Re Previous Answer on Wife’s Conjugal Rights

Shaykh Jamir Meah clarifies certain aspects of a previous answer on a wife’s conjugal rights.

I am writing to inquire a further look at this portion from a previous answer: What Does Islam Say About the Neglect of the Wife’s Sexual Rights?

Islam already takes into account the fact that a woman may have times where she is physically or psychologically unable to fulfill her husband’s desire, and by doing so, her condition may worsen. In these cases, the husband would be prohibited from forcing the wife to have intercourse, and if he did so, he would be sinful.

I am concerned about whether the wording is intentional. Wouldn’t it be more accurate to say that a man should never force his wife to have sex with him, and if she refuses he cannot force her to? I think the traditional definition of rape here still applies in that case, but I think that would also be an example of domestic abuse. This hadith is often misquoted by people to scare and demoralize Muslim women, in my experience. It would be good to see a lesson or article dedicated specifically to it.

Jazak Allah khayr, for all the good work that you do. Insha Allah that good only increases in the future.

Due to the question being predominantly about the wife’s conjugal rights and the husband’s neglect of it, the answer was mainly focused on this issue.

The “rape” section was in response to a very brief, almost passing, part of the question. (I think it was completely edited out from the final question published.) Hence my very brief response to it. I cannot remember the exact question, but it was not a direct or general question about forced sex within marriage, more about if the husband demands relations while the wife is unable to have relations, hence my specific answer on that.

I wholeheartedly agree that a specific and detailed article on this latter topic would be beneficial. For now, the relevant rulings and details, which concur with my own understanding and how I would address the issue, can be found in this excellent answer by Mufti Muhammad ibn Adam: Can a Wife Refuse her Husband’s Call to Bed?

This is a sensitive topic that can be exploited by many, both men and women. For sure, we need to do more to educate and warn Muslim men about these rulings and to have proper conduct and care in marriage, but we must also be aware that there is currently a very strong feminist movement at work which has it’s own agenda, much of which is insidious.

Warmest salams,

Jamir

Checked and approved by Shaykh Faraz Rabbani.

Father-in-Law Kissed Daughter-in-Law

Ustadh Salman Younas gives general advice on a case of a father-in-law kissing the daughter-in-law by mistake and how one should act in such cases.

Question:

Assalam alaykum wa rahmat Allah wa barakatuh.

A case has arisen in our town that a father in law suddenly and unexpectedly kissed his daughter in law. This all happened in seconds. After that he is shameful and saying that he didn’t do this intentionally and lustfully and there is no erection or ejaculation, and he is ready to swore on the Qur’an that she is like my daughter and I have not done this intentionally.

Answer:

Wa alaykum assalam wa rahmat Allah wa barakatuh.

I pray you are well.

My assumption is that you are asking about hurmat al-musahara, which is the non-marriageable kinship (mahramiya) created between a person and the relatives of his spouse as a result of marriage and valid intercourse. Thus, a man who marries a woman and consummates the marriage is not permitted to marry her mother or any daughters she has from a previous marriage. Similarly, a person cannot marry the wife of his father. The Qur’anic verse affirming the basic idea of hurmat al-musahara is, “Do not marry those [women] whom your fathers married.” (Sura al-Nisa 4:22)

Outside of a marriage context, however, the scholars differ on whether hurmat al-musahara is ever established. In other words, does adultery–fornication or touching–kissing outside of a marriage relationship establish this hurma? The Hanafis say it does (adding specific conditions when it comes to touching/kissing), while the Malikis and Shafi‘is say it does not. In other words, if a father-in-law touched his daughter-in-law directly with lust, the marriage between the former’s son and the daughter-in-law would be broken according to Hanafis but not so according to the Malikis or Shafi‘is. (Ibn Abidin, Radd al-Muhtar; al-Shirbini, Mughni al-Muhtaj; al-Dasuqi, Hashiya)

Given the sensitivity of the situation you describe and the scarcity of details you offer, I cannot offer a specific ruling for this case but only the following general advice:

1. In the specific scenario you mention, people must avoid rushing to judge someone’s marriage as invalidated on account of this act even if it has been clearly shown to have taken place. This is because (i) there is established difference of opinion on the matter, and (ii) annulling someone’s marriage, in this case the daughter-in-law and her husband (the father’s son), on account of someone else’s independent and unsolicited action seems highly unjust and problematic.

2. People must take care to avoid making insinuations against the father-in-law, the daughter-in-law, and other family members, or spreading gossip, hearsay, and the like.

3. If the father-in-law is known to be an otherwise upright person and there is no reason to suspect that something is amiss, people should leave things be, accept him at his word, and let him and the family manage the issue.

4. If there are reasonable signs and indications to suspect something unsavory and wrong taking place on the part of the father-in-law (e.g. abuse), this should be referred to the proper authorities. However, one should tread carefully before suspecting any such thing.

Because of the sensitivity of this situation, I would advise you to consult local scholars – people who are reliable, pious, have wisdom, and who have an understanding of family and community dynamics.

Salman

Checked and approved by Shaykh Faraz Rabbani.


Are Marriage Contracts Valid via Video Calls? (Shafi’i)

Answered by Shaykh Jamir Meah

Question: Assalamu alaykum

What is the validity of the marriage when the guardian of the woman is in a place different from the place of the marriage? What are the conditions according to the Shafi’i school for the validity of this marriage?

Answer: Wa’alaykum assalam, thank you for your question.

For the wedding contract to be valid, the bride’s guardian (wali) and the groom must be physically present, as must two male witnesses to the marriage. It is not a condition that the bride be present. Generally speaking, marriage ceremonies should be made in public.

Marriage contracts made via phone or video would not be sufficient due to the possibilities of deception.

Solution

The solution to the issue is to have the bride’s guardian appoint a proxy, meaning an appointed representative, to attend the place where the groom is and wed the bride on his behalf. For example, the guardian could appoint the bride’s brother, uncle, or the local Imam.

In this case, the proxy would say to the groom, ‘I marry you to the daughter [or otherwise] of so and so [the guardian’s name], who is my mandator (muwakkili). The groom then says ‘I accept’. There must be a minimum of two male witnesses to the marriage, who are upright.

Alternatively, the groom may travel to the place where the guardian is and perform the marriage contract in front of two witnesses.

[Mishkat al Misbah, al Yaqut al Nafis]

I pray this helps.

Please see also (Hanafi School):

What Are the Minimum Steps That Must Be Taken for a Marriage to Be Valid?

Warmest salams,
[Shaykh] Jamir Meah

Shaykh Jamir Meah grew up in Hampstead, London. In 2007, he traveled to Tarim, Yemen, where he spent nine years studying the Islamic sciences on a one-to-one basis under the foremost scholars of the Ribaat, Tarim, with a main specialization and focus on Shafi’i fiqh. In early 2016, he moved to Amman, Jordan, where he continues advanced studies in a range of Islamic sciences, as well as teaching. Jamir is a qualified homeopath.

What Is the Process for Delivering a Proposal For Someone’s Hand In Marriage?

Answered by Shaykh Abdurragmaan Khan

Question: Assalam alaykum,

What is the process for delivering a proposal to a family?

If the girl is an illegitimate child and estranged from her father, can the proposal be given to someone else?

Answer: Wa alaykum al-Salam

May Allah reward you for your question.

The proposal process is not cast in stone and differs from culture to culture. As long as a given culture does not contradict the teachings of the Quran and Sunnah, then there is no problem in adhering to that culture. The following however are important considerations:

1. When a brother shows interest in a sister, the correct procedure would be for him to approach her wali our guardian, either directly or through the medium of someone. The wali is the father, then the grandfather, then the brother and then the paternal uncle.

Note that in many Arab cultures, the mother would go and meet the potential sister and her mother, and would thereafter decide whether she is a suitable spouse for her son or not. Nonetheless,

2. If the brother has not seen or spoken to the sister before and the wali agrees to consider him as a potential spouse for his daughter, he would arrange a meeting between the two of them for viewing and discussion. This meeting may recur until both parties agree to marriage. These meetings should be strictly in the presence of her mahram and usually does not happen more than thrice unless there’s a need.

3. Once the couple reaches an agreement, they would pray Salah al-Istikharah which sort of acts as a rubber stamp. In other words, once the couple has weighed the pros and cons and reached a decision that they would like to pursue the marriage, they would pray istikharah asking Allah that if the marriage is good for them in this world and the next that He realizes it for them; and if it is not good for them, that he turns them away from it. Thus the couple should believe that when the marriage materializes that it came from Allah; and when it does not, it also came from Allah.

4. After the couple agreed to marry, a formal proposal would take place. Here cultures tend to differ considerably. I’m also assuming that your question is directed at this formal proposal. It is acceptable for the suitor to send a representative as how it is fine for him to attend in person. Similarly, the “fiancee to be” may or may not be present. The important thing, and this is where our local culture tends to drift off a bit, is that she should be dressed appropriately and modestly. Also, even though engaged, contact between them is still impermissible and thus holding hands or even a peck kiss, is totally unacceptable. Answering your question, the proposal is delivered to the wali or his representative and the wali would accept the proposal after consulting the sister. Note that when the wali is the father or grandfather, they are not obliged to consult their daughter or granddaughter, it is however recommend.

Your final question regarding an illegitimate father. The father is only considered illegitimate, when the child was born out of wedlock or prior to 6 months in wedlock. When it is established that the fiancee is an illegitimate child in a non-Muslim country, she has one of two options, namely, tawliyah or tahkim. Tawliyah is when she appoints a man of integrity to act as her wali. Tahkim is where she appoints, with her fiance, a scholar as an ad hoc judge to marry her off to her fiance.

And Allah knows best

Wassalam
[Shaykh] Abdurragmaan Khan

Shaykh Abdurragmaan
received ijazah ’ammah from various luminaries, including but not restricted to: Habib Umar ibn Hafiz—a personality who affected him greatly and who has changed his relationship with Allah, Maulana Yusuf Karaan—the former Mufti of Cape Town; Habib ‘Ali al-Mashhur—the current Mufti of Tarim; Habib ‘Umar al-Jaylani—the Shafi‘i Mufti of Makkah; Sayyid Ahmad bin Abi Bakr al-Hibshi; Habib Kadhim as-Saqqaf; Shaykh Mahmud Sa’id Mamduh; Maulana Abdul Hafiz al-Makki; Shaykh Ala ad-Din al-Afghani; Maulana Fazlur Rahman al-Azami and Shaykh Yahya al-Gawthani amongst others.

I Was Married Before I Entered Islam. Can I Marry Now That I Am Muslim?

Answered by Ustadha Raidah Shah Idil

Question: Assalam aleykum,

I converted to Islam a few years ago. When I was Christian, I was married but have been separated from my husband for several years. Can I get married, now that I am Muslim?

Answer: Assalamualaykum wa rahmatullahi wa barakatuh,

I pray this finds you well. Alhamdulilah, welcome to the fold of Islam! May Allah bring you ever closer to Him.

Separation

Is your first marriage annulled? I strongly encourage you to get your divorce paperwork settled.

Marriage

It would be important for you to disclose to a potential husband that you were previously married, before you entered Islam. The right husband for you would appreciate your honesty.

It would be best for you to marry after your divorce paperwork is settled.

Please see:

Love, Marriage and Relationships in Islam: All Your Questions Answered

Wassalam,

[Ustadha] Raidah Shah Idil

Checked & Approved by Shaykh Faraz Rabbani

Ustadha Raidah Shah Idil has spent almost two years in Amman, Jordan, where she learned Shafi’i’ fiqh, Arabic, Seerah, Aqeedah, Tasawwuf, Tafsir and Tajweed. She continues to study with her Teachers in Malaysia and online through SeekersHub Global. She graduated with a Psychology and English degree from University of New South Wales, was a volunteer hospital chaplain for 5 years and has completed a Diploma of Counselling from the Australian Institute of Professional Counsellors. She lives in Kuala Lumpur, Malaysia, with her husband, daughter, and mother-in-law.