Marriage

Surah 2 (Al-Baqarah/The Cow): 221

And marry not an idolatress until she believe; while a believing maid is certainly better than an idolatress, even though she may highly please you.

And do not give (believing women) in marriage to an idolater until they believe.

And a believing slave is better than a (free) idolater even though she may highly please you.

It is they who invite to the Fire, but Allah calls to the Paradise and to the protection by His Command. He makes His Messages clear for the people so that they may take heed.

[‘The Holy Qur’an’, Amatul Rahman Omar and Abdul Omar, 1990 (a married couple, making this the first English translation of the Qur’an by a woman)]

 

In several verses, God refers to having created ‘mates’ for his people for the purpose of procreation 〈13.〉. In {30.21}, the Qur’an recognises that wives also offer men companionship: ‘(God) created mates for you amongst yourselves that you might find rest in them, and he established affection and mercy between you’, (similarly {7.189}). In the instructions for observing Ramadan, nocturnal intercourse is permitted between husband and wife with the words (to the former, concerning the latter: ‘They are a garment for you and you are a garment for them’, {2.187}. But other than for these brief recognition of marriage’s potential for offering emotional support, the Qur’an’s treatment of the institution of marriage is presented primarily as a contract (the ‘nikāḥ’) within a framework of laws that are primarily concerned with certainty concerning the paternity of children and the regulation of financial matters, that seem removed from contemporary notions of romantic love and mutual commitment to a shared life.

Eligibility

{4.22-25} sets out classes of females that are forbidden to a man in marriage (‘maḥram’) by virtue of their relationship to him. This list unsurprisingly includes mothers, daughters, sisters, aunts and nieces. It also includes step-mothers, ‘milk mothers’ and ‘milk sisters’, mothers in law, step daughters in a man’s care ’born of your wives with whom you have consummated marriage’, ’the wives of your sons who are from your loins’ (for the background to this unusually specific phrase see 〈62.〉) and ‘two sisters together’. A ‘milk mother’ is a surrogate mother from whom the man has been breastfed, and a ‘milk sister’, a female who has suckled at that same breast. In one of the more bizarre hadith stories, the impermissibility of marrying a milk mother or sister was used at Muhammad’s own suggestion as a legal device, whereby an adult man, by sucking upon a lactating woman might render her ‘maḥram’ and thereby be permitted to spend time with her unveiled and unsupervised (although they could never marry). According to one hadith, lost verses of the Qur’an separately specified both ten and five as the number of occasions of suckling necessary to confer ‘maḥram’ status. However, both of these verses were said by Aisha to have been lost when the leaves upon which they were written were eaten by a tame sheep as Muhammad died 〈7.〉

 

Marriage to women who are already married is unlawful, except where such a woman is one of ‘those whom your right hand possess’, {4.24}, in which case a woman’s capture by a Muslim army is deemed to have brought her earlier marriage to an end and to make her available in marriage to her captors.

 

The Bridewealth

The Qur’an makes no reference to a wedding ceremony (Muhammad reputedly married one of his wives, Ramla bint Abu Sufyan by correspondence from Arabia whilst she was in Abyssinia, see 〈D.〉 The wives and concubines of Muhammad above). Nor is there any requirement that the man makes a commitment either to observe sexual exclusivity to his bride nor to the marriage being permanent – since the man’s unfettered right to multiple wives 〈58.〉 and to intercourse with ‘those whom his right hand possess’ 〈65.〉, and to divorce 〈60.〉 are explicitly stated, and apparently encouraged, in the Qur’an.

 

The central consideration of the marriage contract is the transfer of property, referred to in the Qur’an by a variety of words but commonly referred to as the ‘mahr’. The mahr may be expressed in translation as ‘dower’ (per Yusuf Ali), ‘bridewealth’ (The Study Qur’an), or, somewhat euphemistically, the ‘bridal gift‘ (Haleem) This is an asset that a man must give to his bride upon their wedding (not, therefore, to be confused with a dowry which is paid by a bride’s family to the couple to hold jointly). The mahr is addressed in several verses (where for consistency the term ‘bridewealth’ is used throughout):

In {4.4}, the bridewealth is described as belonging to the woman as ‘a free gift’ from her husband, which he is forbidden from retaking from her, {2.229}, although she may voluntarily surrender it back to him. In {4.20-22}, a man’s retaking of the bridewealth after he and the wife to whom he had given it have ‘lain with one another and made a solemn covenant’ is condemned as a ‘calumny and manifest sin’, even ‘if (he) desires to take one wife in place of another.’

 

{2.236-237} sets out that where a man divorces a woman prior to their having had sexual relations, he shall, if a bridewealth had been designated, pay her half of it; or if not make ‘an honourable provision’ according to his means.

 

In {60.10} believers are advised to reimburse the bridewealth that had been given to believing women by their disbelieving husbands if those women then seek not to be returned to them.

 

This last verse apparently relates to the situation where a believing woman seeks sanctuary at Medina from disbelieving husbands, but is, for some reason, unable to repay him the bridewealth he had paid her on their marriage. This strongly indicates that the bridewealth system was not an innovation of the Qur’an, but a pre-existing Arab custom. However, in the Qur’an, this transfer of an asset from the groom to his bride, gains the force and solemnity of a mandate of God. Although the Qur’an fixes no minimum, maximum or suggested quantum for this payment, and {2.237} would seem to suggest that the quantum may be kept open until after the marriage has been consummated, the Qur’an makes this pledge or transfer of property, rather than any vows of mutual commitment, the essence of a legitimate marriage: the sole element that distinguishes a divinely ordained institution from sinful fornication, punishable with flogging or death.

 

Marriage and slavery

Marriages between free believers and slaves are permitted in {2.221}, {4.3 & 25} and {24.32}. This is universally interpreted by Sharia jurists to be subject to the understanding that two people may not concurrently stand in the relationships both of slave and owner and of spouses to one another, and that consequently, the act of taking one’s own slave as one’s husband or wife releases that person from their slave status. However, in none of these the four verses is this stated, and in {4.3}, (reproduced in 〈58.〉 following) marriage to one or more slaves is recommended to men who fear that they would be unable to treat multiple free wives equitably; carrying, it is suggested, the implication that such a slave-wife would remain her husband’s property.

 

The Qur’an is often claimed as having brought order to the chaos of late antiquity Arabia, and in modern times it is often, if ambitiously, presented as having pioneered the notion of matrimonial rights for women. The true position is undoubtedly more complex. In Kinship and Marriage in Early Arabia, William Robertson Smith proposed that in any tribal society there are fundamentally two types of marriage that can occur between parties from different tribes: those by which a wife stays with her own tribe and those by which she moves to the tribe of her husband. From the wife’s perspective, the former would invariably be vastly preferable since she can hope that her family and wider clan will protect her from any possible abuse by her husband and his family. She and her birth-family would often continue to own the dwelling in which she lived, and should the marriage come to an end, it would be the man who would invariably leave her in the former matrimonial home, since he would have lost the reason for his presence within the tribe. This sort of marriage would also benefit the wife’s tribe who would have its numbers increased by any children from the marriage – the next generation of labourers and warriors. From the man and his tribe’s perspective, of course, it would be preferable that he take the woman away from her tribe to join him in his for essentially the same reasons. A woman, geographically and socially isolated and with no right to return to her birth-tribe, would have little control over her own life, let alone her husband’s, and be entirely dependent upon the kindness of strangers.

 

So disadvantageous to the woman concerned and to her tribe, were ‘female-out’ marriages, Smith argues, that they could traditionally only be achieved by a woman being physically captured or by the payment of a substantial ‘bride-price’ to her family. Smith asserts that both of these marriages are evident in accounts of pre-Islamic Arabia, but that by the time of Muhammad it was marriage through payment that predominated.

 

A trace of this understanding of the right to marry a woman as an asset to be bought and sold may be seen in Surah 4’s rules of inheritance. {4.19} provides that a wife does not form part of her husband’s estate: ‘It is not lawful to inherit women through coercion or prevent them marrying again’ and {4.22} states: ‘And marry not those women whom your fathers married’. Al-Tabari describes the practice that these verses were intended to put an end to in his commentary on the latter verse:

In the Jahiliya (the ‘age of ignorance’ preceding Islam), when a man’s father or brother or son died and left a widow, the dead man’s heir, if he came at once and threw his garment over her, had the right to marry her under the mahr already paid for her by her deceased Lord.

In other words the mischief that {4.19 & 22} were directed at outlawing was not the inheritance of widows as chattels nor marriages within prescribed degrees of kinship, but rather families’ attempts to prevent a woman leaving her former husband’s tribe without having to pay her family a further bride-price.

 

It seems reasonable to conclude that in an attempt to unite his people into a single community of believers, defined by their allegiance to him as their prophet, rather than upon extended kinship ties and ancient customs, the Qur’an only partially abolished this trading of women between families. It kept the mahr payment as a contract price conferring the right to marry, but now required it to be paid to the woman herself. For wives, keeping the mahr was something of an improvement on the way things had been previously, but other than for this change, Quranic marriage law still much resembled the marriages of domination described by Smith. A man is permitted, if not encouraged, to take several wives 〈58.〉, whom he has the right to beat if they fail to show devout obedience 〈59.〉, and who, having accepting the mahr payment, have no right to unilaterally bring the marriage to an end 〈60.〉 Sharia wives are not slaves, but the Qur’an sees no incongruity in juxtaposing the two as ‘wives and those whom your rights hands possess’ 〈66.〉 As Kecia Ali observed in Marriage and Slavery in Early Islam:

Early Muslim jurists adhered to a bottom line view of marriage as a transaction that conveyed to the husband, in exchange for a pecuniary consideration paid to the wife, a kind of power of dominion analogous to but more limited than a master’s power over his female slave. It is this dominion over her that makes that makes intercourse between them lawful.

 

Moreover, the emancipatory effect of allowing the woman a free choice as to whether to agree to a marriage and whom to, was undermined from the start by Islamic jurists, who have overwhelmingly insisted that a first marriage contract be negotiated on behalf of a woman by her ‘wali’ (guardian). This doctrine has no explicit basis in the Qur’an, but seems deeply rooted in the milieu from which the Qur’an evolved and which it in turn reflects.

Child marriage

In {2.228-229}, a declaration by a man that he has divorced his wife is not to be treated as final until such time as the divorced wife has subsequently menstruated three times, a period known as the ‘iddah’, see 〈60.〉 In {65.4} the Qur’an sets a substitute period of three (lunar) months for two classes of women who do not menstruate:

{65.4} As for those of your women who no longer await menstruation, if you are unsure, then their waiting period is three months as it is for those who are yet to menstruate, but as for those who are pregnant, their term is until they deliver.

And whosoever reverences God, He will appoint ease for his affair.

By regulating the divorce of ‘those who are yet to menstruate’ the Qur’an necessarily endorses marriage – and since no iddah applies until a marriage has been consummated, {33.49}, sexual intercourse – with premenarchal girls.

 

Before having left Mecca, Muhammad, then traditionally aged fifty-two, is reported to have undergone a nikah contract with Aisha, the six-year-old daughter of his friend Abu Bakr, with whom he began living three years later, in Medina, when she was nine. These ages of Aisha at her marriage contract and at the consummation of it are cited by Ibn Hishem in his earliest extant preserved biography of Muhammad, see 〈D.〉 The wives and concubines of Muhammad, and in the classical hadith collections, in which Aisha’s youth is deliberately emphasised by the inclusion of references to her playing on a swing, playing with her friends and having dolls .

 

The meaning of {65.4} and the accuracy of the above accounts of the age of Aisha at her marriage to Muhammad have become disputed by some Muslims since the twentieth century, due, one suspects, to their reluctance to accept the consequences of the Qur’an and Islamic sources. Some have challenged the hadith by constructing alternative timelines (typically cross referencing Aisha’s reported age difference with her elder sister Asma and with the date of birth of Muhammad’s daughter Fatima) in an attempt to demonstrate that Aisha must have been older than six at the time of her marriage. The novel interpretation of {65.4} is also now sometimes suggested that the second category of women mentioned therein refers only to adult women who do not menstruate because they suffer from amenorrhea. However, accommodating such a rare condition would be an exception to the Qur’an’s general presumption of physical and mental health , and it is suggested that such contrived arguments would be unlikely to persuade the devout to overturn over fourteen centuries of unchallenged tradition.