Other Forms of Islamic Marriage

Other than Nikah-e-Mut'a there are four forms of Islamic marriage that are considered to be halal by at least one fiqh within Islam. These are:

• Nikah-e-Daimee
• Nikah-e-Halala
• Nikah-e-Misyar
• Nikah-e-Urfi

Nikah-e-Daiemee

Nikah-e-Daimee (Permanent Marriage) is the most common form of Islamic Marriage. Sachiko Murata, a scholar of Theology from Tehran University, writes in his MA dissertation “Temporary Marriage in Islamic Law” (Published in Al-Serat, Volume, 13, Issue 1, in 1979):

In Islam the word most commonly employed for marriage is nikah, which means literally 'sexual intercourse'. As a legal term it denotes the situation resulting from a particular contract, entered into by a man and a woman, by which sexual intercourse between them becomes legitimate in the eyes of God and society. The only other mode of legitimizing this sexual relationship is by a man's purchasing a female slave…

(Available online at: http://www.al-islam.org/al-serat/muta/5.htm)

This is the only marriage form which is accepted by all sects, schools of thought within Islam, and there is a general consensus on it rules and regulations among all Muslims.

The following portion is mainly adopted from MA dissertation “Temporary Marriage in Islamic Law” Published in Al-Serat, Volume, 13, Issue 1, in 1979 by Sachiko Murata, a scholar of Theology from Tehran University:

Pillars (Arkan) of the Marriage Contract

Permanent marriage has a set number of pillars, two according to the Shi'is, three according to the Malikis and Hanafis, and four according to the Hanbalis and Shafi'is. All schools agree on the first two pillars, 'formula' and 'persons'.

1. Formula (Sigha): Marriage is legalized by a contract ('aqd), which, like all other contracts in Islam, consists of a declaration (ijab) and an acceptance (qabul). The woman declares that she is entering into a relationship of marriage with the man, and he accepts her as his wife.
2. The Persons (Mahall): The man and woman must be free of all shar'i hindrances to their marriage, as explained below. The identity of the spouses must be clearly specified. Thus, for example, if the guardian should say: 'I give one of my two daughters to you in marriage', and the man should accept, the contract is invalid.
3. Guardianship (wilaya): The legal guardian in the marriage contract may be the father, the father's father (Hanafi, Shafi'i, Shi'i), the executor of the father's will concerning the marriage (wasi), the governor of the town (hakim) in case of the nonexistence of the others (Hanbali), and the owner of a slave (Maliki). The mother has no guardianship except in the Hanafi school, which holds that if there is no close male relative, close female relatives may assume the guardianship and conclude the marriage contract. Hence in Shafi'i, Hanbali and Malliki schools the woman does not have the right to conclude a marriage contract without the participation of her guardian. In the Shi'i and Hanafi schools the presence of the guardian is required only at the marriage contract of a girl not of age, that is, one who has not yet reached puberty (saghira), or of an incompetent or insane girl or woman of age. In both these schools a girl who is physically mature may marry whomsoever she wishes, and the validity of the contract is not conditional upon the presence of the guardian.
4. Witnesses (Shahid): The Shafi'i, Hanbali, and Hanafi schools hold that the presence of two witnesses is a pillar of marriage and that without their presence, the contract is invalid. The Malikis hold that the presence of two witnesses is necessary at the time of the marriage's consummation (dukhul), but not during the contract, when their presence is merely recommended. The Shi'is maintain that the presence of one or more witnesses is not a pillar of the contract, so a man and woman may conclude a contract secretly if they so wish.

The statutes (Ahkam) of Marriage

There various orders or statutes governing the institute of Permanent Marriage, most important of these are explained below:

1. The Dower (mahr): Whenever a man marries a woman, he must give her a dower in return for the sexual gratification he is to receive. The dower must consist of a specified amount of property, cash, or profit. It must be ritually pure and owned by the husband. All schools agree that the dower does not have to be mentioned in the contract. If it is mentioned and does not fulfill the conditions required for dowers, the contract is valid but the dower must be corrected. The normal dower is the amount of property, in cash or kind, which other women of the same social status, age, beauty, etc., are receiving in the society of the time.
2. Support (nafqa): Once the woman has taken up residence with her husband, he must support her in a mode corresponding to the support received by her equals. Support includes such things as food, clothing, shelter, and other necessities. Payment of the dower becomes incumbent on the husband as a result of the marriage contract, but payment of support only becomes incumbent as a result of the contract and the wife's obedience to her husband. If the wife does not obey her husband, he is not obliged to support her. Here it should be kept in mind that in Islamic society a wife must 'obey' her husband only within the shar'i limits, which is to say that the woman obeys the man on condition that he is obeying God. Should he tell her to do something not sanctioned by the sharia her duty is to follow God, not her husband.
3. Annulment (faskh): Any time a spouse has certain specified physical or mental disabilities which make continuation of the marriage difficult, the other spouse may annul the marriage. These disabilities vary according to the different schools. All schools except the Hanafi list insanity, emasculation, and impotence for the men, and insanity, leprosy, and a blocked vagina for the wife; each of them except the Hanafi then adds various other disabilities of the same sort. In the Hanafi school the wife has the right to annul the marriage only for the three grounds listed, while the husband has no grounds for annulment on the basis of disabilities.

Divorce (Talaaq)

The pillars of divorce differ according to the schools. The Hanafis and Hanbalis hold that there is only one pillar, i,e., the formula through which it takes place. In the view of the Shafi'is and Malikis, the pillars are (I) the existence of the husband and the wife, (2) the formula of divorce, and (3) the intention. The Shi'is maintain that the pillars are (1) the husband and wife, (2) the formula, and (3) two witnesses, The husband may divorce the wife, but not the reverse. In contrast to marriage, the wife's consent is not necessary.

The man must be in possession of his rational faculties, have reached physical maturity (except in the Hanbali view), and be acting of his own free will (except according to the Hanafis). The Hanbalis maintain that a youth who has not reached puberty but who understands the meaning of divorce and its consequences may divorce his wife of his own accord; the Hanafis say that even if the formula is pronounced under duress, it is still valid. To the views shared with the other schools, the Shi'is add that the husband must pronounce the formula with the intent of divorcing his wife, although unlike the Shafi'is and Malikis, they do not make this a pillar of divorce.

For a divorce to become final, in most cases the man must pronounce the formula on three different occasions, as described below. Technically, his first and second pronouncements are also divorces, but they are 'revocable' (rij'i). Hence, divorce may be divided into the revocable and irrevocable (ba'in) forms.

Since these types of divorces are in reality a kind of contract, they require a declaration (ijab) and an acceptance (qabul). The woman must say something like: 'Divorce me in exchange for such and such', while the man must answer something like: 'I accept' or 'I divorce you'. The Sunnis hold that the husband may employ any number of words in the formula, such as 'divorce' or words derived from the same roots as khul' and muharat. The Shi'is say that the word 'divorce' itself must be employed.

The Waiting Period (‘Idda)

When a woman is divorced or her husband dies, she must wait for a prescribed period of time before she can remarry. If the woman's husband has died, the waiting period differs according to whether or not she is pregnant; if she is not, she must wait four months and ten days. Such things as her physical maturity, whether or not she has reached menopause, and whether or not the marriage has been consummated are irrelevant. If the woman is pregnant, according to the Sunnis her waiting period terminates when she gives birth to the child; according to the Shi'is, she must wait either four months and ten days or the term of her pregnancy, whichever is longer. If a woman's husband should be away on a journey when she hears of his death, according to the Sunni schools her waiting period begins on the date of his death; the Shi'is hold that it begins on the day she receives the news.

The waiting period for divorce differs according to circumstances and the views of the different schools. A woman with whom the marriage has not been consummated has no waiting period. A girl less than nine years old has no waiting period according to the Hanbalis and the Shi'is; but the Malikis and Shafi'is hold that if she was mature enough to participate in sexual relations, she must wait three months; the Hanafis hold that in any case her waiting period is three months. A woman who has gone through menopause must wait three months in the view of the Sunni schools, but the Shi'is say that she has no waiting period. A woman who menstruates and who is not pregnant must wait either three tuhrs (periods of purification after menstruation) according to the Shi'is, Malikis, and Shafi'is, or three menstrual periods according to the Hanafis and Hanbalis. A woman who is old enough to menstruate but who does not or who is in the state of mustaraha must wait three months. A woman who is pregnant must wait until she has delivered her child.

Forswearing (Ila’)

'Forswearing' means to swear an oath in God's name not to have sexual relations with one's wife, either absolutely, or for a period of more than four months. Since the sharia forbids a husband from refraining from sexual intercourse with his wife for more than four months, once the four months have passed, the wife has a valid reason to have recourse to a qadhi. If the husband should break the oath, he must pay the expiation (kaffara) set by the law for the breaking of an oath. If he holds to his oath and the four months pass, the wife may go before a qadhi and request that he clarify her marital situation. According to the wife's wishes, the qadi will either order the husband to return to his wife or to divorce her. If the husband is ordered to return to her but refuses, the qadhi will then order him to divorce her. If he also refuses that, the qadhi will grant her a revocable divorce. The Shi'is differ here by holding that the qadhi does not have the right to grant divorce in the husband's stead; however, he can force the husband-by imprisonment or other means at his disposal-to take one of the two courses open to him, i.e., to return to her or divorce her. The Hanafis say that once the period of the husband's oath comes to an end, the woman is divorced irrevocably, without any need for the husband's pronouncement of the formula. The Shi'is hold that forswearing may not take place in the case of a virgin. The Sunni schools disagree and add that if her husband divorces her, the divorce is irrevocable.

Zihar

In pre-Islamic times the Arabs practiced a form of divorce which amounted to the husband's reciting the formula, 'You are to me as my mother's back (zahr)', a practice referred to as zihar. Although Islam forbids zihar (cf. Qur'an 33:4, 58:2), if a man should recite this formula to his wife--or an equivalent formula, by substituting a reference to any other female forbidden to him-sexual intercourse with his wife is forbidden to him. Zihar's conditions are the same as those of divorce; hence in Shi'ism two witnesses must hear the formula recited.

Sworn Allegation (Li'an)

'Sworn allegation' is a procedure whereby a man may take his wife before a qadi and either accuse her of infidelity or deny his fathering her child. The man then pronounces this formula four times: 'I testify before God that I speak the truth concerning what I say about this woman.' The qadi will then counsel the man concerning the gravity of his accusation. If he should repent of his words, he will receive the punishment for false accusation (eighty lashes). If he maintains the truth of his accusation, he must repeat a second formula four times: May 'God's curse be upon me if I am a liar'.

The judge then turns to the wife. She may either face the penalty for adultery (stoning to death) or repeat this formula four times: 'I testify before God that he is a liar'. The judge will counsel her concerning the gravity of falsely swearing before God. If she continues to maintain her innocence, she must pronounce a second formula four times: 'God's wrath be upon me if he is telling the truth '. If she refuses to pronounce the formula, she will suffer the penalty for adultery. After sworn allegation, the man and woman are forbidden to each other forever, without divorce.

Inheritance (Mirath)

Husband and wife inherit from each other according to set rules. The only condition for inheritance is a valid marriage contract, not consummation of the marriage.

(For more detail see: http://www.al-islam.org/al-serat/muta/2.htm)

Nikah-e-Halala

In Hanfi Sunni jurisprudence, if a couple has gone through three talaqs, and they regret their decision they can remary until the women has engaged in a Nikah with another person, while the person volunteering for help and the wife both have the intention of divorcing as soon as sexual intercourse takes place. After iddah is observed, the original couple may remarry. This sort of marriage is referred to as Nikah Halala. As can be easily imagined the whole process is fraught with emotional turmoil.

Shi'i and much Sunni jurisprudence disallow a couple remarrying after having been through three divorces.
This can be explained by the fact that some Sunni schools view a triple talaq (when the husband says "I divorce you" three times in a row) as equivalent to three single talaq. Other Sunnis and Shi'i treat that as a single divorce, and the couple then has three months to ponder on their decision, before the second talaq. Once the second talaq, has occurred, then it is considered that it is better for the two to go through the third one as well after another three months. But once the third talaq has occurred there is no way back as both had enough time to take the decision and now there is no need for Nikah-e-Halala.

Shi'i also refer to Nikah-e-Halala as a counter point when defending Nikah-e-Mut'a. They say that in principle Nikah-e-Halala is similar to Nikah-e-Mut'a, as both the husband and wife have the intention of divorcing at the time of Nikah, and this is also a form of temporary marriage. What if the intercourse during Nikah-e-Halala results in a child?

(See: http://www.islamonline.net/fatwa/english/FatwaDisplay.asp?hFatwaID=21340, http://63.175.194.25/index.php?ln=eng&ds=qa&lv=browse&QR=36580&dgn=4, http://www.islamicvoice.com/october.97/ourd.htm, http://understanding-islam.net/related/text.asp?type=rarticle&raid=46&sscatid=193)

Nikah-e-Misyar

Nikah Misyar or "travellers' marriage" is a Nikah contract carried out via the normal contractual procedure, with the specificity that the wife gives up several of her rights by her own free will, such as living with the husband, equal division of nights between wives in cases of polygamy, rights to housing, and maintenance money ("nafaqa"). The couple continues to live separately from each other, as before their contract, and see each other to fulfil their sexual needs when they please.

(See: http://www.islamonline.net/servlet/Satellite?pagename=IslamOnline-English-Ask_Scholar/FatwaE/FatwaE&cid=1119503544160)

Misyar Marriage in Practice

This type of marriage is considered to be halaal by many Sunni fiqhas. They say that the Misyar marriage represents an adaptation of marriage to the needs of people who are not able to marry in the traditional way. In countries such as Egypt, Syria, Saudi Arabia, Kuwait or the United Arab Emirates, this is usually due to the cost of rents; the high cost of living in general; the high amounts of dowry required; and other similar economic and financial concerns.

(See: http://answering-islam.org.uk/Index/M/misyar.html)

This type of marriage could also meet the needs of young people whose resources are too limited to settle down in a separate home; of divorcees, widows or widowers, who have their own residence and their own financial resources but cannot, or do not want to marry again according to the usual formula; and of slightly elder people who have not tasted the joys of marriage. One is reminded, in this context, that there are a million and a half unmarried women in Saudi Arabia alone.

Islamic lawyers add that this type of marriage fits the needs of a conservative society which punishes “zina” (fornication) and other sexual relationships which are established outside a marriage contract. Thus, some Muslim foreigners working in the Gulf countries prefer to engage in the Misyar marriage rather than live alone for years. Many of them are actually already married with wives and children in their home country, but they cannot bring them to the region.

It is noted that many wealthy Arab men sometimes enter into a Misyar marriage while on vacation, in order to have sexual relations with another woman without committing the sin of zina. They usually divorce the women once their holiday is over. One should note, however, that if this is understood by both parties at the time of conclusion of the marriage contract (and this is usually the case) this would constitute a fixed time period, effectively making such a marriage invalid in Sunni law, and more akin to the Shi'i Mut'a marriage.

The Sheikh of Al-Azhar Muhammad Sayyid Tantawi and theologian Yusuf Al-Qaradawi note, in their writings and in their lectures, that a major proportion of the men who take a spouse in the framework of the Misyar marriage are already married men.

(See: http://www.arabnews.com/?page=9&section=0&article=64891)

Many of the men involved would not marry a second wife within the regime of normal Islamic polygamy. Because of the heavy financial burdens, moral obligations and responsibilities it places on the husband. But, they opt for the less onerous option of Misyar marriage when the theologians declare it licit.

(See: http://www.dailyexpress.com.my/news.cfm?NewsID=42349)

In view of these various situations, this type of marriage remains somewhat controversial within Sunnis as well.

Arguments for the Legality of Nikah Misyar

However, contrary to the widely held beliefs, Misyar marriage fits within the general rules of marriage in Sunni jurisprudence, on condition merely that it fulfil all the requirements of the Shariah marriage contract i.e:

• The agreement of both parties;
• Two legal witnesses (Shahidain)
• The payment by the husband to his wife of Mahr in the amount that is agreed
• The absence of a fixed time period for the contract
• Shuroot, any particular stipulations which the two parties agree to include in the contract and which are in conformity with Muslim marriage law

(See: http://www.islamonline.net/servlet/Satellite?pagename=IslamOnline-English-Ask_Scholar/FatwaE/FatwaE&cid=1119503544160)

This type of marriage helps young couples who cannot stay together because of the absence of the necessary means, or when they live or interact so often with each other that they know they might end in committing fornication. Marriage of such kind can also help them legalize their relationship in an Islamic way rather than sinning.

Moreover, as explained by the Saudi Islamic lawyer Abdullah bin Sulaiman bin Menie, a member of the Higher Council of Ulema of Saudi Arabia, the wife can denounce at any time, as she sees fit, her renunciation of her financial rights, and require of her husband that he give her all her rights, including that he live with her and provide for her financial needs ("nafaqa"). The husband can then either do so, or grant her a divorce.

(See: http://www.gulfnews.com/Articles/RegionNF.asp?ArticleID=165873)

However, some people argue if the renunciation provision is the only feature which distinguishes misyar from a standard marriage, and if it has no legal standing, does misyar represent a separate category of marriage in Muslim law? Further, is it legitimate for Muslim notaries to include in a contract provisions which have no legal standing, although the contracting parties mistakenly believe that they are the foundations and the necessary conditions to be met for the conclusion of the contract? For that matter, if the spouses are told by the notaries, at the time of conclusion of the contract, that the renunciation clauses have no legal value, what effect would that have on the spouses' willingness to get married?

For these reasons, Professor Yusuf Al-Qaradawi observes, in his book “Zawaj-al-Misyar” published in 1999 (in Arabic) that he does not promote this type of marriage, although he has to recognize that it is legal, since it fulfils all the requirements of the usual marriage contract. He states his preference that the clause of renunciation should not be included within the marriage contract, but be the subject of a simple verbal agreement between the parties. He underlines the fact that Muslims are held by their commitments, whether they are written or verbal.

Criticism against Misyar

Critics of this marriage observe, more generally, that this type of marriage usually ends up in divorce, eventually. As a result the wife finds herself abandoned, to lead a solitary life as before the marriage, but traumatized by the experience, while her social status and reputation degraded.

The proponents of the Misyar marriage, though they recognize that it can result in problems, observe that it doesn’t have a monopoly on them. The problems result, more generally, from the way in which people apply the rules of the Shariah.

Today, in a large number of Muslim countries, there are official family and marriage law codes whose provisions wouldn't allow the conclusion of a marriage of the Misyar type. However, in a number of Gulf States essentially, Misyar marriage is accepted by the community, and is usually arranged privately, through a notary and with no publicity.

Some Sunni scholars like Ibn Uthaimeen or Al-Albani claim, for their part, that misyar marriage may be legal, but not moral. They agree that the wife can at any time, reclaim the rights which she gave up at the time of contract. But, they are opposed to this type of marriage on the grounds that it contradicts the spirit of the Islamic law of marriage and that it has perverse effects on the woman, the family and the community in general.

(See: http://www.metimes.com/articles/normal.php?StoryID=20000407-042210-7478r)

Al-Albani also underlines the social problems which result from the “misyar” marriage, particularly in the event that children are born from this union. The children raised by their mother in a home from which the father is always absent, without reason, may suffer difficulties. The situation becomes even worse if the wife is abandoned or repudiated by her husband "misyar", with no means of subsistence, as usually happens.

As for Ibn Uthaymeen, he recognizes the legality of “misyar” marriage from the Shariah standpoint, but considers that it should be opposed because it has been turned into “real” merchandise that is being marketed on a large scale by “marriage agencies”, with no relation to the nature of Islamic marriage.

In summary, no Sunny scholar will state that Misyar marriage is forbidden from the Shariah standpoint, though they may consider it immoral.

Some traits of the Misyar marriage are reminiscent of the Nikah-e-Mut'a, although it is considered as illicit by Sunnis. The difference is that the Mut'a is based on a contract with a fixed date of expiry; also, a Mut'a does not require witnesses, but a Misyar does. Despite these differences, Shiah opinion holds that the Misyar is similar to the Mut'a as it is usually done with the aim of avoiding sin and satisfying the sexual needs, also because in practice it is a temporary marriage without a predefined expiry date.

Nikah-e-Urfi

The word 'Urfi’ is derived from an Arabic word, 'Urf, which means custom, convention, or a customary act. In its modern context, 'Urfi is used to connote something which is in difference to official state ceremony or procedure. Thus a Nikah-e-Urfi in an Islamic country may denote it to be something synonymous to a common-law marriage in the west, while in some nations like Egypt, a Nikah-e-Urfi is a marriage that takes place without the public approval of the bride's guardians, even though the contract is officiated by a religious cleric and sometimes by a state representative.

It is similar to the Nikah ceremony. An Urfi marriage is a marriage without an official contract. Couples repeat the words, "We got married" and pledge commitment before God. Usually a paper, stating that the two are married, is written and two witnesses sign it. Most of the Islamic countries do not recognize 'Urfi marriages. A woman could not get a 'legal' divorce since the government did not recognize the legality of the marriage in the first place.

Legal Status

There are three criteria of defining legal issues in Islamic jurisprudence (fiqh):

• Shari : something that is clearly defined in the shariah.
• Urfi : conventional or common tradition. An Urfi definition is acceptable to the common people without any scientific or shari precision.
• Ilmi : a definition presented by science.

According to ‘Marriage and Morals in Islam’ by Sayyid Muhammad Rizvi, an Islamic scholar, if the shariah defines something, all Muslims must follow that definition. If the shariah is silent on an issue, Muslims should follow the Urfi definition.

The Urfi marriage has always existed, but for different reasons. In the past, it was common among the widows of soldiers who had huge pensions and they did not want to lose it by officially re-marrying. Now, however, it is mostly among university students and young couples who cannot afford the high cost of marriage.

Undocumented 'Urfi marriages are becoming increasingly popular among Egyptian youth. The high cost of marriage forces many young couples to wait several years before they marry. Conservative Egyptian society forbids sex before marriage, so many young people consider the 'Urfi marriage a solution. 'Urfi marriages are conducted by a Muslim cleric in the presence of two witnesses. However, they are not officially registered and thus there are no legal financial bindings on the man. Couples married in this way often meet in secret and avoid the expense of renting an apartment. The 'Urfi marriage can be disastrous for the wife in legal terms. If the husband leaves her without granting her a divorce, she had no legal right to seek a divorce since 'Urfi marriage is considered illegal. Her husband could remarry. The wife is in a more difficult position. If the wife remarries, she can be accused of polyandry, which is punishable by seven years in prison in Egypt, or she could remain single for the rest of her life.

The new Egyptian law (passed in 2000) recognizes the woman's right to seek divorce from an 'Urfi marriage. However, the law denies her alimony and child support.

There are also controversial, unofficial "'Urfi" marriages, where a couple signs documents declaring themselves married. The couple does not inform their families of the marriage. Many Egyptian clerics are against this type of Urfi marriage calling it a cover for pre-marital sex.An extreme form of 'Urfi marriage is known as Zawag al-Urfi: to give prostitution an Islamic cover, some women enter into secret marriage contracts with their summer visitors. Known in Egypt, as Zawag al-Urfi. This contract is made without witnesses and typically ends in divorce by summer's end. Most of Egypt's Islamic scholars condemn this use of Zawag al-Urfi.