The Glorified Allah commands: “When you divorce women and they reach the end of their term, do not prevent them from marrying their spouses-to-be if they agree with each other according to ma’roof (the known terms of the Quran).” (Al-Baqarah/ The Cow 2:232)
In another verse the Glorified Allah commands:
“Those among you who died and left behind wives – the widows should wait by themselves for four (lunar) months and ten days. When they reach the end of their terms, there is no sin upon them for whatever they do in compliance with ma’roof (the known terms of the Quran).” (Al-Baqarah/ The Cow 2:234)
The most important step this woman might undertake in her life is to remarry.
For a marriage the agreement made between a man and a woman hasn’t been considered sufficient. The marriage must be in compliance with the ma’roof. “Ma’roof = مَعْرُوف”, means “something known”. This knowledge sources either from the Quran or from the traditions which do not contradict to the Quran. Opposite of “ma’roof” is “munkar”. According to the ancient Arabic tradition the daughter was asked in marriage from her father or custodian, the mahr[1] was paid and later the marriage ceremony was done[2]. The Christians made their ceremony under the church’s supervision, while the Jewish ceremony was made under the havra’a tending. In secular societies the ceremony was done with the permission and custody of the civil body in charge.
The verses forbid the obstruction of women whose marriage decision is in compliance with the ‘Maruf.’- the society’s tradition, beliefs, and customs. The definition of Maruf is a known, familiar, and obvious subject. This knowledge is the one obtained by the customs, traditions, the Book, or the Prophet’s Sunnah. If this knowledge has been obtained by the traditional founts, it is necessary for it not to be contradicting the Quran and the Sunnah. Such knowledge is considered appropriate by both the reason and the religion. Several commands are found in both the Quran and the Sunnah in relation to this issue. The words of the Messenger of Allah (s.a.v.) point out the fact the legitimacy and accuracy of the marriage in relation with the Maruf can be testified by the janitors. He said:
“Whoever the woman, who marries without the permission of her custodian, her marriage is batil, her marriage is batil, and her marriage is batil. If the man has a sexual relationship with her, the woman has the right of dowry from this man. If their togetherness is problematic the sultan –the person in charge- is the custodian of those who have no custodian[4].
The custodian is the person who has the right to make decisions and accomplish them for another person, even without considering the wishes and desires of the person under his custody, what is the name given to this privilege[5].
Once a man called Hizam had wedded his widowed daughter Hasna. She did not want this marriage; this was why she went to the Messenger of Allah (s.a.v.) and explained everything. He evaluated the marriage imposed by her father as unacceptable. Later, the woman married Abu Lubabe b. Abdi’l-munzir[6].
Once a maid came to Aysha and told her: “My father wedded me to the son of his brother, so that he can improve his position. I don’t like this.” Aysha asked the young woman to wait till the Messenger of Allah was back. When the Messenger of Allah came, she explained him everything. He sent a man to get this woman’s father and, later, gave her the privilege to decide for this issue. It was then, when the young said:
“Messenger of Allah! In fact, I had already given my consent for what my father did. I wanted to know if women had any right at all in this issue[7].”
In a considerable number of countries women do not prefer to be one of the constituent parts in a marriage agreement. Sometimes it might even be difficult to learn if the woman gives her consent for this marriage or otherwise. The advice of the Prophet (s.a.v.) on this issue is: “The widowed woman has more right than her custodian to make a decision while the maid’s consent is mandatory.” Then he was told: “The maids are shy and cannot speak because of their embarrassment.” He replied: “Her silence is her consent[8].”
“The widow is frank while giving her opinion. While the maid’s silence is the way she shows her consent[9].”
The well-known sects were skeptic and prejudicial while analyzing the verses and the hadiths, what made them develop different views in relation to this issue. The Hanefi sect with its liberal approach claims that a marriage without the custodian’s consent is quite possible[10]. The Maliki, Shafii, and Hanbeli sects, conservative as they are, have taken the custodian from its original testifying position to a higher position as that of the agreement part is. According to them if the custodian is not a part of the marriage agreement as the representative of the woman side, the agreement cannot be made.
In a marriage agreement the woman can represent neither herself, nor any other. She doesn’t even have the right to be represented by any other envoy beside her custodian. The father has the authority to wed his maid daughter without even asking her[11].
The Zahiri sect’s attitude has differed from the others by giving to the hadiths a bigger importance that the one given to the verses of Quran. According to them the woman, no matter if a widow or a maid, cannot marry without her custodian’s permission. If the custodians don’t give their consent the woman can be wedded by the person in charge. “The marital agreement of the maid can be made only if the father and his daughter both give their consent[12].”
Let’s analyze the evidences these views rely on.
30.1 The Evidences the Hanefi Sect Relies On
The sect based all its view upon the ideas of Abu Hanife. His opinion relied on these three verses:
“(The woman divorced by her husband for the third time) she shall not be lawful to him afterwards until she marries another husband.” (Baqara/The Cow 2/230)
“(And as for those women whose husbands are dead), when they have fully attained their term, there is no blame on you for what they do[13].”
In these verses, from a lingual perspective the woman is the active subject of the action showed by the verb; in other words Abu Hanife has considered the woman as an active side of the marital agreement, but he has not taken in consideration the condition mentioned in the following part of the two last verses which both point to the agreement’s being ‘in compliance with Maruf’. This has led to the omission of the related hadiths from the analyzing ground and to the misinterpretation of the third verse: “the prevention in the verse is an active prevention of the woman from remarrying, a direct attempt to imprison at home. The command in the verse is directed to husbands, as the verse starts with these words ‘When you divorce your wives’[15].
As some men try to prevent their wives from remarrying this statement seems quite appropriate. However, this analysis is not complete, if we consider those men who are prevented as well. At the same time, the woman who has completed the prescribed time has no connection to her previous husband, so her new marriage can’t possibly be supervised by him –the ex-husband. This is why it is rather difficult to agree with Abu Hanefi’s viewpoint.
The Hanefi sect, in relation to the woman who marries without her custodian’s consent, state: “If the woman married without permission, the people in charge consider if the man she chose is her equivalent and if her dowry is compatible to and not less than the dowry given by their husbands to the women of her level. If so there is no right of repudiation from her custodians. If the woman marries a man that is not her equivalent, she has set her family under turmoil, what gives them the right to repudiate the marriage. This is a right known to be of the custodian; the woman cannot turn down such a right[16].
If the dowry given to the woman by her husband is less than the dowry amount widely accepted to be the right amount for a woman of that level, the janitors have the right to ask for the augmentation of the dowry, or for the couple’s divorce. The reason is that the custodians are proud by a high dowry and embarrassed by a low one. Furthermore, a low dowry is an adversity over the women of that tribe (family), because from that day on, if they marry without agreeing for the dowry, their dowry is going to be as high as the one taken by this woman. As the men are the ones who defend the women’s rights, the repudiation right is theirs[17].
If careful, it would be noticed that there is no verse or hadith they rely on.
30.2 The Evidence of the Maliki, the Shafii, and the Hanbeli
These three sects interpreted the verses and the hadiths as instructed by the Arabic tradition. In the Arab society, the man asked the father or the custodian of a young woman if he wished to marry her. The dowry was given to them and later the marital agreement was made[18]. The man was one side of the agreement, but the woman didn’t hold such a right. Her custodian overtook her part. They maintained that this action of theirs was supported by this verse:
“(When you divorce women) they reach their prescribed time do not prevent the womem from marrying their husbands when they agree among themselves in a lawful manner (in compliance with the Maruf)[19]”
They state that the word (__= prevention, obstacle) used in the phrase (__________=el-imtina’ min tezviciha) has such a meaning ‘avoiding to wed the women’. And according to their reasoning this points to the fact that the wedding of the woman as a responsibility has been given to her custodians[20]. If it hadn’t been for the preliminary part of the verse, they wouldn’t have been able to reach to such an explanation, because the verse itself is: “…do not prevent the women from marrying their husbands[21]”. Preventing is what a certain person can do for a certain issue. From a lexical perspective, the subject of the active verb ‘to marry’ is the woman, from can be easily understood that the woman is one of the sides in the marital agreement. On the other hand, the prevention of something is completely different from the avoidance of something. The translation of the prevention as avoidance is nothing less than changing the verse’s significance.
At the same time they maintain that in the section (__________= en yenkihne ezvacchunne) ‘marrying their husbands’ the usage of the word ‘woman’ as an active subject of the sentence is because, although she is no side in the marital agreement, she is the subject matter of this agreement. Then, according to this logic, if the woman cannot be side in her marital agreement, she can’t even be representative or custodian in the marriage of any single person[22].
The Glorified Allah made the woman an active person in her marriage, while the Arabic tradition made of her a mere subject matter in such an important decision for her life. As the tradition’ directives were essential in the Arabic tradition, Allah’s direct statement and command was considered as a metaphor; multiplying so the number of mistakes.
Those, who considered the ‘active person’ a ‘subject matter’, considered the woman’s dowry as her price and founded a whole system – from the marital agreement to divorce-over this notion. None of these sects accepted the ‘iftida’- the woman’s right to divorce- and, in fact, instead of this right they developed another system that was named ‘muhalaa’. ‘Muhalaa’ is a system that requires the woman to pay her husband a certain amount of money or goods if he wants him to divorce her. Shirbini from the Shafi sect states:
“The man, earns the right to profit from the woman in return to the money –dowry- he gives, so he can renounce from this obtained right only in return to some goods. This is why the ‘muhalaa’ is lawful. It is just like a buying and selling issue. The marriage is the purchase process, while the ‘muhalaa’ is the vending process.”[23]
According to Ibn Teymiyye the evidence that ‘muhalaa’ is not ‘talak’ –divorce asked and undertaken by the husband is thus:
“Muhalaa is the escaping of the woman from her husband. It resembles the slave’s evasion from slavery. It is not counted as one of the three divorces right given to the husband…Just like in the slavery issue, where all the four sects’ imams and leaders agree that the required amount can be paid by another person, in this case too, the process can be undertaken and accomplished by another. An unknown can pay the amount required by the slave owner and free the slave. For this reason, if a person’s goal is to free the woman from her husband’s domination, he must rely on this condition while making the payment…Because, the ‘muhalaa’ payment is done in order to save the woman from being a slave and to demolish the husband’s domination over her. Obviously, it is not done in order to give the woman the control over herself.”[24]
This school didn’t give woman as much value as to a slave. The slave obtains control over himself when freed, while, according to them, the woman if saved from her husband’s domination, she enters her custodian’s rule. As the woman is not a good that can be sold and bought, considering her as the ‘subject matter’ of the marital agreement is not acceptable. The Glorified Allah commands: ____________________
Within the Maruf range, those women’s rights over the men are alike their (the men) rights over them (the women).” (Baqara/ The Cow 2/228)
The verse doesn’t regard the woman as the man’s slave, because there is no point in viewing the slave’s and the slave-owner’s rights as compatible.
The Glorified Allah commands:
The word translated as ‘dowries’ is ‘sadakat’, the plural of ‘saduka’, which derives from the root ‘sidk’. The meaning of ‘sidk’ is being loyal and trustworthy[26]. Men state that they esteem the women they marry; the donation of a small part of their wealth is the proof of this appreciation. Another word mentioned in this verse is the word ‘nihle’ translated as ‘with all your heart’. The original meaning of ‘nihle’ is a non-recompensed gift[27]. So, according to all these facts the dowry is not the price of anything, at all.
The biased analysis of the verses has led to an unavoidable excluding of some hadiths; thi hadith has not been regarded at all:
Once a maid came to Aysha and told her: “My father wedded me to the son of his brother, so that he can improve his position. I don’t like this.” Aysha asked the young woman to wait till the Messenger of Allah was back. When the Messenger of Allah came, she explained him everything. He sent a man to get this woman’s father and, later, gave her the privilege to decide for this issue. It was then, when the young said:
“Messenger of Allah! In fact, I had already given my consent for what my father did. I wanted to know if women had any right at all in this issue[28].”
While the hadith three of these sects highly regard makes word of a woman as the active person of her marital agreement.
“Whoever the woman, who marries without the permission of her custodian, her marriage is batil, her marriage is batil, and her marriage is batil.”
So it is impossible to accept these views, too: According to the Maliki sect, the father can wed his virgin daughter, even by force if he wishes to. The husband can be blind, ugly or even able to pay only a quarter dinar of gold, when the daughter’s dowry value is a whole kantar of gold. This decision is untouchable even if the daughter is older than 60 years old and even if she had been previously prevented from marriage by her custodians. The facts that the man’s genitals are t cut and he is not impotent are sufficient for the woman to respect her father’s decision. According to the original view, the father cannot force her daughter in such a case. The woman is not forced to marry the man her father chose if this man is insane, alaca hastaligi, cuzamli, innin, eunuch, or impotent[29].
Also according to the Shafi sect the right to wed the virgin daughter is hold by her father. Talking to the daughters and asking for their opinion is good but not indispensable. It’s beneficial to ask for the mother’s opinion as well.
30.3 The Evidences of the Zahiri Sect
This sect in the issue of the marriage agreement gave no importance to the verses of Allah, but was based only on the hadiths, what made impossible the righteous comprehension of the hadiths. The logic of their view is:
“The revelations of the Messenger of Allah are divided in two; the first one is the revelation that is accepted as stated (Vahy-I metuvv)[30], its words’ combination is complex and almost ungraspable by people and it is the Koran. While the second type is the narrated and conveyed revelation; its words’ combination is less complex and easier to grasp, which is not accepted as stated (gayr-I metluvv)[31], but can be read and has reached us thorough the Messenger of Allah. He tells us what Allah requires from us, as the Glorified Allah commands:”…make clear to men what has been revealed to them.”[32]. So, the Glorified Allah has made mandatory to obey the first, the Quran and has made mandatory the obedience to the second, the Sunnah of the Prophet; there is no difference between the two[33].
If the Sunnah would really explain all what Allah wants from us, there wouldn’t be any need for the Quran; this is the reason they don’t see any difference between the two. The Glorified Allah commanded the Prophet: “…clarify to men what has been revealed to them” not “…clarify to them what has been wanted from them.” This first error has led to a number of mistakes. Ibn Hazm states:
“The Prophet’s statement: “The widowed woman holds more rights than her custodian in relation to herself.[34]” means that she cannot undertake any action without his permission. She marries whoever she wants, but she cannot sign the marital agreement without her custodian’s permission. If the custodian rejects, the woman is wedded by the person in charge, even if his pride is somehow affected.”[35]
If the custodian doesn’t hold the right to repudiate the decision, then what is the point in having one? Is possible the existence of such meaningless and futile notions in the religion of Allah?
He adds: “The marital agreement of the virgin daughter can be done only if the father and the daughter concur over the same person.[36]” In other words, if both the father and the daughter do not agree about the same person, there won’t be any marriage at all. If the compliance with the Maruf is not one of the fundamental conditions, these results are inevitable.
If Ibn Hazm had considered the fact that the Sunnah and the Hadiths are practically applied results of the verses of the Quran, and if he had first considered the verses and secondly the Hadiths, would have recognized the significance of asking for the custodian’s opinion and surely would have based his system over this. As he hadn’t preferred such a method the verses related with this issue are not included in his view:
30.4 Analysis
According to the verses and Hadiths mentioned above the marital agreement should be analyzed from a different perspective; the compliance with the Maruf. The examination of the marriage is done by the woman’s janitor. If confronted with any disagreement the person in charge is included in the process. If no problem is noticed in the marriage of the couple the express their desire to marry each other in front of the witnesses and signing the marital agreement a new family has been created.
The different viewpoints of the sects have led to a considerable number of troubles.
As the Hanefi sect accepts the marital agreement made in front of two witnesses without the examination of the custodian, in many places girls have been kidnapped or people have done secret marriages. In front of two witnesses the kidnapped girl has been forced to admit and the action has been demonstrated as righteous.
The view of the Shafii, Maliki, and Hanbili sects has led to spreading out of the system of recompense for the bride’s family. As the marital agreement is unlawful without the custodian’s consent, then he should be convinced; the easiest method is that of paying him. The recompense shouldn’t be confused with the dowry; the dowry is a gift given to the woman, while the recompense is an amount paid to her custodian- father, brothers, or uncle- in order to get married to her.
If we relied on both the verses and the hadiths, we would have avoided the kidnapping of women, the marriages that would take advantage of their sentimentality and would make them suffer, and the custodian’s recompense.
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