A (Muslim) marriage contract between two men!

By Ameena Hussein (Sunday Times)

TW’s COMMENT

This blogger has strong reservations about the author’s religiosity or rather Iman (belief) and personal life. However certain facts she has expressed through her article and reproduced here from Sunday Times are very relevant and pertinent and must be accommodated to protect Muslim young girls.

The blogger has an experience involving himself personally in a divorce suit filed by his innocent educated relative against a cruel rascal who was accidentally married to her and how the 5th standard educated Quazis sided with the clown (who later became emboldened) citing various “excuses” from Quran and Hadiths.

Regrettably, the Quazis appointed with political influence, in most cases (98%) are neither Moualvis nor Lawyers but lay men with little education.  Moulavi fellows who are members of ACJU and competent of Islamic Jurisprudence mostly avoid being appointed as Quazis out of cowardice and fear of being criticized.  This trend is getting changed to some extent now.  However the blogger do not have trust in lawyers being appointed as Quazis because 99.99% of them are liars whatever their race of religion.   Islamic Scholars can however fill the gap.

The one aspect the writer has omitted conveniently is Fazah (the exact Arabic/ Urudu Term is not known to the blogger but it is heard as Fazah) where a women can divorce her husband instantly on the grounds of impotency, irreligiousness, prolonged separation and the like.    

Having said that, I must reiterate that she has no right to claim some regulations in the Quran are irrelevant for us today.  Quran is relevant for all times and tenses. Leave that aspect to the scholars.

When I was young, a wedding in the family was a time of excitement, fun, splendour and ceremony. My sister and I, being the youngest in the extended family for the longest time, were co-opted to be flower girls not only for weddings of my young aunts and older cousins, but also for my grand-aunt’s cook and my grandmother’s young charges when it was time for them to get married. Influenced by the pomp and ceremony, we played ‘getting married’ as children, using a bed sheet that doubled up as a veil, a sari belonging to my mother as the bridal dress and our beds as our thrones. The hapless bridegroom would be the polygamous toy rabbit who was serially married not just to us, but to our dolls as well. It was fun and we were innocent.

Like any other wedding, the Muslim wedding is an extremely happy event, full of laughter and joy and happiness and excitement and preparation and food and trousseaus and new clothes, shoes, jewellery and everything else that goes with it. It is a month of visiting relatives, it is a fortnight of lead up, it is a week of post marriage celebrations and then the newly married couple settle into married life. But as I grew older I began to see a different side.

There is a startling difference between a Muslim woman and any other Sri Lankan woman who gets married. The Muslim woman never signs her marriage certificate! She is not a party to her contract of marriage. Instead, it is her father or ‘guardian’ (wali) who signs a marriage certificate with the man who will be her husband. In fact, there is no space or box for a Muslim bride to place her signature on the marriage certificate!

For me, this ceased to be acceptable. Why shouldn’t a Muslim woman participate in her own marriage? Why is she reduced to the status of a minor regardless of her actual age, being obliged to have a guardian who gives her away in marriage? And since it is a legal form of marriage in Sri Lanka, the state is complicit and endorses and approves this system despite it being a clear violation of the Muslim woman’s rights as an adult person. Any other contract that is conducted in our normal daily life is generally signed by two or more concerned parties and I’m sure there are many Muslim women who have signed contracts be it work, business or official government. We are aware that the contract once signed is binding and formal. We understand that should the contract be broken, it is the two parties that signed the contract who would be affected by its terms. And we realize that it is only the persons who signed the contract who can end it, either by mutual agreement or disagreement or if anyone is being sued for breach of contract, it can only be one of those who signed the contract. To hold a person responsible for a contract they did not sign, would be fundamentally flawed. Ask any lawyer. It will not hold water.

So why does this same simplistic logic not apply to a Muslim marriage? And once again it begs the question: why can’t a Muslim woman sign her own marriage certificate? Why does a male guardian have to sign on her behalf? And why is she responsible for a contract she has not signed? In doing research for this article, I realized that the role of the male guardian or wali in a marriage does not exist in the Holy Quran. However, it is rife in the Sunnah or Hadith, which were written long after the Holy Prophet’s death. But shall we first examine what the Quran says about marriage? To avoid sounding like a holier-than-thou preacher I will list the relevant verses at the bottom of the page; but in brief I will paraphrase the essence of those verses. This is what the Holy Quran says about marriage:

  • Men cannot marry idolator women and women cannot marry idolator men.
  • Men cannot marry their step-mothers even if they are not married to their father anymore.
  • Incest is prohibited.
  • Men cannot marry women who are already married, unless they are running away from their idolator husbands.
  • Men must pay a dowry to a woman upon marriage.
  • A Muslim man can marry a Muslim slave woman, but he has to ask permission from the slave woman’s guardian and pay her a dowry before he marries her. However, marrying a slave is treated as a last resort and only if a man cannot marry a free woman.
  • Those who are single are encouraged to get married.
  • Spouses and children should be a source of joy to one another. God created spouses in order to have tranquility and contentment with each other and He has placed love and care in their hearts towards each other.
  • Muslim men may marry Jewish and Christian women provided they pay a dowry to the women.

It is clear fairly quickly that some regulations laid down in the Holy Quran, are completely irrelevant for us today. Slavery, thankfully does not exist, and incest is illegal in every part of the world. Other regulations have become universal over time and we all do hope that husbands and wives love and care for each other. And then there are some regulations legal in other countries that are not legal for Muslims. Muslims are not permitted to marry their step-mothers (and I take the liberty to add step-fathers), even if those individuals are no longer married to their parents, even though non-Muslims may do so, even in Sri Lanka.

But nowhere in the Holy Quran do I find stipulation of a wali with regard to marriage. The word wali does appear 35 times, but only in the spiritual context that it is Allah or God who is your wali or guardian. This means that the requirement of a wali or signing of the marriage contract by the wali on behalf of a Muslim girl/woman who is not a minor, is an innovation brought about by Hadiths. This would explain why even within the Muslim schools of law there is variation. In the Hanafi school for example, a woman getting married does not need a wali. Would that be possible if a wali was stipulated in the Quran for a marriage? No it would not.

Of course, much of Muslim jurisprudence is based on the Hadiths. But since Hadiths were created by man around 150 to 200 years after the Holy Prophet’s death, it means it is not divine. And therefore, the practice of walis signing marriage certificates on behalf of their charge can be revised or reformed, to reflect the times we live in. The Sri Lankan Muslim marriage certificate, needs to have a box that requires the signature of the woman getting married as much as it requires the signature of the Muslim man getting married. For how can a marriage contract between a man and a woman be valid when two men have signed it?

Marriage: Verse 2.221; Verse 4. 22; Verse 4. 23; Verse 4.24;Verse 4. 25; Verse 24.32; Verse 25.74; Verse 30.21; Verse 5.5
Wali: Verses 2.107; 2.120; 2.257; 3.68; 3.122; 4.45; 4.119; 5.55;6.14; 6.127; 7.155;7.196; 9.16; 9.74; 9.116;12.101; 13.37; 16.63; 17.111; 18.17; 18.26; 29.22; 32.4; 33.5;33.17; 33.65; 34.41; 42.8; 42.9; 42.28; 42.31;42.44; 45.19; 48.22; 74.11
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