Court Marriages in light of Quraan and Sunnah

In relation to a Question I was asked earlier today regarding Court Marriages I thought it best to look at this matter in it's entire context so as best to understand its reality in light of the Quran and Sunnah upon the understanding of the Sahabah.

Marriage in Islam is a divine bond between two legitimate parties to enjoy social and intimate relationship with each other and to have children. It is one of the most sacred divine contracts because the subject matter is a human being i.e. the would-be wife. Hence not only among the Muslims but also among the Jews and Christians, marriage is treated in a very sacred manner by Imaams, Rabbis and Priests respectively.

In Islam marriage is part of the social system which lays down the detailed guidelines about the relationship between the opposite genders i.e. what is the nature of their meeting together, their relationship and the consequences and/or results or outcome of such relationships. Marriage is a recommended act in Islam and a divine rule which organises the relationship between two mature, sane parties in the absence of any divine preventions. This is due to the fact that Allāh (swt) says:

"Get married from those women you like whether two or three or four and if you fear that you will deal unfairly with them then keep one or marry from those which your hand possesses" [4: 3]

"Among his signs is this, that he created you mates from among yourselves, that you may dwell in tranquillity with them, and he has put love and mercy between your hearts, verily in that are signs for those who reflect" [30: 21]

And the Messenger Muhammad said: "Marriage is half the Deen". Verily marriage is half the Deen, for it is the fundamental pillar of the social system. We set out below some of the rules surrounding the Islamic marriage. 

What are the Duties of the Husband

. An-Nafaqah - The husband has the duty to provide food, clothing and shelter to his wife.

. As-Sakan wat-Tama'neenah - The husband has the duty to observe tranquility and security towards his wife.

. Al-Ishra wal-Injaab - The husband has the duty to maintain a social and intimate relationship with his wife and not to prevent her from having children from him.

What are the Duties of the Wife

. Al-Qawaamah - The wife has the duty to accept the Qawaamah i.e. that her husband has authority over her, the right to be obeyed and to look after him, his health and children.

. As-Sakan wat-Tama'neenah - The wife has the duty to observe tranquility and security towards her husband.

. Al-Ishra wal-Injaab - The wife has the duty to maintain a social and intimate relationship with her husband and not to prevent him from having children from her.

What are conditions of the Nikaah?

The pillars of every contract, including the marriage contract, in Islam are three:

. Al-'Aaqidaan (the two parties) - who must both be mature, sane and there must be no preventions or prohibitions such as the woman being pregnant or in the waiting period of the divorce from or death of the previous husband.

. Seeghat ul-'Aqd - The deal i.e. the offer (al-Ijaab) and (al-Qabool) acceptance. There must be no ambiguity over what is offered and accepted between the parties. In addition the deal must be worded by using the word ‘Nikaah’ or ‘marriage’ in the past tense and the parties or their representatives must be present at the time of the contract being made.

. Al-Ma’qood 'Alayh (the subject matter) - Again the subject matter must be without any prohibitions or preventions.

The absence of any one of the aforementioned conditions (and therefore pillars) will invalidate the contract of Nikaah. In addition, there are certain supplementary conditions such as the permission of the Wali Amr i.e. the Guardian of the would-be wife, two trustworthy and valid witnesses, and a specified Mahr (dowry) i.e. a divine gift from the husband to his wife.

In light of the above, let us examine what civil marriages in the West, such as in the UK, are all about. Are they just about registering the Nikaah contract before an authorised body or an organised institution, or is it about submitting fully to all the social system in the West including the rights of husband and wife, the conditions of the two parties for marriage, the criteria for witnesses, the rules effecting maternity and provision, inheritance matters, divorce and custody of children etc.

A civil marriage is a contract registered in the local council in order for a man and a woman to have a relationship governed by the marriage laws of the state. Any man can marry any woman, whether they are boyfriend or girlfriend, fornicator or "fornicatress", pregnant or having had previous sexual relations, without reservation except on the proviso that they have no registered marriage in existence already.

It is clearly prohibited to be involved in this procedure for Muslims from an Islamic perspective at any time. To give the civil marriage priority and to put a condition, as some Muslims unfortunately do, that any Muslim should undergo such a procedure before what is requested by God is therefore an anathema to Islam and Muslims!

The civil marriage contract is prohibited (Haraam) to be involved in for Muslims from an Islamic perspective for the following reasons:

- In Islam the condition for the two marrying parties is that they must both be Muslim or that the woman is from amongst the people of the book, unlike in a civil wedding where the religion of the parties is irrelevant.

- Contrary to Islam, in a civil marriage there is no condition for there to be two witnesses present as stipulated by the Sharee’ah, the wedding record being enough.

- Contrary to Islam, there is also no condition on the man to pay Nafaqah (i.e. to provide food, clothing and shelter for the wife) in a civil marriage.

- Contrary to Islam, there is no condition in a civil marriage for the man to pay or to stipulate a Mahr (dowry) to be paid.

- Contrary to Islam, there is no condition in a civil marriage to obtain the permission of the Wali Amr i.e. father, just as long as the parties are over 18.

- Contrary to Islam, there is no condition in a civil marriage to complete the waiting period after a divorce from a previous husband or death of the husband or after a previous illegitimate relationship with the intended partner.

- Contrary to Islam it is permitted in civil marriages to marry a woman even if she is pregnant; which is a divine prevention in Islam.

- Contrary to Islam a civil marriage says that the maternity of children belongs solely to the mother unlike in Islam where the divine rights of the child are protected and the child stays with the divorced mother up to the age of 7 and from then onwards it will have the right of residence with the father.

For non-Muslim women the child would stay with the mother up until the age of 4 and then go to the father. If the man leaves Islam i.e. becomes an apostate, the child would stay with the mother until 7 and then go to the ex-fathers brother, but if his family are non-Muslim then the child will stay with the mother (who is Muslim). In a civil marriage these rights are ignored and any residence is invariably granted to the mother.

Moreover, in Islam if both the husband and wife die the children will go to the husband’s family and the women’s family will have visitation rights unlike in a civil marriage.

- Contrary to Islam, in a civil marriage divorce is the right of both parties which needs a court order (i.e. a second parties consent).

- Contrary to Islam, after a civil marriage a woman can inherit substantially all her husband's wealth.

Whereas in Islam the wife will take 1/6th or 1/8th in certain circumstances. The surviving husband on the other will take 1 /2 of her wealth and sometimes 1/4.

- Contrary to Islam, a civil marriage does not permit a man to enforce sex on his wife or to discipline her.

- Contrary to Islam, in a civil marriage both parties have the right to go anywhere they want to without asking the others permission whereas it is obligatory to ask a husband’s permission before leaving the home in Islam.

- Contrary to Islam, in a civil marriage the choice is the mothers as to whom a child is attributed whereas it is the divine right of the father i.e. to be attributed to him alone, in Islam.

- Contrary to Islam, in a civil marriage if the husband becomes an apostate there is no automatic divorce. The implication of this in Islam is that the wife will still inherit if the husband becomes an apostate and dies. If a woman becomes an apostate the marriage will also be broken automatically.

- Contrary to Islam, in a civil marriage a husband does not give the wife the right to prosecute him if he does not provide provision for her. Rather she is expected to bring up the children on a minimum determined by the State which amount is not Islamic.

- Contrary to Islam, in a civil marriage the wife cannot steal from the husband if the husband is miserly, whereas it is allowed in Islam. On the other hand if the husband steals from his wife then his hand is subject to be cut in Islam.

- Contrary to Islam, adultery by the wife does not break the civil marriage contract, whereas if the woman commits adultery in Islam the contract is broken immediately. If the man commits adultery on the other hand it is up to the woman whether she wishes to obtain a Khula’ (i.e. to break the contract or not).

- Contrary to Islam, in a civil marriage a child will stay with the mother even if she becomes an apostate.

- Contrary to Islam, in a civil marriage one can have a judicial separation agreement.

The fact of the matter is that the Civil Marriage is a complete non-Islamic social system and man-made way of life which contradicts the Islamic marriage and way of life in all its details, such as the penal code, the right of the husband to discipline his wife, the right of the wife to divorce herself in certain circumstances, the right of the husband to divorce his wife instantly including the observation of the waiting period for the wife etc.

Verily, registration will give the kufr social system relating to divorce, maternity etc. the upper hand over the Islamic social system and way of life and Islam forbids this explicitly, for Allah (swt) says: "Allah forbids the believers to give the disbelievers an upper hand over them" [4: 141].

In addition Allah orders us to refer to the Qur’aan and Sunnah in any dispute amongst ourselves, for Allah (swt) says: "When you differ in any matter refer to Allah and his Messenger" [4: 59].

Moreover the Muslims are supposed to judge by whatever Allah (swt) has revealed and not by whatever the law of the land has legislated, for Allah (swt) says:

"Rule and Judge by whatever Allah (swt) has revealed and do not follow their whims and desires lest they take you away from what has been revealed" [5:49].

Furthermore, Allah (swt) has clearly commanded us to obey him and his Messenger with full submission and without any choice, for Allah (swt) says: "It is not allowed for the believers male or female to have any option in a matter when it has been decided by Allah (swt) and his Messenger." [33:36]

By honored Ustaadh Abu Waleed (hafidhUllah)