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Islamic Sharia Laws ( 13 Feb 2013, NewAgeIslam.Com)

Open Marriage and Objectives of Shariah

 

 

By Dr. Wael Shihab

11 February 2013

Concepts of “girlfriends”, “boyfriends”, “open marriages”, and “Polyagmory” are alien to Islam and its Shariah.

Islamic Shariah (law) pays great attention to marriage as it is the straight path towards establishing strong and healthy human communities. 

Shariah, therefore, lays down the basic foundations that guarantee the stability and wellbeing of married couples. For instance, the consent of both parties—the prospective wife and husband—is a condition per se for the validity of “Islamic” marriage.

Prospective spouses are Islamically recommended to consider important factors—such as social, educational, cultural, and religious compatibility—so as to lead a happy marital life.

Moreover, preserving one’s lineage and offspring is one of the main essential objectives of Islamic Shariah that almost all Muslim scholars agree on. Imam al-Ghazali (d. 505 AH), for instance, specifies five objectives of Shariah, saying,

Maslahah (considerable benefit), which we are concerned about here, means the protection of the objectives of shar` (Islamic law), namely the preservation of religion, life, offspring, reason, and property. Anything that furthers theses five objectives is maslahah, and anything that runs contrary to them ismafsadah (harm).[1]

The Maliki jurist, Shihab ad-Din al-Qarafi (d. 684 AH) has added a sixth to the above list of five objectives of Shariah, namely the protection of `ird (honor).

Ibn `Ashur (d. 1973), who has been known for his deep study and profound knowledge of the objectives of Shariah, has opened the scope of the Maqasid (objectives of Shariah) to include the preservation of the social order, promotion of the wellbeing and righteousness (salah) of the community, preservation of the family, etc.[2]

Given the above, Islamic marriage aims, among others, at securing happiness, wellbeing, and prosperity of married couples, families, children, and the whole society at large. Happy, stable marriages lead, of course, to sound, strong families and communities. Therefore, preservation of the family, the offspring, and the social order is greatly emphasized and promoted by Islamic Shariah.

Open, Closed, and Islamic Marriages

Open marriage refers to a marriage in which the partners agree that each may engage in extramarital sexual relationships, without this being regarded as infidelity. There are many different styles of open marriage, with the partners having varying levels of input on their spouse's activities.

The origins of the term ‘open marriage’ remain obscure. Researchers in the 1960s used the term open marriage to describe individual freedom in choosing marriage partners. Closed marriage meant individuals had to marry someone based on social prohibitions and social prescriptions. Open marriage meant individuals could choose to marry someone based on personal preferences.

The Qur’an describes marriage contract as a sacred bond and calls on married couples to observe kindness, true love, and marital rights and duties.

However, Nena O'Neill and George O'Neill changed the meaning of the term with the 1972 publication of their book “Open Marriage”. The O'Neills conceived open marriage as one in which each partner has room for personal growth and can develop outside friendships.

These concepts, and others, entered the cultural consciousness and the term "open marriage" became a synonym for sexually non-monogamous marriage.

In the 1977 publication of “The Marriage Premise”, Nena O'Neill advocated sexual fidelity in the chapter of that name. By then however, the concept of open marriage as sexually non-monogamous marriage had gained a life of its own.

Couples in open marriages may prefer different kinds of extramarital relationships. Couples who prefer extramarital relationships emphasizing love and emotional involvement have a polyandrous style of open marriage. Couples who prefer extramarital relationships emphasizing sexual gratification and recreational friendships have a swinging style of open marriage.[3]

Apparently, the Islamic concept of marriage is totally different from the above “open” styles of marital relationships. Though Islam gives prospective spouses freedom of choice when choosing husbands or wives, it considers “marriage contract” as a sacred, solemn bond that entails specific mutual rights, duties, values, and responsibilities that should not be violated.

The Qur’an describes marriage contract as a sacred bond and calls on married couples to observe kindness, true love, and marital rights and duties. The Qur’an says,

{O mankind! Be careful of your duty to your Lord Who created you from a single soul and from it created its mate and from them twain has spread abroad a multitude of men and women. Be careful of your duty toward Allah in Whom you claim (your rights) of one another, and toward the wombs (that bare you). Lo! Allah has been a Watcher over you.}[4]

{O you who believe! It is not lawful for you forcibly to inherit the women (of your deceased kinsmen), nor (that) you should put constraint upon them that you may take away a part of that which you have given them, unless they be guilty of flagrant lewdness. But consort with them in kindness, for if you hate them it may happen that you hate a thing wherein Allah has placed much good. And if you wish to exchange one wife for another (for valid acceptable reasons) and you have given unto one of them a sum of money (however great), take nothing from it. Would you take it by the way of calumny and open wrong? How can you take it (back) after one of you has gone in unto the other, and they have taken a strong pledge (a sacred bond) from you?}[5]

Islamic marriage is, in fact, one of the great favours, gifts, and signs of Allah Almighty. The noble Qur’an says,

{And of His signs is this: He created for you helpmeets (spouses) from yourselves that you might find rest in them, and He ordained between you love and mercy. Lo, herein indeed are portents for folk who reflect.}[6]

Islamic marriage, as far as Shariah is concerned, is meant to build happy, stable, and prosperous family, to raise healthy committed children, to preserve offspring and social order, to satisfy human physical and psychological needs, and to create sound faithful communities and societies.

In order to secure the happiness and prosperity in the marital life, Islam prescribes specific morals, values, and mutual rights and obligations for both the husband and wife.

In Islamic marriage, there is no place for extramarital relations in whatever way or form. Concepts of “girlfriends”, “boyfriends”, “open marriages”, and “Polyagmory” are alien to Islam and its Shariah. Though the concept of “close marriage” may seem close to “Islamic marriage”, the latter has its distinctive features, values, and laws that could guarantee happiness and prosperity of married couples, offspring, and social communities.

Islamic Marriage: Mutual Rights and Duties

In order to secure the happiness and prosperity in the marital life, Islam prescribes specific morals, values, and mutual rights and obligations for both the husband and wife. Blew is a brief clarification of the rights and duties of married couples in Islamic marriage:

A-The Wife's Rights; the Husband's Obligations:

Because the Qur'an and the Sunnah of the Prophet (peace and blessings of Allah be upon him) have commanded kindness to women, it is the husband's duty to:

1- Consort with his wife in an equitable and kind manner. Allah Almighty says, {… consort with them in kindness.}[7]

2- Have responsibility for the full maintenance of the wife, a duty which he must discharge cheerfully, without reproach, injury, or condescendence. Allah Almighty says: {Let him who has abundance spend of his abundance, and he whose provision is measured, let him spend of that which Allah has given him. Allah asks naught of any soul save that which He has given it. Allah will vouchsafe, after hardship, ease.?}[8]

Components of Maintenance:

Maintenance entails the wife's incontestable right to lodging, clothing, nourishing, and general care and well-being.

1-The wife's residence must be adequate so as to provide her with the reasonable level of privacy, comfort, and independence. The welfare of the wife and the stability of the marriage should be the ultimate goal.

2-What is true of the residence is true of clothing, food, and general care. The wife has the right to be clothed, fed, and cared for by the husband, in accordance with his means and her style of life. These rights are to be exercised without extravagance or miserliness.

Non-Material Rights:

A husband is commanded by the law of God to:

1- Treat his wife with equity.

2- Respect her feelings, and to show her kindness and consideration.

3- Not to show his wife any aversion or to subject her to suspense or uncertainty.

4- Not to keep his wife with the intention of inflicting harm on her or hindering her freedom.

5- Let her demand freedom from the marital bond, if he has no love or sympathy for her.

B. The Wife's Obligations; The Husband's Rights:

The main obligation of the wife as a partner in a marital relationship is to contribute to the success and blissfulness of the marriage as much as possible. She must be attentive to the comfort and well-being of her mate. She may neither offend him nor hurt his feelings.

Perhaps nothing can illustrate the point better than the Qur'anic statement which describes the righteous people as those who pray saying: {Our Lord! Grant unto us wives and offspring who will be the joy and the comfort of our eyes, and guide us to be models of righteousness.}[9]

This is the basis on which all the wife's obligations rest and from which they flow. To fulfill this basic obligation:

1- The wife must be faithful, trustworthy, and honest.

2- She must not deceive her mate by deliberately avoiding conception lest it deprive him of legitimate progeny.

3- She must not allow any other person to have access to that which is exclusively the husband's right, i.e. sexual intimacy.

4-She must not receive anyone in his home whom the husband does not like.

5-She may not accept their gifts without his approval. This is probably meant to avoid jealousy, suspicion, gossip, etc., and also to maintain the integrity of all parties concerned.

6- The husband's possessions are her trust. If she has access to any portion thereof, or if she is entrusted with any fund, she must discharge her duty wisely and thriftily. She may not lend or dispose of any of his belongings without his permission.

7- With respect to intimacy, the wife is to make herself desirable; to be attractive, responsive, and cooperative.

Polyagmory, which is a style of open marriage, shouldn’t be confused with “polygamy” which is sanctioned by Islam in some specific cases and circumstances to offer practical solutions to serious social problems.

8- A wife may not deny herself to her husband, for the Qur'an speaks of them as a comfort to each other. Due consideration is, of course, given to health and decency.

9- Moreover, the wife is not permitted to do anything that may render her companionship less desirable or less gratifying. If she neglects herself, the husband has the right to interfere with her freedom to rectify the situation and insure maximum self-fulfilment for both partners. She is not permitted to do anything on his part that may impede her gratification. [10]

Polyamory vs. Polygamy

Polyamory, which is a style of open marriage, shouldn’t be confused with “polygamy” which is sanctioned by Islam in some specific cases and circumstances to offer practical solutions to serious social problems. Polyagmory, in fact, poses series social repercussions that could destroy the family life and endanger the whole community.

In polygamous marriage, the husband could marry more than one wife—maximum four—and have them as his legal wives at the same time. Polygamy doesn’t lead to mixture of lineages and in specific cases solve dangerous social problems. Though it is not the basic norm in Islam, polygamy could be resorted to as a workable solution to some problems that could endanger families and social communities. In all situations, a Muslim wife, could not have more than one husband at the same time.

Even in case of divorce, which is Islamically the most hated permissible thing in the sight of Allah[11], the divorcee has to wait for a specific period of time before going to a second marriage in order to avoid mixture of lineages and to physically and psychologically prepare the woman for re-marriage.

Exploring why Islam allows polygamy, I would cite the following fatwa issued by the European Council for Fatwa and Research (ECFR):

Prior to Islam, men used to marry as many women as they wished without any limits nor conditions. When Islam was revealed, it prescribed a limit to the number of women one may marry and also placed conditions for this to take place. As for the limit, Islam prescribed that the maximum number of women a man can marry is four, as stated in the Qur’an: {Marry women of your choice, two or three or four…}[12]

As for the condition, it is the confidence of the man that he can actually be totally just and fair between his wives, otherwise he is not allowed to re-marry. The Qur’an stated: {…but if you fear that you will not be able to deal justly (with them), then only one…}[13]

In addition, the other conditions of any marriage must also be present, such as the ability to provide for the family and the ability to satisfy the sexual needs of the woman. The reason for the allowance for a man to marry more than one woman is because Islam is a realistic religion and one which is not based upon idealistic notions which would cause real problems of everyday life without solution or treatment.

It is very probable that a man marrying a second wife could be solving a problem, in that his first wife is incapable of bearing children or has extended menstruation cycles which result in his sexual needs being unsatisfied. The first wife could be ill and thus, instead of divorcing her and leaving her alone, could marry a second wife and remain next to his first wife, and so on. This allowance also solves the problem of a widow who needs a husband to care for her but does not wish for an unmarried young man, similar to a divorced woman with children.

Indeed this allowance may solve a social problem which arises from the high proportion of good women who want to marry in comparison to able men. This is a common problem which increases particularly in the aftermath of wars and the like. The fact, in this case, is that the extra women do one of three following options:

 1) That they remain unmarried for the rest of their lives, and are thus deprived from being a wife and a mother, which is a great injustice.

2) That they fulfil their sexual needs regardless of decrees of religion and acceptable behaviour, which will result in a tragic loss in this life and the hereafter.

3) That they agree to marry an already married man who is capable of meeting their living and sexual needs and who is confident in his ability to deal fairly and justly between his wives. As for those who say that this allowance is often abused by some men, it is an unfortunate fact that many rights are abused or are used in inappropriate manners. This does not mean that we must cancel these rights. Indeed, there are many men who abuse their first and only wives, so does this lead us to cancel marriage in its entirety?

Surveys show large majorities of people disapprove of extramarital sexual activity.

Freedoms are often abused. Should we cancel freedoms? We see that states and governments abuse elections; would it be right to cancel these processes? In fact we find that authority and government is frequently abused, so would it be acceptable to cancel authority and let society decline into a state of chaos? It would be better, instead of calling for the cancellation of these rights, to set up boundaries and regulations which would limit the possibility of such rights being abused.”[14]

Open Marriage and Social Repercussions

Surveys show large majorities of people disapprove of extramarital sexual activity. A few studies show people specifically disapprove of open marriages. Critics have put forward moral, medical, and psychological objections to open marriages. The lack of social acceptance places pressure on couples to hide their open marriages from family, friends, and colleagues. This may limit their social support network.

Moreover, the practice of extramarital sex is often illegal in jurisdictions where adultery is illegal, regardless of whether the partner(s) has given their consent. Open marriage is not the same thing as polygamy, where sexual relationships are not necessarily contemplated, but rather one can have more than one simultaneous spouse, which is said to protect individual and marital property rights.[15]

Open marriage endangers true faithful family atmosphere where children should be soundly and morally raised.  Though there are various styles of open marriage, as elaborated above, they all share common concerns such the lack of social acceptance and imposing serious dangers to the family institution.

Concluding Remarks

In Islamic marriage the relationship between the spouses is based on tranquillity, love, and mercy. These three summarize the ideals of Islamic marriage.

In Islam, marriage of a man and a woman is not just a financial and physical arrangement of living together but a sacred contract, a gift of Allah, to lead a happy, enjoyable life and continue the lineage. The main goal of marriage in Islam is the realization of tranquillity and compassion between the spouses.

In Islamic marriage the relationship between the spouses is based on tranquillity, love, and mercy. These three summarize the ideals of Islamic marriage. It is the duty of the husband and wife to see that they are a source of comfort and tranquillity for each other. To guarantee the stability and success of marriage, Islam defines the rights and obligations of both the husband and the wife.

Open marriage, on the other hand, imposes serious dangers to the family institution, lacks social support, endangers the real lovely marital life, and breaks the social order of the community.

Notes:

[1] Abu Hamid al-Ghazali, al-Mustasfa min `Im al-Usul, 2 vols. (n.p., Dar al-Fikr lit-Tiba`ah wa an-Nashr wa at-Tawzi`, n.d.), 1: pp. 286-287.

[2] See Mohammad Hashim Kamali, An Introduction to Shari`ah (Kuala Lumpur: Ilmiah Publishers, 2006 AC), p. 118; Muhammad at-Tahir ibn `Ashur, Treatise on Maqasid al-Shari`ah, annotated and trans. Mohamed el-Tahir el-Mesawi (Herndon: The International Institute of Islamic Thought, 1427 AH – 2006 AC), pp. 87 & 241ff; Jasir `Uddah, Fiqh al-Maqasid, Inatat al-Ahkam ash-Shar`iyyah bi Maqasidiha(Herndon: The International Institute of Islamic Thought, 1427 AH – 2006 AC), pp. 26-28.

[3] See http://en.wikipedia.org/wiki/Open_marriage, January 23, 2012.

[4] Qur’an, Surat an-Nisa’, verse No. 1.

[5] Qur’an, Surat an-Nisa’, verses No. 19-21.

[6] Qur’an, Surat an-Nisa’, verse No. 21.

[7] Qur’an, Surat an-Nisa’, verse No. 19.

[8] Qur’an, Surat at-Talaq, verse No. 7.

[9] Qur’an, Surat al-Furqan, verse No. 74.

[10] Based on Hammudah `Abd al-`Ati’s Islam in Focus, with some modifications.

[11] A prophetic Hadith, reported by abu Dawud, Hadith No. 1863, ibn Majah,Hadith No. 2008.

[12] Qur’an, Surat an-Nisa’, verse No. 3.

[13] Qur’an, Surat an-Nisa’, verse No. 3.

[14] Fatwas of the European Council for Fatwa and Research, translated by Anas Osama Altikriti and Shakir Nasif Al-Ubaydi (Cairo, Islamic Inc. Publishing and Distribution, 2002), pp. 132-135

[15] See http://en.wikipedia.org/wiki/Open_marriage, January 23, 2012.

Dr. Wael Shihab holds a PhD in Islamic Studies from Al-Azhar University and is the Head of the Shari`ah and Fatwa sections at the English website of Onislam.net. Also, Dr. Shihab is a member of the International Union for Muslim Scholars (IUMS).

Source: http://www.onislam.net/english/shariah/contemporary-issues/human-conditions-and-social-context/455514-open-marriage-and-objectives-of-shariah.html

URL: https://newageislam.com/islamic-sharia-laws/dr-wael-shihab/open-marriage-and-objectives-of-shariah/d/10407

 

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