Fiqh of Marriage

September 4th, 2007 by shazia

Who is One Allowed to Marry?

In this Chapter:

	Which women a man may or may not marry both on a temporary and a permanent basis
	Marriage between a Muslim man and a Christian and Jewish woman
	How does adultery affect the permissibility of marriage?
	A Muslim woman may only marry a Muslim man (legal trickery not allowed)
	Proposing to a woman who has been proposed to

Who is one Allowed to Marry

Allah mentioned most of the categories of women involved in this question in the folowing verses:

{And do not marry women whom your fathers married except what has already passed. It was indeed obscene, hateful and an evil way. (22) Forbidden to you in marriage are: your mothers, your daughters, your sisters, your father’s sisters, your mother’s sisters, your brother’s sisters, your sister’s daughters, your wet nurse, your ’sisters’ by nursing, your wives mothers, your step daughters under your guardianship born of your wives with whom you have consummated - if you did not consummate then there is no sin upon you, the wives of your blood sons, two sisters at the same time, except for that which has already passed. Verily, Allah is Forgiving, Merciful. (23) And those already married except those whom your right hand possesses (through capture). Allah’s ordinance upon you. And allowed for you are all besides these if you seek them with your property seeking chastity not fornication… (24)} An-Nisaa:22-24

Those Who Are Forbidden Forever

This category includes those one is forbidden to marry due to relationship of blood as well as some who are forbidden due to marital relations.

Those Forbidden Due to Blood Relations

Descendants due to a relationship with a woman no matter how far (a man’s daughter, granddaughter, etc.)

Ascendants of women no matter how far (mother, maternal and paternal grandmother, etc.)

Descendants from his parents no matter how far (sisters, half sisters, sisters children, etc.)

Siblings of male and female ascendants no matter how far (paternal and maternal aunts, great aunts, etc.)

The student may notice that of these, the grandmother was not explicitly mentioned in the verse. This is because frequently in Arabic and in Qur’an (as in some of the verses on inheritance), the term “mother” includes the grandmother and ascending.

Those Permanently Forbidden Because of Marital Relations

Wives of ascendants no matter how far (father’s wife, grandfather’s wife, etc.). Consummation is not required, the mere completion of the marriage contract makes this marriage forbidden forever.

Wives of descentants no matter how far. Again, the mere marriage contract is what is considered here with or without consummation.

Ascendants of wives (such as the mother-in-law) whether consummated or not.

Descendants of wives (step-daughters and their children) only if the man consummated the marriage with the wife in question. The phrase “under your guardianship” is mentioned here only to portray the usual case and not as a condition. The ruling holds whether the step-daughter was ever under his care or not. This is the opinion of the majority of scholars.

Those Permanently Forbidden Due to Breast Feeding

The verse actually mentions “mothers” and “sisters” by breast feeding. From these two, the other can be derived based on the hadith of the Prophet (sas):

“Yahrumu min ar-radhaa’a maa yahrumu min an-nasab.”

“Breast feeding make forbidden what is forbidden through blood relations.” Muslim

In another hadith, the Prophet (sas) was asked to marry the daughter of his uncle Hamza and he said:

“She is not permissible for me. She is the daughter of my brother through breastfeeding. And breastfeeding forbids what is forbidden through blood relations. Bukhari & Muslim with different wording.

Another time, the brother of a woman who had breastfed Aisha came to visit her. She refused to let him in uuntil she asked the Prophet (sas) about it and he said:

“Idhiniy lahu fa innahu ‘ammuka.”
“Give him permission for he is our uncle.” Bukhari & Muslim

Minimum Requirement in Breast Feeding

There is a wide variety of opinion on how many “sessions” of breastfeeding create the prohibition including one, five, ten, seven and three. One common opinion which you may hear is that the child must have nursed on three separate occasions. This is based on the hadith:

“Laa tuharrimu al-massatu wa al-massataan”
“The prohibition is not established by one suck or two.”

The strongest opinion is that of Malik, Abu Hanifa, Ali ibn Abi Talib, Abdullah ibn Umar, Abdullah ibn Abbas and others that a single session is sufficient. This is the strongest opinion because it is the apparent meaning of ridhaa’a in the verses and the hadith and because the above hadith could easily to refer to “sucks” and not “sessions” so in other words if the baby merely sucks once or twice it doesn’t count unless the baby completes the “session”, drinking to satisfaction.

Women included in this Category

His female ascendants through nursing. This includes the woman who nursed him and her mother, etc. The husband of the wet-nurse is considered the “cause” of the milk involved. So, for example, if a girl is nursed by a woman, that woman’s husband becomes forbidden to her just as her own blood father is.

Descendants through nursing. The man who is the “cause” of the milk is forbidden from marrying the one his wife nursed or their children, etc.

Descendants of “parents” through nursing, i.e., “sisters”. One cannot marry any of the children (either by blood or nursing) of the wet-nurse or her husband.

Siblings of ascendants by nursing i.e., brothers and sisters of the wet nurse or her husband. This does not include their children (”cousins” by nursing).

Note the following important point as stated by Ibn Uthaimeen: “The relatives of the child that is nursed, except for his/her children, has no relation to the breastfeeding mother [or her husband] and there is no effect on them from that nursing. So it is allowed for a boy’s blood brother to marry his brother’s wet nurse or her daughters. However, the children of the child who was nursed will become like the children of the wet nurse and her husband in the same way that their father (the one originally nursed) was a “child” (by nursing) to those two.”

Those Forbidden for Temporary Reasons

The second category of women a man is forbidden to marry are those forbidden for temporary reasons. If the reason ceases to exist, marriage between them becomes lawful. They include the following:

While being married to a woman, a man cannot marry her sister or any of her aunts. The first was mentioned in the verses previously mentioned and the second is mentioned in the following hadith:

“Inna an-nabiyya nahaa an yajma’a baina al-mar’ati wa ‘ammatihaa wa baina al-mar’ati wa khaalatihaa.”
“The Prophet (sas) prohibited joining (in marriage at the same time) a woman and her paternal aunt or a woman and her maternal aunt.” Bukhari & Muslim

If a person divorces his wife three times, it is not allowed for him to marry her again unless and until she marries someone else (not as a trick to get back to him), consummates that marriage and that marriage is subsequently legally ended.

Any woman if a man already has four wives.

Marrying a slave girl when one is already married to a free woman.

Marrying a woman who is already married or who is in ‘idda. A woman in ‘idda due either to death or divorce is not allowed to marry until it is finished.

A woman upon whom a man has made li’aan unless he confesses that he lied. Al-li’aan is where the husband accuses the wife of adultery but cannot bring witnesses so he swears that it occurred and the two are separated after the wife swears that she is innocent. He can never marry her again unless he confesses that he was lying.

A woman who is neither Muslim, Jewish or Christian.

Miscellaneous Questions about Whom One May Marry

Do Illegal Relations Rule Out Marriage?

Suppose a man and a woman are living illegally as boyfriend and girlfriend and then decide that they would like to me Islamically married. Is it possible for them to be married now, or has what they have already done made marriage between them impermissable? According to reports in Sunan Ad-Daraqutni, two different opinions existed among the Companions. One of them said that the two of them should never be allowed to marry while another said that the first act was a sin but the second act was lawful.

Perhaps this is a case where the situation is different in different cases and in different times and one in which the ruler or imam should judge based on that. For example, suppose this practice becomes widespread among the Muslims as it is among most of the disbelievers today: living with someone in sin in order to “get to know them” before getting married. In such a case, the imam should perhaps forbid their marriage altogether in order to combat this wicked practice. On the other hand, suppose ignorance becomes so great (for example, among people who recently entered Islam) that people do this without really being aware of the seriousness of the issuue. In such a case, the imam would probably want to allow the marriages until the people can be better educated.

One thing that is clear in this issue which is not being practiced in the masajid in this country (where this issue comes up almost every day) is that the two actions must be kept entirely separate. It is very important in Islamic law to distinguish between a child born of fornication and one born of marriage. For that reason and at minimum, a couple who have engaged in illicit relations should be ordered to make istibraa’. This means that they must separate and have no contact with one another for one full month until it can be established that she is not pregnant. Also, they should be asked to make tauba (repentance) from what they have done as a requirement before thay are married Islamically. This is to avoid the prohibition (according to one of two interpretations) found in Surat An-Noor, verse 3 (coming).

Marrying a Woman While She is On Her Period

Although a man is not allowed to divorce his wife during this period, there is nothing wrong with marrying her during this time. However, they should not consummate the marriage until she has become clean.

Is it Allowed to Marry a Fornicatress?

There is a difference of opinion among the scholars over whether or not it is allowed to marry a woman whom one knows to be a fornicatress. The majority of scholars do not take this to the level of prohibition while other scholars hold that it is haram. Most of this difference revolves around the understanding of the following verse:

{Az-zaaniy laa yankihu illa zaaniyatan au mushrikatan wa az-zaaniyatu laa yankihuhaa illa zaanin au mushrikun wa hurrima dhalika ‘alaa al-mu’mineen.}
{The fornicator “weds” none but a fornicatress or an associationist and the fornicatress is “wed” by none but a fornicator or an associationist and that has been forbidden to the believers.} An-Noor:3

The difference revolves around some basic questions about this verse:

Is this verse a statement of prohibition, a statement simply condemning that act while not prohibiting it or a statement of fact?

Is the meaning of the word “nakaha” here the marriage contract, the actual physical relation or both?

Based on the previous point, is the prohibition mentioned in the last portion of the verse about the act of fornication itself or about marriages between such people?

Clearly, the safest position with regard to this verse is to understand the work “nakaha” with both of its meanings: i.e., the marriage contract and the physical act between man and woman. Understood in this way, the verse is clearly a strong warning to the believers against undertaking a marriage relation with an unchaste woman who has not repented or a man in a similar condition. Clearly, if they repent then this verse does not even apply to them since repentance wipes out what came before. Let’s see what a couple of sholars of tafsir had to say about the above verse:

“The condition of most fornicators is that they do not desire marriage except with a fornicator like themselves. The intention here is: sternly warning the believers against marrying fornicators after they have just been sternly warned about staying away from fornication and adultery (in the previous verse). This is the opinion best supported by the evidence. {and that has been forbidden to the believers.} i.e., the marrying of fornicators or associationists - because of the intensity of resembling the people of corruption and opening the door to accusation and because of the possibility of having a child which is not his. Thus, it is not lawful for the chaste Muslim man to knowingly marry an unchaste woman nor for a chaste Muslim woman to knowingly marry an unchaste Muslim man.” Zubdatu At-Tafsir min Fath Al-Qadeer, p. 457

“This is a clear statement of the lowliness of fornication and that it drags down the reputation of its doer as well as one who pairs with them or intermingles with them in a way that no other sin can. So Allah informed us that the fornicator is not desired in marriage except by a fornicatress - whose condition is similar to his - or one who associates partners with Allah who does not believe in the resurrection nor reward and punishment and who does not abide by Allah’s laws. And likewise the fornicatress: none marries her but a fornicator or an associationist. {and that has been forbidden to the believers.} i.e., it has been forbidden to the believers to marry a fornicator or a fornicatress.

And the meaning of the verse is: Anyone who seeks to marry another who fits the description of “fornicator” and who has not repented from that is of necessity either 1) one who does not abide by the laws of Allah - and that is nothing but an “associationist” or 2) one who does abide by the laws of Allah but who engaged in this type of marriage in spite of his knowledge of their fornication. This marriage is itself fornication and the one marrying is a fornicator and one seeking obscenity. If he (or she) truly believed in Allah, he would not engage in such a marriage. This is explicit evidence of the prohibition of marriage to a fornicatress until she repents and likewise of the prohibition of marriage to a fornicator until he repents because the pairing and closeness of a husband to his wife or of a wife to her husband is the closest of all bonds.” Tafsir As-Saadi, p. 510

Nevertheless, the majority of the scholars of fiqh state that this verse is showing such marriage acts to be blameworthy but not prohibited. They also base this position on the following hadith:

“A man came to the Messenger of Allah (sas) and said: I have a wife who is most beloved to me but she does not repel the hand of the toucher. He (sas) said: ‘Divorce her.’ The man replied: But I cannot do without her. He (sas) said: ‘Then enjoy her.’”

This is a weak argument for several reasons. First, there is doubt about the validity of the hadith. Iman Ahmad considered it weak although some other scholars considered it authentic. Second, the words do not clearly indicate adultery. They could just well (or even more clearly) be taken to mean that she has a “flirtatious” demeanor around men and does not maintain the proper etiquette of a Muslim woman. In fact, it is highly unlikely that the man intended adultery since that would not be lawful for him to state such a thing and the Prophet (sas) would have only three choices in such a situation: 1) demand of him four witnesses, 2) tell him that he must make li’aan, or 3) beat him eighty lashes.

Obviously, if it is not allowed to marry an unchaste Muslim woman until she repents according to the stronger opinion, this must be even more so the case with respect to an unchaste non-Muslim woman. Since a non-Muslim has to capability of tauba - since belief is a requirement of tauba and all other acts of worship and she is not a believer - it is highly doubtful that the stigma of fornication/adultery can ever be removed. In the next section insha Allah, we will cover in detail the rulings regarding marriages to “the people of the book” (Christians and Jews).

Is it Allowed to Marry Christian or Jewish Women?

This question has always generated varying opinions among the scholars if Islam and especially in our times when Islam has become so weak in the earth and great numbers of Muslims are living under non-Islamic states and in non-Islamic societies. The essential verses of Qur’an which relate to this question are:

{Wa la tankihu al-mushrikaati hattaa yu’minna.}
{And do not marry associationist women until they believe.} Al-Baqara:221

{Al-yauma uhilla lakum at-tayyibaatu wa ta’aamu alladhina ootoo al-kitaaba hillun lakum wa ta’aamukum hillun lahum wa al-muhsinaatu min al-mu’minaati wa al-muhsanaati min alladhina ootoo al-kitabi min qablikum idhaa aataitumuhunna ujoorahunna muhsineena ghaira musaafiheena wa la muttakhidhee akhdaanin. Wa man yakfur bi al-imaani faqad habita ‘amaluhu wa huwa fiy al-aakhirati min al-khaasireen.}
{Today all good things have been made lawful for you and the food of the People of the Book is lawful for you and your food is lawful for them and the chaste women among the believing women and the chaste women among those who were given the book before you when you you give them their due as protectors (of their honor), not (engaged) in promiscuity or having a lover. And whoever rejects faith has nullified his actions and is, in the hereafter, among those in loss.} Al-Maidah:5

{the food of the People of the Book} The reference here is to their meat which they have sacrificed. It is lawful for Muslim to eat, unlike the meat of all other disbelievers.

{your food is lawful for them} There is nothing wrong with providing them from our food.

{chaste women among the believing women} Free and chaste Muslim women. Further evidence that, a stated earlier, a Muslim may not marry an unchaste Muslim woman who has not repented and chaged her ways. Also, a Muslim man may not marry an enslaved Muslim woman except with two conditions: his inability to do otherwise and his immediate fear of falling into sin if he does not.

{chaste women among those who were given the book before} i.e., the Christians and the Jews. This is a takhsees (qualification) of the verse from Sura Al-Baqarah. A Muslim is permitted to marry the free and chaste among the People of the Book. As for the corrupt women - who do not restrain themselves from zina in its two forms mentioned later (promiscuity or having a lover) - it is not allowed to marry them whether they are Muslim or from the People of the Book.

{give them their due} i.e., We have made your marriage to them lawful when you have given them their dowry. By using the word “dues” or “wages” (ujoor) there is an indication that this dowry should be fair, meaning the “going rate” (mahr al-mithl). So, if one intends not to turn over the dowry to her, then she is not halal to him.

{as protectors (of their honor)} i.e, that you, O husbands, will be the protectors of your wives from dishonor by protecting yourselves from sin.

{not (engaged) in promiscuity or having a lover} Zina in the jahiliya was of two types: those who promiscuously went with all and sundry and those who engaged in long-term but illicit relationships with a partner. Here Allah informs us of no distinction between the two and both are opposite to chastity and protecting of honor and that one of the requirements of marriage is that the husband be free of zina.

Al-Baqarah Abrogates Al-Ma’idah or Al-Ma’idah Qualifies Al-Baqarah?

There is a weak opinion that the verse in Al-Baqarah which prohibits marriage to all associationists (which includes the Christians and the Jews) abrogates the above verse from Al-Ma’idah which allows Muslim men to marry Christian and Jewish women. It is well known that Al-Baqarah was one of the earliest surahs to be communicated in Madinah while Al-Ma’idah was one of the last. Thus, it must be concluded - as the vast majority of scholars agree - that the verse in Al-Ma’idah which give the permission constitutes a qualification or modification (tadhsees) of the general prohibition found in Al-Baqarah.

Who are the People of the Book?

Another rejected opinion held by some scholars says that A Muslim man may only marry a Christian or Jewish woman descended from those who were Christians or Jews before their books were distorted or before their religions were superceded by Islam. Ibn Hajr, the author of Fath Al-Bari (the most famous commentary on Sahih Al-Bukhari) responded to this while commenting on the hadith about a letter sent by the Prophet (sas) to the Roman emperor which contained the verse:

{O People of the Book, come to a statement that is fair and just between us…} Aal-’Imraan:64

Ibn Hajr writes:

“Everyone who follows the religion of the People of the Book takes on the same ruling as them with respect to marriage and slaughtering. This is based on the fact that Hercules and his people were not from the tribes if Israel but were from the people who entered in Christianity after it had already been distorted. He (i.e., the Prophet (sas)) said to him and his people, “O, People of the Book.” This indicates that they have the same ruling as the People of the Book, in opposition to those who say that it is just meant for the people from the tribes if Israel or it refers to those who are known to have embraced Judaism or Christianity before those religions were distorted. And Allah knows best.”

In General, It is Permitted

Clearly, the correct understanding here is that the permission in Al-Ma’idah modifies or particularizes the general prohibition in Al-Baqarah. That is, associationists generally are not allowed to be married but an exception has been made for Jewish and Christian women although, without a doubt, Jews and Christians have been described as associationists in the Qur’an. Ibn Al-Mundhir wrote: “It is not recorded from any of the early scholars that such is impermissible.”

But Some Seem to Have Prohibited It

Abdullah Ibn Umar was asked about a man marrying a Christian woman and he said: “Allah has forbidden the polytheistic women for the believers and I do not know of any assoicating of partners which is greater than for a woman to say the Jesus or any of Allah’s slaves is her Lord.” Also, it is well known that his father Umar ibn Al-Khattab was opposed to such marriages but would not state that they were forbidden. It seems that we must understand the son’s statement in this context - or he would be in clear contradiction of the Qur’an. Umar ordered a number of people to divorce their non-Muslim wives. They all did so except for Hudhaifa. Hudhaifa asked Umar if he could state that such a marriage was forbidden and Umar refrained from making such a statement. From this we must conclude that those who opposed it did so without believing it to be forbidden.

Strongest Opinion: It is Allowed but not Preferred

Jabir ibn Abdullah was asked about such marriages and he said: “We married them during the time of the conquest of Kufah along with Saad ibn Abi Waqqas but we could hardly find any Muslim women there. When we returned, we divorced them.”

There is no question that such marriages can lead to a great deal of harm for the Muslim and that this situation is more serious today with the weakness of most Muslim men in their knowledge and practice. Furthermore, as Shaikh Ibn Baz pointed out, “nowadays men are listening to and obeying their wives more and more. Hence, such a marriage could be dangerous for his own religion as well as for the religion of the children.”

Conditions for Marrying Such Non-Muslim Women

Even those who allow (and disapprove of) these marriages lay down some conditions for its permissibility.

She must be chaste (‘afeefa). This condition alone would eliminate the vast majority of such marriages which take place in this country. Note that since a non-Muslim woman cannot possibly make tauba (repentance) since it is an act of worship and no act of worship is accepted without the prerequisite of belief which she is lacking, the attribute of “fornicatress” once applicable cannot be lifted unless she becomes Muslim regardless of how long she has left the practice itself.

She must not be from Ahl Al-Harb (those peoples who are at war with the Muslims). It is reported that Ibn Abbas stated: “It is not allowed to marry the women of the People of the Book if they are from the people fighting Islam.” While it can be debated whether the United States is at this time “Ahlu Al-Harb” or not since their opposition to Islam is clear, but there is no actual ongoing war at this time, it is clearly disadvantageous for a Muslim man to marry a non-Muslim woman in this context. If anything should go wrong, his property and his innocent children will almost surely be seriously violated due to the injustice and bias of the courts in this regard.

Review Questions

Marrying one’s granddaughter is not expressly forbidden in the verse from An-Nisaa. Where is the proof that it is forbidden?

If a woman’s mother breastfed three brothers, is it permissible for her to marry their other brother who was not breastfed by her mother?

Discuss the difference of opinion regarding marrying Christian or Jewish women.

What is the ruling regarding marrying a person who is a known fornicator?

True or false: If a fornicator has repented from the act, it is still not allowed to marry him/her.

What is the difference in ruling between marrying the step-mother or the daughter-in-law when a person has married a woman and divorced her without consummation.

Is it allowed to marry the daughter-in-law who has not been under one’s care? Why?

True or false: It is forbidden to marry a woman while she is on her menses.

Mention with examples the different categories of women whom one is never allowed to marry.

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