MARRIAGE IN ISLAMIC LAW : THE MODERNIST

VIEWPOINTS

NURUL SAFWAH BINTI MOHD AMINUDDIN ZAKI IGA130052AINON MARDHIAH BINTI ZAWAWI IGA130072

IUGH6316 (Issues In Islamic Family Law )

1.0 INTRODUCTION

2.0 BACKGROUND

2.1 MARRIAGE IN ISLAMIC LAW

2.2 MARRIAGE LAW IN MODERN ISLAMIC

NATION

3.0 ANALYSIS

4.0 CONCLUSION

MARRIAGE IN ISLAMIC LAW : THE MODERNIST VIEWPOINTS

1.0 INTRODUCTION

This article was written by Majid Khadduri on titled "Marriage In Islamic Law: The

Modernist viewpoints". This article discusses in detail about marriage in Islamic law,

such as polygamy, divorce and also inherintance from the modernist viewpoints. Majid

Khadduri in this article explain that Islamic marriage law is very useful for giving non-

muslim a better understanding of the Muslim community.

The writer in this article tries to discuss about the modernist view of Islamic law system

with specialized his study on Islamic family law and illustrates the problems of Islamic

family law that are available in modern Islamic nation.

2.0 BACKGROUND

2.1 MARRIAGE IN ISLAMIC LAW

• Before the existence of Islamic law-there is no limitation to the men to marry more

than one or get a divorce. The existence of a new Islamic law - Shari'ah reforms in

marriage practices, - but still does not eliminate polygamy or prohibit divorce.

• Before the existence of Islamic law - the status of women on patria potestas (power of

a father) and the woman does not have any rights. Then the Islamic Shari'ah came and

women were given some rights. Thus, a marriage changed into an institution of

marriage that respects women.

• Sir Henry Maine – the shariah also changed the nature of marriage from "status" to

"contract," : An offer of marriage Acceptance Payment of dowry Women’s consent is important if the contract is to be binding. The offer and acceptance must be made in the presence of at least two witnesses for

the marriage contract to be valid.

• In Shariah – does not prescribe any particular form for the marriage ceremony (no

problem to hold marriage ceremony). The main thing is the marriage contract, whether

oral or in written form.

• As a contractual agreement, marriage under orthodox doctrine is the same as it is in

heterodox doctrine. Syiah law recognizes a short-term marriage contracts known as

mut'a, or temporary marriage.

• Sunni law condemns the mut'a as being contrary to the real Islamic law. Whereas

Sunni law permits a man to marry a non-Muslim - dhimmi (Jewish or Christian

woman) while Syiah law only allows a man to enter into a temporary marriage with a

non-Muslim.

• And the law of personal status, which certain parts relating to marriage and

inheritance (property) were obtained directly from the Quran, it stilll remain until

modern times.

• Marriage law remained essentially unchanged throughout the Islamic world until the

beginning of the twentieth century, although its application varied from country to

country and even from province to province especially those relating to criminal,

administrative and financial matters, were modified and supplemented by decree

(government).

2.2 MARRIAGE LAW IN MODERN ISLAMIC NATION

When Tanzimat - a series of liberal reforms designed to promote efficiency in the

administration of the Ottoman Empire has commenced, certain parts of the Islamic

Shariah, especially those related to contractual obligations, was drafted based on the

European model and the Ottoman Civil Code enacted in 1877.

The code is referred to as Majalla (Majallah al-Ahkam al-Adliyyah). Family law,

although a main part in the shari'a, it is not included in Majalla, because Majalla based

on the Hanafi law (the official Ottoman school of law)- while the law of personal status

in each province of the empire had traditionally been based on the school of law which

prevailed there. (for muslim conservatism)

• It was not until 1917, when the Ottoman Empire was on the verge of collapse, that

Ottoman reformers were able to enact the Ottoman Law of Family Rights, which

codified the law of personal status in accord-ance with the Hanafi school, but made

allowances for the differences between Hanafi doctrine and that of the other

schools.

After the fall of the Ottoman Empire, the reform of family law was widespread in

modern Islamic nation.

EGYPT began modifying its family law following (reforms) :

i) World War I - reorganizing its religious courts

ii) After World War II - law of inheritance, abolished the waqf, and unified its

judicial system by abolishing religious courts

• The reform movement also affected marriage.

i) The Egyptian Law of Personal Status, enacted in 1962, restricted-but did not

abolish-polygamy by prohibiting the husband from unilaterally divorcing his wife.

ii)The Syrian Law of Personal Status (1953) permitted a man to take a second wife

only if he could prove his ability to support her.

Only two countries moved to abolish polygamy and to liberalize their laws of

inheritance :

i) Tunisia in 1956 - still in force

ii) Iraq in 1959 - face of strong conservative opposition, so the was modified in 1963

to permit restricted polygamy, but retained the liberal provisions taken from the Shi 'i

law of inheritance.

• Tunisia became the first Islamic nation to liberally reform its legal system when, in 1960, the Bey (Ruler of Tunisia) promulgated a written constitution based on European models at the urging of Khayr al-Din Pasha, the nation's Prime Minister.

The Tunisian Law of Personal Status contained three revolutionary reforms :i) abolition of polygamy (Article 18) - it is impossible for a husband to be just in his relations with more than one wife.

- Tunisian law refer (Surah an-nisa : 129)- that a man cannot possibly be just if he marries more than one wife- the law was obviously contrary to the surah an-nisa (4:3) which permits plural marriage.

ii) The law also gave women an equal right to divorce (Articles 30-31), and provided that a divorce could only be obtained through a court proceeding. While this provision may not seem as revolutionary as the abolition of polygamy - radical departure from the past practice that allowed a husband to divorce his wife at will.

iii) The law provided that a husband should have a reason for divorce, unlike before the husband can divorce his wife without any reason.

• In IRAQ, after the fall of the monarchy, the revolutionary regime has issued a new

personal laws in 1959 where polygamy is prohibited except with the permission of the

judge under certain conditions (Article 3) - depends on the ability to judge the truth of

her husband provide maintenance to his wife and there is a valid reason to marry

another one.

Iraq also adapt Tunisian law in polygamy provisions of law which provides for

punishment to any man who violates the provisions of: imprisonment for one year

and / or the payment of one hundred dinars.

• Reformers also introduce Sanctions Procedures in Shariah law of divorce to limit the

exercise of this right. The purpose of modern reformist rather than to deprive the

husband in a divorce, but they just want the wives should be given the same rights for

divorce and the court is the only absolute authority to decide the divorce.

• However, this new law is considered too radical by the conservative elements, and are

not supported and are often ignored in practice.In 1963, the law was revised after the

fall of the Qasim regime overthrown by the Ba'th Party. The provisions regarding

prohibition of polygamy and women equal rights in inheritance has been removed,

because it is incompatible with the teachings of the Koran. Iraq had followed the

pattern of Syria and Egypt law where polygamy is not eliminated but restricted.

• Reformers viewpoints on polygamy:a. advocate outright prohibition.b. those who urge practice of polygamy is permitted subject to certain restrictions.

• Restrictions:i. through self-imposed, such as Moroccan marriage law, orii. subject to review by the judges, as Iraqi law.

• The legislator are reluctant to enact laws that conflict with the Quran.

• But the reformist find a justification to restrict the poligamy trough the same versus

“but if you fear to be equitable, then only one”.

• Monogamy law practiced in Tunisia is justified based on the other Quranic versus: “you

will not be able to be equitable between your wives, even though you be eager to do

so”.

• Muhammad Abduh, the reformer and Grand Mufti of Egypt, often said that no husband

can be just to more than one wife under modern living conditions.

• It might be a question of whether the law of Qur'an seeks to allow polygamy or reform principles with quantitative and qualitative restrictions on the practice.

• The Prophet Muhammad (s.a.w) have made a revolutionary principle in pagan society- a belief in one God.

• The prophet did not make a turned in the social system as he felt the radical change might affect the spread of his religious teachings.

• Looking from this perspective, it would seem as if the law of the Quran on marriage, not intending to endorse the practice of polygamy, but more of an effort to revamp the practice of polygamy as far as possible at the time.

• To abolish polygamy, which is a habit among the people of Saudi Arabia, is a very difficult undertaking. By restricting the practice of polygamy, the main intention of the Prophet is to transform marriage from polygamy to monogamy marriage.

• The main purpose of marriage laws, the Quran, (from Khadduri point of view) is to confirm the monogamous marriage, rather than to support polygamy .

• Islamic nations may be divided into three categories with regard to marriage law:

1. Completely/partially abolished Shariah law and adopted a secular law –

Turkey. Tunisia, still adhering to the Shariah law but have abolished

polygamy.

2. Still follow the Shariah in principle but has implemented a revolution to try

to adapt to modern life. (northern countries of the Middle East).

3. Still recognize Shariah as the fundamental law of the country and did not

make any effort to change the basic principles of the Shariah law. (Most

states of Arabian Peninsular).

3.0 ANALYSIS• The author tried to explain the characteristics of marriage in Islamic law refer to

marriage before and after the existence of Islamic family law . The author also make comparisons on marriage, mut'a based on Shia and Sunni law.

• To study about islamic marriage law from the viewpoint of modernist, the author has discussed the perspective of Islamic marriage law in Islamic countries such as Egypt, Iraq , Syria , Tunisia , Turkey , Morroco, and Saudi Arabia . The explanation given is based on Islamic marriage laws that exist in these countries . This article begins with a deeper discussion of family law in the administration of the Ottoman Empire, revolutionary ( reform ) law is happening in Egypt and Syria , and describes the three revolutions in The Tunisian Law of Personal Status , such as abolition of polygamy , equal rights to divorce, and the husband must give a reasons for requesting a divorce .

• This article originally stated that Iraq has abolish polygamy , but the law has been modified, accordance with the law in Syria and Egypt where polygamy is permitted in certain circumstances. However , equal rights of inheritance rights for women still remain under inheritance law Shia and Sunni .

• Discusses different views of muslim reformist and modern reformist in the issue of

polygamy through Quran, Surah an- Nisa : 3 dan Surah an-nisa’ : 129. Through the

two reformist points of view , the author observe that the practice of polygamy

should not be abolished , but improve the practice of polygamy should be done .

Strengths : good comparative article, brief and concise .

Disadvantages : : there’s no case refer to application in islamic

marriage law.

4.0 CONCLUSION

• This article discusses the overall issues of marriage in Islam. The author in this article using the comparison method explained on the issue of marriage by making a comparison of Islamic family law in modern countries. The existence of this article will be useful for researchers who want to study about marriage in Islam especially to non-Muslim researchers.

• The existence of this article can also contribute to the research on marriage in Islam where we can see not all Muslim countries adopting Sharia law actually / fully. However, the provision does not mean modern Muslim family laws that apply to show modern countries want to change the status of the Nation of Islam to the secular state.

• Although these countries using the European model in the law, but the basic principle of shariah is still upheld especially in the personal laws.

• Therefore, we must preserve the Islamic Shariah law, so it can continue to remain in the law of administration in Islamic countries.

THANK YOU