Islamic Fiqh > Marriage and family > The pillars and conditions of nikah > Nikah: definition, merits and status
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Updated on 24 September 2026 at 7:46 PM
From the Encyclopedia of Islamic Jurisprudence (al-Mawsua al-fiqhiyya, chapter on nikah, part one): the definitions of marriage in the four schools, the legal reality of the term, its merits, its five rulings, the names of the dower, and the conditions attached to marriage, with their classical references.
The jurists gave several definitions of nikah. The Hanafis define it as: a contract conferring ownership of enjoyment (milk al-mutta) intended, over a woman no legal impediment bars from marriage.
Ownership of enjoyment means the man's entitlement to enjoy the woman through intercourse, touching and kissing. Ownership here means lawfulness, not legal ownership: if the wife were penetrated under a mistaken assumption, her dower would be due to her, and if the man truly owned the benefit of her intimacy, its equivalent (the price) would be owed to him.
The word intended excludes what leads to such enjoyment only incidentally, as when a man buys a slave girl: her sale contract makes intercourse with her lawful incidentally, and it is not a marriage contract (al-Bahr ar-Ra'iq, 3/85; al-Lubab, 2/18; ad-Durr al-Mukhtar, 3/3-4; al-Fatawa al-Hindiyya, 1/267).
The Malikis say: nikah is a contract making lawful the enjoyment, that is, the pleasure, benefit and delight derived through intercourse, embracing, kissing, holding and the like, with a woman who is neither a mahram relative, nor a Zoroastrian, nor a slave woman of the People of the Book, by means of a contractual formula (Hashiyat as-Sawi ala ash-Sharh as-Saghir, 4/392).
Ibn Arafa (may Allah have mercy on him) said: nikah is a contract over the mere pleasure of enjoyment with a human female, not entailing payment of her value, supported by witnesses before it, its contractor unaware of its prohibition, on the prevalent view if the Qur'an forbids it, or on the other view if consensus forbids it.
Al-Nafrawi (may Allah have mercy on him) explains that the clause excludes the contract freeing a slave woman through marriage when evidence is produced, and includes the marriage of the eunuch and of the impotent, since it rests on truthful testimony. He adds: if the prohibition is Qur'anic, the act is classed as zina and its opposite as invalid marriage; if the prohibition comes by consensus, the act is invalid marriage and its opposite zina. A Qur'anic prohibition such as the mother is evident, a prohibition by consensus such as the maternal grandmother, as Abu al-Hasan said in Sharh ar-Risala.
Ibn Arafa's phrase human female would imply the invalidity of marriage with a jinn woman, but that is not so. Imam Malik (may Allah be pleased with him) was asked about marriage with a jinn and said: I see no harm in it in religion, but I dislike that a pregnant woman should be found claiming her child is from her jinn husband, which would multiply corruption. His "no harm" implies permissibility, his reasoning implies prohibition, and the reverse is impossible (al-Mukhtasar al-fiqhi, 5/5; Mawahib al-Jalil, 5/22; al-Fawakih ad-Dawani, 2/3).
The Shafi'is say: nikah is a contract entailing the lawfulness of intercourse and enjoyment of each spouse with the other in the lawful manner, by the word nikah, tazwij, or their equivalent in another tongue (Asna al-Matalib, 3/98; Mughni al-Muhtaj, 4/207; Tuhfat al-Muhtaj, 8/468).
The Hanbalis say: nikah is the marriage contract, that is, a contract in which the word nikah or tazwij or their equivalent is intended (al-Mughni, 7/3; Kashshaf al-Qina, 5/3; Sharh Muntaha al-Iradat, 5/97; Matalib Uli an-Nuha, 5/3).
The scholars agree that the term nikah applies to both the contract and the intercourse. They differ on its reality: is it literal for the contract and metaphorical for intercourse, the reverse, or literal for both?
For the first group, the usage of the Qur'an and the hadiths decides, to the point that it was said: it occurs in the Qur'an only for the contract. The verse is cited:
"...until she marries another husband"
Surah Al-Baqarah, 230
The verse refers to the contract: the condition of intercourse for permitting remarriage was established only by the Sunna, and the contract is indispensable. "Until she marries" thus means "until a contract is made for her". Its apparent import suggested that the contract alone suffices, but the Sunna clarified that the honey of union must then be tasted, according to the saying of the Prophet (peace and blessings be upon him): "until you taste its honey".
Imam al-Zamakhshari (may Allah have mercy on him), one of the Hanafi scholars, held that the term nikah occurs in the Qur'an only in the sense of the contract. Using it for intercourse would be offensively explicit, and whoever wishes to allude to it uses the words of touching or contact. Al-Raghib objected that it is impossible for nikah to be literal for intercourse and allusive for the contract: the mention of intercourse is as offensive as its act, the mention of the contract is not, and the validity of negating it proves the metaphor. One says of fornication sihah, not nikah; and of a captive woman neither married nor wedded.
Marriage as the name of the contract is unanimously accepted, and it is more frequent, more precise, better known and more apparent in Arabic poetry. The poet said: "The Banu Darim, their peers are the family of Misma'... and the Habatat marry among their peers" (Manh al-Jalil, 3/254; al-Hawi al-Kabir, 9/7; Tahrir alfaz at-Tanbih, 1/250; Sharh Sahih Muslim, 9/172; an-Najm al-Wahhaj, 7/7; Mughni al-Muhtaj, 4/207; al-Mughni, 7/3; al-Mubdi', 7/3; al-Insaf, 8/4-5; Kashshaf al-Qina, 5/3; Sharh Muntaha al-Iradat, 5/97).
The second group relies on the verse:
"And do not marry the women whom your fathers married"
Surah An-Nisa, 22
It is intercourse that is meant, for a woman possessed by the father becomes forbidden to the son. The Arabs used to say: "We have married the captives, we shall see", meaning striking and making the taking lawful, then awaiting the outcome; a proverb for a matter people gather upon and then part from. A poet said: "Of a captive woman our spears made our bride... and another languishes after her maternal and paternal uncle", that is, the taking of a captive by the spear.
The Prophet (peace and blessings be upon him) said: "I was born of a marriage, not of fornication", that is, of lawful intercourse, not unlawful. He also said: "It is lawful for a man, with his menstruating wife, everything except nikah", meaning intercourse. Al-A'sha said: "And of a captive woman possessed without a dower... and another called fadiha", that is, a captive taken by force, without contract or dower.
The meaning of the contract is gathered from context: "marry them with the permission of their families" (Surah An-Nisa, 25), since intercourse does not depend on that permission; likewise "Marry those who please you among the women" (Surah An-Nisa, 3), only the contract being subject to the number of wives; likewise: "There is no nikah without witnesses", since witnesses are not present at intercourse. Finally, in language nikah means joining and bringing together, and joining applies to bodies rather than words, which makes the contract a figurative usage (Sharh Fath al-Qadir, 3/186; al-Jawhara an-Nayyira, 4/264; al-Furuq, 3/213; Tafsir al-Qurtubi, 14/203; Mawahib al-Jalil, 5/22; Sharh Sahih Muslim, 9/172; an-Najm al-Wahhaj, 7/7; Mughni al-Muhtaj, 4/207; ash-Sharh az-Zarkashi, 2/317; al-Mubdi', 7/3; al-Insaf, 8/4-5).
For the third group, the common noun, the verse "And do not marry polytheistic women until they believe" (Surah Al-Baqarah, 221) would bear on the contract and on intercourse with a slave woman, the common noun being used in both its meanings; and the prohibition "And do not marry the women whom your fathers married" (Surah An-Nisa, 22) would cover the woman possessed by the father without marriage.
The hafiz Ibn Hajar (may Allah have mercy on him) concludes: in the Sharia, nikah is literal for the contract and metaphorical for intercourse, on the sound view, given how abundantly the Qur'an and the Sunna use it for the contract.
Abu al-Husayn Ibn Faris noted that the term nikah occurs in the Qur'an only in the sense of marriage, except in this verse:
"And test the orphans until they reach the age of marriage"
Surah An-Nisa, 6
where it means maturity, and Allah knows best. For the Shafi'is (on one view), as for the Hanafis, it is literal for intercourse. For others it is a term common to both meanings, as al-Zajjaji firmly held, and that is the author's preferred view, although usage inclines mostly toward the contract. Some preferred the first view: all the terms of intercourse are euphemisms out of delicacy of language, and it is improbable that one would borrow the name of what horrifies to designate what does not. This however depends on granting that all such terms are euphemisms, whereas Ibn al-Qatta' collected their names beyond a thousand (Fath al-Bari, 9/103; see: al-Hawi al-Kabir, 9/7; al-Mughni, 7/3; al-Matali' ala abwab al-Muqna', p. 318; al-Mubdi', 7/3; al-Insaf, 8/4-5).
The disagreement over the reality of nikah appears in this question: does intercourse committed through fornication produce the same prohibitions as marriage? For the man who commits fornication with a woman, do her ascendants, such as her father, and her descendants, such as her son, become forbidden to him?
The Hanafis, Malik (as transmitted by Ibn al-Qasim) and the Hanbalis (on the sound view) answer yes: whoever commits fornication with a woman or penetrates her under a mistaken assumption, her ascendants and descendants become forbidden to him, and she becomes forbidden to the man's ascendants and descendants. The verse "And do not marry the women whom your fathers married" (Surah An-Nisa, 22) is referred to intercourse, its most direct sense, yielding: "Do not approach any woman your fathers have possessed", embracing both marriage and fornication (al-Hidaya, 1/192; al-Ikhtiyar, 3/110; al-Fatawa al-Hindiyya, 1/274; Sharh Sahih al-Bukhari, 7/210; Fath al-Bari, 9/157).
Malik (on the prevalent view), the Shafi'is and the Hanbalis (on one view) answer no: fornication renders nothing forbidden to the ascendants or descendants on either side, for the forbidden does not render forbidden the lawful. The dower, the waiting period, inheritance, paternity and the legal punishment being absent, the act cannot be given the status of lawful marriage (al-Hawi al-Kabir, 9/7 and 214; Sharh Sahih al-Bukhari, 7/210; al-Istidhkar, 5/463-464; al-Furuq, 3/212; Tafsir al-Qurtubi, 5/115; Fath al-Bari, 9/157; an-Najm al-Wahhaj, 7/7; Mughni al-Muhtaj, 4/207). The detail of this question will return in the forbidden degrees of marriage.
Ibn al-Qattan al-Fasi (may Allah have mercy on him) said: nikah is recommended and not obligatory, and this is the unanimous position of the jurists (al-Iqna' fi masa'il al-ijma', 3/1145). Al-Amrani (may Allah have mercy on him) said: the community agrees on the lawfulness of nikah (al-Bayan, 9/106).
Marriage serves three purposes: preserving progeny, releasing the fluid whose retention harms the body, and obtaining pleasure. This third one alone does not exist in Paradise, where there is neither procreation nor retention (Asna al-Matalib, 3/98; Mughni al-Muhtaj, 4/208).
Imam al-Sarakhsi (may Allah have mercy on him) said: this contract carries religious and worldly interests: protecting women, caring for them and maintaining them; guarding the soul from fornication; multiplying the servants of Allah and the community of the Messenger, and realizing the ground for the Prophet's (peace and blessings be upon him) boast over them.
Marry, procreate, multiply, for I will boast of you before the other communities on the Day of ResurrectionReported by Abu Dawud
Al-Sarakhsi adds that marriage carries the decreed survival of the world to its appointed time: Allah decreed the permanence of the world until the Resurrection, and that permanence passes through procreation, which occurs only between male and female, and is realized only through intercourse. The Sharia therefore made marriage the lawful path to it: dominance breeds corruption, and presumption without right confuses lineages, a cause of the loss of progeny, women being unable to earn a living or support children. A right that identifies the father and binds him to maintenance becomes necessary so the child does not perish; and since man is free by nature, this right is established only through marriage (al-Mabsut, 4/192-193).
Imam al-Babarti (may Allah have mercy on him) said: nikah holds the interests of religion and the world; the traditions threatening whoever turns away from it and encouraging whoever desires it are famous, and no other ordinance of the Sharia combines as marriage does the motives of religion, reason and nature. The religious motives (Book, Sunna, consensus) are manifest. The rational motive: every rational being loves that his name endure and his trace not vanish, and that is ordinarily achieved only through progeny. The motive of nature: the animal inclination of male and female calls for the fulfillment of amorous embraces and natural couplings, and there is nothing repugnant in that when done by the command of the Sharia, even if prompted by nature; man is even rewarded for it, unlike other legal acts (al-'Inaya, 4/314).
Al-Lakhmi said: nikah contains five qualities: it preserves from indecency, it guards the private parts, it multiplies progeny, it perpetuates remembrance and reward (at-Tabsira, 4/1776-1777).
The default ruling on nikah is that it is recommended (sunna) and desired, and this is the view of the majority of jurists, Hanafis, Malikis, Shafi'is and Hanbalis (in the madhhab); it is obligatory only in a state of pressing need, as will be seen.
Imam al-Sarakhsi (may Allah have mercy on him) said: the marriage contract is recommended according to the majority of scholars; among the Zahiris it is obligatory, given the apparent command in the Book and the Sunna, for guarding against fornication is an obligation reached only through marriage: whatever is the sole means to an obligation becomes an obligation. Our proof: the Prophet enumerated the pillars of religion and the obligations without mentioning marriage; some Companions remained unmarried without the Messenger of Allah censuring them; and as marriage guards against fornication, so does fasting: "O young people, marry: whoever has the means, let him do so; whoever does not, let him fast, for fasting is his shield." Obligation applies only to one whom desire overwhelms so that he cannot be patient; otherwise marriage is for him a sunna (al-Mabsut, 4/193).
Al-Amrani (may Allah have mercy on him) said: nikah is recommended and not obligatory in our view, and this is the position of Malik, Abu Hanifa and most scholars (al-Bayan, 9/109). Imam Ibn Qudama (may Allah have mercy on him) said: our companions differed over its obligatoriness; the prevalent position in the madhhab is that it is not obligatory, unless one fears falling into the forbidden by leaving it: chastity then becomes obligatory, and this is the view of most jurists. Abu Bakr Abd al-Aziz held it obligatory and narrated it from Ahmad; it is narrated from Dawud that it is obligatory once in a lifetime, based on the verse and the report (al-Mughni, 7/3).
The majority rely on "Marry those who please you among the women, two, three or four" (Surah An-Nisa, 3): the command is conditioned on ability, which does not fit obligation; the number two, three and four is obligatory upon no one, proof that the command is recommendation. And the hadith:
Four practices belong to the ways of the Messengers: modesty, perfume, the siwak and marriageWeak hadith, reported by at-Tirmidhi (1080) and Ahmad (23628)
is understood as recommendation, or as addressed to one who fears falling into the unlawful.
The Prophet (peace and blessings be upon him) also said: "Whoever loves my nature (fitra), let him follow my sunna; marriage is part of my sunna": a mursal hadith (reported by Sa'id ibn Mansur in his Sunan, 1/163; Abd al-Razzaq in his Musannaf, 10378; Abu Ya'la in his Musnad, 2748). The command there is tied to love and the practice is named a sunna, which implies recommendation.
It is reported from Abu Sa'id al-Khudri (may Allah be pleased with him) that a man came to the Messenger of Allah with his daughter who refused to marry. The Prophet told her: "Obey your father." She replied: "By the One who sent you with the truth, I will not marry until you tell me what right the husband has over his wife." He said: "The right of the husband over his wife is such that if he had an ulcerous wound and she licked it, she would still not have fulfilled his right." She said: "By the One who sent you with the truth, I will never marry." He then said: "Do not marry women without their consent" (reported by Ibn Hibban in his Sahih, 4164; an-Nasa'i in al-Kubra, 5386; hasan sahih hadith). Had marriage been obligatory, the Messenger of Allah would have censured her.
Whoever among you has the means, let him marry; whoever does not, let him fast, for fasting is his shieldReported by al-Bukhari (4778) and Muslim (1400)
The Prophet placed fasting in the place of marriage; yet fasting is not obligatory, so marriage is not either, for what is not obligatory cannot stand in the place of an obligation. Finally, some Companions had no wife, and the Messenger of Allah knew it without censuring them (Bada'i' al-Sana'i', 2/228; al-Bayan, 9/110; al-Mughni, 7/4).
Imam al-Nawawi (may Allah have mercy on him) comments on the first hadith: the command to marry applies to one who has the means and whom desire overwhelms; it is agreed upon, but it is a command of recommendation, not obligation: neither marriage nor abstention is required, whether one fears hardship or not; such is the madhhab of all the scholars. No one made it obligatory, as far as is known, except Dawud and his Zahiri emulators, and a narration from Ahmad: marriage or possession of a slave woman becomes due once in a lifetime if one fears temptation; the Zahiris specify that only the contract is due, not intercourse, and they rely on the apparent meaning of "Marry those who please you among the women" (Surah An-Nisa, 3) and similar hadiths (Sharh Sahih Muslim, 9/173-174; Fath al-Bari, 9/110; Tarh at-Tathrib, 7/5).
The majority also invoke "Marry those who please you among the women... or those your right hands possess" (Surah An-Nisa, 3): the choice between marriage and possession of a slave woman. Al-Maziri said: this is a proof for the majority, for the Prophet offered a choice between two things both non-obligatory; yet, according to the usul scholars, one cannot be offered a choice between an obligation and something else, for that would nullify the reality of the obligation: its neglecter would not be a sinner (Sharh Sahih Muslim, 9/173-174). As for "Whoever turns away from my sunna is not of me", it means: whoever turns away from it out of disdain, not out of believing it to be other than it is (Sharh Sahih Muslim, 9/173-174).
The scholars classify the rulings of nikah into five: obligation, recommendation, disapproval, prohibition and permissibility, each school detailing its own cases. They agree that whoever fears falling into the forbidden if he does not marry must marry. Ibn Qudama: this is the view of most jurists, for chastity and keeping away from the unlawful are obligatory, and their means is marriage (al-Mughni, 7/4). Al-Qurtubi: the one able to marry who fears harm to himself and his religion from celibacy, with no remedy but marriage, must marry, by consensus (Fath al-Bari, 9/110; Tarh at-Tathrib, 7/5).
The Hanafis say: marriage becomes obligatory in a state of pressing need (tawaqqun), when one fears, or strongly presumes, falling into fornication without marriage, marriage then becoming obligatory since avoiding the forbidden is an obligation. If he cannot guard himself except through marriage, having no ability for possessing a slave woman or fasting, it becomes an individual duty (fard): whatever alone enables avoiding the forbidden becomes a duty. If he can guard himself through possessing a slave woman or fasting, marriage ceases to be obligatory. Ibn Abidin adds: likewise, if he cannot restrain his gaze or preserve himself from masturbation, marriage becomes due even without fear of fornication, provided he owns the dower and maintenance, even through a loan on one view; if he cannot afford them, nothing is due (al-'Inaya, 4/314; Hashiyat Ibn Abidin, 3/6-7; Sharh Fath al-Qadir, 3/187; al-Ikhtiyar, 3/102).
Al-Kasani: there is no disagreement that marriage is obligatory in a state of pressing need, to the point that one overwhelmed by desire, able to afford the dower and maintenance, who does not marry, commits a sin (Bada'i' al-Sana'i', 2/228). This obligation also presumes absence of fear of injustice (jawr) toward the wife: if the fear of falling into fornication without marriage conflicts with the fear of being unjust by marrying, the second is given precedence, and marriage becomes disliked (makruh): injustice is a sin against creatures, while guarding against fornication pertains to the rights of Allah, and the right of the creature takes precedence in conflict, for she has need and the Master is rich.
Ibn Abidin reports from al-Bahr that borrowing in order to marry is recommended when the intention is chastity, Allah guaranteeing repayment; the obligation would then apply even without owning the dower, if borrowing is possible, which contradicts the stated condition, unless the condition is owning dower and maintenance even through a loan, or the statement concerns one unable to earn without expected solvency. The commentator on Hajj had already held that one who has not performed Hajj before squandering his wealth may borrow to perform it even if unable to repay, hoping Allah will not punish him if he intended repayment as soon as able (Hashiyat Ibn Abidin, 3/6-8; Sharh Fath al-Qadir, 3/187; al-Ikhtiyar, 3/102; Tabyin al-Haqa'iq, 2/95; al-'Inaya, 4/314-315).
The Malikis say: marriage is obligatory upon one stirred by desire who fears fornication for himself, even if it results in maintaining his wife from unlawful wealth, or in not maintaining her at all, and he must then inform her of that. It is objected that one who fears hardship is in any case bound to avoid fornication as he is bound to avoid forbidden marriage: a forbidden act cannot be committed to repel a forbidden act. Al-Dusuki answers: a forbidden act cannot be committed to repel a forbidden act, each being forbidden; but when compulsion becomes extreme, the rule is to commit the lesser of the two harms: the woman who can only survive through fornication is permitted to commit it (Hashiyat al-Dusuki ala ash-Sharh al-Kabir, 3/3; Sharh Mukhtasar Khalil, 3/165; Mawahib al-Jalil, 5/24; Hashiyat as-Sawi ala ash-Sharh as-Saghir, 4/392).
Marriage likewise becomes due upon the woman unable to secure her food or clothing (Mawahib al-Jalil, 5/24; at-Taj wa-l-Iklil, 2/481-482). Al-Lakhmi specifies: the woman with no desire for men and barren (knowing it of herself): marriage is permitted for her; if she has desire and can remain chaste (not being barren), it is recommended for her; if she fears fornication that fasting does not remove, it is obligatory for her in a non-extended way; if fasting removes it, the obligation is extended: she chooses between marriage and fasting, rich or not, and must commit to one of the two, possession of a slave woman not being possible for her.
Her husband may be a free man or a slave, her offspring following her status, though the free man is preferable. Allah recommends marrying slaves and slave women:
"And marry the unmarried among you and the righteous among your male slaves and female slaves"
Surah An-Nur, 32
(at-Tabsira, 4/1778-1779).
Among the Shafi'is, the text of the madhhab is that marriage is never obligatory, even if desire overwhelms: one who desires marriage and finds his means (dower, maintenance and expenses) is recommended to marry without obligation, based on:
O young people, whoever among you has the means, let him marry, for it lowers the gaze and guards the private parts; whoever does not, let him fast, for fasting is his shieldReported by al-Bukhari (4778, 4779) and Muslim (1400)
Abu Ubayd explains that "ba'a" (means) here denotes the wealth that enables union, dower and maintenance, named after its cause; otherwise fasting would not be prescribed to one who cannot unite, the "shield" meaning the warding off of the whip. However, al-Ramli explicitly stated the obligation for one who fears temptation that only marriage removes: "if he fears hardship and a way of avoidance becomes required according to his ability, marriage becomes obligatory" (Nihayat al-Muhtaj, 6/209). Ibn Hajar also said: marriage is obligatory for one who fears fornication, absolutely according to some since chastity is achieved only through it, or only if he does not intend possessing a slave woman according to others (Tuhfat al-Muhtaj, 8/470, 478; Mughni al-Muhtaj, 4/211; see also al-Bayan, 9/110-111; an-Najm al-Wahhaj, 7/9-10; Mughni al-Muhtaj, 4/210).
As for the woman, if she feels the need of marriage or of maintenance, fears plunging into indecency, or is not devout, marriage is recommended for her, for the protection of religion and of the private parts and the comfort of maintenance; but if indecency is repelled only by marriage, it becomes obligatory for her. Does a vow (nadhr) to marry create the obligation? Two views (Tuhfat al-Muhtaj, 8/478).
The Hanbalis say: marriage is obligatory upon whoever, man or woman, fears fornication by leaving marriage, whether that fear rests on certainty or presumption, for chastity is obligatory and its means is marriage. Marriage then takes precedence over obligatory Hajj, for fear of the forbidden that delaying the pilgrimage would bring. A single marriage does not suffice: it must extend over the whole of life; the contract alone does not suffice, consummation is also required, for the fear of the forbidden is repelled only that way. If the parents, one or both, command marriage, it becomes obligatory by filial duty; but they cannot compel him to marry a woman he does not want, the purpose being missed: disobeying them on this point is not ingratitude, like not eating what one does not want to eat. A vow of marriage is obligatory upon the man of desire, per the hadith "Whoever vows to obey Allah, let Him obey Him" (reported by al-Bukhari and Muslim); the impotent (al-'innin), however, is given the choice between marriage and expiation, like any lawful thing vowed (Kashshaf al-Qina, 5/5-6; Sharh Muntaha al-Iradat, 5/99-100; al-Insaf, 8/8; Manar as-Sabil, 2/530-531).
The majority of jurists recommend marriage to one who feels desire without fearing fornication. The Hanafis: in a state of balance, marriage is an emphatic and desired sunna, based on the texts commanding it, and because the Prophet (peace and blessings be upon him) practiced it without interruption all his life, which confirms the recommendation (Bada'i' al-Sana'i', 2/228; Sharh Fath al-Qadir, 3/187; al-Ikhtiyar, 3/102; Tabyin al-Haqa'iq, 2/95; al-'Inaya, 4/314-315).
The Malikis: it is recommended to one who needs it, desires it and is overwhelmed by desire, if he is able to support his wife (dower, maintenance, clothing) and does not fear hardship, or hopes to find someone who upholds his standing in his state and rank, whether hoping for offspring or not (ash-Sharh al-Kabir ma'a Hashiyat al-Dusuki, 3/4; Sharh Mukhtasar Khalil, 3/165; Mawahib al-Jalil, 5/24; Hashiyat as-Sawi, 4/392). The Shafi'is: it is recommended to one overwhelmed by desire who finds his means (dower, maintenance and expenses), per the young people hadith cited above (reported by al-Bukhari, 4778 and 4779, and Muslim, 1400) (al-Bayan, 9/110-111; Sharh Sahih Muslim, 9/174; an-Najm al-Wahhaj, 7/9-10; Mughni al-Muhtaj, 4/210, 221; Tuhfat al-Muhtaj, 8/470).
The Hanbalis: it is sunna for one who has desire without fearing fornication, per the same hadith (reported by al-Bukhari, 4778 and 4779, and Muslim, 1400). The Prophet motivated the command by the lowering of the gaze and the guarding of the private parts, addressed the young, the most prone to desire, and used the superlative form: it is thus the better choice against the unlawful gaze and fornication. It is sunna even for the poor man unable to maintain, on the sound view: the Prophet would pass his days owning nothing, and he married off a man who could not afford even an iron ring, who owned only his izar and no cloak (reported by al-Bukhari).
He married off a man who could not afford an iron ring, who found nothing but his izar and owned no cloakReported by al-Bukhari
Ahmad said of a low-earning man whose heart wavered about marrying: "Allah will provide for them; marriage is better for him." Al-Mirdawi: no difference between rich and poor on the sound view of the madhhab, texted explicitly; others say a poor man marries only out of necessity, and al-Mirdawi replied that this is correct in these eras, chosen by the author of al-Mubhaj (al-Insaf, 8/7).
Ash-Sharh finally notes that the recommendation applies to one able to marry; as for one who cannot, Allah says: "And let those who find not the means for marriage abstain until Allah enriches them from His bounty" (Surah An-Nur, 33). Salih reported from him: let him borrow and marry (Kashshaf al-Qina, 5/4; Sharh Muntaha al-Iradat, 5/98; al-Insaf, 8/8; Manar as-Sabil, 2/530).
The jurists state that marriage is disliked in specific cases. The Hanafis: it is disliked for fear of injustice (jawr) toward the wife, marriage having been legislated to guard the soul from fornication through endurance and the hope of reward through children who worship Allah. If the fear of falling into fornication without marriage conflicts with the fear of being unjust by marrying, the second is given precedence: injustice is a sin against creatures, guarding against fornication pertains to the rights of Allah, and the right of the creature takes precedence, for she has need and the Master is rich (Hashiyat Ibn Abidin, 3/6-7; Sharh Fath al-Qadir, 3/187; al-Ikhtiyar, 3/102; Tabyin al-Haqa'iq, 2/95; al-'Inaya, 4/314-315; al-Bahr ar-Ra'iq, 3/84).
The Malikis: marriage is disliked for one who does not desire it if it leads to neglecting a recommended act (ash-Sharh al-Kabir ma'a Hashiyat al-Dusuki, 3/3; Mawahib al-Jalil, 5/23). The Shafi'is: it is disliked for one who has no need of it, being stirred neither by temperament nor by an accident (illness, impotence), if he has lost his means; he would then commit himself to what he cannot sustain without necessity. It is disliked despite having the means if a harmful factor exists, such as old age, chronic illness or impotence, for he brings the woman no protection, which most often ends in her ruin.
But if he has the means with neither need nor harmful factor, it is not disliked, the purposes of marriage not being limited to intercourse; devoting oneself then to worship and knowledge remains better for him (al-Bayan, 9/113; Sharh Sahih Muslim, 9/174; Mughni al-Muhtaj, 4/212; Tuhfat al-Muhtaj, 8/474, 477; Nihayat al-Muhtaj, 6/211-212; ad-Dibaj, 3/166). The Hanbalis (on one view) dislike it for one who has no desire at all; the text of al-Insaf notes that this case is not far-fetched in these eras: the man deprives of his protection the woman he marries, harms her by keeping her without possessing her, exposes himself to duties and rights perhaps too heavy for him, and distracts himself from knowledge and worship with what has no benefit (al-Insaf, 8/8; Matalib Uli an-Nuha, 5/6-7).
The debate over prohibition closes with the Shafi'is: for the woman who has no need of marriage, marriage is forbidden to her, given the severe warning on this matter (Mughni al-Muhtaj, 4/212; Tuhfat al-Muhtaj, 8/478; ad-Dibaj, 3/167). The Hanbalis add: marriage is forbidden in the land of war, except out of necessity for offspring lest they be enslaved; under compulsion, he may marry a Muslim woman while practicing withdrawal (azl), and must not marry from them. If he serves in the army of the Muslims, marriage is permitted to him: it is reported from Sa'id ibn Abi Hilal that the Messenger of Allah (peace and blessings be upon him) married Abu Bakr to Asma bint Umays beneath the banners (reported by Sa'id), the disbelievers having no dominion over him, like one residing in the land of Islam. As for the prisoner, the apparent meaning of Ahmad's words is that marriage is not lawful for him as long as he is captive (al-Mughni, 9/234; Kashshaf al-Qina, 5/6; Sharh Muntaha al-Iradat, 5/100; Manar as-Sabil, 2/531).
Fifth ruling: permissibility. The jurists mention cases where marriage is simply permitted. The Hanafis: it is permitted to one who fears inability to fulfill its obligations, provided the fear is unfounded; otherwise it becomes detestable bordering on the forbidden, since absence of injustice is among its obligations. Ibn Abidin: if the man does not intend establishing the sunna but only the satisfaction of desire, fearing nothing, no reward is established for him, for reward depends on intention; the act is then simply permitted, like intercourse for the mere satisfaction of desire. The Prophet was asked: "One of us satisfies his desire, how is he rewarded?" and answered, in meaning: "Consider, if he placed it in the forbidden, would he not be punished?" (reported by Muslim): reward therefore applies absolutely, unless the hadith means the satisfaction of desire in order to guard oneself.
As al-Ashbah specifies, marriage is an emphatic sunna requiring intention. Lawful things change status according to purpose: seeking strength for obedience makes them an act of worship, like eating, sleeping, earning and possessing (Hashiyat Ibn Abidin, 3/7-8; al-Bahr ar-Ra'iq, 3/85). The commentary of al-Fath adds: without intention, the act is simply permitted, its purpose being the mere satisfaction of desire, the opposite of worship; yet it retains a merit, for turning away from the unlawful path while it is available, knowing the burdens it may entail, aims at leaving sin (Hashiyat Ibn Abidin, 3/7-8; al-Bahr ar-Ra'iq, 3/85).
The Malikis: marriage is permitted to one who can have neither offspring nor desire for women, provided it does not lead him to neglect a recommended act; the woman is equal to the man in these cases. Al-Lakhmi: the man with no desire and no hope of offspring, castrated, eunuch, impotent, senile in old age, or barren knowing it of himself: marriage is permitted to him. Al-Hattab specifies: on condition of not neglecting worship, and that the woman knows his state, for it is forbidden if it harms her through absence of intercourse; as for sterility, it need not be disclosed: it is not a defect granting the option of annulment, and Allah may grant offspring from this union even if none came from another, and Allah knows best (Mawahib al-Jalil, 5/23; Sharh Miyara, 1/244; ash-Sharh al-Kabir ma'a Hashiyat al-Dusuki, 3/3).
The Shafi'is: one who has no need of marriage, stirred neither by temperament nor by accident, but possesses the means, does not see marriage disliked, the purposes of marriage not being limited to intercourse; devotion to worship and knowledge remains better. Imam al-Nawawi posed the question: what is better, marriage or leaving it? His companions answered with four cases: one overwhelmed by desire who finds his means: marriage is recommended for him; one not overwhelmed and without means: disliked; overwhelmed without means: disliked, and he is commanded to fast to repel the desire; one with means whom desire does not overwhelm: according to al-Shafi'i and the majority of his companions, leaving marriage and devoting oneself to worship is better, without marriage being called detestable, only its being left better; according to Abu Hanifa, some companions of al-Shafi'i and some of Malik, marriage is better, and Allah knows best (Sharh Sahih Muslim, 9/174).
The Hanbalis (in the madhhab): marriage is permitted to one who has no desire at all, whose temperament is stirred neither by nature (the impotent, the sick, the aged), the cause grounding obligation or recommendation being absent, and the purpose of marriage, offspring, unrealizable through him; he falls among ordinary lawful things, and devotion then to supererogatory worship remains better, for the reasons seen: depriving the wife of protection, the harm of keeping her without consummating, exposure to duties perhaps too heavy, and distraction from knowledge and worship. Some say marriage is recommended for him based on the generality of the reports, others that it is disliked for him (al-Mughni, 7/5; al-Mubdi', 7/5; al-Insaf, 8/8; Kashshaf al-Qina, 5/5; Sharh Muntaha al-Iradat, 5/99; Matalib Uli an-Nuha, 5/6; Manar as-Sabil, 2/531).
Imam Ibn Rushd al-Qurtubi (may Allah have mercy on him) summarizes: marriage is recommended according to the majority; obligatory according to the Zahiris; the later Malikis say it is obligatory for some, recommended for others, permitted for others, according to the fear of temptation overwhelming them. The cause of the disagreement: whether the command formula in "Marry those who please you among the women" (Surah An-Nisa, 3) and the following hadith is to be understood as obligation, recommendation or permission?
Marry, for I will boast of you among the communitiesSahih hadith, reported by Ibn Majah (1846)
Those who say it varies by person rely on public interest (maslaha), a type of reasoning called mursal, with no fixed basis, which many scholars reject, although the apparent practice of Malik's madhhab endorses it (Bidayat al-Mujtahid, 2/2).
A woman is called "mamhura" if a mahr was given to her or its amount fixed, and "mumhara" when she is married to a man against a mahr: the verbs "mahartu" and "amhartu" thus carry two different meanings (al-Mishbah al-Munir, 2/582).
The dower bears several names: sadaq, sadaqa, mahr, nihla, farida, ajr, 'ala'iq, 'uqr, hiba', nikah and tawl, as in the verses of the nazim: "Sadaq, mahr, nihla and farida... hiba, ajr, then 'uqr and 'ala'iq", and the other verse: "Mahr, sadaq, nihla, farida... tawl, hiba, 'uqr, ajr, 'ala'iq". It is reported from the Prophet (peace and blessings be upon him):
Fulfill the 'ala'iq (dowers). It was said: "What are the 'ala'iq, O Messenger of Allah?" He said: "That upon which the families agree"Very weak hadith, reported by Sa'id ibn Mansur in his Sunan (619) and Ibn Abi Shayba (16361, 36168)
Umar said: "She has the 'uqr of her peers" (see: al-'Inaya, 4/472; Tahdhib al-Asma, 3/165; Rawdat at-Talibin, 5/109; Mughni al-Muhtaj, 4/361; al-Mughni, 7/160; al-Matali' ala abwab al-Muqna', 1/326).
The jurists defined the sadaq or mahr. The Hanafis: the wealth due, by virtue of the marriage contract, from the husband, in return for the benefits of intimacy, either by explicit naming or by the contract itself (al-'Inaya, 4/472). Another definition: the name for what the woman deserves by the marriage contract or intercourse, doubtful intercourse being included (Hashiyat Ibn Abidin, 3/101).
The Malikis: the sadaq (with sad opened, sometimes with kasra), also called mahr: what is fixed for the wife in return for the enjoyment had of her (ash-Sharh al-Kabir ma'a Hashiyat al-Dusuki, 3/130; Hashiyat as-Sawi ala ash-Sharh as-Saghir, 5/77). The Shafi'is: what becomes due by marriage, intercourse, or the forcible deprivation of intercourse, as in the case of milk-kinship or the retraction of witnesses; named thus to signal the sincerity of the giver's desire for marriage, marriage being the origin of the dower's obligation (Rawdat at-Talibin, 5/109; Asna al-Matalib, 3/200; an-Najm al-Wahhaj, 7/295; Mughni al-Muhtaj, 4/361; Nihayat al-Muhtaj, 6/386; ad-Dibaj, 3/309).
The Hanbalis: the sadaq is the compensation named in the marriage contract or after it for the one for whom nothing was named, and what stands in its place; or: the compensation named in doubtful intercourse, or in fornication with a slave woman or a coerced woman (al-Matali' ala abwab al-Muqna', 1; al-Mubdi', 7/130; Kashshaf al-Qina, 5/142; Sharh Muntaha al-Iradat, 5/233; Matalib Uli an-Nuha, 5/173).
Before the divorce clause, the encyclopedia treats the conditions of marriage and their mahr: when the named mahr is accompanied by conditions that empty its amount, the contract becomes ambiguous and the wife is entitled to the dower of similitude (mahr al-mithl). If the named mahr exceeds the mahr al-mithl, two views: according to the madhhab, she is entitled only to the mahr al-mithl, the named amount being annulled by the conditions that render it ambiguous; according to al-Muzani, she is entitled to the named amount, so as not to suffer a double loss, that of the conditions and that of the mahr: she accepted only in exchange for the increased sum, and if the conditions are denied her, the amount cannot be denied her (al-Hawi al-Kabir, 9/505, 507; al-Muhadhdhab, 2/57; Rawdat at-Talibin, 5/126).
Imam Ibn al-Qayyim (may Allah have mercy on him) presents the thirtieth example: whoever marries a woman on condition of not removing her from her house or town, of not taking another wife nor a concubine: the marriage is valid and the condition binding; this is the consensus of the Companions (may Allah be pleased with them), the practice of Umar, Sa'd and Mu'awiya proving it, with no Companion contradicting them; the majority of the successors follow, and Ahmad affirmed it. Three scholars dissented, annulling the condition without enforcing it (Ighathat al-Lahfan, 2/20-21).
If the woman needs this condition and no judge is available to validate its soundness and binding force, the means to obtain her aim: to withhold consent, unless after the contract he undertakes: if he travels with her, removes her from her house, or marries another, she is divorced, or she has the option to remain with him or to annul. If she does not trust him, she demands a very high mahr if he keeps the condition, a lesser one if he does not: accepting the lower mahr in exchange for the undertaking, demanding the higher mahr otherwise, which becomes due at once; she may also withhold herself until she receives the mahr or the undertaking demanded. Upon which mahr does the contract then rest? Upon the higher mahr, so that she can compel him to keep the condition; if he fears undertaking it and seeing the higher mahr remain due to her, witnesses are made to testify that after the undertaking she has no right to any of the excess over the lower sadaq, any claim being declared void: trust is thus established, the contract and the condition are written, and she may claim the higher mahr if he fails the condition, for she accepted the lower mahr only in exchange for a benefit, residing in her home or being his only wife, a benefit that forms part of her dower (Ighathat al-Lahfan, 2/20-21).
If none of that succeeds, she is married with a named mahr on the basis that if he removes her from her house, she is entitled to the mahr al-mithl, a multiple of the named amount, the husband acknowledging it to be the mahr al-mithl. This condition is valid: her consent was given only on the basis of remaining in her home, and the increase compensates what she forwent. The companions of Abu Hanifa moreover explicitly allowed such a device, while judging invalid the condition of remaining in her house or of not taking another wife.
Allah, however, dispensed with this device by making the fulfillment of this condition obligatory: it is the most deserving of conditions to be honored, required by the Sharia, reason and sound analogy; the woman does not consent to giving her intimacy to her husband except on this condition, and without enforcement the contract would no longer be mutual, imposing on her what she did not undertake and what Allah and His Messenger did not impose, with neither text nor analogy (I'lam al-Muwaqqi'in, 3/343-344).
In I'lam al-Muwaqqi'in, Ibn al-Qayyim adds: if no judge validates the condition, or she fears he will carry it to a judge who annuls it, the means is to bind him at the contract to say: "If I marry another woman, she is divorced". This condition is valid; even according to those who hold, with Ahmad, that divorce cannot be suspended upon marriage, the undertaking really bears on abstention, with the sanction of her option to remain or leave: suspending the divorce of the co-wife thus becomes permitted, like suspending the condition of not marrying her.
If that means fails, let her take his undertaking: if he marries another, her affairs revert to her hands, or the co-wife's affairs revert to her hands, a valid suspension since it is a delegation (tawkil), valid according to the majority of scholars, Malik, Abu Hanifa and Ahmad, as delegation may be suspended upon a condition by explicit Sunna; and even if the suspension of delegation upon a condition were denied, this particular delegation would stand, since it contains a renunciation, like divorce and manumission suspended upon a condition (I'lam al-Muwaqqi'in, 3/343-344).
What is the status of the clause by which the wife obtains that divorce be in her hand, to divorce herself whenever she wishes? Does the marriage remain valid, is it annulled before consummation surviving only with the mahr al-mithl, or is it annulled absolutely?
The Hanafis: if the man initiates saying "I marry you on condition that the affair be in your hand" and she accepts, no divorce takes place and the affair does not pass into her hand; but if he says "on condition that your affair be in your hand after I marry you", the condition is valid and the affair passes into her hand. If the woman initiates saying "I give myself to you in marriage on condition that the affair be in my hand: I shall divorce myself whenever I wish", and the husband replies "I accept", the marriage is valid, divorce takes place and the affair is in her hand (al-Bahr ar-Ra'iq, 3/343; al-Ashbah wa-n-Nazair, 1/408; al-Fatawa al-Hindiyya, 1/273; Hashiyat Ibn Abidin, 3/27, 329).
This clause becomes a device for the woman thrice divorced who fears her returning husband (the muhallil) will keep her: let her initiate with this formula, the husband accepting, and the affair passes into her hand. If the man says: "I marry you on condition that you be divorced after my marriage, or that your affair be in your hand after my marriage, divorcing yourself whenever you wish", and she says "I accept", divorce takes place and the affair is in her hand. In al-Muntaqa, al-Hasan reports from Abu Hanifa: "I marry you on condition that your affair be in your hand for a month after I marry you": the marriage is valid and her affair in her hand for a month from the marriage; if she chooses her husband on any day of the month, her option does not lapse for the rest of the month according to al-Hasan from Abu Hanifa; al-Hasan, from Abu Malik, reports from Abu Yusuf that it lapses for the rest of the month (al-Muhit al-Burhani, 3/87; Sharh Fath al-Qadir, 3/183; Tabyin al-Haqa'iq, 2/259).
The Malikis: if a woman is married on condition that divorce be in her hand whenever she wishes, and the condition is in the body of the contract, the marriage is dissolved before consummation by mutual agreement; after consummation it stands with the mahr al-mithl. On the sound view of the madhhab it is not dissolved after consummation, proceeds on the sunna of marriage, and the contradictory condition falls: every condition contradicting the Book of Allah and the sunna of His Messenger is null. On another view it is dissolved absolutely, before and after consummation. If the condition occurs after the contract while she holds the isma, no harm results (al-Bayan wa-t-Tahsil, 4/378, 461; at-Taj wa-l-Iklil, 2/511; Sharh Mukhtasar Khalil, 3/195; ash-Sharh al-Kabir ma'a Hashiyat al-Dusuki, 3/41; al-Bahja fi Sharh at-Tuhfa, 1/435; Hashiyat as-Sawi, 4/496).
The Shafi'is: every condition removing the purpose of the contract, such as marrying a woman on condition that divorce be in her hand to divorce herself whenever she wishes, renders the marriage void, whether the condition comes from him or from her: it removes the purpose of permanence in marriage, which becomes of fixed duration, like the mut'a (temporary) marriage, hence void (al-Hawi al-Kabir, 9/506).
As for the Hanbalis, the author found no stated position: the condition appears neither among the valid nor the invalid conditions in the chapter on marriage conditions; they mention it only if the husband institutes his wife's divorce after marriage, by placing the affair in her hand: which is permitted according to them and to the jurists of the four schools, as will be seen in the chapter on divorce. The author nevertheless cites a beautiful passage of Ibn al-Qayyim: the woman who fears her husband will travel leaving her behind, remove her from her home against her will, marry another, drink intoxicants, beat her without offense, or turn out poor though she thought him rich, afflicted though she thought him sound, illiterate though she thought him a reader, ignorant though she thought him knowledgeable, and she cannot free herself: the means is to stipulate that if any of these occurs, the affair is in her hand, she remaining or leaving as she wishes, with witnesses; if she fears she cannot stipulate it after the contract becomes binding, her guardian gives her only on this condition: "We marry you both on condition that her affair be in her hand if such and such occurs". Then, as soon as the event occurs, she holds her own divorce; this device is lawful: it frees her from a marriage she does not consent to, and spares her bringing her case before the judge to have her marriage dissolved for hidden defect, insolvency and the like (I'lam al-Muwaqqi'in, 3/384).