectors and maintainers of women because God has given them the one more than the other, and because they support them from their means [their money]” (Qur’an 4: 34). Failure of the husband to provide the nafaqa may result in a jail sentence.
If the husband leaves his house to undisclosed location, the qadi (religious judge) is authorized to locate the husband’s assets to recover the unpaid nafaqa. If the husband is beneficiary of any revenues, or has any outstanding debts owed to him, the qadi could assign the proceeds equivalent to the amount of nafaqa to the wife.
The nafaqa is determined at a level appropriate to the wife’s social standing and background; the qadi may determine the amount of nafaqa in accordance with the style to which the wife is accustomed. Thus, a poor woman may get a bread and cheese for her lunch; a middle class wife would expect to receive grain and animal fat, while a rich wife may get wheaten bread and meat.
As a general rule, the husband has an obligation to support nafaqa to his wife or wives until such time as the marriage is terminated by divorce or death.
In the event of divorce, the former husband must continue to support his wife for the following three months of her ‘iddah, a waiting period after divorce, during which a woman may not marry another man. At the end of her ‘iddah, the wife is legally free to remarry. If the wife should die during that period, the husband is responsible for the burial costs. The ‘iddah is extended, for a pregnant woman, until after the birth of her child.
There should be a clear distinction between mahr and nafaqa; the legal discourse in Islamic marriage contracts is that the husband pays the muqaddam (immediate) mahr at the time of signing the contract. (For more on the mahr agreement, see The Mahr Provision in Islamic Marriage Contracts at http://www.gabrielsawma.blogspot.com. The nafaqa is the amount of money spent by the husband to support his wife on food, clothing and shelter; it is triggered when the marriage is consummated.
A woman, who is married according to the Islamic Shari’a, can refuse to consummate the marriage with her husband if he failed to pay the mahr. But once the mahr issue is settled, she has to be available to her husband. If she continues to refuse him, the husband will be absolved of any responsibility for providing the nafaqa.
A woman is entitled to receive the nafaqa even if she gets mentally or physically ill. The nafaqa is obligatory on the husband in the case he becomes ill. No nafaqa is due if the husband repudiates his wife because she has been guilty of apostasy. Changing once religion from Islam to any other religion is considered a blasphemy and subject to strict penalty ultimating to death.
The husband may stop providing for nafaqa if the wife commits nushuz, a term used to designate the rebellion of a woman against her husband, by disobeying him and causing him anger.
If the husband is traveling and could not be reached, the wife who has been granted nafaqa by the qadi (religious judge), is authorized to borrow money equivalent to the amount assigned, and the absent husband is responsible for paying off the debt once he became available.
If the husband should die, the nafaqa support will be terminated, except for a pregnant woman who could still claim it, through to delivery of her child, from her husband’s estate. She must request the nafaqa during the period of the marriage or the ‘iddah.
Muslim couples may name an amount of the nafaqa support as part of the marriage contract, although such a clause is not required by the Islamic Shari’a; but once made, it can be enforced by the religious court.
Gabriel Sawma is a Professor of Middle East Constitutional Law, Islamic Shari’a, Arabic and Aramaic. He is an expert consultant on International Law, mainly Islamic divorce, inheritance, child custody, banking and finance. Admitted to the Lebanese Bar Association ; Associate Member of the New York State Bar Association and the American Bar Association. Editor of International Law Website: http://www.gabrielsawma.blogspot.com and author of the Aramaic language of the Qur’an: http://www.syriacaramaicquran.com. Email: gabrielsawma@yahoo.com
Email: gabygms@gmail.com
In Islamic Shari’a, nafaqa is defined as an obligation of material support for the wife and children. This is a gendered entity in Islamic marriage, as long as the marriage has been consummated. When the marriage is consummated, the husband becomes responsible for providing his wife and children born of the marriage with food, clothing, and shelter regardless of the wife’s own resources. This obligation is stated in the Qur’an; it reads the following: “Men are protectors and maintainers of women because God has given them the one more than the other, and because they support them from their means [their money]” (Qur’an 4: 34). Failure of the husband to provide the nafaqa may result in a jail sentence.
If the husband leaves his house to undisclosed location, the qadi (religious judge) is authorized to locate the husband’s assets to recover the unpaid nafaqa. If the husband is beneficiary of any revenues, or has any outstanding debts owed to him, the qadi could assign the proceeds equivalent to the amount of nafaqa to the wife.
The nafaqa is determined at a level appropriate to the wife’s social standing and background; the qadi may determine the amount of nafaqa in accordance with the style to which the wife is accustomed. Thus, a poor woman may get a bread and cheese for her lunch; a middle class wife would expect to receive grain and animal fat, while a rich wife may get wheaten bread and meat.
As a general rule, the husband has an obligation to support nafaqa to his wife or wives until such time as the marriage is terminated by divorce or death.
In the event of divorce, the former husband must continue to support his wife for the following three months of her ‘iddah, a waiting period after divorce, during which a woman may not marry another man. At the end of her ‘iddah, the wife is legally free to remarry. If the wife should die during that period, the husband is responsible for the burial costs. The ‘iddah is extended, for a pregnant woman, until after the birth of her child.
There should be a clear distinction between mahr and nafaqa; the legal discourse in Islamic marriage contracts is that the husband pays the muqaddam (immediate) mahr at the time of signing the contract. (For more on the mahr agreement, see The Mahr Provision in Islamic Marriage Contracts at http://www.gabrielsawma.blogspot.com. The nafaqa is the amount of money spent by the husband to support his wife on food, clothing and shelter; it is triggered when the marriage is consummated.
A woman, who is married according to the Islamic Shari’a, can refuse to consummate the marriage with her husband if he failed to pay the mahr. But once the mahr issue is settled, she has to be available to her husband. If she continues to refuse him, the husband will be absolved of any responsibility for providing the nafaqa.
A woman is entitled to receive the nafaqa even if she gets mentally or physically ill. The nafaqa is obligatory on the husband in the case he becomes ill. No nafaqa is due if the husband repudiates his wife because she has been guilty of apostasy. Changing once religion from Islam to any other religion is considered a blasphemy and subject to strict penalty ultimating to death.
The husband may stop providing for nafaqa if the wife commits nushuz, a term used to designate the rebellion of a woman against her husband, by disobeying him and causing him anger.
If the husband is traveling and could not be reached, the wife who has been granted nafaqa by the qadi (religious judge), is authorized to borrow money equivalent to the amount assigned, and the absent husband is responsible for paying off the debt once he became available.
If the husband should die, the nafaqa support will be terminated, except for a pregnant woman who could still claim it, through to delivery of her child, from her husband’s estate. She must request the nafaqa during the period of the marriage or the ‘iddah.
Muslim couples may name an amount of the nafaqa support as part of the marriage contract, although such a clause is not required by the Islamic Shari’a; but once made, it can be enforced by the religious court.
Gabriel Sawma is a Professor of Middle East Constitutional Law, Islamic Shari’a, Arabic and Aramaic. He is an expert consultant on International Law, mainly Islamic divorce, inheritance, child custody, banking and finance. Admitted to the Lebanese Bar Association ; Associate Member of the New York State Bar Association and the American Bar Association. Editor of International Law Website: http://www.gabrielsawma.blogspot.com and author of the Aramaic language of the Qur’an: http://www.syriacaramaicquran.com. Email: gabrielsawma@yahoo.com
Email: gabygms@gmail.com
Tuesday, July 21, 2009
The Mahr Provision in Islamic Marriage Contracts
In recent years, many Islamic divorce cases were litigated in the United States family courts. The issue of mahr in the Islamic marriage contracts became subject of debate among lawyers and scholars. This article sheds lights on the Islamic mahr in USA.
Mahr is the amount of money, or its equivalent, paid by the husband to his future wife. Contrary to the popular notion that mahr is dowry, it is not. A dowry is what the wife contributes to her marriage while mahr is an obligation on the husband to pay his future wife. Others call the mahr a ‘gift’ given by the husband; it is not a ‘gift’ either, because it is an obligation mandated by the Qur’an. The Qur’an calls it sadaq; it reads: “Wa aatoo ann-nissaa’ saduqaatihinna nihlatan” (and give the women their mahr with a good heart.) Qur’an 4: 4
The mahr is an obligation required by Islamic law from the husband to be paid to his future wife. Thus, it must be stipulated in the Islamic marriage contract. If no stipulation is recorded in the contract, the qadi (or religious judge) will assign the amount of mahr. The amount of mahr becomes a property of the wife alone.
Muslim schools of jurisprudence in the Sunni traditions, differ on the definition of the mahr. The Hanafi School defines mahr as “the added money given by the husband to his [future] wife for iza’a ihtibassiha, keep her in his house (see al-Sarkassi, the Mabssut, vol. 5, pp 62-63, Arabic Version). Another author of the Hanafi School defines the mahr as “the money, which is obligatory on the husband in ikd al-nikah (the marriage contract) for manafi’ al-bid’ (sexual pleasure). (See ibn al-Hamam, Sharih Fath al-Qadeer, vol. 3, p. 304, Arabic version).
The Hanbali School of jurisprudence defines mahr as “the money paid by the husband for the purpose of nikah (marriage). (See ibn Kadamah, Al-Mughni, vol. 6, p. 679, Arabic version).
The Malike and Shafi’i Schools defines the mahr as “the money due to the future wife in return for [the husband’s] haqq al-isstimta’ (sexual pleasure) in the marriage contract”. (See al-Hattab Muhammad bin Abdel Rahman al-Mughrabi, Mawahib al-Jalil li-Sharh Mukhtassar Khalil, vol. 5, p. 172-Maliki Jurisprudence). For Shafi’i School see al-Nawawi, Kitab al-Majmu’, vol. 18 p. 605). All these references are cited by Sheikh Mahmud Muhammad al-Sheikh, Al-Mahr fi Al-Islam bayna al-madi wal-hadir, published by al-Maktaba al-Assriyya liltibaa’a wal nashr, Beirut, Lebanon, 2003, Arabic version.
The Maliki and Shafi’i Schools of jurisprudence regard the mahr as “the money paid for the future wife in return for sexual pleasure is an integral part of the Islamic marriage contract and its source is prescribed in the Qur’an. Sura al-Nissaa reads the following:
“Fa ma isstamta’tum bihi minhunn fa aatoohunna ujoorahunna” (So for that pleasure which you have enjoyed from them, give them their prescribed compensation). Qur’an 4: 25
Numerous Hadith (sayings attributed to the Prophet of Islam) provisions refer to the obligatory nature of the mahr in Islamic marriage contracts. (See for example Ans bin Malik bin Damdam; Al-Bukhari, Sa’ad bin al-Rabi’ bin Khazraj. They are all cited by Al-Sheikh Mahmud Muhammad al-Sheik, Al-mahr.)
Traditionally, Islamic marriage contracts lists two types of mahr; one is called muqaddam (upfront, or immediate at the signing of the contract), or mu’akhar (deferred to be paid in the event of divorce or death of the husband.)
The Amount of Mahr
Neither the Qur’an, nor the Hadith stipulates the maximum amount of mahr to be paid by the husband. As to the lower amount of mahr, Islamic scholars differed on this. The Hanafi School regarded the lower amount to be not less than ten Dirahms (around ten US Dollars). The Maliki School considers the lower mahr to be not less than three Dirhams (or three US Dollars.)
The Hanbali and Shafi’i Schools do not put a limit to the lower amount of mahr; both schools agree that the lower amount could be “a ring made out of iron” or “pair of shoes”, or a few ounces of “wheat, or dates”, or “teaching the future wife verses from the Qur’an”. In all of these, the future wife has to express her acceptance to whatever the amount is.
Modern Islamic marriage contracts are pre-printed forms, filled by the ‘imam/qadi’ (religious leader or religious judge). The form has empty space to fill the name and address of the husband and the name and address of the bride. The contract must include the names and addresses of two adult male witnesses. And the place and address where the marriage contract is signed
Both parties to the marriage contract must express their consent to the marriage, verbally and in writing. This is done through a formal proposal of ijab (an offer to marry) and qubul (an acceptance to marry), in the presence of a wali, a male guardian who looks out for the best interest of the bride. It must include the amount of muqaddam/mu’ajjal mahr, and the amount of the mu’akhar (deferred).
After the contract is signed, the couple is recognized as legally married and enjoy the rights and obligations stipulated by the Islamic Shari’a (law). The marriage contract may be solemnized in a mosque and usually signed in triplicate: one copy should be given to the bride, one to the bridegroom, and the third must remain deposited with the Registrar, imam/qadi (religious leader or religious judge).
The Absence of Mahr Provision in the Marriage Contract
If the marriage does not include a provision for the mahr, the contract is considered to be legal. The three Schools of jurisprudence: Hanafi, Shafi’i and Hanbali recognize the fact that the mahr provision is not a main factor, nor a condition for the marriage. These three Schools believe that the mahr is an obligation on the husband regardless of whether it is written in the marriage contract or not (see Mahmud Muhammad al-Sheikh, al-Mahr, published by al-Maktabah al-Assriyya, Beirut, 2003, Arabic version). Accordingly, if the marriage contract is signed by the parties without a provision of the mahr, or if they assign a mahr, which is considered to be illegal under Islamic Shari’a, or if the parties agree not to include a mahr provision, in all these cases the conditions are null, the contract is legal and the husband has to pay a mahr equivalent to a mahr given to another women of the same status as that of his wife.
The Maliki School rejected this interpretation and considered the mahr provision in the contract, necessary. However, this School regards such a marriage to be legal if it was consummated. If the marriage was not consummated, then the marriage is mafsookh (a reason for separation); if he divorces his wife without any agreement on the mahr issue, then he has to pay her mut’ah (money paid to her in return for the sexual pleasure he had with her). But if he dies before any agreement reached between the couple, then the wife is entitled to inherit her share from his estate.
Finally, the mahr must be legal. Thus, alcoholic beverages and the meat of the swine or pig cannot be given to the future wife as mahr because, under Islamic law, it is unlawful to transact these items. If such illegal items were listed in the marriage contract, the imam/qadi may substitute those by legal items.
Should there be any questions regarding this topic or any topic that deals with Islamic Shari'a in the United States or in Europe, please email the author at gabrielsawma@yahoo.com or gabygms@gmail.com
Gabriel Sawma is a Professor of Middle East Constitutional Law, Islamic Shari’a, Arabic and Aramaic. He is an expert consultant on International Law, mainly Islamic divorce, inheritance, child custody, banking and finance. Admitted to the Lebanese Bar Association ; Associate Member of the New York State Bar Association and the American Bar Association. Editor of International Law Website: http://www.gabrielsawma.blogspot.com and author of the Aramaic language of the Qur’an: http://www.syriacaramaicquran.com. Email: gabrielsawma@yahoo.com
Email: gabygms@gmail.com
Mahr is the amount of money, or its equivalent, paid by the husband to his future wife. Contrary to the popular notion that mahr is dowry, it is not. A dowry is what the wife contributes to her marriage while mahr is an obligation on the husband to pay his future wife. Others call the mahr a ‘gift’ given by the husband; it is not a ‘gift’ either, because it is an obligation mandated by the Qur’an. The Qur’an calls it sadaq; it reads: “Wa aatoo ann-nissaa’ saduqaatihinna nihlatan” (and give the women their mahr with a good heart.) Qur’an 4: 4
The mahr is an obligation required by Islamic law from the husband to be paid to his future wife. Thus, it must be stipulated in the Islamic marriage contract. If no stipulation is recorded in the contract, the qadi (or religious judge) will assign the amount of mahr. The amount of mahr becomes a property of the wife alone.
Muslim schools of jurisprudence in the Sunni traditions, differ on the definition of the mahr. The Hanafi School defines mahr as “the added money given by the husband to his [future] wife for iza’a ihtibassiha, keep her in his house (see al-Sarkassi, the Mabssut, vol. 5, pp 62-63, Arabic Version). Another author of the Hanafi School defines the mahr as “the money, which is obligatory on the husband in ikd al-nikah (the marriage contract) for manafi’ al-bid’ (sexual pleasure). (See ibn al-Hamam, Sharih Fath al-Qadeer, vol. 3, p. 304, Arabic version).
The Hanbali School of jurisprudence defines mahr as “the money paid by the husband for the purpose of nikah (marriage). (See ibn Kadamah, Al-Mughni, vol. 6, p. 679, Arabic version).
The Malike and Shafi’i Schools defines the mahr as “the money due to the future wife in return for [the husband’s] haqq al-isstimta’ (sexual pleasure) in the marriage contract”. (See al-Hattab Muhammad bin Abdel Rahman al-Mughrabi, Mawahib al-Jalil li-Sharh Mukhtassar Khalil, vol. 5, p. 172-Maliki Jurisprudence). For Shafi’i School see al-Nawawi, Kitab al-Majmu’, vol. 18 p. 605). All these references are cited by Sheikh Mahmud Muhammad al-Sheikh, Al-Mahr fi Al-Islam bayna al-madi wal-hadir, published by al-Maktaba al-Assriyya liltibaa’a wal nashr, Beirut, Lebanon, 2003, Arabic version.
The Maliki and Shafi’i Schools of jurisprudence regard the mahr as “the money paid for the future wife in return for sexual pleasure is an integral part of the Islamic marriage contract and its source is prescribed in the Qur’an. Sura al-Nissaa reads the following:
“Fa ma isstamta’tum bihi minhunn fa aatoohunna ujoorahunna” (So for that pleasure which you have enjoyed from them, give them their prescribed compensation). Qur’an 4: 25
Numerous Hadith (sayings attributed to the Prophet of Islam) provisions refer to the obligatory nature of the mahr in Islamic marriage contracts. (See for example Ans bin Malik bin Damdam; Al-Bukhari, Sa’ad bin al-Rabi’ bin Khazraj. They are all cited by Al-Sheikh Mahmud Muhammad al-Sheik, Al-mahr.)
Traditionally, Islamic marriage contracts lists two types of mahr; one is called muqaddam (upfront, or immediate at the signing of the contract), or mu’akhar (deferred to be paid in the event of divorce or death of the husband.)
The Amount of Mahr
Neither the Qur’an, nor the Hadith stipulates the maximum amount of mahr to be paid by the husband. As to the lower amount of mahr, Islamic scholars differed on this. The Hanafi School regarded the lower amount to be not less than ten Dirahms (around ten US Dollars). The Maliki School considers the lower mahr to be not less than three Dirhams (or three US Dollars.)
The Hanbali and Shafi’i Schools do not put a limit to the lower amount of mahr; both schools agree that the lower amount could be “a ring made out of iron” or “pair of shoes”, or a few ounces of “wheat, or dates”, or “teaching the future wife verses from the Qur’an”. In all of these, the future wife has to express her acceptance to whatever the amount is.
Modern Islamic marriage contracts are pre-printed forms, filled by the ‘imam/qadi’ (religious leader or religious judge). The form has empty space to fill the name and address of the husband and the name and address of the bride. The contract must include the names and addresses of two adult male witnesses. And the place and address where the marriage contract is signed
Both parties to the marriage contract must express their consent to the marriage, verbally and in writing. This is done through a formal proposal of ijab (an offer to marry) and qubul (an acceptance to marry), in the presence of a wali, a male guardian who looks out for the best interest of the bride. It must include the amount of muqaddam/mu’ajjal mahr, and the amount of the mu’akhar (deferred).
After the contract is signed, the couple is recognized as legally married and enjoy the rights and obligations stipulated by the Islamic Shari’a (law). The marriage contract may be solemnized in a mosque and usually signed in triplicate: one copy should be given to the bride, one to the bridegroom, and the third must remain deposited with the Registrar, imam/qadi (religious leader or religious judge).
The Absence of Mahr Provision in the Marriage Contract
If the marriage does not include a provision for the mahr, the contract is considered to be legal. The three Schools of jurisprudence: Hanafi, Shafi’i and Hanbali recognize the fact that the mahr provision is not a main factor, nor a condition for the marriage. These three Schools believe that the mahr is an obligation on the husband regardless of whether it is written in the marriage contract or not (see Mahmud Muhammad al-Sheikh, al-Mahr, published by al-Maktabah al-Assriyya, Beirut, 2003, Arabic version). Accordingly, if the marriage contract is signed by the parties without a provision of the mahr, or if they assign a mahr, which is considered to be illegal under Islamic Shari’a, or if the parties agree not to include a mahr provision, in all these cases the conditions are null, the contract is legal and the husband has to pay a mahr equivalent to a mahr given to another women of the same status as that of his wife.
The Maliki School rejected this interpretation and considered the mahr provision in the contract, necessary. However, this School regards such a marriage to be legal if it was consummated. If the marriage was not consummated, then the marriage is mafsookh (a reason for separation); if he divorces his wife without any agreement on the mahr issue, then he has to pay her mut’ah (money paid to her in return for the sexual pleasure he had with her). But if he dies before any agreement reached between the couple, then the wife is entitled to inherit her share from his estate.
Finally, the mahr must be legal. Thus, alcoholic beverages and the meat of the swine or pig cannot be given to the future wife as mahr because, under Islamic law, it is unlawful to transact these items. If such illegal items were listed in the marriage contract, the imam/qadi may substitute those by legal items.
Should there be any questions regarding this topic or any topic that deals with Islamic Shari'a in the United States or in Europe, please email the author at gabrielsawma@yahoo.com or gabygms@gmail.com
Gabriel Sawma is a Professor of Middle East Constitutional Law, Islamic Shari’a, Arabic and Aramaic. He is an expert consultant on International Law, mainly Islamic divorce, inheritance, child custody, banking and finance. Admitted to the Lebanese Bar Association ; Associate Member of the New York State Bar Association and the American Bar Association. Editor of International Law Website: http://www.gabrielsawma.blogspot.com and author of the Aramaic language of the Qur’an: http://www.syriacaramaicquran.com. Email: gabrielsawma@yahoo.com
Email: gabygms@gmail.com
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