B. SOCIAL AND FAMILY LAWS IN ISLAM.
1. Laws Pertaining to Marriage in Islam.
Marriage in Islam is not considered as a sacrament but rather as a civil contract between a man and his wife. The Qur'an describes it as a mithaq, a "covenant" (Surah 4.21). The Muslim marriage (nikah) is performed through a ceremony at which a local judge, a qadi, officiates. In many cases only the husband is present at the ceremony with a representative of the bride's family and, in the presence of two relevant witnesses, the parties express their consent to the marriage. The qadi then makes a formal announcement that the marriage contract is concluded.
After this the husband is joined to his bride at the wedding reception (walimah) where a feast takes place. In modern times, especially in Muslim communities that are Westernised, the prospective husband may personally choose a bride of his own choice and negotiations between the two families will be conducted to arrange the marriage. The woman has the right to refuse. In other Muslim lands, however, even to this day, marriages are arranged without the husband and wife even meeting before the ceremony is concluded.
Once again customs differ in the various parts of the Muslim world. The husband is also obliged to give his wife a dowry, a mahr, at the time of the marriage (Surah 4.4). No amount is fixed - the parties agree independently on its extent. If there should later be a divorce between the parties the man may not reclaim this dowry.
According to the Qur'an Muslims are free to marry fellow -Muslims but they are forbidden to marry women from idolatrous communities unless they embrace Islam (Surah 2.221).
They are, however, expressly allowed to marry upright women from the uwtul-Kitab, the "people of the Book", meaning Jews and Christians and followers of any other religion recognised as adherents of a faith with a revealed scripture (Surah 5.6).
There is a hadith, however, which scorns the idea that a Muslim should take a Christian woman to wife where she doe not abandon her Christian faith:
In any event Muslim women are not allowed to marry adherents of another religion This concession is allowed to Muslim men only. If a Christian woman becomes a Muslim while her husband retains his Christian faith, she is entitled to divorce him. This is one of the few cases where a woman in Islam has the right to initiate a divorce.
The Qur'an follows the Bible in also forbidding marriages between persons within very close degrees of family relationships (Surah 4.23). It also makes the husband the head of the family and requires the wife to submit to him and care for the common household:
One of the things first allowed in Islam that causes embarrassment to Muslim apologists today is temporary marriage known as mut'ah. Indeed in Shi'ite Islam this institution has remained through the centuries though it has long been forbidden in Sunni Islam.
An ancient custom allowed the man, when resident away from home, to contract a temporary marriage called enjoyment" (muta'); the Qur'an seems to authorise such an arrangement, and Muhammad makes it legal for his warriors. But it would appear that Umar called it debauchery. The Shi'ites maintained its legality (Gaudefroy-Demombynes, Muslim Institutions, p. 133).
The traditions relating to this subject generally state that the Qur'anic sanction for temporary marriage is found in this exhortation: "O ye who believel Make not unlawful the good things which God hath made lawful for you, but commit no excess: for God loveth not those given to excess (Sura 5.90). This verse has no direct reference to mut'ah and its liberties could refer to anything permitted by God. The Hadith, however, quite clearly teach that Muhammad initially allowed temporary marriages:
Another tradition, apparently contradicting this one, states equally plainly that Muhammad disallowed such temporary unions: "Rabi b. Sabra reported on the authority of his father that Allah's Apostle (may peace be upon him) prohibited the contracting of temporary marriage (Sahih Muslim, Vol. 2, p. 707). These traditions can be reconciled quite easily through the presumption that such marriages were allowed at one time during Muhammad's life but were later abolished by him. This seems the most likely explanation and we find that other traditions in fact teach this very thing:
Ali b. Ali Talib reported: The Apostle of Allah (may peace be upon him) forbade mut'ah (temporary marriage) on the day of the Battle of Khaibar and also prohibited the eating of flesh of asses. (Muwatta Imam Malik, p. 240).
It seems, therefore, that mut'ah was indeed allowed during the early days of Islam. The mention of Umar's declaration on mut'ah in the quote from Gaudefroy-Demombynes' book should also be considered. There is a tradition to the effect that a woman came to Umar during his caliphate and stated that a certain Rabiah had contracted a mut'ah with a foreign woman born in Arabia and that this woman was now pregnant Umar exclaimed: "This is temporary marriage. If I had forbidden it previously, I would have ordered stoning" (Muwatta Imam Malik, p. 240). This tradition has led some writers to believe that such marriages were freely allowed until Umar forbade them but this seems unlikely. In any event the other hadith teach that Muhammad did allow such marriages until he prohibited them at the time of the Battle of Khaybar near the end of his life.
3. The Law and Practice of Divorce in Islam.
We have already seen, in an earlier chapter in this book that Abu Dawud recorded a tradition to the effect that of all the things made lawful to men by Allah, divorce displeased him most.
The Qur'an has two sections which deal exclusively with the subject of divorce. Although the book does make divorce openly permissible, it hedges in its sanction of the practice with many safeguards. In the Suratul-Talaq (the Arabic word for divorce being talaq), it is said:
Divorce is thus not primarily sinful in Islam as it is in Christianity (Matthew 19. 8-9), yet it has considerable restrictions. There has to be an 'iddah, a "prescribed period" of three monthly courses (Surah 2.228), before the divorce becomes final. The husband, after declaring to his wife on three occasions that he intends to divorce her (anti talaq - "you are dismissed"), must wait three months thereafter before he can finally separate from her, and the wife likewise must remain in the home during this period to see whether she is pregnant and to see whether a reconciliation can be made.
The Qur'an also urges husbands to be very considerate when divorcing their wives. They are to set them free on equitable terms (Surah 2.231), are not to take them back purely to spite or injure them, and are not to prevent them from being married to a former husband (Surah 2.232). Despite these detailed exhortations, the Qur'an does not stipulate that there need be any specific grounds for a divorce. There is no suggestion that desertion or adultery must first take place, or that the husband must have some valid cause before divorcing his wife. The Qur'an's silence on this point has led some scholars to conclude that the husband may divorce his wife at will.
Muslim scholars are quick to rise to such challenges and one well-known writer states:
The writer goes on to give a list of occasions where the wife has the right to divorce her husband, namely, where her husband is completely missing and cannot be found, by returning her dowry, and where she is a convert to Islam with a non-Muslim husband. An objective study of the Qur'anic teaching on divorce yields the impression that, while no particular ground for divorce is necessary, it is not to be taken lightly and to be avoided wherever possible. Nevertheless the general rule in Islam is that divorce is the husband's right. Hanafi law is particularly dogmatic at this point:
Certainly the one section in the Qur'an giving the standard teaching on divorce (Surah 2. 228-232) speaks only of husbands divorcing their wives and addresses its exhortations to men only.
The Qur'an has one law regarding divorce that is truly hard to commend or understand. It is found in these words:
In the previous verse it is said that "divorce is only permissible twice" (Surah 2.229) and Islamic jurists have concluded that a man is entitled to divorce his wife twice and duly remarry her but, after divorcing her a third time, may not remarry her until she has married another man and has become divorced from him. The object of this teaching is clearly to inhibit men from divorcing their wives frivolously or abusing divorce as a means of causing their wives constant insecurity. In the end, however, it seems to fail in its purpose by obliging the wife to enter into a second union before the first may be resumed. The Hadith, true to the letter of the law, make this teaching more absurd than ever:
In passing it is interesting to note that this tradition is interpreted to mean, not that three separate divorces must first take place, but that on the required threefold declaration of divorce the first time, the husband may not take his wife back before she marries again. A Western scholar interprets this subject in the same way: "An absolute divorce, or Talaq i Mutlaq, consists of the mere repetition of the words 'Thou art divorced' three times. A woman so divorced cannot be restored to her husband until she has been married to another and again divorced" (Hughes, Notes on Muhammadanism, p. 122). Either way one cannot help being taken aback by the rigid stipulation that the second marriage must first be consummated. Here indeed the letter of the law has made no allowances for the reflections, misgivings or regrets of the parties ant appears to force on the woman what Jesus regarded adultery (Matthew 5.32), even though she is willing to return to her true husband without violating the intimate relationship she has enjoyed with him. The same tradition in the Sahih al-Bukhari is also found in the other great work of Hadith and here it is said that Muhammad's answer was "No, until the second one has tasted her sweetness as the first one had tastes" (Sahih Muslim, Vol. 2, p. 730), even though the second husband had already divorced her. This seems to be a gross injustice calculated to punish the first husband for being double-minded once too often about his relationship
In some Muslim communities, especially in North Africa divorce is quite common and a normal event in society. Elsewhere, particularly where monogamy has become the norm, it is a rare occurrence.
4. Hudud - the Penal Laws of Islam.
In recent years there have been many reports of Muslim countries applying the shari'ah in their legal systems. This means in principle that the law of the Qur'an has become the law of the la d. In practice this means that prescribed Qur'anic punishments, such as flogging for adultery and amputation for theft, have again become enforceable. One reads often of such punishments being meted out in countries like Sudan, Pakistan, Saudi Arabia and the like. In Mauritania a thief is entitled to have his arm anaethetised before the amputation but in countries like Saudi Arabia no such mercy is shown to him. While such practices seem truly barbaric to the rest of the world, conservative Muslims, in their fanatical zeal to uphold original Islam, do all they can to enforce them. In the process Islam is discredited. One writer speaks of recent developments in Pakistan:
The Qur'an teaches quite plainly that adulterers are to be lashed a hundred times (Surah 24.2) and in pursuance of the sunnah (as we have seen) the provision is made to apply to unmarrieds committing adultery with married men or women while the later are stoned to death. In Saudi Arabia the penalty for adultery is usually beheading. Regarding the penalty for theft, the Qur'an openly sanctions amputation:
Other traditions say that a hand is not to be cut off where plants or fruit are stolen, where slaves steal their master's property (because the slave and all that he has remains the master's property), or where the value of the property stolen is less than a quarter of a dinar. In any event the punishment seems to be unduly harsh and more suited to primitive customs and times. At least one tradition in the Hadith aggravates the barbaric nature of this penalty in that it humiliates the victim even further: "A thief was brought to the Apostle of Allah (may peace be upon him) and his hand was cut off. Thereafter he commanded for it, and it was hung on his neck" (Sunan Abu Dawud, Vol. 3, p. 1230). For sometime he had to walk around with it - a truly revolting penalty. Over two hundred years ago a Western scholar observed:
It is therefore alarming to see these hudud ("limits") once again becoming effective in Muslim. One can only hope that the saner sentiments of twentieth-century civilization will prevail in years to come over the retrogressive mentality of those quarters in Islam that would turn back the clock to unhealthier times.
5. Foods and Drinks Forbidden in Islam.
Most people will know that Muslims, like Jews, make distinctions between foods that are lawful and those that are prohibited. In Islam they are called respectively halaal (that which is "loosed", that is, free from restrictions) and haraam (that is, "set apart". The word can be used in a positive or negative sense, denoting that which is holy and consecrated, or that which is forbidden). There are many similarities between the Jewish and Muslim faiths in the matter of foods forbidden. The Qur'an sets these out in the following verse from which it will be seen that the prohibitions are not absolute and can be relaxed in extreme cases:
All breeds of fish and other aquatic game are lawful to Muslims (Surah 5.99). The foods forbidden to Muslims in the verse quoted were not only forbidden to Jews but it appears that even the early Christians, notwithstanding eeter's liberating vision (Acts 10. 9-16), had similar scruples.
Even meats which are lawful to Muslims only become so if they have been slaughtered with the name of God pronounced over them (Surah 5.5). The tasmiyah must be invoked over the animal (that is, the bismillah, "in the name of Allah", must be recited). Nonetheless the Qur'an declares that the foods of the uwtul-Kitab, the "people of the Book" (that is, Jews and Christians), are lawful to the Muslims and it is permissible for Muslims to sit at table in Jewish and Christian homes and vice versa. It is unlikely that there would be much division between Jews and Muslims in matters relating to lawful and prohibited foods.
The tasmiyah is also used as a form of grace before a meal. A pious Muslim should also give praise to God after he has taken his fill of food.
The scruple about washing hands as a form of ablution before a meal would not be sanctioned by Christians, however, as it is one of those typical rituals in Islam that is but a "shadow of the good things to come" (Hebrews 10.1) and one that invariably lends itself to petty self-righteousness and a judgmental spirit (Matthew 15.2).
All intoxicating drinks are forbidden to Muslims The Qur'an at first allowed that there was some good in wine, stating simply that it lent itself more to sin than to benefit (Surah 2.219). In another verse believers were bidden not to come to prayer in an intoxicated state (Surah 4.43) but later on wine was disapproved of altogether (Surah 5.93-94).
The social laws of Islam have a universal, binding effect on the Muslim world and condition the way of life of every individual Muslim. While many of them are commendable, many others appear to be worthy of considerable censure.
Muhammad and The Religion of Islam: Table of Contents