By Shafeeq R. Mahajir
27th July 2020
Islam seeks to create legitimate relationships where, in the
relationship, specific status of wife is available to a lady as contrasted with
trends which then prevailed, and even today prevail where, on account of the
secular law proscribing more than one marital relationship, people increasingly
indulge in extra-marital affairs and illegitimate liaisons causing any amount
of disruption in both society as well as families.
Not being able to curb illegitimate or immoral behaviour patterns,
societies have turned their laws into a joke by “legitimising” these: can one
legitimise actions that threaten homes and families, the basic units of
society, and expect the resulting social order to be healthy and not prone to
promiscuity and debauchery? Since the answer to these questions is “No”,
necessary and logically its follows that the answer to the question “Does Islam
permit child marriages?” is necessarily “No. It does not.”
Islamic Law brought about changes in the existing situation restricting
wives (read legitimate relationships) that a man can have to a maximum of four.
Television serials and movies today merely reflect what has been for decades
seen in “modern” societies: complete breakdown of factors such as honesty, truthfulness,
reliability, loyalty, fidelity etc., insofar as marital relationships go,
inevitable break-up of homes creating individuals who grow up divorced from a
stabilizing influencing “envelop” of wholesome family life, accelerating
breakdown of values, principles, morals and ethics in society.
Once a man and woman marry, their relationship is governed by the law,
i.e., the Quranic injunctions and the Sunnah. A marriage contract has two
aspects: since it prevents vulgarity, promiscuity and illegitimate
relationships being established, protects a person from going towards sinful
conduct, it has religious connotations and is not merely a secular contract
alone.
Restriction over more than one marriage and the prevalence of monogyny
is usually not feasible in the reality of a morally and socially clean society
that Islam wants to build preventing promiscuity and illegitimacy of
relationships. Monogyny, if made law, simply pushes polygyny underground,
denuding women of right to maintenance and inheritance that the status of wife
would entitle them to.
Thus Islamic Law actually serves to protect rights of women, prevents
exploitation, etc. The fact is immediately appreciated if one casts a glance at
Western societies where promiscuity is highly prevalent and is most commonplace
for men to have relationships with almost any woman within their circle of
friends and associates, within their professional circles, etc., and the
extremely high rate of divorce the requirement of children being brought up by
single parents, the inability to take care of children, youngsters growing up
without any sense of being rooted in any cultural tradition or in a family’s
“socialising” setting causing problems of maladjustment and becoming misfits in
society, not having a sense of belonging, prone to crime, not having a proper
value system inculcated during formative years.
The reason why a girl is generally married with the consent of her
elders is that in many societies she is not as worldly-wise as a man exposed to
the outside world would be to be able to judge a person, and elder male family
members would be better equipped to evaluate the suitability of a man to become
her partner in life. Though people claim this is violation of the girl’s human
rights, courts have seen any number of “non-Muslim” cases where parents sought
custody of “an adult” girl who they believe married beneath their station,
against their wishes, or a person of another caste, etc., and there is in
society a tendency to ensure the person marrying takes a decision tempered with
the wisdom of elders who have experienced issues of adjustment based on
cultural, religious, linguistic diversity, differences in upbringing, etc.,
which cause greater strain on the marital relationship than in marriages
between people where so many different areas requiring adjustments were not
present.
The Quran says for divorced women there must be fair provision on a
reasonable scale. Now what is fair provision and what is a reasonable scale
would depend on individual circumstances. The question asked is “How can a
na-Mahram woman accept money from a na-Mahram man and considering that they are
no longer married to each other? The answer is that it is during that Iddat
period that this provision has to be made (as in decided, not as in handed
over) and it must be reasonable.
What is actually happening by a Civil Court’s direction for maintenance
to be paid to a Muslim woman even after the Iddat period is over, is
that the requirement of paying today itself a fair sum computed reasonably, is
broken up into a number of fragmented payments necessarily spread over time.
A full bench judgement of three judges of the Punjab and Haryana High
Court reported as 1998 (1) ALD (Crl) 546 (FB) holds the right of a divorced
Muslim wife is not restricted to Iddat period. 2001 (6) ALD 63 (SC) had
five Supreme Court judges hold the Muslim Women (Protection of Rights on
Divorce) Act, 1986 constitutionally valid held the husband is liable to make
reasonable provision for the future of the divorced wife. It is not confined to
the Iddat period and extends beyond the said period and it should be
made by the husband within the Iddat period.
In 2003 (3) ALD 220, the AP High Court held maintenance beyond Iddat period
would not be possible for divorced Muslim wife as of right unless it is settled
with the husband within the Iddat period. This beat understanding
because by the simple expedient of not coming to a settlement as regards the
figure, etc., within the Iddat period, the husband of a divorced lady
can evade his liability and legal obligation to maintain her.
AIR 2002 SC 3551 held that in Muslim Law, as ordained by the Holy Quran,
the postulate is that the talaaq must be for a reasonable cause, cannot be
without reason, must be preceded by an attempt of reconciliation between the
husband and the wife by two arbiters, one from the man’s side and one from the
lady’s side, and only if the attempts at this reconciliation fail, would a
talaaq be valid.
2004 (2) ALD (Crl) 162 saw the Court say that unless there is a valid
divorce as per the Supreme Court’s judgement (cited earlier) where has been an
effort at conciliation with one person from each side and only when that failed
was a valid divorce pronounced, the wife would continue to be entitled to
maintenance.
AIR 2010 SC 305 held the right of a Muslim woman under s.125 of the
Criminal Procedure Code to seek maintenance would continue even after the Iddat
period as long as she does not remarry and maintenance to be awarded is not
to be restricted for the Iddat period only.
Articles have been written by those, hostile to Islam showing that in
many countries where Shariah is applied in varying forms girls even below 15
years are often married, more in order to settle disputes than as regular,
honestly arranged marriages. These instances have nothing to do with Islamic
belief or the Shariah but are rooted in a feudalistic mindset attributable more
to customs and cultural realities of people who practice such things and not at
all to those who practice Islam per se and its teachings.
The problem of perception arises from the fact that under the Islamic
system of jurisprudence puberty is not linked to an arbitrary age but to the
changes that come about in the human body consequent up on the onset of
puberty. Can law seriously mean, and does the logical human mind honestly
contend, that one day short of 18 years a minor unable to contract and unable
to marry, yet 24 hours later has magically attained the capacity to contract
including contract a marriage? What is the mysterious sanctity or rationale of
this figure?
Recognizing that different people mature at different times and
different people have the sexual urge arise within them at different ages, what
does a person who has not attained aged of 18 years but who finds himself or
herself so strongly motivated by the desire to have natural legitimate
expression or outlet for his or her aroused physiological urge do until he or
she attains that magical ceiling age of 18?
To indulge in premarital relationships which carry within them the
threat (and seeds) of unfaithfulness, deceit, disloyalty, voyeurism, etc., is
loaded with potential to destroy a subsequent
marriage, potential to make society promiscuous, and to bring about an
attitude of unfaithfulness developing towards one’s closest partner, because
they already have such an intimate relationship with others outside the marital
tie. How loyal to his nation would a person be who is disloyal even to his wife
and uncaring about the impact of such conduct on his children?
It is because Islam lays emphasis on issues of faithfulness and loyalty
to spouses, and adherence to the injunctions of religious character in the
matter, that it has flexibility built into age-related jurisprudence which
enables a person who is ready for marriage on account of changes within his or
her body to legally contract a marriage and within the four corners of the law,
find legitimate Halala expression for his or her natural physiological
yearnings without violating the law, without threatening the societal set-up in
which he or she lives, avoiding feeling guilt or criminality, and in such
manner as to retain for the individual self-respect that comes from knowing
that he or she has conducted himself or herself in a noble upright manner,
consistent with the law, and more becoming of what a Muslim is expected to be.
Viewed in this context we see that Islamic Law in so far as marriage is
concerned is something that factors into itself the needs of protecting society
and preserving standards of conduct, the diverse needs of individuals which
would vary between persons, cultures, societies and climatic conditions. People
in hot countries (Arab nations, African desert areas) mature earlier than
others. There would be perfectly logical reasons why girls there would marry
earlier than in colder regions.
There is a lot of inappropriate discussion to persons of that time
alleging that they married minors. The problem is that people who make these
adverse comments do not approach the matter with a spirit of honest inquiry,
but are usually searching for reasons to denigrate Islam and project it as
something which is inconsistent with “modern” view of human rights and
therefore “old fashioned” or “obsolete”: it is alleged that the Islamic Law of
marriage is inconsistent with human rights of girls and permits people to marry
minors.
Refusal of people to see that Islamic Law is in consonance with nature,
or dislike for what they arbitrarily conclude is oppression clothed as Islamic
injunction, does not either denude it of its validity or derogate from its
logic, however much discomfiture it may cause them to know that it is Islamic
Law alone which is in consonance with nature and all other systems of law
impose on the human condition a set of rules and regulations which are
inconsistent with nature.
People exposed to Western promiscuity and flexibility in relationships,
live-in-relationships outside marriage, “single parents” not knowing who the
child’s father is, believing the state of affairs “acceptable”, are unable to
understand and appreciate Islamic views with regard to marriage.
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Shafeeq R. Mahajir is a well-known lawyer based
in Hyderabad
Original Headline: The logic of Islam in
relation to marriage
Source: The Siasat
URL: https://newageislam.com/islam-women-feminism/islamic-law-relation-marriage-protects/d/122851
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