GPR: 322

UNIT: FAMILY LAW

COURSE INSTRUCTOR:MISS KOKI MBULU
ASSIGNMNENT: ISLAMIC MARRIAGES

ASSIGNMENT DONE BY:

NAME REGISTRATION NO:
NAJMA TARI G34/44712/2017
SUBIRA HASSAN G34/42772/2017
GUYYO ABDIHAKIM G34/43723/2017
ZEYTUN ABDI G34/43928/2017
HAMDI ABDULLE G34/44697/2017
Islamic Marriage

Islamic law is applied in the Kadhis’ Courts where “all the parties profess Muslim religion.”
In suits relating to personal status, marriage, divorce or inheritance. There are 8 Kadhis’
Courts in Kenya ,presided over by a Chief Kadhi or Kadhi appointed by the Judicial Service
Commission .Appeals lie to the High Court, sitting with the chief Kadhi or two other Kadhis
as assessor(s).

Kenya has a diverse Muslim population due to Arab ad South Asian settlement, local
conversion and intermarriages. Legislation relating to the application of Muslim personal law
has developed in recent years due to the growing population of Muslims since the colonial
era. The Acts in force basically afford recognition to marriages solemnised under Islamic law,
provide for the registration of Muslim marriages and divorces, delineate the jurisdiction and
procedure of Kadhi’s courts and instruct the application of the principles of personal law
applicable to the parties involved, without substantive codification of that law.

The nikah, or marriage and pairing are of the laws that Allah has passed for His creatures.
Pairing applies in general to animals and vegetation. As for man, Allah has distinguished him
over the rest of His creation by assigning to him a suitable system whereby man's dignity and
honour may be maintained, and his esteem may be preserved through legal nikah'

Such a procedure secures a relationship between man and woman that is based on mutual
respect and consent. Thus man's natural needs are fulfilled in a sound manner to preserve
posterity and protect women from being a common object.

The nikah is one of the Islamic laws to which the Messenger, peace be upon him, encouraged
the youth saying: - “Young people Whoever of you who can afford marriage, let him get
married, for marriage helps restrain the looks, and preserve their chastity' He who cannot
afford it, let him observe fasting, for fasting is a deterrent.”

Nikah or marriage is recommended for him who is desirous of it, and is not feared to commit
fornication. Otherwise, marriage is a must for a person who fears committing fornication.

In Islamic law (sharia), marriage is a legal and social contract between two individuals. Islam
is totally opposed to monasticism and celibacy. Marriage is an act of Islam and it is strongly
recommended. The age of marriage in Islam is determined by how prepared the individuals
feel ready, financially and emotionally. It is permissible for the Muslim man to marry four
women provided he maintains fairness in treating them as regards to maintenance, clothes,
food' and shelter, and the like. If he fears being unfair it becomes unlawful for him to marry
more than one'

The Wisdom of Marriage:

1. Marriage is a healthy environment in which the family maintains its cohesiveness and
reciprocal love. It also helps maintain chastity and guards one from committing the
Prohibited
 2. Marriage is the best means of reproduction and multiplication, and preserving the
family lineage'
3. Marriage is the best means of fulfilling sexual needs free from related diseases.
4. Marriage fulfils the parental and maternal senses in man through having children.
5. Marriage helps maintain the sense of security, self-contentment and chastity for both
husband and wife.

Marriage Conditions

1- Designating the two spouses.

2- The consent of the two spouses. None of them should be forced to give his/her consent.
Both the parties must first give their consent before giving them in marriage. The only
exception to this rule is where one is insane or has been rendered intellectually incompetent.
In this instance they will be made to marry without their consent.

3- The presence of a guardian, who must be a male, free, adult, trustworthy. Both parties
must subscribe to the same religion. The governor may give in marriage of a kafirah ( a
non-believer) woman who has no guardian. The woman's father is the one who has the right
of giving her in marriage, or her grand-father, regardless how far up his lineage may be, or
her son regardless how far down his lineage may be, then her first brother, or her half-brother,
or their sons, or her first uncle, or her second uncle or their sons, or the closest of kinship to
her from the, ta’seeb group, or the governor.

4- The witnesses: No marriage would be valid without two male witnesses.

In a Sunni Islam, a marriage contract must have at least two male witnesses. Proper
witnessing is critical to the validation of the marriage, also acting as a protection against
suspicions of adulterous relationships.

5-Mahr (Dowry)

Islam has honoured the woman, and given her the right of ownership, and imposed on man to
give her dowry as her due right to make her content on the right of her husband's
guardianship over her. It is unlawful for anyone to take her dowry or part of it without her
consent.

It is recommended to ask light dowry and to name it in the contract. There is greater barakah
(reward) to the women whose dowry is the least.

Anything that is lawful to give as a price is lawful to give as a dowry, regardless how little it
may be. There is no limit, however, to set as a maximum for dowry. It would also be valid as
a dowry to teach his bride how to read the Qur’an. It is permissible to pay all or part of the
dowry up front, or defer it all, or part of it to a future time. It is commended to pay part of the
dowry up front. But if a time has been stated to pay the dowry there is no harm in that,
otherwise, the bride may demand it either upon the husband's death or divorce.
A woman possesses her dowry by virtue of the marriage contract, and it becomes due to her
in whole once her husband has gone into her(having satisfied the conjugal rights), or by being
with her in seclusion.

If a man divorces his wife before cohabiting with her or before being with her in seclusion,
and has already named a dowry, she would be entitled to one half of that dowry unless she
herself or her guardian waives it.

lf a man divorces the woman before naming a dowry and cohabitation, a compensation
becomes due to her, the amount of which depends on his financial means. But if a man
divorces his wife after cohabitation, and before naming a dowry, she would be entitled to a
dowry that is usually given to a woman of her equal.

If the two spouses are separated before cohabitation as a result of improper marriage, neither
a dowry nor compensation would be due to her. But if cohabitation took place, the dowry
would be due on the man for having legalized her pudendum.

A woman who is married by an improper marriage contract, such as the fifth wife, or the
woman who has remarried during her iddah (waiting period after divorce), or a woman whose
marriage was suspected to be illegal, such a woman would be entitled to a dowry upon
separation, similar to that of a woman her equal.

If the two spouses dispute over the size or the nature of the dowry, the husband's word under
oath would be decisive, but if they disputed whether she received it, the wife's word is the
decision unless the other spouse produces a proof to the contrary.

The Dowry of the Non-Muslim

If a dowry has been named and was received by her, it would be approved regardless whether
the dowry's item was proper or improper, such as wine or swine. But if she did not receive it,
she should take it only if it is proper and lawful. If it is improper, or no dowry was named for
her, then she would be given the dowry which is usually given to a woman.

6-The Walimah, (Wedding Banquet)

The walimah is a meal that is given on the occasion of uniting the two spouses.

It becomes due upon consummating the contract, thereafter or upon cohabitation, or

afterwards depending on the social customs. It is a practice of the Sunni to kill one lamb or
more depending on financial conditions. It is unlawful to be wasteful in the banquet, or in
anything else.

It is obligatory to respond to the walimah invitation, if the host is a Muslim who is not lawful
to ostracize. It is not lawful for an invited person to decline if he was personally invited on
the first day, and if the banquet did not involve unlawful things.

It is permissible to respond to an invitation by a non-Muslim to a banquet provided it does

not involve unlawful things, such as consuming wine, swine flesh, or the like. If an invited
person happens to be observing obligatory fast, he may attend the banquet and supplicate
Allah for the hosts, and leave. If he is invited and is observing supererogatory fast, he may
break his fast to please his host.

It is the Sunnah to publicize the wedding. Tambourine is only lawful for women to play to
themselves, not to men, in the wedding parry for the purpose of publicizing the wedding. A1l
other musical instruments are unlawful in weddings or otherwise for men or women.

The Mahaarim, the Prohibited women to Marry

It is a condition that the woman a man wants to marry be of those who are not forbidden for
him marry. The Prohibited Women are of Two Categories:

1- Women prohibited forever are: the mother, regardless how high up the lineage she may be"
The daughter, and her grand-daughter regardless how down the lineage she may be, the
sisters, the maternal aunt, the paternal aunt, the brothers' daughters, the sister's daughters, the
wife's mother, the wives' daughters, the father's wife, the son's wife, the male's wet nurse. it
is also prohibited for a man to marry two sisters at the same time. It is also forbidden for a
man to remarry the woman he divorced by mula’ana or imprecation. Suckling a baby
establishes a foster kinship and is an impediment to marriage just as certain cases in blood
kinship are, except for the mother of one's foster brother, and the foster sister of man's son.

2- Temporarily forbidden woman for a certain period of time:

a) Marrying two sisters at the same time, or the woman and her maternal or paternal
aunt. Once the wife has died, or divorced, her husband may marry her sister or her
aunt.
b) A woman in iddah as a result of divorce. Or the death of her husband.
c) The wife who has become irrevocably divorced her husband cannot remarry her
before she has married another man.
d) A woman in ihram until she has concluded her rites of the lhram or the Umrah.
e) A disbeliever is not allowed to marry a Muslim woman before becoming a Muslim
himself.
f) A Muslim is not allowed to marry a disbeliever woman, unless she is a free woman
from the People of the Book.
g) It is forbidden for a bondsman to marry mistress, and so is it for a master to marry his
bonds woman because he owns her.
h) A woman married by a marriage contract is unlawful to be possessed as a
bondswoman, unless she is a bondswoman from the people of the Book.

* The lineage deciding factor regarding the prohibited women: All man's relations are
prohibited for him to marry except for his paternal and maternal cousins.
The Improper Nikah

1- Nikah ash-shighar, is giving by a guardian a woman in marriage to a man on the

condition that the latter would give him one of his own womenfolk in return without dowry.
Both marriages are not valid. But if each woman has a dowry assigned to her without pretext
or a gimmick, their marriage would be valid. If one of the two brides has a dowry assigned to
her, only her nikah is valid, while the other one's is not.

2- Nikah al Muhallil, marrying a woman that has been trebly divorced, on the condition of
his divorcing her after consummation of the marriage, in order that she may become lawful to
be remarried to the former husband. If the second husband has intended to marry such a
woman just for the sake of legalizing her for her former husband, or if they previously agreed
on this, such marriage is invalid.

3- Nikah al Mut'ahz or the marriage of pleasure, a marriage stipulated to be temporary. This

marriage is automatically terminated at the end of the agreed period which may last an hour, a
day, a week, a month, or longer. This is false and illegal type of marriage, because it turns a
woman into a commodity which exchanges hands. It is also harmful to offspring's who would
have no secure home to settle down in which they would be reared. The purpose of this
marriage is to fulfil carnal desire only, not to produce offspring. It was lawful only in the
early stage of Islam for a very short period of time, and was later prohibited forever.

4- The marriage of a Muslim woman to a non-Muslim whether polytheist, or from the People
of the Book (Christians and Jews). It is unlawful for a Muslim woman to marry a
non-Muslim. If such marriage takes place, it is deemed null and void.

Whatever applies to marrying the Muslim women applies to that of the People of the Book,
with regards to the dowry', maintenance, divorce, and the like, and the prohibition of
marrying the siblings applies to the unbelievers siblings too.

Although improper, the marriage contract of the unbelievers, yet they are approved under two
conditions

1- That they must believe in the validity of their own marriage contracts.

2- That they should not refer to the Muslims the disputes arising from such contracts.

If the unbelievers want the Muslims to officiate their marriages, the latter would do so
according to the Islamic laws in which marriage is based on offer and acceptance, a guardian,
and two witnesses. But if they approach the Islamic court after consummating the contact, in
that case, if the woman found to be free from marriage impediments, such marriage, would be
approved, otherwise, they would be separated from each other.

TO NOTE

If both spouses embrace Islam at the same time, or if only the husband (a Christian or a Jew)
became Muslim, the marriage remains valid.
lf the non-Muslim woman embraces Islam before cohabitation with the non-Muslim
husband, their marriage becomes null and void, because it is unlawful for a Muslim woman
to marry/ a non-Muslim f after cohabitation, one of the non-Muslim spouses embraced Islam,
the following should be considered:

If both or one of the spouses apostate before cohabitation, marriage would be nullified. If
they apostate after cohabitation, their marriage would depend on the iddah, if the apostate
spouse repents, they may resume their marital status, otherwise the marriage would be
dissolved the moment apostasy takes place.