090323L - MARRIAGE CONTRACTS: HEALTH-RELATED ASPECTS

Background reading material for Yr3 Sem2 PPSD Session on Monday 23^rd March 2009 by Professor Omar Hasan Kasule Sr.

1.0 PROSPECTIVE SPOUSE

Three conditions must be fulfilled in a prospective husband: adulthood, desire for marriage, and financial ability. The conditions for a prospective wife are having attained the minimum age for marriage and a desire to marry. There are no financial conditions.

Desirable characteristics in a spouse are religion, beauty, pedigree, lineage, wealth, social compatibility, and professional status. Religion is the most important.

Beyond these basic conditions prospective spouses must consider compatibility, kafaat, which includes psychological, cultural, socio-economic, and educational factors. Incompatibilities that can be identified before marriage usually break the marriage later with adverse consequences for the spouses and the children.

Looking at the prospective spouse is allowed and includes pre-marital screening for disease and genetic traits. Where closely-related persons are marrying, pre-marital genetic counseling and testing are highly recommended.

Marriage proposals can be made by men or women. It is forbidden to propose when a previous proposal is still being considered or has been accepted. It is forbidden to make any marriage proposals, direct or allusive, during the period of waiting after a reversible divorce. It is forbidden for the prospective spouses to be secluded in private without a mahram.

 

2.0 FORBIDDEN MARRIAGES

Marriage is prohibited on the basis of blood relationship (consanguinity), breastfeeding from the same woman (foster sibship), difference of religion (will lead to incompatibility), and joining closely related in marriage to the same man (will lead to break up of the women’s family relationship).

Mut'at, a marriage contracted with the knowledge that it is for a limited period, is forbidden. Such a marriage does not provide the stability needed to bring up children until adulthood. Children in broken marriages have a lot of physical and psychological disadvantages.

3.0 MARRIAGE CONTRACT AND MAHR

There are 4 pillars of marriage: pronouncement and acceptance, the guardian (waly), the bride, and the groom. No marriage is valid without witnesses or a waly (guardian). The waly must be a close male relative, and of sound judgment. In the absence of a waly the judge(kadhi) or any other male authorized by the bride can act as waly.

Marriage must be by free consent of both spouses irrespective of gender, age, or previous marital status. Marriage by coercion is invalid. The consent of marriage must fulfill the same conditions as informed consent in medical practice. Psychiatric examination may be necessary in conditions in which intellectual incompetence is suspected.

Dowry, mahr, is obligatory for validity of a marriage. Its purpose is to give the bride financial security. It is fixed by the bride before marriage and remains her. It is not returned in case of divorce of death of the husband if the marriage was consummated. Its payment can be delayed either in full or in part by mutual agreement of the spouses. The unpaid mahr is a debt that is due to be paid.

Marriage must be made known publicly to prevent secret illegal relations. A marriage feast, waliimat, is a highly recommended sunna.

Conditions in the marriage contract are respected if they are not repugnant to the Law. Examples of acceptable conditions are stipulations about monogamy and country of residence. A marriage contract is invalid if contracted during hajj.

4.0 CONJUGAL RIGHTS & OBLIGATIONS

Rights must be balanced against obligations. Both are mutual. The husband has a higher degree of responsibility because of extra legal obligations.

The husband and wife have mutual sexual rights. Fulfillment of these rights will prevent extra-marital sexual relations that lead to sexually transmitted diseases or unwanted pregnancies both serious medical problems. Any diseases, physical or psychological, that affect sexual relations must be treated promptly.

The Law stipulates financial obligations to ensure that mothers and their children have security of food, shelter, and medical care. The financial obligations of the husband are dowry(mahr) and home maintenance (nafaqat).  Failure to provide nafaqat is grounds for nullification of marriage. Unpaid nafaqat is treated as a debt. Nafaqat is obligatory in the post-divorce period of ‘iddat. It continues for a divorced pregnant woman until delivery. By mutual agreement the divorced mother is entitled to wages for looking after the infant after divorce. This is to ensure that children get maternal care but the mother need not worry about financial support since the husband is obliged by law to pay it. If these obligations were fulfilled, pediatric wards wouild see fewer physical and psychiatric problems in children.

Spouses are a source of comfort, sakiinat, for each other. Mutual kind and tolerant treatment between the spouses is needed in marriage. Ill-treatment of the spouse is forbidden. Mutual good treatment, husn al mu’asharat, is ordained. The wife can go out of the house for good reasons and with her husband’s permission. Since the husband is legally responsible for the physical security of his wife, he has to know where she is going. If it is safe he can let her go alone; if it not safe he has to go with her. A wife cannot go on long journeys without a husband or a male relative (mahram) for purposes of physical security. If these obligations were followed properly the millions of cases of kidnapping and trafficking in women that occur would have been prevented. Women because of less physical strength can easily fall victims to violence hence requiring this extra protection.