Allah advises that the believers marry. It is not ideal within a believing society for there to be many single men and women. Rather, it is better that people who are able to marry get married and to even forsake material demands in the interest of society and the chastity of the believers (24:32)
Marry off the single among you and those of your male and female slaves who are fit [for marriage]. If they are poor, God will provide for them from His bounty: God’s bounty is infinite, and He is all knowing.
In Arabic, the word Nikah often refers to having sex, and in the Qur’an it is used both to imply having sex and engaging in a marriage contract. This fact has given rise to various juristic approaches to the rights and obligations of marriage. Some have stipulated rights in relation to marriage, having contracted a marriage, and others have stipulated rights and obligations having consummated the marriage. In the following verse it is clear that the marriage can be considered a marriage without consummation (2:236-7):
You will not be blamed if you divorce women when you have not yet consummated the marriage or fixed a bride-gift for them, but make fair provision for them, the rich according to his means and the poor according to his- this is a duty for those who do good.
If you divorce wives before consummating the marriage but after fixing a bride-gift for them, then give them half of what you had previously fixed, unless they waive [their right], or unless the one who holds the marriage tie waives [his right]. Waiving [your right] is nearer to godliness, so do not forget to be generous towards one another: God sees what you do.
O you who have believed, when you marry believing women and then divorce them before you have touched them [i.e., consummated the marriage], then there is not for you any waiting period to count concerning them. So provide for them and give them a gracious release. (33:49)
While the above three verses refers to Nikah as a marriage contract, the following verse (24:3) refers to Nikah as sex:
A man who is fornicator does not (like to) marry but a woman who is a fornicator or a polytheist; and a woman who is a fornicator does not (like to) marry but a man who is a fornicator or a polytheist. And this (i.e. preferring to marry such spouses) has been prohibited for the believers.
It does not make sense to translate the male adulterer prefers to marry another adulterer. Rather, it is stating a fact. The better translation is my translation as follows:
A male adulterer doesn’t have sex with a woman except that she is an adulterer herself or a polytheist (meaning marriage doesn’t concern her). Similarly, a female adulterer does not have sex with a man except that he is also an adulterer or polytheist. And this behaviour (of sex with married people or polytheists) is prohibited for the believers.
In this instance, Nikah implies sex and not marriage. No man prefers to marry an adulterer regardless of religion, and no woman prefers to marry an adulterer regardless of religion. We know enough about human nature and people to know that that statement would be entirely false. Rather, if a married man has sex with a woman, she is equally complicit (unless she married him) and similarly, if a married woman has sex with a man, he is equally complicit. In other words, it is expanding the definition of zina from adultery (a married person who goes outside of the marriage) to include the unmarried person who does the deed with the married person. This is needed because the verse before states to give one hundred lashes to the male or female guilty of adultery. The question then arises, whether you should lash the married person only? In other words, if the female is married and she sleeps with a single man who isn’t her husband, will you only lash the woman since she committed adultery but not him (the single man isn’t married so it’s not adultery). Hence, the follow-up verse answers that question by saying that a woman who commits adultery doesn’t commit it except with a man who is also committing adultery (in other words, they should both get lashed). The misunderstanding comes in when scholars have translated zina as fornication, when zina refers fundamentally to adultery, and then it is expanded by the verse above to include the one who is single and has sex with someone who is married. However, two unmarried people who have sex with each other aren’t included in that category, though it is also evil, just not to the same extent. Technically, two people who are unmarried and have sex with each other could also see themselves as married, so there is a grey area. In their case, if they were ordinarily lawful for each other (not from the forbidden categories) and what they intended by it was marriage, then the error would be only that the contractual procedure wasn’t followed. But if they intended by it something else, then that would be a crime of indecency, and the punishment for that is not stipulated.
To get back to the topic, if marriage is both sex and a contract, we end up with a contract that makes sex permissible. So if marriage is a contract, then what does the contract consist of, and what are the conditions?
We already know that there must be consent from the first discussion we had. We already cited the proof for that. All the jurists agree that consent is determined by an offer and acceptance.
The second condition, as we determined already, is that they must be adults and sane.
The third condition we already saw above. Namely, that they must both be Muslim or chaste woman from the people of the Book (5:5):
Today all good things have been made lawful for you. The food of the People of the Book is lawful for you as your food is lawful for them. So are chaste, believing women as well as chaste women of the people who were given the Scripture before you, as long as you have given them their bride-gifts and married them, not taking them as lovers or secret mistresses. The deeds of anyone who rejects faith will come to nothing, and in the Hereafter he will be one of the losers.
Another verse that can also reemphasise the importance of equitability is as follows (24:26):
Women impure are for men impure, and men impure for women impure and women of purity are for men of purity, and men of purity are for women of purity: these are not affected by what people say: for them there is forgiveness, and a provision honourable.
One of the perils of our time is marriage to women from the people of the Book when they are not really people of the Book. The verse gives us an indication regarding which women from the People of the Book we can marry. It is not anyone who says I’m a Jew or I’m a Christian. Rather, it is someone who follows the Bible regarding the laws of diet and modesty. The food of the People of the Book is lawful, that is mentioned in the Bible as lawful, and not the food that Christians eat who don’t follow their own Bible. Similarly, the verse says that we should only marry chaste women. In other words, all unchaste women are unlawful regardless of whether they call themselves Muslims, Christians, or Jews. There are scholars who believe that the following verse abrogated the above-mentioned verse because it categorically states not to marry polytheists, and the Christians who believe Jesus is God are said to commit an act of polytheism (2:221).
And do not marry polytheistic women until they believe. And a believing slave woman is better than a polytheist, even though she might please you. And do not marry polytheistic men [to your women] until they believe. And a believing slave is better than a polytheist, even though he might please you. Those invite [you] to the Fire, but Allāh invites to Paradise and to forgiveness, by His permission. And He makes clear His verses [i.e., ordinances] to the people that perhaps they may remember.
Unfortunately, such scholars haven’t correctly understood the terminology in the Qur’an. The Qur’an never mentioned that Christians are polytheists (mushrikun) even though it accuses them of perpetrating an act of polytheism (shirk). In other words, the mistaken God concept of the Christians is not equivalent scripturally to idol worship. People who worship idols and statues are classified as idolators (mushrikun), and not people who worship One Unseen God. The Christians are broadly included in what the Qur’an classifies as People of the Book, and it calls them out for their wrongs. In other words, the Qur’an is less concerned with her mistaken belief regarding Jesus than it is concerned about her chastity and lifestyle in the instance of marriage. It is perhaps because marriage is a practical matter, and not only confined to matters of the heart (faith). The Qur’an doesn’t only tell us not to marry disbelievers, but it also tells us that certain people are forbidden for us to marry.
And do not marry those [women] whom your fathers married, except what has already occurred. Indeed, it was an immorality and hateful [to Allāh] and was evil as a way. (4:22)
So if a husband divorces his wife (irrevocably), He cannot, after that, re-marry her until after she has married another husband and He has divorced her. In that case there is no blame on either of them if they re-unite, provided they feel that they can keep the limits ordained by Allah. Such are the limits ordained by Allah, which He makes plain to those who understand. (2:230)
Forbidden to you are your mothers, your daughters, your sisters, your father’s sisters and your mother’s sisters, your brother’s daughters and your sister’s daughters, your milk-mothers, your milk-sisters, the mothers of your wives, and the stepdaughters – who are your foster-children, born of your wives with whom you have consummated the marriage; but if you have not consummated the marriage with them, there will be no blame upon you (if you marry their daughters).It is also forbidden for you to take the wives of the sons who have sprung from your loins and to take two sisters together in marriage, although what is past is past. Surely Allah is All-Forgiving, All-Compassionate. (4:23)
And women in wedlock (are forbidden to you), except what your right hands possess. It is the prescribing (Literally: the book) of Allah for you. And lawful for you, beyond all that, is that you seek after (them) with your riches (i.e., that you pay them a dowry) in wedlock, other than in fornication. So (with) whomever of these (women) you enjoy the privilege of marriage, then bring them their rewards as an ordinance, and it is no fault in you in whatever you consented to among yourselves even after the ordinance. Surely Allah has been Ever-Knowing, Ever-Wise.(4:24)
The above verses are the prohibitions. All other women besides these are lawful. There are other prohibitions also mentioned in the Hadith which I will get to when we discuss the Hadith around these same issues. Also, we will not discuss here ‘what your right hands possess’ but instead cover that separately. There is another condition around the marriage construct that the Qur’an alludes to by calling marriage a contract to begin with. In other words, if the Qur’an has laws around contracts, then those laws must also apply to the marriage contract. So what are those laws?
O you who have believed, when you contract a debt for a specified term, write it down. And let a scribe write [it] between you in justice. Let no scribe refuse to write as Allāh has taught him. So let him write and let the one who has the obligation [i.e., the debtor] dictate. And let him fear Allāh, his Lord, and not leave anything out of it. But if the one who has the obligation is of limited understanding or weak or unable to dictate himself, then let his guardian dictate in justice. And bring to witness two witnesses from among your men. And if there are not two men [available], then a man and two women from those whom you accept as witnesses – so that if one of them [i.e., the women] errs, then the other can remind her. And let not the witnesses refuse when they are called upon. And do not be [too] weary to write it, whether it is small or large, for its [specified] term. That is more just in the sight of Allāh and stronger as evidence and more likely to prevent doubt between you, except when it is an immediate transaction which you conduct among yourselves. For [then] there is no blame upon you if you do not write it. And take witnesses when you conclude a contract. Let no scribe be harmed or any witness. For if you do so, indeed, it is [grave] disobedience in you. And fear Allāh. And Allāh teaches you. And Allāh is Knowing of all things.(2:282)
Since the above verse refers specifically to debt and not to marriage, but still represents a contractual agreement, scholars have differed as to whether or not this was an actual condition for the marriage contract. Some have stated, based on an earlier verse we already quoted, which warned against secret mistresses (5:5), that as long as it was publicised, then the contract was correct and it didn’t need a certain number of witnesses. Others held that it needed witnesses as per the configuration in this verse, namely: two male witnesses or two female witnesses as a replacement for each male witness.
To conclude, marriage is mandated by Allah such that the single amongst the believers get married as an ideal and that people are not left single unduly regardless of wealth. However, as we will see and have already seen, money is needed for marriage because Allah repeatedly says to spend of your wealth on your wives and to give them their gifts. Despite that, marriage is encouraged even for the poor because Allah will enrich them from His means. Marriage to people who sleep around is forbidden even if such a person is a Muslim because we saw that marriage for the believers is qualified by the condition of chastity. Furthermore, marriage to women from the People of the Book isn’t a license to marry any woman who calls herself Christian or Jewish, but rather refers to women who follow the laws pertaining specifically to chastity and diet. Lastly, we have noted that Nikah means both the marriage contract and sex. We will see further that the marriage contract begets rights and obligations, and the consummation begets rights and obligations.
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