Marriage
|
|
Marriage |
|
The relation between man and woman becomes lawful by contracting marriage. There are two kinds of marriage:
(i) Permanent marriage
(ii) Fixed-time (temporary) marriage
In a permanent marriage, the period of matrimony is not fixed, and it is forever. The woman with whom such a marriage is concluded is called Da'imah (i.e. a permanent wife).
In a fixed time marriage, the period of matrimony is fixed, for example, matrimonial relation is contracted with a woman for an hour, or a day, or a month, or a year, or more. However, the period fixed for the marriage, should not exceed the span of normal lives of the spouses, otherwise the marriage contract will be void. The woman with whom such a marriage is concluded is called -Mut`ah- or Munqati`ah.
1112. Whether marriage is permenent or temporary, the formal formula must be pronouncesd; mere tacit approval and consent, or written agreement, is not sufficient. And the formule (Sighah) of the marriage contract is pronounced either by the man and the woman themselves, or by a person who is appointed by them as their representatives to recite it on their behalf.
1113. The representative should not necessarily be a male. A woman can also become a representative to pronounce the marriage formula.
1114. As long as the woman and the man are not certain that thier representative has pronounced the formula, they cannot look at each other as mah ran (like husband and wife) and a more probable suspicion that the representative might have pronounced the formule is not sufficient. And if the representative says that he has pronounced the formula, but his assertion does not satisfy the parties concerned, as an obligatory precaution, it will not be deemed sufficient.
1115. One person can act as the representative of both sides for reciting the formula of permanent or temporary marriage. It is also permissible that a man may himself become the representative of a woman and contract permanent or temporary marriage with her.
1116. If a woman and a man themselves want to recite the formula of permanent marriage, after determining Æidaq (marriage settlement or Mahr), the woman shuold first say: Zawwajtuka nafsi `alas-Æidaq-il-ma`lum (i.e. I have made myself your wife on the agreed Mahr), and then the man should immediately respond thus: Qabilt-ut-tazwij (i.e. I accept the marriage). In this way, the marriage contract will be in order. And if a woman and a man appoint other persons to act as their representatives for pronouncing the formula of marriage, and if, for example, the name of the man is Ahmad and that of the woman is Fatimah, the representative of the woman should first say: -Zawwajtu muwakkilaka Ahmad muwakkilati Fatimah `alas-Æidaq-il-ma`lum” - (i.e. I have given to your client Ahmad in marriage my client Fatimah on the agreed Mahr) and thereafter the representative of the man should immediately respond thus: ~Qabilt-ut-tazwija li-muwakkili Ahmad alas-Sidaq-il-malum” (that is, I accepted this matrimonial alliance for my cliently Ahmad on the agreed Mahr). Now the marriage contract is in order. And, on the basis of recommended precaution, it is necessary that the words uttered by the man should conform with those uttered by the woman; for example, if the woman says, “Zawwajtuka… ( i.e. I have made myself your wife…) the man should also say, “Qabilt-ut-tazwija… ( i.e. Iaccept the matrimonial alliance…) and not “Qabilt-un-nikaha…
1117. It is permissible for a man and a woman to recite the formula of the temporary marriage, after having agreed on the period of maniage and the amount of Mahr. Hence, if the woman says: “Zawwajtuka nafsi fil-muddat-il-ma`lumati `al-al-mahr-il-ma`lum”. (i.e. I have made myself your wife for an agreed period and agreed Mahr), and then the man immediately responds thus: ~Qabiltu” (i.e. I have accepted), the marriage will be in order. And the marriage will also be in order if they appoint other persons to act as their representatives. First, the representative of the woman should say to the representative of the man thus: “Zawwajtu muwakkilati muwakkilaka fil-muddat-il-ma`lumati `al-al-mahr-il-ma`lum” (i.e. I have given my client to your client in marriage for the agreed period and the agreed Mahr), and then the representative of the man should immediately respond thus: “Qabilt-ut-tazwija il-muwakkili hakadha” (i.e. I accepted this matrimonial alliance for my client this way).
1118. There are certain conditions for reciting the marriage formula. They are as follows:
(i) On the basis of precaution, the formula marriage contract (sighah should be pronouced in correct Arabic. And if the man and the woman cannot pronounce the formula in correct Arabic, they can pronounce, it in any other language, and it is not necessary to appoint any representatives. But the words used in translation must convey strictly the meaning of “Zawwajtu” and “Qabiltu”.
(ii) The man and the woman or their representatives, who recite the Sighah, should have the intention of Insha' (i.e. reciting it in a creative sense, making it effective immediately). In other words, if the man and the woman themselves pronounce the formule, the intention of the woman by saying, “Zawwajtuka nafsi”, should be that she effectively makes herself the wife of the man; and by saying, “Qabilt-ut-tazwija”, the man effectively accepts her as his wife. And if the representatives of the man and the woman pronounce the Sighah, their intention by saying, “Zawwajtu”, and “Qabiltu”, should be that the man and the woman who have appointed them as their representatives, have effectively become husband and wife.
(iii) The person who pronounces the Sighah (whether he pronounces it for himself or has been engaged by some other person as his representative) should be sane, and he should be Bàligh also, if he pronounces it for himself. And as a precaution the formula pronounced by a minor who is discerning for another person is not sufficient, and if he pronounced, they should be devorced or the formule should be uttered again.
(iv) If the Sighah is pronounced by the representatives or the guardians of the man and the woman, they should identify the man and the woman by uttering their names or making intelligible signs towards them. Hence, if a person has more than one daughters, and he says to a man, “Zawwajtuka ihda banati” (i.e. I have given away one of my daughters to you as your wife), and the man says, “Qabiltu” (i.e. I have accepted), the marriage contract is void, because the daughter has not been identified.
(v) The woman and the man should be willing to enter into a matrimonial alliance. If, however, they ostensibly display hesitation while giving their consent, but it is known that in their heart, they are agreeable to the marriage, the marriage is in order.
1119. If, while reciting the Sighah, even one word is pronounced incorrectly, as a result of which its meaning is changed, the marriage contract would be void.
1120. If a girl who has reached the age of Bulugh and is virgin and mature (i.e. she can decide what is in her own interest) wishes to marry, she should, obtain permission from her father or paternal grandfather, although, as a precaution, she may be looking after her own affairs. it is not, however, necessary for her to obtain permission from her mother or brother.
1121. In the following situations, it will not be necessary for a woman to seek the permission of her father or paternal grandfather, before getting married:
(i) If she is not a virgin.
(ii) If she is a virgin, but her father or paternal grandfather refuse to grant permission to her for marrying a man who is compatible to her in the eyes, of shariah, as wellas custom.
(iii) If the father and the grandfather are not in any way willing to participate in the marrinage.
(iv) If they are not in a capacity to give their consent, like in the case of mental illness etc.
(v) If it is not possible to obtain their permission becouse of their absence, or such other reasons, and the woman is eager to get married urgently.
1122. If the husband comes to know after the marriage contract that his wife had, at the time of the contract, any one of the following six deficiencies, he can annul the marriage.
(i) Insanity, even if it is intermittent.
(ii) Leprosy
(iii) Vitiligo.
(iv) Blindness.
(v) Being crippled, even if it is not to the extent of immobility.
(vi) Presence of flesh or a bone in the woman's uterus, which may or may not obstruct sexual intercourse or pregnancy. And if the husband finds that the wife at the time of the marriage contract, suffered from Ifda meaning that her urinary duct and menstrual passage, or her menstrual passage and rectum have been one, his being able to annul the marriage is a matter of Ishkal, and as an obligatory precaution, he will have to pronounce the formula of divorce if he wants to dissolve the marriage.
1123. A woman can annul the marriage contract in the following cases, without obtaining divorce:
(i) If she comes to know that her husband has no male organ.
(ii) If she finds that his penis has been cut off before or after the sexual intercourse.
(iii) If he suffers from a disease which disables him from sexual intercourse, even if that disease was contracted after the marriage contract and before or after the sexual intercourse.
In the following situations as an obligatory precaution, the woman should not annul the marriage, and if she did so, the precaution is to contract marriage again if they want to continue with the matrimony, and if they want to part, the formula of divorce should be pronounced:
(i) If she comes to know after the marriage contract, that the husband was insane at the time of the contract; or if he becomes insane after the contract, before or after consummation of the marriage.
(ii) If she finds out that at the time of the marriage contract the husband had been castrated.
(iii) If she learns that he suffered at the time of the marriage contract from lepsory or vitilgo, or blindness.
In the case when the husband is incapable of sexual intercourse, and she wishes to annul the marriage, it will be necessary for her to approach the Mujtahid or his representative, who may allow the husband a period of one year, and if it is found that he was not able to have sexual intercourse with her or with any other woman, the wife can annul the marriage.
1124. If the wife annuls the marriage because of the husband's inability to have sexual intercourse, the husband should give her half of her Mahr. But, if the man or the wife annuls the marriage because of one of the other deficiencies enumerated above, and if the marriage has not been consummated, he will not be liable for any thirig. Butif the marriage was consummated, he should pay her full Mahr.
1125. If a man or woman is described to another better than he/she is, in order to interest the other person in the marriage, either the description is made during the marriage contract or before it, and it is known after the contract that it has not been true, the other can annul the marriage, provided that the marriage has occured based on that description. This rule is explained in defail in other books like Minhaj-us-salihin.
1126. Matrimonial relation is Halal (allowed) with women who are one's Maåram, for instance, mother, sister, daughter, paternal aunt, maternal aunt, niece (one's brother's or sister's daughter) and mother-in-law.
1127. If a man marries a woman, then her mother, her maternal grandmother, her paternal grandmother and all the women as the line ascends are his Maåram, even if he may not have sexual intercourse with the wife.
1128. If a person marries a woman and has sexual intercourse with her, the daughters and grand-daughters (daughters of sons, or of daughters) of the wife and their descendants, as the line goes low, become his Maåram, irrespective of whether they existed at the time of his marriage, or were born later.
1129. If a man marries a woman but does not have sexual intercourse with her, the obligatory precaution is that as long as their marriage lasts, he should not marry her daughter.
1130. The parternal and maternal aunt of a man, and the parternal and maternal aunt of his father, and the parternal and maternal aunt of his paternal grandfather and grandmother, and the paternal and maternal aunt of his mother, and the paternal and maternal aunt of his maternal grandmother and grandfather, as the line ascends, are all his Mahram
1131. The husband's father and grandfather, however high, are the wife's Mahram Similarly the husband's sons and the grandsons (son of his sons or of daughters), however low, are her Maåram, regardless of whether they existed at the time of her marriage or were born afterwards.
1132. If a man marries a woman (whether the marriage be permanent or temporary) he cannot marry her sister, as long as she is his wife.
1133. If a person gives a recovable divorce to his wife, in the manner which will be explained under the rules relaiting to divorce, he cannot marry her sister during the Iddah. But if it is an irrevocable divorce, he can marry her sister. And if it is the Iddah of temporary marriage, the obligatory precaution is that one should not marry her sister during that period.
1134. A man cannot marry the niece (brother's or sister's daughter) of his wife without the wife's permission. But if he marries her nieces without his wife's permission and she later consents to the marriage, it will be in order.
1135. If the wife learns that her husband has married her niece (brother's daughter or sister's daughter) and keeps quiet, and if she later consents to that marriage, it will be in order. But if she does consent later, the marriage will be void.
1136. If before marrying his maternal or paternal aunt's daughter, a person commits incest (sexual intercourse) with her mother, he cannot marry that girl on the basis of precaution. But if he commits fornication with another woman, her daughter will not become Halal (allowed) for him, however, the recommended precaution is not to marry her.
1137. A Muslim woman cannot marry a non-Muslim, and a male Muslim also cannot marry a non-Muslim woman who is not Ahl-ul-Kitab (follower of the Divine Book). However, there is no harm in contracting temporary marriage with Ahl-ul-Kitab like Jewish and Christain women, but the obligatory precaution is that a Muslim should not take them in permanent marriage. As an obligatory precaution, a Muslim man should not marry a Magian woman, even if temporarily.
1138. If a person commits fornication with a woman who is in the Iddah of her revocable divorce, as a precaution that woman becomes Halal (allowed) for him. And if he commits fornication with a woman who is in the Iddah of temporary marriage, or of irrevocable divorce, or in the Iddah of death, he can marry her afterwards. The meaning of revocable divorce and irrevocable divorce, and Iddah of temporary marriage, and Iddah of death, will be explained in the rules relating to divorce.
1139. If a person commits fornication with a husbandlees woman and who is not in Iddah, as a precaution, he cannot marry her till he has sought forgiveness from Allah, and repented. But if another person wishes to marry her before she has repented, there is no objection. If a woman is commonly known as a fornicatress, it will not be permissible, as a precaution, to marry her till she has genuinely repented, and similarly, it is not permissible to marry a man commonly known as a fornicator, till he has genuinely repented. If a man wishes to marry a fornicatress woman, he should, as a recommended precaution, wait till she menstruates, irrespective of whether he had committed fornication with her, or anyone else had done so.
1140. If a person contracts marriage with a woman who is in the, Iddah of another man, and if both the man and the woman or any one of them knows that the Iddah of the woman has not yet come to an end, and if they also know that marrying a woman during her Iddah is Halal (allowed), that woman will become Halal (allowed) for the man forever, even if after the marriage contract the man may not have had sexual intercourse with her. And if both of them are ignorant about the rule of Iddah, or about being Halal (allowed) to marry during Iddah, the marriage contract is void. Then if they had sexual intercourse they become Halal (allowed) to each other for ever. Otherwise they do not become Halal (allowed) and they can marry again after the completion of Iddah.
1141. If a person marries a woman knowing that she has a husband, he should get separated from her, and should also not marry her at any time afterwards. And the same rule will apply, as a precaution, if he did not know that the woman had a husband, and had sexual intercourse with her afetr the contract.
1142. If a married woman commits adultery, she, on the basis of precaution, becomes Halal (allowed) permanently for the adulterer, but does not become Halal (allowed) for her husband. And if she does not repent, and persists in her action (i.e. continues to commit adultery), it will be better that her husband divorces her, though he should pay her Mahr.
1143. In the case of the woman who has been divorced, or a woman who contracted a temporary marriage and her husband forgoes the remaining period of marriage, or if the period of the temporary marriage ends, if she marries after some time, and then doubts whether at the time of her second marriage, the Iddah of her first husband had ended or not, she should ignore her doubt.
1144. If a Bàligh person commits sodomy with a boy, the mother, sister and daughter of the boy become Halal (allowed) for him, even if the penetration is less than the limit of circumcision. And the same law applies, as an obligatory precaution, when the person on whom sodomy is committed is an adult male, or when the person committing sodomy is non-Bàligh. But if one suspects or doubts whether penetration occurred or not, then the said women would not become Halal (allowed). Also mother, sister and daughter of the person committing sodomy are not Halal (allowed) for the person on whom sodomy is committed.
1145. If a person marries the mother, daughter, or sister of a boy or man, and commits sodomy with the boy or man after the marriage, as a precaution, they will become Halal (allowed) for him.
1146. If a man does not perform Tawaf-un-nisa (which is one of the acts to be performed during Åajj and Umrat-ul-mufradah) his wife and other women become Halal (allowed) for him. Also, if a woman does not perform Tawaf-un-nisa, her husband and other men become Halal (allowed) for her. But, if they (man or woman) perform Tawaf-un-nisa later, they becomeHalal (allowed). If a person who did not perform Tawaf-un-nisa marries, his or her marriage will be in order, provided that he or she has completed the Ihram after performing Halq or Taqsir.
1147. If a person contracts Nikàå with a non-Bàligh girl, it is Halal (allowed) to have sexual intercourse before she has completed her nine years. But if he commits sexual intercourse with her, she will not be Halal (allowed) for him when she becomes Bàligh, even if she may have suffered Ifda (which has been described in rule 1132), but in this case he should pay its Diyah, which is equal to that of killing a human, and pay her maintenance for ever, even after her divorce and even if she marries another person after the divorce.
1148. A woman who is divorced three times, between which to returns or marriage contract has occured, becomes Halal (allowed) for her husband. But, if she marries another man, subject to the conditions which will be mentioned under the rules pertaining to divorce, her first husband can marry her again after her second husband dies, or divorces her, and she completes the period of Iddah.
1149. For a woman with whom permanent marriage is contracted, it is Halal (allowed) to go out of the house without the permission of her husband, though her leaving may not violate the rights of the husband, except when helpless or when staying in the house has a difficulty for her or the house does not fit her. Also she should submit herself to his sexual desires, and should not prevent him from having sexual intercourse with her, without justifiable sexuse. And as long as she does not fail in her duties, it is obligatory on the husband to provide for her food, clothes and housing. And if he does not provide the same, regadless of whe ther he is able to provide them or not, he remains indebted to the wife. Also of the wife's rights is that the husband should not annoy or hurt her, and should not treat harshly or be rude with her, without justifiable excuse.
1150. If the wife does not fulfil her matrimonial duties towards her husband, she will not be entitled for the food, clothes or housing, even if she continues to live with him. But if she refuses to obey occasionally, the obligatory precaution is that she is entitled for the food etc., but in the case of refusing sexual intercourse, there is no doubt that she does not forfeit her Mahr.
1151. Man has no right to comple his wife to render household services.
1152. The expenses in a journey incurred by the wife must be borne by the husband, if she had travelled with the husband's permission, even if these expenses exceed her expenses at home. But the fares for travel by car or by air etc., and other expenses, which are necessary for a journey, will be borne by the wife, except when the husband is himself inclined to take her along with him on a journey, in which case he will bear her expenses also, and this applies also when the journey is necessary like a journey for treatment.
1153. If the husband who is responsible for the wife's maintenance, does not provide her the same, she can draw her expenses from his property without his permission. And if this is not possible, and she is obliged to earn her livelihood, and she cannot take her case to the Mujtahid, who would comple him to pay the maintenance, it will not be obligatory upon her to obey husband while she is engaged in earning her livelihood.
1154. If a man, for example, has two wives and spends one night with one of them, it is obligatory on him to spend anyone of four nights with the other as well; in situation other than this, it is not olbigatory on a man to stay with his wife. Of course, it is necessary that he should not totally forsake living with the wife. And as a precaution, a man should spend one night out of every four with his permanent wife.
1155. It is not permissible for the husband to abandon sexual intercourse with his youthful, permanent wife for more than 4 months, except when sexual intercourse is harmful to him, or involves unusually more effort, or when the wife herself agrees to avoid it, or if a prior stipulation to that effect was made at the time of Nikàå by the husband. And in this rule, there is no difference between the situations when the husband is present, or on a journey, and then it is not permissible for a man to go to an unnecessary travel for more than four months, without any excuse or without his wife's permission.
1156. If Mahr is not fixed in a permanent marriage, the marriage is in order. And in such case, if the husband has sexual intercourse with the wife, he should pay her proper Mahr which would be in accordance with the Mahr usually paid to woman of her category. As regards temporary marriage, however if Mahr is not fixed the marriage is void, even if it may be due to ignorance or forgetfulness.
1157. If at the time of Nikàå for permanent marriage, no time is fixed for paying Mahr, the wife can prevent her husband from having sexual intercourse with her before receiving Mahr, irrespective of whether the husband is or is not able to pay it.
But if she once agrees to have sexual intercourse before taking Mahr, and her husband has sexual intercourse with her, then she cannot prevent him afterwards from having sexual intercourse without a justifiable excuse.
1158. Contracting a temporary marriage with a woman is in order, even if it may not be for the sake of any sexual pleasure. But the woman can not stipulate that the man should not have any sexual pleasure with her.
1159. The obligatory precaution is that a husband should not avoid having sexual intercourse for more than four months with a young wife of temporary marriage.
1160. If a woman with whom temporary marriage is contracted, makes a condition that her husband will not have sexual intercourse with her, the marriage as well as the condition imposed by her will be valid, and the husband can then derive only other pleasures from her. However, if she agrees to sexual intercourse later, her husband can have sexual intercourse with her, and this rule applies to permanent marriage as well.
1161. A woman with whom temporary marriage is contracted, is not entiled to subsistence even if she becomes pregnant.
1162. A woman with whom temporary marriage is contracted, is not entitled to any bed remuneration, and does not inherit from him, and the husband, too, does not inherit from her. However, if one or both lay down a condition regarding inheriting each other, the validity of such a stipulation is a matter of Ishkal, but even the precaution should be exercised by putting it into effect.
1163. If a woman with whom temporary marriage is contracted, did not know that she was not entitled to any subsistence and bed remuneration, still her marriage will be valid, and inspite of this lack of knowledge, she has no right to claim anything from her husband.
1164. It is Halal (allowed) for a wife of temporary marriage to go out of the house without the permission of her husband, if the right of the husband is in anyway violated. And if the right of her husband remains protected, it is a recommended precaution that she should not leave the house without his premission.
1165. If a woman empowers a man that he may contract a temporary marriage with her for a fixed period and with a specified amount of Mahr, and instead, that man contracts a permanent marriage with her, or contracts a temporary marriage with her for any time or with an amount of Mahr other than the specified time or Mahr, the marriage will be void. But if the woman consents to it when understanding the position, the marriage will be valid.
1166. In order to become Maåram (with whom marriage contract becomes Halal (allowed) and is treated to be one of the close relatives), a father or a paternal grandfather can contract the marriage of his non-Bàligh son or daughter with another person for a short period, provided that it does not involve any scandal or moral lapse. However, if they marry a minor boy or a girl who is not in anyway able to derive any sexual pleasure during the period from the spouse, then the validity of such a marriage is a matter of Ishkal.
1167. If a husband gifts the wife of Muta'h with the period of her temporary marriage, thus releasing her, and if he has sexual intercourse with her, he should give her all the things he agreed to give her. And if he has not had sexual intercourse with her, it is obligatory on him to give her half the amount of Mahr.
1168. If a man contracted a temporary marriage with a woman, and its period has ended but the period of her Iddah has not ended vet, he is allowed to contract a permanent marriage with her or renew a contract for temporary marriage with her. But if the period of temporary marriage has not ended, and he contracts a permanent marriage with her, the contract will be void, except when he gifts her with the remaining time, and then contracts the marriage.
1169. It is Halal (allowed) for man to look at the body or hair of the non-Maåram women, regardless of whether it is with the intention of pleasure or not, and whether there is a fear of falling into sinful act or not. It is also Halal (allowed) to look at the faces and the hands, upto the wrists, of such women with the intention of pleasure, or if there is fear of falling into sinful act, and the recommended precaution is that one should not look at their faces or hands even without such an intention or fear. Similarly, it is Halal (allowed) for a woman to look at the body of non-Maåram man with the intention of pleasure or with a fear of falling into a sinful act, and as an obligatory precaution she shouldnot look even wothout that intention or fear, except places which are customarily not covered, like, his face, hands, head, neck and feet. She can look at these parts of a man without the intention of deriving any pleasure, or if there is no fear of being entrapped in any sinful act.
1170. To look at the body of a woman who would not care for Hijab, even if she were advised, is not Halal (allowed) provided that it does not lead to sinful act or sexual pleasure, and exictement, not is it with that intention; and in this rule, there is no distinction between a Muslim and a non-Muslim woman; and also between those parts, like their faces, thier hands, and other parts of heir bodies, which they normally do not cover.
1171. Woman should conceal her body and hair from a man who is non-Maharm, and as an obligatory precaution, she should conceal herself even from a nonBàligh boy who is able to discern between good and evil, and could probably be sexually excited. But she can leave her face and hands upto wrists uncovered in the presence of non-Maåram, providing that it is not with the intention of leading him to casting a sinful evil glance and there is no fear of his being enterapped in any sinful act; for in both these cases, she must cover them.
1172. It is Halal (allowed) to look at the private parts of a Bàligh Muslim, even if it is seen behind the glass or reflecting in the mirror or clean water etc.. As an obligatory precaution, it is also Halal (allowed) to look at the genitals of a non-Muslim, and of a discerning non-Bàligh child. However, wife and her husband can look at the entire body of each other.
1173. A man who is acquainted with a non-Maåram woman, should not, as a precaution, look at her photograph etc., provided that the woman is not a heedless, commonplace person, except her face or hands, looking at which will be permissible without pleasure or fear of being entrapped in sinful act.
1174. If a woman is rendered helpless by her disease, and if the treatment by a male doctor is more helpful to her, she can refer to him. And if that male doctor must look ta her to be able to treat her, or to tonuch her for that matter, there is on objection. However, if he can tre at her by looking at her, he should touch her body, and if he can treat her by touching her body, he should not look at her.
1175. If a person is obliged to look at the private parts of a patient for his/her medical treatment, he should, on the basis of obligatory precaution, place a mirror opposite him/her and look into it. However, if there is no alternative but to look directly at his/her private parts, there is no objection. Similarly, if the duration of regarding the genitals in the mirror would be longer than looking at them directly, the latter method be adopted.
1176. If a person gets entangled in Halal (allowed) acts owing to his not having a wife, it is obligatory for him to marry.
1177. If the husband makes it a condition before Nikàå, that the woman should be a virgin, and it transpires after Nikàå that she is not virgin, he can repudiate the marriage. However, he can deduct and take the difference between the Mahr usually paid for a virgin woman and the one who is not a virgin.
1178. It is Halal (allowed) for a man and a woman who are not Maårams, to be together at a private place where there is no one else, if it is feared to lead to immorality and scandal, even if it is a place where another person can easily arrive. But if there is no fear of any evil, there is no objection.
1179. If the man fixes the Mahr of the woman at the time of Nikàå, but intends not to give it, the marriage contract is in order, but he will be indebted to her.
1180. If the woman imposes a condition at the time of Nikàå that her husband will not take her out of the town, and the man also accepts this condition he should not take her out of that town against her will.
1181. It is not permissible for a woman to have an abortion, even if she has become pregnant as a resul of fornication or adultery, except when continuing the pregnancy results in an unbearable harm or difficulty, in which case abortion is permissiabe before the time when life enters the fetus, but this act is entitled to a Diyah. But after entering of life abortion is not permissible at all.
1182. If a woamn says that she has reached menopause, her word may not be accepted, but if she says that she does not have a husband, her word is acceptable, except when she is known to be unreliable, in which case, as a precauton investigation will be necessary.
1183. Until a son or a daughter completes two years of his/her age, his/her father cannot separate him/her from his/her mother because looking after the child is a common right for both fahter and mother. And as a precaution a child should not be separated from its mother till it is seven years of age.
1184. If a woman suckles a child with the conditions which will be mentioned in rule 1202, that child becomes Maåram of the following persons:
(i) The woman herself (i.e. the woman who suckles it) and she is called Rièà'iyyah mother (milk mother).
(ii) he husband of the woman (for the milk belongs to him); he is called Rièà'i father (milk father).
(iii) Father and mother of that woman and all intheir upward line, even if they are milk father and milk mother.
(iv) The children born of that woman, or those who are born to her later.
(v) The childeren of the children of the of that woman, however low, regardless of whether they are born of her children or her children had suckled them.
(vi) The sister and brother of that woman, even if they are her milk sister and milk brother.
(vii) Paternal uncle and paternal aunt of that woman, even if they are by milk, i.e. suckling.
(viii) Maternal uncle and maternal aunt of that woman, even if they are by milk, i.e. suckling.
(ix) The descendants of the husband of that woman, to whom milk belongs, even if they may be his milk children.
(x) Father and mother of that husband, to whom milk belongs, however high.
(xi) Sister and brother of the husband, to whom milk belongs, even if they may be his milk sister and brother.
(xii) Paternal uncle and paternal aunt and maternal uncle and maternal aunt of the husband, to whom milk belongs, however high, even if they are his milk uncles and aunts.
There are other persons also (details regarding whom will be given in the following rules) who become Maåram on account of suckling milk.
1185. If a woman suchles a child with the conditions which will be mentioned in rule 1202, the father of the child cannot marry the real daughters of that woman, and if any one of them happens to be wife already, his marriage becomes void.
1186. If a woman suckles a child with the conditions mentioned in rule 1202, the husband of that woman (to whom milk belongs) does not become Maåram of the sisters of that child. Also, the relatives of the husband do not become Maåram of the sisters and brothers of that child.
1187. If a woman suckles a child, she does not become Maåram of the brothers of that child. Moreover, the relatives of that woman do not becomeMaåram of the brother and sister of the child suckled by her.
1188. A man cannot marry a girl who has been suckled fully by his mother or grandmother. Also, if his step-mother suckles a girl from the milk belonging to his father, he cannot marry that girl. And if a person contracts marriage with a suckling girl, and there after, his mother or his grandmother or his step-mother suckles that girl, the marriage becomes void.
1189. A man cannot marry a girl who has been suckled fully by his sister, or by his brother's wife. And the position is the same if that girl is suckled fully by his brother’s wite. And the position is the same if that girl is suckled by that man's niece (sister's or brother's dauqhter) or the granddauqhter of his sister or the granddaughter of his brother.
1190. If a woman suckles the child of her daughter, i.e. her granddaughter, or grandson, the daughter will become Halal (allowed) for her own husband, and the same applies if she suckles the child of the husband of her son, the wife of her son who is the mother of the suckling child, does not become Halal (allowed) for her husband.
1191. If the step mother of a girl suckles the child of her husband, with the milk that belongs to the girl's father, as a precaution, like the precaution mentioned in rule 1195, girl becomes Halal (allowed) for her husband regardless of whether the child is the offspring of that very girl or of some other woman.
1192. The following are the eight conditions under which suckling child becomes the cause of being Maåram:
(i) That the child suchs the milk of a woman who is alive.
(ii) That the milk of the woman should be the product of a legitimate and legal childbearing, adultery. Hence, if the milk is proda ced without bearing a child or is for an illegitimate child and is produced breastfed to another child, the latter will not become Maåram of anyone.
(iii) That the child sucks milk directly from the breasts of the woman. hence, if milk is poured into its mouth, it has no consequence.
(iv) That the milk be pure and unadulterated.
(v) That the milk be of one husband only. Hence, if a breast-feeding woman is divorced and then she marries another man by whom she becomes pregnant, if the milk of the first pregnancy still continues from the breast till she gives birth to the other child, and she feeds any child eight times with the milk from her first pregnancy before giving birth, and feeds the same child seven times with the milk from the second pregnancy, after giving birth, that child will not become Maåram of anyone.
(vi) That the child does not throw up the milk due to illness. If it vomits the milk, the suckling has no effect.
(vii) The suckling should be of such quantity that it could be said that the bones of the child were strengthened and the flesh was allowed to grow by it. And if that cannot be ascertained, then if a child suckles for one full day and night, or if it suckles fifteen times, to its fill as will be explained later, it will be sufficient. But if it is known that in spite of the child having suckled for one full day and night, or for fifteen times the milk has not had any effect on the bones and the growth of flesh of the child, then one should not ignore exercising the precaution. And in this cases one should not marry one of those who may be Maåram, and should not look at the others as Mahram
(viii) That the child should not have completed two years of its age, and if it is suckled after it has completed two years of its age, it does not become Maåram of anyone. In fact, if, for example, it sucks milk eight times before completing its two years, and seven times after completing its two years, it does not become Maåram of anyone. But, if milk continues from the breast for more than two years since a woman gave birth to her child, and then she suckles some other child with that milk, that child will become Maåram of those who have been mentioned above.
1193. It is known from the pervious rule that there is three cirteria for the milk suckled in order to become Maåram:
1) The milk should be in such quantity that it could be said that the bones of the child were strengthened and the flesh was allowed to grow by it. And this should be due to the milk only and not with other food. However there is no objection if the other food is little and negligible. If two woman suckle a child in a manner that it can be said that the strengthening of the bones and growing of the flesh is partly due to the milk of one of them and partly due to other's milk, then both of them will be milk mothers; but if it is attributed to both of them, it does not result in becoming Mahram
2) The child should not eat food or such another's milk during one day and night. However if he or she eats drug, food or drinks water, so that it cannot be said that it has eaten food in between, there is no objection. The child should also such milk continually when necessary and it should not be stopped to such milk, and as an obligatory precaution the beginning of the day and night should be counted when the child is hungry and the end of it when it is saturated.
3) The child should such wilk fifteen times from one woman, and should not drink another’s wilk in between. However, there is no objection to eat food between them. Also there is no objection if some gap is allowed in between. The child should be suckled fully in each time, i.e. it should be hungry and suck milk till it is fully saturated without any gap, but if while sucking milk it pauses to breath or waits a little, so that it can be totally considered as one time, there is no objection.
1194. If a woman suckles several children from the milk of one husband, all of them become Maåram of one another, as well as of the husband, and of the woman who suckled them.
1195. A woman who suckles the brother of a person, does not become Maåram of that person.
1196. To suckle a child is first its mother's right, and the father cannot give it to another person, except when the mother demands payment for suckling and the father finds a wet-nurse who suckles freely or for lesser wages. In this case the father can give the child to the wet nurse. And then if the mother does not accept this and wishes to suckle the child herself, she should not demand any payment.
1197. It is better that a woman avoids suckling any and every child, because it is possible that she may forget as to which of them she has suckled, and later the two persons, who are Maåram to each other, may contract marriage.
1198. If a person wants that his sister-in-law (his brother's wife) may become his Maåram, some jurisprudents say that he may contract a temporary Nikàå with a suckling girl, for example, for two days, and during those two days, the wife of his brother may suckle that girl as mentioned in rule no 1202. By so doing, she will become his mother-in-law, and thus be Mahram But this is a matter of Ishkal, if the woman suckles the girl from his brother's milk.
1199. Suckling a child, which becomes the cause of cause of being Maåram, can be established by the following two ways:
(i) Information in this behalf by a number of persons whose word is reliable.
(ii) Two just men testify to this fact. It is, however, necessary that they should also mention the conditions of suckling the child. for example, they should be able to say, We have seen the child for twenty four hours, suckling milk from the breasts of the woman, and during this time it has not eaten anything else. And similarly, they should also narrate in detail, the conditions which have been mentioned in rule no. 1202. Witness by one just man plus two just women or by four just women for establishing that the child has suckled from a particular woman, is a matter of Ishkal.
1200. If it is doubted whether or not a child has sucked the quantity of milk which becomes the cause of becoming Maåram, or if it is considered probable that it might have sucked that quantity of milk, the child does not become Maåram of anyone, though it is better to observe precaution.
