Islamic Marriage And The Implications Under The Islamic Personal Law: A Focus For Muslim Couple By Hameed Ajibola Jimoh Esq.

It is expected by Islamic religious practices that every Muslim
(male or female) shall only contract Islamic marriage and no other
marriage. Also, it is expected that such Muslims shall enter or
contract a valid marriage (nikaah) and prior to that
marriage, will not have entered into an illicit sexual relationship
with someone not already legally married to under the Islamic law
of marriage/family law/personal law. Therefore, marriage plays a
vital role in Islamic law and just like it is in every civilized
society, hence, the emphasis that Islam places on youths to prepare
adequately for this contract of marriage as laid down by Islam.
Nevertheless, it is observed that some couple do not really
understand the implications of marriage in Islamic law as they only
think or consider it as just a mere relationship and sexual
attachment or satisfaction of sexual need. However, it is my humble
understanding that marriage under the Islamic law has implications
once the marriage is contracted under the Islamic Personal Law.
This idea of this paper is important so as to serve as a focus or
what intending couple have to consider as they prepare for their
life’s journey that is divinely connected.

Marriage (An-Nikaah or Az-zawwaj) is ‘a
contract enabling each spouse to have enjoyment with the other’.
See: Minhaj Al-Muslim Volume: 2, by Abu Bakr Jabir Al-Jazaairy,
Darussalam Global Leader in Islamic Books, Riyadh, First Edition,
2001, at page 320. Furthermore, Marriage under the
Islamic Law is a legal act as stated in the Holy Quran in
Quran 4:3 thus ‘Then marry (other) women of your
choice, two or three, or four; but if you fear that you shall not
be able to deal justly (with them), then only one or (slaves) what
your right hands possess’. And Allaah (God, the
Exalted) also states in Quran 24:32 thus ‘And marry
those among you who are single and (also marry) the Salihun (pious)
of your (male) slaves and maidservants’. Furthermore,
marriage is obligatory for whoever is able to find the provisions
to do so and he fears committing what is forbidden, as espoused by
the Holy Prophet Muhammad (may Allaah’s blessings and peace be upon
him) thus ‘O group of young men! Whoever among you is
able to afford it then let him get married. For verily, it is
better for lowering the gaze and it is safer for the private parts’
(reported by Al-Bukahri and Muslim). He (the Prophet
Muhammad) also stated thus ‘Marry the young and the
fertile. For verily I will compete by your numbers against the
other nations on the Day of Resurrection’ (reported by Ahmad and
Ibn Hibban, who graded it Sahih (sound transmission). See: Minhaj
Al-Muslim (op cit) at pages: 320- 321.

In my humble view, with due respect, a marriage contracted under
the Islamic law has the implications that it is not a monogamous
marriage rather, it is a polygamous marriage in nature which allows
a man to marry up to a maximum of four (4) wives at a time as his
wives, so far he can shoulder their responsibilities. Allaah (God,
the Exalted) also states in Quran 4:3 thus ‘Then marry
(other) women of your choice, two or three, or four; but if you
fear that you shall not be able to deal justly (with them), then
only one or (slaves) what your right hands possess’.
On this point, with due respect, there is no reason why a wife
should be angry at her husband who intends to take either a second
or third or fourth wive as it is presumed that she ought to know
that her husband has the legal right to do so under the Islamic law
of marriage. Also, even where a man even promises his wife that he
would not marry more than her alone as a wife, in my humble view,
such man is likely not to fulfill this promise and such promise
would have contradicted the principles of Islamic law of marriage,
as a man cannot be allowed to make promises that he knows that he
might or is likely not to fulfill. See: Quran: 61:
2-3. Therefore, a Muslim lady that contracts a
marriage under the Islamic law, must not be surprised that her
husband is taking such an additional wife but is justified to
refuse her man to marry more than as allowed by Islam, that is, if
her husband intends to marry a fifth wife, as refusing her husband
in such situation is an act of righteousness and forbidding evil
from being perpetrated by her husband.  Also, a Muslim lady
who is to be taken as either a second or third or fourth wife
should not bother about her status or level in the marriage as to
whether she is married as either second or third or fourth wife as
either of this level is permissible for a man in Islamic law.
Nevertheless all these positions of Islamic law, it becomes
surprising how some Muslim ladies have adapted to unIslamic
practices to challenge the marriage of a Muslim man who intends to
marry a second or third or fourth wife claiming that it is
unacceptable to them and that their wish defers from the wish of
living in a polygamous marriage, even where the man proposing to
them is a righteous man! They prefer to remain unmarried for as
long as they would wait to get a single man in marriage! There are
lot of excuses given for their positions such as: in order to avoid
those challenges that are likely to be experienced in such
polygamous family, that the husband will have to share their bed
with other/another woman, which cannot be tolerated by them, among
others! Some of these Muslim women (for those of them who are
married already) even threaten their husband with divorce should he
go ahead to marry another woman/lady and intimidate him that they
would not hesitate to take him before an Islamic court of law to
seek divorce should he go ahead with his decision to marry another
woman/wife. The Prophet (may Allaah’s blessings and peace upon him)
has indeed prohibited this kind of threat thus ‘Any
woman who asks her husband to divorce her for something that is not
truly a problem, the fragrance of the Paradise will be forbidden
for her’ (Transmitted by the Sunan compilers and it is Sahih
(sound)). I must say that this position is only
maintained by some of those women due to ignorance of the true
position of Islamic law. This is because polygamous is a practice
that serves the best interest if thoroughly considered. Also, just
as some monogamous marriages have their challenges and some are
favourable, the same is the true position of the polygamous family,
not all polygamous families are bad or worse. So, it all requires
due divine intervention and understanding.

Furthermore, couple who are Muslims in a marriage under the
Islamic law must also understand that with their marriage,
extramarital affairs or relationship or sex with other woman or men
whether married or not is prohibited and a capital offence under
the Islamic law of marriage, regardless of the justification for
such act. This act is referred to as ‘zina’ under the
Islamic law of Crimes and Punishments. Accordingly, ‘zina’
is defined as ‘Sexual intercourse between a man and a
woman without the legal relationship of husband and wife existing
between them’. See: Nassef, A.O. (1982); Encyclopaedia of Seerah,
Vol. 11. The Muslim Schools Trust, London, P. 772. According to
Yahaya Yunusa Bambale, in his book, Crimes and Punishments under
Islamic Law, Malthouse Press Limited, 2003, Second Edition, page
29,  ‘Zina is defined as the insertion of the male organ into
the female sexual organ between those not lawfully married to each
other. The mere penetration of the glans of the penis is a
sufficient legal ground for punishment. And it is not necessary
that the penetration be full or that the sexual act be
complete’. Under the Islamic law of crimes and
punishments, zina (adultery)’s punishment is stoning to
death ‘rajm’ for married adulterer. Ubada Ibn
As-Samit reported Allaah’s Messenger (may Allaah’s blessings and
peace be upon him) as saying ‘Receive (teaching from me, receive
(teaching) from me. Allaah has ordained a way for those (women).
When an unmarried male commits adultery with an unmarried female
(they should receive) one hundred lashes and banishment for one
year. And in case of married male committing adultery with a
married female, they shall receive one hundred lashes and be stoned
to death’. However, Islamic jurists such as: Hannafi,
Maliki and Shafi’i Schools of thoughts who share the majority views
on this punishments are of the opinions that it is not advisable to
award two punishments together as it was not done by the Holy
Prophet (may Allaah’s blessings and peace be upon him) himself,
except in one case which was under an exceptional circumstance. It
is narrated on the authority of Jabir b. Abdullahi that
a person committed adultery and the Holy Porphet (may Allaah’s
blessings and peace be upon him) punished him with one hundred
lashes, but later on, it was found out that the offender was
married and then the Holy Prophet (may Allaah’s blessings and peace
be upon him) gave him the punishment of stoning to death’. See:
Yahaya Yunusa Bambale (op cit) at page 34. Yahaya Yunusa Bambale
(op cit) at page 39, while quoting Al-Qaradawi, Yusuf (1984); The
Lawful and the Prohibited in Islam; I.I.F.S.O., Kuwait; p. 149,
also stated some of the reasons for prohibiting extramarital
relationship (zina or adultery) under the Islamic law to include:
it leads to confusion of linage; child abuse; the breaking-up of
families; bitterness in relationships; the spread of venereal
diseases; a general laxity in morals, and it opens the door to a
flood of lusts and self-gratifications. This
implication is important and includes the damnation and wrath of
Allaah upon such offender in this World and in the Hereafter after
death. So, the fact that Nigeria does not practise the Islamic Law
of Crimes and Punishments does not permit a Muslim couple to
violate this law of Allaah as the sins remain upon the offender
unless and until he is forgiven by Allaah and he continues to live
a miserable life out of fear of what the consequences would be
before Allaah on the Day of Judgment!

Finally, from the above explanations and submissions, it is
hoped that Muslim couple would always abide by the dictates of the
Islamic law (Shari’ah) in their marriage and will have no
justifications under any guise to violate such principles of
Islamic law as a way of fearing the damning consequences before
Allaah in this life and on the Day of Judgment and that they will
continue to appreciate the concerns of Islam for legislating
Islamic polygamy for the benefit of the practitioners of the
Islamic faith.

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