I have started a session regarding the asking of questions which we usually feel embarrassed or shy to question. Recently a new web service application was introduced named “Sarahah.com” which allows people to send messages to individuals anonymously and when I discovered this I was like- This is the very thing we needed for our Ummah, sometimes we feel embarrassed questions, even through emails because it discloses our email ID as well and here is one service which allows the asking of question in total anonymity thus saving the privacy of the questioners.
Here is my new Sarahah address, you are welcome to ask me anything and thank you all for the support: https://saiyanislam.sarahah.com/
With that being said, Alhammdulillah, yesterday I just opened up my account, it is to my elation that I already got my very first question which has been asked to be is as follows:
Question: Brother, can you clear me up the concept of Kabin, Denmohor & ushul of marriage? And what Islam says about it . It would be great if you give the reference too. And also about sex life and separation.
There are several parts in this question and for this sake, I will be breaking the questions into small relevant parts:
1. KABIN – MARRIAGE CONTRACT
Kabin is the word we use in Bangladesh to mean a Marriage Contract.
The basic principle with regard to the conditions stipulated by both partners in the marriage contract is that it is a valid condition that must be fulfilled, and it is not permissible to break it, because:
The Prophet (Sallallahu Alayhi Wasallam) said: “The condition which most deserves to be fulfilled is that by means of which intimacy becomes permissible for you.”
References: Sahih Al-Bukhari, Hadith 2721 & Sahih Muslim, Hadith 1418
The marriage contract gives the husband/wife the power of stipulation or in other words- demanding or specifying (a requirement), typically as part of a bargain or agreement. However, the stipulation needs to be within the boundaries of Islam and also within the affordability of the husband, nevertheless stipulation should only for the sake of Allah for the unification of the spouses.
Shaykh Ibn ‘Uthaymeen (Rahmatullah Allaih) said:
The basic principle with regard to conditions in the marriage contract is that they are valid, unless there is proof to show that they are not valid. The evidence for that is the general meaning of the evidence which speaks of fulfilling covenants:
“O you who believe! Fulfil (your) obligations”
Surah Al-Maa’idah, Ayah 1 (5:1)
“And fulfil (every) covenant. Verily, the covenant will be questioned about”
Surah Al-Isra, Ayah 17:34
And in the Hadih narrated:
Messenger of Allah (Sallallahu Alayhi Wasallam) said “The Muslims are bound by their conditions, except a condition that forbids what is permissible or permits what is forbidden.”
Reference: Jami at-Tirmidhi, Hadith 1352
Messenger of Allah (Sallallahu Alayhi Wasallam) said: “Whoever stipulates a condition that is not in the Book of Allaah it is not valid, even if he stipulates a hundred times.”
Reference: Sahih Al-Bukhaari, Hadith 2155 & Sahih Muslim 1504
To sum up, the basic principle with regard to conditions is that they are permissible and valid, whether they are to do with marriage, buying and selling, renting, pledges or mortgages, or awqaaf. The ruling on the conditions that are stipulated in contracts, if they are valid, is that they must be fulfilled, because of the general meaning of the verse (interpretation of the meaning):
“O you who believe! Fulfil (your) obligations”
Surah Al-Ma’idah, Ayah 1 (5:1)
Reference: Al-Sharh al-Mumti’, 5/241 (Egyptian edition)
Shaykh Saalih al-Fawzaan (Rahmatullah Allaih) said:
Among other conditions that are valid in marriage is if she stipulates that he should not take another wife. If he fulfills the condition (all well and good), otherwise she has the right to annul the marriage because of the Hadith, “The condition which most deserves to be fulfilled is that by means of which intimacy becomes permissible for you.” Similarly, if she stipulates that he should not separate her from her children or parents, this condition is valid and if he breaks it, she has the right to annul the marriage. If she stipulates that her mahr should be increased or that it should be in a specific currency, the condition is valid and binding, and he has to fulfill it, and she has the right of annulment if it is broken. In that case she has the choice and may decide any time she wants and may annul it whenever she wants, so long as there is nothing on her part to indicate that she accepts it if she knows that he has gone against what was stipulated; in that case she would no longer have the option.
‘Umar ibn al-Khattab (Radi Allahu Anhu) said to the one who he ruled was obliged to fulfill what his wife had stipulated, when the man said, “Divorce us in that case,” ‘Umar (Radi Allahu Anhu) said: It is a must to fulfill the conditions, because of the Hadith “The believers are bound by their conditions.” Ibn Al-Qayyim (Rahmatullah Allaih) said: It is obligatory to fulfill these conditions which are the most deserving of being fulfilled. This is what is implied by Shariah, reason and sound analogy, if the woman did not agree to become a man’s wife except on these conditions, and if it were not obligatory to fulfill them, then the marriage contract would not be based on mutual agreement, and it would be making something obligatory upon her that Allah and His Messenger have not made obligatory.
References: Al-Mulakhkhas al-Fiqhi (2/345, 346)
2. DENMOHOR – MAHR
Denmohor is the term we use in Bangladesh which is equivalent to the Mahr given to the family of bride upon acceptance of the marriage between the bride and groom.
In Islam, the mahr (dowry) is one of the rights of the wife, which is hers to take in total and is lawful for her, in contrast to the widespread practice in some countries, where the wife is given no dowry. Evidence that the wife must be given her dowry is found in many places, for example the aayah (interpretation of the meaning): “And give to the women (whom you marry) their mahr (obligatory bridal money given by the husband to his wife at the time of marriage) with a good heart…” [Surah an-Nisa, Ayah 4 (4:4)]
Ibn ‘Abbas (Radi Allahu Anhu) said: “This refers to the mahr (dowry).”
Ibn Kathir (Rahmatullah Allaih) said, summarizing the comments of the mufassireen on this aayah: “The man must definitely pay the dowry to the woman, and he should not resent it.”
Allah says (interpretation of the meaning): “But if you intend to replace a wife by another and you have given one of them a cantar (of gold, i.e., a great amount) as mahr, take not the least bit of it back; would you take it wrongfully without a right and (with) a manifest sin? And how could you take it (back) when you have gone in unto each other, and they have taken from you a firm and strong covenant?” [Surah An-Nisa, Ayahs 20-21 (4:20-21)]
Shariah does not stipulate a certain limit for the mahr that should not be overstepped, but it does encourage reducing the mahr and keeping it simple.
The Prophet (Sallallahu Alayhi Wasallam) said: “The best of marriage is that which is made easiest.”
Reference: Ibn Hibbaan. Classed as Sahih by Shaykh Al-Albani (Rahmatullah Allaih) in Sahih al-Jami’, 3300.
The Prophet (Sallallahu Alayhi Wasallam) said: “The best of mahrs is the simplest (or most affordable).”
References: Al-Haakim & Al-Bayhaqi. Classed as Sahih by Shaykh Al-Albani (Rahmatullah Allaih) in Saheeh al-Jaami’, 3279.
Umar ibn al-Khattaab (Radi Allahu Anhu) said: “Do not go to extremes with regard to the dowries of women, for if that were a sign of honour and dignity in this world or a sign of piety before Allaah, then Muhammad (Sallallahu Alayhi Wasallam) would have done that before you. But he did not give any of his wives, and none of his daughters were given, more than twelve Uqiyah (A weight equivalent of 128 grams. It may be less or more according to different countries). A man may increase the dowry until he feels resentment against her and says, ‘You cost me everything I own, and caused me a great deal of hardship’.”
Reference: Sunan Ibn Majah, Hadith 1887. Classed as Sahih by haykh Al-Albani (Rahmatullah Allaih) in Sahih Ibn Maajah, 1532.
Regarding the minimum value for the mahr, Hadith state:
Narrated from Sahl ibn Sa’d al-Saa’idi (Radi Allahu Anhu) who said: “A woman came to the Messenger of Allah (Sallallahu Alayhi Wasallam) and said, ‘O Messenger of Allaah, I have come to give myself (in marriage) to you.’ The Messenger of Allah (Sallallahu Alayhi Wasallam) looked at her and looked her up and down, then the Messenger of Allah (Sallallahu Alayhi Wasallam) lowered his head and paused. When the woman saw that he had not made a decision about her, she sat down. A man from among the Sahabah said, ‘O Messenger of Allah, (Sallallahu Alayhi Wasallam) if you are not interested in her, then marry her to me.’ He said, ‘Do you have anything?’ He said, ‘No, by Allah, O Messenger of Allah (Sallallahu Alayhi Wasallam).’ He said, ‘Go to your people and see if you can find anything.’ So the man went, then he came back and said, ‘No, by Allah, I could not find anything.’ The Messenger of Allah (Sallallahu Alayhi Wasallam) said, ‘Look and see (if you can find anything), even if it is only an iron ring which you can give.’ So he went, then came back, and said, ‘No, by Allah, O Messenger of Allah (Sallallahu Alayhi Wasallam), not even an iron ring. But (I have) this izaar (garment) of mine, she can have half of it.’ The Messenger of Allah (Sallallahu Alayhi Wasallam) said: ‘What can she do with your izaar? If you are wearing it she will have nothing of it.’ The man sat down, then after a long time had passed, he got up (to leave). The Messenger of Allah (Sallallahu Alayhi Wasallam) saw him leaving and called him. When he came, he said, ‘What do you know of the Qur’aan?’ He said, ‘Surah Such-and-such and Surah Such-and-such.’ He said, ‘Do you know them by heart?’ He said, ‘Yes.’ He said, ‘Then go, you are married to her by what you know of the Qur’aan.’”
Reference: Sahih Al-Bukhari, Hadith 5132
The scholar Ibn Khaldoon (Rahmatullah Allaih) said: “The consensus of the scholars from the beginning of Islam and the time of the Sahaabah and the Taabi’een has been that the shar’i dirham is that of which ten coins weigh seven mithqaals of gold. The ooqiyah is forty dirhams of this type, and on this basis it is seven-tenths of a dinar… All of these amounts are agreed upon by scholarly consensus (ijmaa’).”
References: Muqaddimah Ibn Khaldoon, p. 263
The Sunnah amount of Mahr recommended to be gifted.
Abu Salamah Ibn ‘Abd al-Rahman (Radi Allahu Anhu) said: “I asked A’ishah the wife of the Prophet (Radi Allahu Anha) what the mahr given by the Prophet (Sallallahu Alayhi Wasallam) was. She said: ‘The mahr that he gave to his wives was twelve ooqiyah and a nashsh.’ He said, Do you know what a nashsh is? He said, she said it is half of an ooqiyah. That was five hundred dirhams. This was the mahr given by the Prophet (Sallallahu Alayhi Wasallam) to his wives.”
3. USHUL OF MARRIAGE
In the Indian subcontinent, we have this custom of providing Mahr with a residual amount with the Ushul (gifts and provision for the pride) given during the wedlock. Now, there are few rulings during this matter.
Firstly, the woman who is getting married needs to give her consent, if she feels like she can’t quantify the gifts which is going to be given to her in conjecture to the amount of agreed Mahr, she has every right to reject the Ushul and accept only money as mahr.
Secondly, Subahan Allah, there are many people who may overstate the amount of ushul for the sake of reducing the mahr, this is equivalent to lying to the bride and is definitely Haram and this makes the marriage void as a whole. Sadly, people these days people engage in this sin of overstating ushul so as to reduce amount of Mahr. Therefore, it is recommended and it is also the Sunnah to provide the Mahr as “liquid money” or raw cash.
Al-Tabari (Rahmatullah Allaih) said: What Allah, may He be glorified and exalted, meant by that is: Give the women their dowries as a gift that is required and obligatory. He said: It was narrated that Qatadah said, concerning the words “And give to the women (whom you marry) their Mahr (obligatory bridal-money given by the husband to his wife at the time of marriage) with a good heart”: As an obligation. And it was narrated that Ibn Jurayj (Rahmatullah Allaih) said concerning the words “And give to the women (whom you marry) their Mahr (obligatory bridal-money given by the husband to his wife at the time of marriage) with a good heart”: As an obligation that is named (specified). And it was narrated that Ibn Zayd (Rahmatullah Allaih) said concerning the words “And give to the women (whom you marry) their Mahr (obligatory bridal-money given by the husband to his wife at the time of marriage) with a good heart”: al-nihlah (translated here as “with a good heart”, in the language of the Arabs, refers to something that is obligatory.
End quote from Tafseer al-Tabari, 4/241.
4. SEXUAL LIFE OF THE SPOUSES
Sexual intercourse between the husband and wife has been encourage in Islam. The following has been taken from Islamic Guide To Sexual Relations by Mubammad ibn Adam al-Kawthari:
Imam Abdullah ibn al-Mubarak (Rahmatullah Allaih) says: “How often a paltry act becomes great by its intention, and how often a great act becomes paltry by its intention.” ( Siyar A ‘lam al-Nubalii’ 8:400)
Sexual relations with one’s spouse are not excluded from this principle, in that they should be performed with transformative intentions and objectives in mind, namely:
I) Increasing the nation (Ummah) of Allah’s Messenger (Sallallahu Alayhi Wasallam) and seeking pious offspring who will serve Islam.
2) Protection against fornication and other corrupting activities, such as masturbation, looking at pornographic material, and casting lustful gazes at the opposite gender.
Abdullah Ibn Mas’fld (Radi Allahu Anhu) relates that the Messenger of Allah (Sallallahu Alayhi Wasallam) said to us: “O group of young men, anyone [of you] who can afford it should marry, for it lowers the eyes and guards the private parts. Anyone who is unable to marry should fast, for it restrains the appetite.”
Reference: Sahih Al-Bukhari, Hadith 4779
Jabir (Radi Allahu Anhu) narrated, Prophet (Sallallahu Alayhi Wasallam) said, ”When a woman attracts anyone of you and she captivates his heart, then he should go to his wife and have sex with her, for it would repel that what he feels [i.e. sexual desire].”
Reference: Sahih Muslim, Hadith 1403
3) Fulfilling the right of one’s spouse in a lawful manner, as it is the responsibility of each spouse to satisfy the sexual needs of the other, as will be discussed in more detail later on, by the Will of Allah.
4) Removing fluids from the body, which would otherwise leave one susceptible to illness and poor health. (Ibn al-Qayyim, Al-Tibb al-Nabaw’i 178)
5) Enjoying this great gift that the All-Merciful has given to mankind. There is nothing wrong in intending enjoyment and sexual gratification.
Sex is considered an act of charity for the spouse. The correct intentions mentioned above elevate sex from an act of physical pleasure into an act of immense reward and a form of charity. Hadith states:
Abu Dharr al Ghifari (Radi Allahu Anhu) related Prophet (Sallallahu Alayhi Wasallam), who said, “Verily in every Taslii}J, [i.e. saying Sub}J,anAllah] there is charity, in every Takliir [i.e. saying Allahu Akbar] there is charity, in every Tahmid [i.e. saying Alhamdulillah] there is charity, in every Tahlil [i.e. saying La ilaha illallah] there is charity, enjoining of good is charity, forbidding of evil is charity, and in the sexual act of each of you there is charity.” [The Companions said], “O Messenger of Allah! One of us fulfils his sexual desire and he is given a reward for that?” And he said, “Do you not see that were he to act upon it unlawfully, he would be sinning? Likewise, if he acts upon it lawfully he will be rewarded.”
Reference: Surah Muslim, Hadith 1006
Imam ‘Ala al-Din al-Kasani (Rahmatullah Allaih), a prominent classical Hanafi jurist, stated: “And both spouses share this ruling of deriving sexual pleasure, for just as the wife is lawful for the husband [in terms of deriving sexual pleasure from her]; her husband is lawful for her … It is the right of the husband to demand sex from her whenever he so desires unless there is an impediment, such as menstruation (hayd), postnatal bleeding (nifas), zihar [the husband swearing an oath to abstain from sex with his wife], being in the state of ihram and other impediments. And it is [also] the right of the wife to request sex from him, since deriving sexual pleasure from him is her right, as it is his right to derive sexual pleasure from her. When she requests sex from him, he will be obligated to agree and compelled through the courts once [meaning once throughout the marital relationship], and after that he will be religiously [and not legally] obliged to have sex with her in the context of living together in excellence and fostering the marital relationship … “
Reference: Bada’i al-Sana’i 2:331
Summary: It is permissible for a man to have intercourse with his wife at any time, except when one of them is in Ihram for Hajj or Umrah, or is fasting, so it is not allowed during the day when one of them is fasting, but it is allowed at night; it is also Haram when the woman is menstruating or bleeding following childbirth.
For more information, watch the following video:
The Prophet (Sallallahu Alayhi Wasallam)) said: “Never did Allah more hateful to Him than divorce”
Reference: Sunan Abu Dawood (13:3)
Divorce in Islam is not only the right of man but also if a female is not comfortable with her husband, if he beats her and does not give her due rights or compels her to do what is forbidden acts, she can ask him for divorce and man cannot keep her if she does not wants to live with him. But the best thing is to resolve the issue peacefully.
RULES OF DIVORCE:
a) DIVORCE DURING MENSTRUATION
In Holy Qur’an Divorce is prohibited when the courses are on. As it is said to be “harmful” [2:222]. It was brought to the notice of Holy Prophet (peace and blessings of Allah be upon him) that Ibn Umar had divorced his wife while she was menstruating. The divorce was declared to be illegal by Prophet (peace and blessings of Allah be upon him) and Ibn Umar was asked to take his wife back [Bukhari 68:1]. Thus divorce is only permitted in the state of tuhr (when women is clear from menstrual discharge)
b) THE WAITING PERIOD (IDDAH)
Every divorce must be followed by a period of waiting called Iddah.
“O Prophet (Peace be upon him) when you divorce women, divorce them for their ‘Iddhah (prescribed or waiting, time)” [65:1]
“And the divorce women should keep themselves in waiting for three courses (Quru)” [2:228]
Quru is the state of entering from state of cleanness to the state of menstruation. In normal cases it is about four weeks. Iddah is about three months [65:4] and in case of pregnant women the Iddah period is till delivery. The purpose of Iddah is affording the parties a chance of reconciliation.
“O Prophet When you divorce women, divorce them at their ‘Iddah (prescribed periods) and count (accurately) their ‘Iddah (periods)” [Surah Al-Talaaq 65:1]
c) DIVORCE IS REVOCABLE
There is no concept of three divorce at one time, like we see in our society today. Islam has a proper set of rules for divorce. A man if divorce to his wife by saying [I divorce you, I divorce you, I divorce you] at one time, it will be considered as one divorce and he can wait for the iddah period and can save his marriage.
“And their husbands have a better right to take them back in the meanwhile if they wish for reconciliation” [2:228]
d) IRREVOCABLE DIVORCE
After one divorce if husband does not see any chances of reconciliation, he can give her the second divorce and wait for Iddah period, if in that Iddah period things go normal, the marriage is safe else after the third divorce, there is no turning back now it is irrevocable.
If a women is divorced and she marries to someone else, and the other person also divorces her then she can remarry to her first husband if they are happy and willing to stay with each other.
“And if he has divorced her (the third time), then she is not lawful unto him thereafter until she has married another husband. Then, if the other husband divorces her, it is no sin on both of them that they reunite, provided they feel that they can keep the limits ordained by Allah. These are the limits of Allah, which He makes plain for the people who have knowledge” [Surah Al-Baqarah 2:230]
Husband and wife both should overlook the bad habits and concentrate on the good habits of the life partner. In this way the relation can be saved, In fact, the love between wife and husband increases because the tolerance level increases.
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