Islamic marriage

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Signing a Nikahnama , a Muslim marriage certificate , in Pakistan (2006)

The Islamic marriage ( in Arabic نكاح, DMG nikāḥ ) is a marriage concluded in accordance with Sharia law and is considered a private law contract according to the Islamic system . According to Islamic understanding, the intimate areas of life of marriageable women and men are fundamentally separate; marriage is the only place where this separation is legitimately broken.

Forms of marriage

The Islamic marriage is basically designed to be permanent. In addition, according to Shiite believes one is temporary marriage possible as mut'ah marriage , for example in Iran . According to the Muslim system, the time-bound marriage contract belongs to the group of rental and lease contracts. A marriage can be concluded for a certain period of time, for example for a few hours, and then ends automatically. It is also possible to agree on a certain number of sexual encounters, but at least one. Sunni Islam rejects such a temporary marriage. Many Sunni Koran scholars condemn this form of marriage as legitimizing prostitution.

In Sunni Islam there is a similar form of temporary marriage, the so-called "Misyar marriage". In this form of marriage, the man does not have to pay a high dowry or maintenance. In Egypt, the Misyar marriage was legitimized by the Grand Sheikh Muhammad Sayyid Tantawi as early as 1999. In 2006 it was declared legitimate in Saudi Arabia by an Islamic-religious legal opinion ( fatwa ).

Obstacles to marriage

The marriage of close relatives, i.e. between parents or grandparents and children as well as between siblings, is prohibited ( haram ). There is also a ban on marriage if there is a milk relationship .

There is no minimum age for marriage in classical Islamic law. The Sharia allows the consummation of marriage for girls from the age of 9 or from the onset of puberty, which means the onset of menstrual periods for girls (see child marriage ). Current law in most Muslim countries sets a minimum age.

Marriages with non-Muslims

With regard to marrying Muslims, Islam traditionally has a system of asymmetrical endogamy : while Muslim men are allowed to marry Jewish and Christian women, Muslim women are not allowed to marry non-Muslim men.

The permission to marry Jewish and Christian women is based on sura 5 ( Al-Māʾida “The Table”), verse 5: “Today you are allowed […] the honorable believing women (al-muḥṣanāt min al-muʾmināt) and the honorable women of those who received the scriptures before you (al-muḥṣanāt min allaḏīna ūtū l-kitāb) , if you have given them their wages, are honorable, do not indulge in fornication and do not maintain love. "

Few Muslim scholars have held the view that Muslims should not marry Jewish or Christian women. One of them was the Egyptian hadith scholar Ahmad Muhammad Shākir (1892-1958). He advised against such marriages because the Jewish and Christian women of today already have lovers before marriage and lose their virginity and thus no longer fall under the category of "honorable women" (muḥṣanāt) .

The prohibition of marriage with a non-Muslim partner, whether man or woman, is justified with sura 60 ( al-Mumtahana “The Examined ”), verse 10: “O you who believe when believing women come to you have emigrated, check them out. God knows their faith very well. When you have recognized them as believing women, do not let them return to the unbelievers. They are not allowed to them, nor those to these women ”(60:10). Sura 2 ( al-Baqara “The Cow”), verse 221, is also used to justify this prohibition: "And do not marry (believing women) to pagan men as long as they do not believe!"

Reza Aslan explains the existing asymmetry with the fact that the Koran exegesis was exclusively in male hands for centuries, which explains some imbalances and the sometimes "extremely misogynistic" interpretation of some verses that is not justified in the text itself. In recent years, individual Muslim scholars have deviated from the consensus that has existed for centuries. For example, in 2000, the former dean of the Theological Faculty of Istanbul University, Yaşar Nuri Öztürk , wrote in his book The Falsified Islam : “There is no fundamental prohibition that Muslim women are not allowed to marry men of these religions - this remains with the times and the rest of the time Left to the circumstances. ”The argument against marrying Muslims with non-Muslims is threadbare, because Sura 60:10 only refers to female refugees.

Marriage

According to classical legal theory, a marriage guardian ( Wali ) is necessary for the woman. In addition, a marriage contract is concluded. The presence of two male witnesses is required when the contract is concluded. If the spouse's guardian is the father or grandfather on the paternal side, according to the Hanafi , Maliki Shafiite and Hanbali doctrines, he can marry as a wali mujbir even against the expressed will of a virgin bride, although his decisions must be strictly based on the interests of the woman. According to Hanafi doctrine, according to which all blood relatives have the right to force an underage bride into the first marriage, the bride can request the dissolution of the marriage by a qadi when the bride reaches the age of majority if the marriage guardian was not the father or the paternal grandfather.

A controversial question is how much the man can see of his fiancée before marriage. The spectrum of different views ranges from the prohibition of any contact with women to great freedom of movement. The contemporary scholar Yusuf al-Qaradawi recommends a middle way: The man may see the woman in the clothes in which she usually appears in front of her father and brother.

Practice in marriage

The man is the woman for the maintenance obligation - this is enforceable, if necessary, by the woman. The woman's earned money, on the other hand, belongs to her alone; her husband and children are not entitled to it. It is entirely up to you what to do with the money. The man has an obligation to treat his wife well and to support her.

divorce

In Islam , divorce is basically possible for men and women, but under the following premise:

A divorce by the woman (Arabic: Chulʿ , dissolution of the marriage contract by the woman in that she compensates the husband materially, e.g. waiving the outstanding part of her morning gift) is permissible according to Quran 2: 229 without special reasons. Commentary on note 218 by commentator Muhammad Asad: “All authorities agree that (sic!) This verse refers to the unconditional right of the wife to obtain a divorce from her husband. In addition, the woman can bring a divorce suit in court because of serious misconduct by the man, e.g. lack or lack of support on the part of the husband and sexual neglect by the husband (four months or more no sexual intercourse), but also physical or emotional cruelty. In addition, the woman can have the right to divorce 'delegated' to her by means of a marriage contract; she can also contractually determine her divorce law in the event that the man wants to marry another woman. In these cases, she has to file a lawsuit with a judge, who can then enforce the divorce. Today these possibilities are regulated differently by the marriage and family laws of predominantly Muslim countries, whereby these laws are based to very different degrees on Islamic law. "

The husband can divorce validly by pronouncing the divorce formula three times. For the man, the rule applies, according to which the divorce is finally consummated if he has made a statement to his wife for the third time, in compliance with regulated deadlines, the form of which clearly indicates the intention to end the marital relationship. This form of divorce is against the law in 22 Muslim countries.

A divorce based on mutual consent is also possible, i. H. when both spouses decide that they no longer want to live together. According to modern jurisprudence in Muslim states, but not according to the classical Sharia, a divorce requires a separation period of at least three months in most cases.

After the respective waiting period has expired, there are no concerns about reconciliation; it is even encouraged. However, if the divorce formula has been pronounced three times, remarriage is only permitted after the marriage of the woman to another man - for example under Shiite legislation.

In practice, some Muslims use verses 229 and 230 of Sura 2 as an opportunity to deny women the right to divorce. Because in the Koran the valid divorce is reserved to the man by pronouncing the divorce verdict three times.

polygamy

Even if polygamy is not undisputed in the Islamic culture, according to Islamic legal opinion the Koran allows the marriage of up to four women and an indefinite number of concubines . A woman, on the other hand, can only be married to one man.

“And if you fear that you are wrong about the (female) orphans (entrusted to your care) , then marry what is good for you in women, (each) two, three or four. And if you fear not treating (so many) justly, then (only) one, or what you (slaves) have! This is the best way to avoid doing wrong. "

- Sura 4 , Verse 3 : Translation after Rudi Paret

The Prophet Mohammed warned:

"Anyone who had two wives and did not treat them equally will come on the day of the resurrection with a lame half."

Marriage of more than one woman is subject to strict requirements under Islamic law. The man must guarantee complete equality of treatment for women; none of the wives should be favored financially or emotionally. The man must also be financially able to finance their own household for each of his wives.

The relationship between the wives of a man is described by the term “wife” in Islamic law.

In Tunisia and in Turkey which is polygyny prohibited, with the law in Turkey but is sometimes circumvented by religious marriages. Many of the 56 countries of the Organization for Islamic Cooperation restrict the right to multiple marriages by following the Koran's claim to equal treatment. In Morocco, for example, it must be legally proven that a man is financially able to provide each woman with their own apartment and to look after possible children.

Situation in different countries

Islamic marriage, which was concluded in accordance with Sharia law in European or American countries, has no legal effect in European or American states. In the respective countries of Europe and America, only civil marriage before the state has legal validity in marriage law. Conversely, the divorce of a marriage that was concluded in the home country according to Islamic law and later divorced under civil law in Germany is not automatically recognized in the home country.

Turkey

A Turkish notary drawing up a marriage contract (painting by Martinus Rørbye 1837)

In Turkey , where the Sharia was abolished as a legal basis in the course of the establishment of the Turkish Republic in 1923/24, marriages under Sharia law are still concluded today, especially in rural areas . These so-called imam marriages ( Turkish : imam nikâhı ), which among other things can be marriages with several wives, but also marriages of minors or forced marriages , are amnestied at regular intervals by the Turkish state, so that in this way the traditional and culturally shaped marriage and the understanding of marriage is increasingly coming back. According to a study by Pınar İlkkaracan in 1998, 10.6% of Turkish women lived in polygamous marriages .

India

In India marriage law is subordinate to religious affiliation. This means that Muslims have their own family and marriage law.

In Muslim law, marriage is treated as a civil contract, and the Qādī records the dates of the marriage in a nikahnama that is given to the married couple. The Muslim Personal Law (Shariat) Application Act of 1937 applies .

For divorce, the Muslim Women (Protection of Rights on Divorce) Act was passed in 1986 , which also defines the subject of mahr and the question of maintenance.

The case of Shah Bano , who sued her divorced husband for alimony in 1985 , became famous . The Supreme Court had upheld her claim, not by interpreting Islamic law, but by referring to an Anglo-Indian law that obliges the man to support himself in order to prevent the woman from becoming a social case. The Muslim Orthodoxy protested against this judgment and prevailed with the opinion that the court had interfered in Islamic legal provisions that regulated the maintenance obligation quite differently. The ʿUlamā ' argued that marriage was a contract, the termination of which would also terminate the husband's obligations. Maintenance can only be paid for three months after the divorce. The government under Rajiv Gandhi followed the ulama view .

While large parts of Indian law underwent decisive modifications through the intervention of the British and the legislation of the Indian parliaments, Muslim family law remained largely unchanged. This is due to the resistance of the ulama , who sees the Sharia as a guideline for ideal Islamic behavior and does not allow the secular Indian state to reform Islamic law. In 2017, India's Supreme Court ruled the practice of the triple talāq unlawful as it was not an "integral part of Islamic practice".

Saudi Arabia

The civil status legislation of the Kingdom of Saudi Arabia is based on Islamic law ( Sharia ). The marriage contract should be signed by witnesses and stipulates a certain amount of money ( mahr ) that is to be paid by the man to the woman. In the early 1990s, the value of an average mahr was between 25,000 and 40,000 riyals (10,000–15,000 euros); Occasionally, however, couples would reject the mahr custom outright and use a nominal amount to meet the formal requirements of Saudi marriage laws.

This was legitimized by the following verse of the Koran in sura 4 ( an-Nisā ' “The women”), verse 4: “And give the women their morning gift as a gift (so that they can freely dispose of it)! But if they give you some of it voluntarily, you can safely use it (for yourself). "

The marriage contract can also stipulate a certain amount to be paid to the woman in the event of a divorce. Other regulations can, for example, guarantee the woman the right to get a divorce in the event that the man marries a second woman or that the woman has custody of the children. In the event of a divorce, custody passes to the father. Only up to a certain age do the children remain in the care of the mother.

Morocco

Morocco reformed its family law in 2004. Marriage violence is a criminal offense in Morocco. The marriage age for women has been raised to 18 years. Women have the right to divorce, child custody and maintenance.

Pakistan

The triple talaq divorce was abolished in Pakistan in 1961.

See also

literature

  • Christine Schirrmacher , Ursula Spuler-Stegemann : Women and the Sharia. Human rights in Islam. Hugendubel, Munich 2004, ISBN 3-7205-2527-9 .
  • Seyed Shahram Iranbomy: Raisin Theory of the Morning Gift . Islamic family law and German international family law using the example of bridal gifts / morning gifts disputes. In: FamFr. Issue 6, Beck, Munich 2011, pp. 123-144.

Web links

  • Jürgen Rieck, lawyer: Islamic marriage contracts. (PDF) In: ISSN 2192-3639 / 13th edition / 10/2011. Federal Office of Administration BRD, 2011, accessed on September 15, 2018 (PDF file: 1.4 MB, 112 pages; information on foreign law with information on legal practice in various Islamic countries).

Individual evidence

  1. Yusuf Al-Qaradawi: Permitted and Forbidden in Islam, SKD Bavaria Munich 2003, pp. 263–266.
  2. ^ Alfred Hackensberger: Arab sex tourism under the guise of temporary marriage. In: welt.de . May 2, 2008, accessed October 7, 2018 .
  3. Ahmad Muḥammad Šākir: Ḥukm al-ǧāhilīya. Maktabat as-Sunna, Cairo 1992, pp. 182-184 (Arabic).
  4. Reza Aslan: No God but God: The Faith of the Muslims from Muhammad to the Present. Beck, Munich, 2006, p. 90 ff.
  5. The Falsified Islam. P. 119.
  6. ^ Dawoud El Alami: Islamic Marriage and Divorce Laws in the Arab World. London 1996
  7. ^ Silvia Kuske: Islamization and family law in Algeria: the influence of Malakite law on the "Code algérien de la famille", Berlin 1996.
  8. ^ Encyclopaedia of Islam . New edition. Volume 8. Brill, Leiden, p. 27b (Nikāḥ) : “The wali can only give the bride in marriage with her consent, but in the case of a virgin, silent consent is sufficient. The father or the grandfather, however, has the right to marry his daughter or granddaughter against her will, as long as she is a virgin (he is therefore called wali mudjbir, wali with power to coercion); the exercise of this power is, however, very strictly regulated in the interests of the bride. “See also Eduard Sachau: Muhammedanisches Recht nach Schafiitischer Lehr. Stuttgart, 1897. p. 7 ( online at archive.org).
  9. al-Qaraḍāwī: al-Ḥalāl wa-l-ḥarām fī l-Islām. Beirut 1993, pp. 336–337 (Arabic; English translation The Lawful and the Prohibited in Islam. Delhi 1998, p. 183).
  10. Ahmad Ibn Hanbal: Al-Musnad. Hadith No. 8212, 7595, 9707. Abo Dawood: Assunan. Hadith No. 1821. Ibn Magahl: Assunan. Hadith No. 1959.
  11. Khidr Maalik: Permitted and prohibited conditions in the marriage contract
  12. Polygamy in Islam
  13. International Society for Human Rights (ISHR): Women and Sharia. ( Memento of June 17, 2012 in the Internet Archive ), accessed on September 15, 2018.
  14. Esma Cakir-Ceyla: Violence in the Name of Honor: An investigation into acts of violence in Germany and Turkey with special consideration of the legal development in Turkey, Frankfurt am Main 2010, pp. 159–60
  15. S. Küper-Basgöl: Women in Turkey: Between Feminism and Re-Islamization, Lit, Münster 1992, p. 138. Quoted in: Limits of civil law and the Islamic discussion of a pluralistic legal order in Turkey (PDF file; 267 kB) Günter Seufert
  16. Esma Cakir-Ceyla: Violence in the Name of Honor - A study of acts of violence in Germany and Turkey with a special focus on legal developments in Turkey. Frankfurt / M. 2010, p. 160.
  17. Rudi Paret : Koran Sura 4: Women. ( Memento from February 19, 2014 in the Internet Archive ) In: koransuren.de. German Koran translation, without location, probably 1966, accessed on September 15, 2018 (the website allows a version comparison).
    See also: The Koran - Chapter 4 - Fourth Surah: Women. In: projekt-gutenberg.org. Translation: Project Gutenberg (PG), Hamburg (Status: April 14, 2011; Source: Kurt Rudolph, Reclam Verlag 1970; Quote: "And give women their morning gift voluntarily. And if they like to give you some of it, enjoy it easily and for wellbeing. ").
  18. Time: Your Majesty Desires Emancipation
  19. Britta Petersen: India: The «instant divorce», in which men only have to say the same word three times, is illegal. In: Neue Zürcher Zeitung. August 24, 2017, retrieved September 15, 2018, quote: “The Indian Supreme Court strengthens the rights of Muslim women. The practice according to which Muslim men can end their marriage by pronouncing the "Talaq" three times is forbidden. "