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Ijtihad, Rethinking Islam ( 25 March 2011, NewAgeIslam.Com)

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Compulsory Duties and Rights That Apply in A Nikah

By Nilofar Ahmed

THE Prophet (PBUH) is reported to have said, “The nikah is my Sunnah”, meaning that getting married and performing the nikah is not just a legal formality, but also an important example of the Prophet. This fact does not detract from the importance of the act of getting married, but it clarifies that a person who is not able to get married has not committed a sin.

The word ‘nikhun’ in Arabic means to bring together and to absorb. If a man and a woman are to become absorbed in one another, a minimum, basic condition will, therefore, be the mutually agreeing of both the parties to perform the nikah, which is expected to bring them together as partners for the rest of their lives. They must, therefore, be clear on the conditions, compulsory duties and rights that apply to them in a marriage.

In Islam marriage is a mutual, legal contract in which both parties agree about each and every article of the agreement, which has been called a “strong bond” (4:21). The articles can be anything that does not go against the tenets of Islam. It is not a holy sacrament which would tie individuals in a divine bond. This means that the contract can also be revoked according to the strict conditions as specified in the Quran in Surah Al-Talaq, Surah Al-Baqarah and Surah Al-Nisa.

The very fact that the woman and the man are asked, at the time of the nikah, if each one is willing to go through with it, means that without their consent the nikah is invalid. The Quran asks the believers not to marry women forcefully: “O you who believe! You are not permitted to inherit women by force” (4:19). Contextually, this refers to the pre-Islamic custom of the inheriting of widows, but in a broader sense it can also refer to forced marriages, which have become common in many Muslim societies.

The nikah should not be a secret affair and should preferably be performed in front of the guests as a formal announcement.

This way the guests will also be witness to, and share in, the good deed that is performed. Maulana Umar Ahmed Usmani says that the presence of two witnesses is absolutely essential at the nikah. They should be two men or two women who are just, adult and Muslim and are aware of all that goes into a Muslim marriage.

According to custom, a just wali or legal guardian should be present. The Hanafi school of thought sanctions the appointment of a wakil of her choice by a woman acting at her behest. The man and woman desiring to be married should ideally be of equal standing. This standing, according to modern norms, could refer to one’s social, financial and educational status or compatibility in age. The woman should not be in her forbidden period of iddah in relation to recently having lost her husband through death or divorce.

The mehr, or the wealth given to the bride by the groom at the time of marriage, is also one of the conditions of nikah and should be agreed upon by both the parties. The mehr should preferably be given to the bride on the first day. Sometimes, the bride never gets to see the mehr since the father or brother of the bride get hold of it. This gives the impression of a sale, and for all practical purposes it may very well be. The mehr belongs to the woman and no one else has a right over it. She must return this if she later demands a divorce (2:229).

After the woman gives her permission, the one performing the nikah should first read the khutba of nikah and alsorecite the istighfar. The amount of mehr agreed upon should also be announced. The groom should then state clearlythat he has accepted the nikah, after which the bride and the groom are legally man and wife and have the right to start their life together, which should not be delayed for minor reasons.

Another condition of the nikah in Pakistan is mentioned in a column in the official form or nikahnama, which originally stated that a woman would be allowed to initiate the divorce if the husband agreed to this condition. Most families think that mentioning divorce at the time of nikah is inauspicious. Some qazis regard this condition as being against the Sharia. However, it is the law that now applies regardless of the man’s consent.

There are also some unwritten conditions of the nikah which are understood: the bride and groom should be of marriageable age, there should be no expectation or demand of a dowry or jahez from the groom’s family, the financial support of the wife is the duty of the husband, and neither partner has the right to force the other to cut off relations with his or her parents.

It is said in the Quran, “O Prophet, We have made permissible for you the wives whose dower you have paid” (33:5). If the Prophet was supposed to pay mehr to the women that he chose to marry, it is clear that no marriage is valid without it.

In South Asia, often a huge amount of mehr is agreed upon but never paid. Sometimes the woman is asked to forgive the mehr at the husband’s deathbed or funeral. All those indulging in wrong practices, such as advocating forced marriages, marrying off and handing over minor girls to considerably older men, not paying the mehr, or taking away the mehr from the bride, should be careful, for they are going against the teachings of the Prophet.

Source: The Dawn