Marriage Conclusion and Dissolution under Sharia Law
The inequality of the personal status of men and women was vividly manifested in the conclusion and dissolution of marriage according to Sharia. The marriage of a man and a woman, accompanied by the birth of children, was a religious obligation, while celibacy was considered a regrettable state. In Muslim society, there were practically no "old maids," which was due to the order of concluding and dissolving marriages. Adultery was considered a sin (zina). Barriers to marriage for both men and women included: incest, including "milk kinship"; forbidden communication and relationships; seeing a naked woman (according to the interpretation of the Abadids); unfinished pilgrimage (according to the interpretation of the Malikis). A woman cannot marry if there is consent for her to marry another person; a woman cannot marry if her iddah or istibra (the period of possible childbirth and the one-year period after her husband's death) has not ended; a woman cannot marry an idolater or a non-Muslim.
The age for a woman to enter marriage is reaching sexual maturity, but this is not required in the case of jabre. Consent for marriage is also not required from a woman in the case of jabre. Consent for marriage is given by the groom and bride through their parents, wali, or agreed persons. The silence of a virgin is equivalent to her consent to marriage. Consent for marriage is required from an incapacitated girl, a widow, a divorced woman, or an orphan when a father gives his daughter in marriage to a deformed person, an epileptic, or a madman.
In any Muslim marriage, a bride price (sadaq, mahr) from the groom is mandatory. The bride price may not be required in mutual exchanges of daughters. If the bride price is not paid, the bride may refuse to enter into marriage. The dowry (shura) was not regulated by Sharia but practically existed. It was given by the bride's parents, was her property during the marriage, and guaranteed her financial position in case of divorce or widowhood. The mahr could not be used as a dowry under the threat of invalidating the marriage.
The Quran assumes the existence of a marriage contract when concluding a marriage and provides grounds for its invalidity. The contract may include conditions for the use of the wife's property (imta) and other conditions of married life. Husbands spend from their property on their wives (Quran, Surah IV, Ayah 38). Although the Quran does not define the regime of marital property, under Sharia, married Muslim women have legal capacity, can acquire and dispose of property, and can file lawsuits in court without their husband's consent. As we have already indicated, Sharia does not recognize adoption.
The rights of the wife stem from the obligations of the husband: marital intimacy is mandatory; the deprivation of the innocence of a nine-year-old wife is lawful; constant cohabitation with the wife; a two-year absence of the husband is a lawful ground for divorce; the husband's obligation to "jealously" divide marital nights; maintenance of the household; providing the wife with clothing, cosmetics, food, "even if she has an extraordinary appetite."
The lack of equality between men and women is clearly evident in the procedure for divorce and its legal consequences. Marriage was terminated by the death of one or both spouses. It could be dissolved by mutual consent of the spouses (khul). If the marriage was declared invalid, the wife had the right to receive the mahr. Pronouncing "talak" (you are free, go back to your family) three times in front of witnesses terminated the marriage. In this case, the wife received a gift from the husband as a sign of consolation. A single utterance of "talak" resulted in separation from the marital bed. The husband could retract the first and second "talak." Upon divorce, the wife had the right to a share of the bride price and the return of the dowry.
The wife could demand a divorce in the court of qazis on the following grounds: absence of sexual relations; non-payment of the bride price by the husband, failure of the husband to fulfill his obligations to support the wife, cruel treatment of the wife; absence of the husband for six months; severe insult to the wife; failure of the husband to fulfill obligations included in the marriage contract. Judicial divorce is always final (bann). Islam prohibited the burying of newborn girls alive. The Quran in Surah IV, Ayah 38/34 states: "Husbands stand over wives. And those whose disobedience you fear, admonish them and abandon them in beds and strike them."
Islam does not treat women indifferently and grants them certain rights and guarantees. The Quran suggests giving preference to women considering their talents and abilities. For righteous deeds, they may receive rewards; women should be educated, and in civil rights, their human dignity is valued equally with men's. An adult girl has full financial independence, and no one can infringe upon her property. Islam protects women from heavy exhausting work (in order to fulfill their reproductive function). Muhammad teaches: serve your mother humbly. Islam has rooted monogamy and called for valuing and respecting women, their chastity, and piety.
