The Preconditions to the Aqd Of Marriage

By Saleem Bhimji

Even before we discuss the rulings and method of reciting the marriage Aqd and married life in general, there are many preconditions that must be covered and understood by both parties. These issues that we bring forth have, unfortunately, been twisted and contorted to fit our cultural background or in some cases, out right refused as not being Islamic principles. Insha-Allah, we will cover some of these preconditions in brief.

1. Looking at the Other Party Before Marriage

This discussion can actually be divided into two separate and distinct categories:

(1) the look and touch before proposing to the other party;

(2) the look and touch after the proposal has been accepted;

However, the Aqd has not been read - this is commonly known as the 'engagement' period.

It is well known that a man and woman who are not related to one another through a direct blood relationship or through one of the other ways (that are mentioned in the detailed books of Fiqh) are not Mahram of one another. Thus, they can not touch or look at each other without the proper covering or with a lustful or seductive glance.

Once the temporary or permanent Aqd has been performed, then the man and woman become Mahram to one another through the marriage formula and can talk, be in a secluded place with one another, hold hands, touch, hug, kiss, etc…

However, while the man and woman are talking with one another in order to get to know each other, they are not permitted to be in a secluded place together, nor have any sort of physical contact - these are all forbidden (haram) in Islam.

Once they have agreed to marry one another, the next step, in order for them to be able to talk in private, go out together for dinner or be able to touch each other, is that they must recite either the temporary or permanent Aqd. In most cases, the couple-to-be recite a Mutah, with the knowledge that within a certain time frame, they will be getting married (permanently).

The Mutah too has various conditions that must be followed, of which, we highlight the most important ones:

1. If the girl is a virgin, then she must have her parent's approval before the Mutah can be performed.

2. The time period and the dowry (Mahr) must be specified before the Mutah contract is pronounced, otherwise it is void.

3. The parties can make conditions, such as no sexual intercourse or other conditions - these too must be made before the contract is read. However, if later on, both parties agree to change any of the conditions made, they are free to do so.

4. The contract should be recited in the original Arabic and if this is not possible, then a representative should perform the Mutah and if this too is not possible then the third option is that the boy and girl can read the translation of the contract themselves in the language which would convey the same meaning of the Arabic1.

5. If the couple decides to get married permanently before the time period of the Mutah ends, the husband must "give back" or forgive the time to his wife that remains. Once this has been done, then and only then can they marry in permanent marriage. If the couple is in a temporary marriage and they then marry permanently while the temporary marriage has not ended, then the permanent marriage will be null and void, and at the completion of the time period of the temporary marriage, they will not be classified as being married to one another.

2. The Istikhara in Relation to the Boy or Girl

One of the other incorrect philosophies that a majority of people have adhered to is the Istikhara or seeking the best from Allah (SwT) before a marriage.

Before the boy and girl even get a chance to meet one another and talk and see if they are compatible with the other, the parents will rush to their local Mawlana or Alim to perform the traditional Istikhara. If the answer comes 'good', then even if the boy or girl is the biggest sinner or ill-mannered person, the parents will welcome him/her into the family with open arms.

The opposite has also been seen that if the boy or girl is an upright, virtuous, and pious believer, but the Istikhara comes out 'bad' then they are automatically rejected with no chance to go forward.

This idea, which is so prevalent amongst the Muslim community, must be uprooted and thrown out with all other such traditional and cultural practices that have no basis in Islam.

The Istikhara is a method that has been taught and approved by our Prophet (S) and Ahlul Bait (as), however, there are many preconditions and steps that nust be followed before we rush to the Quran or Tasbih.

These stages, in relation to marriage include:

• Speaking to the boy or girl and getting to know their thoughts, ideas and beliefs.

• Asking friends and family members about the boy or girl. Although in Islam, backbiting or speaking bad about others is prohibited, however, the Ulama have mentioned that this is one scenario where the law is accommodated for the betterment of the family structure.

• The many supplications (such as Dua 33 in as-Sahifah al-Kamilah as-Sajjadiyah, known as the Supplication for Seeking the Best) should be recited and the person must sincerely ask Allah (SwT) to guide his/her heart to that, which is truly the best.

If one is truly in doubt after all these stages have been exhausted, then and only then should one resort to the 'traditional' Istikhara. There is a comprehensive book on this topic, which has recently been published by the Islamic Humanitarian Service entitled Istikhara: Seeking the Best from Allah (SwT) which can be purchased from www.al-haqq.com.

3. The Mahr - A Gift to the Woman

The Mahr - or dowry as it is usually translated - is one of the ways through which the woman becomes halal for the man - the other (which goes along with and is side by side) is the actual Aqd or reading of the vows.

The Mahr, which must be specified before the Aqd, is a gift to the wife and in no way can be referred to as the price or worth of the woman. By examining the Islamic traditions, we see that it is not necessary that money or gold or some physical item be given as the Mahr - rather, anything that the woman requests and the man agrees to would be considered as the Mahr.

It is for this reason that we see at the time of the Prophet (S) that a man married a woman and the Mahr was that he would teach her the Quran! There are many instances such as this in the history of the Muslims where the Mahr was either a very small amount or a non-materialistic gift.

Unfortunately, in many communities nowadays, the trend has been to set the Mahr to substantial amounts of money, jewelry, gold, and other material goods - where as in Islam, the recommended act is to have a 'small' or modest Mahr, such that the husband is not put into any difficulty to pay it and thus, a large Mahr is actually Makruh or highly discouraged.

According to the Scholars, if the Mahr is set to such an amount that even in the future, the man will not be able to pay it, or if the man does not have the intention to pay the Mahr, then such a marriage is a matter of doubt.

Also, it must be made clear that the Mahr is not something that one pays only in the event of a divorce, as is seen in some East Asian cultures. Therefore, the wife can even demand that this amount be paid to her before she agrees to have sexual intercourse with her husband.

The husband and wife can agree on a time frame when the amount will be paid and as it has been mentioned in the Islamic books of law, if the wife demands the money after it has become due, then it becomes obligatory on the husband to give it to her even if it means that he must take a loan. If he does not pay the money while possessing the ability, then he has committed a grave sin and will be held accountable by Allah (SwT).

In relation to the Mahr and its importance, Imam Ali ibn Abi Talib (as) has stated:

إِنّ أَحَقَّ شُرُوطِ أَنْ يُوَفّى بِهِ ما إسْتَحْلَلْتُمْ بِهِ الْفُرُوجَ

"This (the Mahr) is the most important of all the conditions through which, the private parts (intercourse) have been made lawful and permitted for you."

We conclude the section on the importance of the Mahr with a stern warning from our Prophet Muhammad (S) about those men who refuse to give their wives that which they promised them:

مَنْ ظَلَمَ إِمْرَأَةً مَهْرَها فَهُوَ عِنْدَ اللهِ زانٍ. يَقُولُ اللهُ عَزَّ وَجَلَّ يَوْمَ الْقِيامَةِ: عَبْدِي زَوَّجْتُكَ أَمَّتِي عَلى عَهْدِي فَلَمْ تُوَفَّ بِعَهْدِي وَظَلَمْتَ أَمَّتِي؟ فَيُؤخَذُ مِنْ حَسَناتِهِ فَيَدْفَعُ إِلَيْها بِقَدَرٍ حَقِّها. فَإِذا لَمْ يَبْقَ لَهُ حَسَنَةُ أُمِرَ بِهِ إِلى النّارِ بِنَكَثَهُ الْعَهْدَ. قالَ اللهُ تَعالى: (وَأَوْفُوا بِالْعَهْدِ إِنْ الْعَهْدَ كانَ مَسْئولاً(

"The man who oppresses his wife in relation to the Mahr is considered as a fornicator in the eyes of Allah. On the Day of Judgement, Allah (Glorified and Exalted is He) will say to such a man, 'O' My servant! I married you to My bondservant on My promise (the Mahr) and then you were not loyal to My promise and you oppressed My bondservant!' At this time, Allah (SwT) will take all of this man's good deeds and will give them to her in accordance to the rights of her that he had taken (the Mahr). When there remain no more good deeds, then Allah (Glorified and Exalted is He) will order him to the hell fire with the other people who had broken their promise. Allah (Glorified and Exalted is He) has said, (And be honest in your promises. Surely the promise is something that (you) shall be questioned about.)"

  • 1. Please note that this and all other ruling in this magazine are in accordance to the fatawa of Ayatullah al-Uzma al-Hajj as-Sayyid Ali al-Husaini as- Sistani. Muqallidin of other Maraja should check their rulings on these and other issues contained in this discussion.