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The Social Laws and Customs of Islam

B. SOCIAL AND FAMILY LAWS IN ISLAM.

1. Laws Pertaining to Marriage in Islam.

Marriage in Islam is not considered as a sacrament but rather as a civil contract between a
man and his wife. The Qur'an describes it as a mithaq, a "covenant" (Surah 4.21). The
Muslim marriage (nikah) is performed through a ceremony at which a local judge, a qadi,
officiates. In many cases only the husband is present at the ceremony with a
representative of the bride's family and, in the presence of two relevant witnesses, the
parties express their consent to the marriage. The qadi then makes a formal
announcement that the marriage contract is concluded.

After this the husband is joined to his bride at the wedding reception (walimah) where a
feast takes place. In modern times, especially in Muslim communities that are
Westernised, the prospective husband may personally choose a bride of his own choice
and negotiations between the two families will be conducted to arrange the marriage. The
woman has the right to refuse. In other Muslim lands, however, even to this day,
marriages are arranged without the husband and wife even meeting before the ceremony
is concluded.

A marriage broker, usually an old woman who has access to the women's
quarters, is often employed to find out what marriageable girls are available. The
first steps are taken by the man's family; it is the custom to get a friend to
approach the father of the girl; if it is felt that the families are well matched
socially, negotiations can begin in earnest. (Tritton, Islam, p. 131).

Once again customs differ in the various parts of the Muslim world. The husband is also
obliged to give his wife a dowry, a mahr, at the time of the marriage (Surah 4.4). No
amount is fixed - the parties agree independently on its extent. If there should later be a
divorce between the parties the man may not reclaim this dowry.

But if ye decide to take one wife in place of another, even if ye had given the
latter a whole treasure for dower, take not the least bit of it back: Would ye take it
by slander and a manifest wrong? Surah 4.20

According to the Qur'an Muslims are free to marry fellow -Muslims but they are
forbidden to marry women from idolatrous communities unless they embrace Islam
(Surah 2.221).

They are, however, expressly allowed to marry upright women from the uwtul-Kitab, the
"people of the Book", meaning Jews and Christians and followers of any other religion
recognised as adherents of a faith with a revealed scripture (Surah 5.6).
Thus it will be seen that while there is a clear prohibition to marry idolaters or
idolatresses, there is express permission to marry women who profess a revealed
religion (Ahl al-Kitab). And, as the Qur'an states that revelation was granted to all
nations of the world and that it was only the Arab idolaters who had not been
warned, the conclusion is evident that it was only with the Arab idolaters that
marriage relations were prohibited, and that it was lawful for a Muslim to marry a
woman belonging to any other nation of the world that follows a revealed
religion. (Ali, The Religion of Islam, p. 506).

There is a hadith, however, which scorns the idea that a Muslim should take a Christian
woman to wife where she doe not abandon her Christian faith:

Narrated Nafi: Whenever Ibn Umar was asked about marrying a Christian lady or
a Jewess, he would say. "Allah has made it unlawful for the believers to marry
ladies who ascribe partners in worship to Allah, and I do not know of a greater
thing, as regards to ascribing partners in worship, etc., to Allah, than that a lady
should say that Jesus is her Lord although he is just one of Allah's slaves". (Sahih
al-Bukhari, Vol. 7, p. 155).

In any event Muslim women are not allowed to marry adherents of another religion This
concession is allowed to Muslim men only. If a Christian woman becomes a Muslim
while her husband retains his Christian faith, she is entitled to divorce him. This is one of
the few cases where a woman in Islam has the right to initiate a divorce.

The Qur'an follows the Bible in also forbidding marriages between persons within very
close degrees of family relationships (Surah 4.23). It also makes the husband the head of
the family and requires the wife to submit to him and care for the common household:

Men are the protectors and maintainers of women, because God has given the one
more (strength) than the other and because they support them from their means.
Surah 4.34
2. Mut'ah - the Law of Temporary Marriage.

One of the things first allowed in Islam that causes embarrassment to Muslim apologists
today is temporary marriage known as mut'ah. Indeed in Shi'ite Islam this institution has
remained through the centuries though it has long been forbidden in Sunni Islam.

Marriages for a limited period were sanctioned by "the Prophet", but this law is
said to have been abrogated, although it is allowed by the Shiahs even in the
present day. These temporary marriages are called Muta'h, and are undoubtedly
the greatest blot in Muhammad s moral legislation. (Hughes, Notes on
Muhammadanism, p. 119).

An ancient custom allowed the man, when resident away from home, to contract a
temporary marriage called enjoyment" (muta'); the Qur'an seems to authorise such
an arrangement, and Muhammad makes it legal for his warriors. But it would
appear that Umar called it debauchery. The Shi'ites maintained its legality
(Gaudefroy-Demombynes, Muslim Institutions, p. 133).

The traditions relating to this subject generally state that the Qur'anic sanction for
temporary marriage is found in this exhortation: "O ye who believel Make not unlawful
the good things which God hath made lawful for you, but commit no excess: for God
loveth not those given to excess (Sura 5.90). This verse has no direct reference to mut'ah
and its liberties could refer to anything permitted by God. The Hadith, however, quite
clearly teach that Muhammad initially allowed temporary marriages:

Salama b. al-Akwa and Jabir b. Abdullah reported: Allah's Messenger (may peace
be upon him) came to us and permitted us to contract temporary marriages.
(Sahih Muslim, Vol. 2, p. 706).

Another tradition, apparently contradicting this one, states equally plainly that
Muhammad disallowed such temporary unions: "Rabi b. Sabra reported on the authority
of his father that Allah's Apostle (may peace be upon him) prohibited the contracting of
temporary marriage (Sahih Muslim, Vol. 2, p. 707). These traditions can be reconciled
quite easily through the presumption that such marriages were allowed at one time during
Muhammad's life but were later abolished by him. This seems the most likely explanation
and we find that other traditions in fact teach this very thing:

Sabra al-Juhanni reported on the authority of his father that while he was with
Allah's Messenger (may peace be upon him) he said: O people, I had permitted
you to contract temporary marriage with women, but Allah has forbidden it (now)
until the Day of Resurrection. So he who has any (woman with this type of
marriage contract) he should let her off, and do not take back anything you have
given to them (as dower). (Sahih Muslim, Vol. 2, p. 707).

Ali b. Ali Talib reported: The Apostle of Allah (may peace be upon him) forbade
mut'ah (temporary marriage) on the day of the Battle of Khaibar and also
prohibited the eating of flesh of asses. (Muwatta Imam Malik, p. 240).

It seems, therefore, that mut'ah was indeed allowed during the early days of Islam. The
mention of Umar's declaration on mut'ah in the quote from Gaudefroy-Demombynes'
book should also be considered. There is a tradition to the effect that a woman came to
Umar during his caliphate and stated that a certain Rabiah had contracted a mut'ah with a
foreign woman born in Arabia and that this woman was now pregnant Umar exclaimed:
"This is temporary marriage. If I had forbidden it previously, I would have ordered
stoning" (Muwatta Imam Malik, p. 240). This tradition has led some writers to believe
that such marriages were freely allowed until Umar forbade them but this seems unlikely.
In any event the other hadith teach that Muhammad did allow such marriages until he
prohibited them at the time of the Battle of Khaybar near the end of his life.

3. The Law and Practice of Divorce in Islam.


We have already seen, in an earlier chapter in this book that Abu Dawud recorded a
tradition to the effect that of all the things made lawful to men by Allah, divorce
displeased him most.

Divorce, though allowed, is considered blamable (mubah) and, if possible, to be


avoided. (Klein, The Religion of Islam, p. 191).

The Qur'an has two sections which deal exclusively with the subject of divorce. Although
the book does make divorce openly permissible, it hedges in its sanction of the practice
with many safeguards. In the Suratul-Talaq (the Arabic word for divorce being talaq), it
is said:

O Prophet! When ye do divorce women, divorce them at their prescribed periods,


and count (accurately) their prescribed periods: and fear God your Lord: and turn
them not out of their houses, nor shall they (themselves) leave, except in case they
are guilty of some open lewdness, those are limits set by God: and any who
transgresses the limits of God, does verily wrong his (own) soul: Thou knowest
not if perchance God will bring about thereafter some new situation. Surah 65.1

Divorce is thus not primarily sinful in Islam as it is in Christianity (Matthew 19. 8-9), yet
it has considerable restrictions. There has to be an 'iddah, a "prescribed period" of three
monthly courses (Surah 2.228), before the divorce becomes final. The husband, after
declaring to his wife on three occasions that he intends to divorce her (anti talaq - "you
are dismissed"), must wait three months thereafter before he can finally separate from
her, and the wife likewise must remain in the home during this period to see whether she
is pregnant and to see whether a reconciliation can be made.

Divorce is a process beginning with the cessation of marital relations and ending
with the actual divorce when the 'idda has run its course. This is to be carefully
reckoned and divorce is not actually to take place until it has expired. Meanwhile
no overt steps are to be taken. The woman is not to leave her husband's house, nor
is he to send her away unless in the interval she has been guilty of some public
scandal. Thus outwardly the spouses are to continue living together as before, in
the hope that before the end of the waiting period some reconciliation may take
place, or as the Qur'an expresses it, Allah may cause something to happen. (Bell,
"Muhammad and Divorce in the Qur'an , The Muslim World, Vol. 29, p. 62).

The Qur'an also urges husbands to be very considerate when divorcing their wives. They
are to set them free on equitable terms (Surah 2.231), are not to take them back purely to
spite or injure them, and are not to prevent them from being married to a former husband
(Surah 2.232). Despite these detailed exhortations, the Qur'an does not stipulate that there
need be any specific grounds for a divorce. There is no suggestion that desertion or
adultery must first take place, or that the husband must have some valid cause before
divorcing his wife. The Qur'an's silence on this point has led some scholars to conclude
that the husband may divorce his wife at will.
Since no justification for divorcing his wife is demanded from the husband by the
Koran, he is permitted to divorce her at his own will or caprice. But no such
privilege is accorded to the wife, an inequality which has had the consequence of
gravely lowering the status of women in Islam. (Levy, The Social Structure of
Islam, p. 121).

Muslim scholars are quick to rise to such challenges and one well-known writer states:

The impression that a Muslim husband may put away his wife at a mere caprice,
is a grave distortion of the Islamic institution of divorce. (Ali, The Religion of
Islam, p. 551).

The writer goes on to give a list of occasions where the wife has the right to divorce her
husband, namely, where her husband is completely missing and cannot be found, by
returning her dowry, and where she is a convert to Islam with a non-Muslim husband. An
objective study of the Qur'anic teaching on divorce yields the impression that, while no
particular ground for divorce is necessary, it is not to be taken lightly and to be avoided
wherever possible. Nevertheless the general rule in Islam is that divorce is the husband's
right. Hanafi law is particularly dogmatic at this point:

And in this matter of dissolution of marriage the accepted Hanafi rules are more
rigid and retrogressive than those of any other school, for they virtually deny the
wife any right of divorce whatever, judicial or otherwise, while they not only
leave the power of the husband unilaterally to repudiate his wife completely
unfettered, as do all the Sunni schools, but go further than any other in regarding
as valid, binding and even final various expressions of divorce never really
intended to have that effect. Thus the wife can never divorce her husband or
divorce herself from him unless he has expressly given her this right (tafwid al-
talaq), while even the offer to redeem herself for a financial consideration is
absolutely dependent on his consent: nor has she any right to the judicial
dissolution of her marriage, however long she has been deserted or severely she
has been maltreated, or even if she finds herself unwittingly married to one
afflicted with some loathsome and infectious disease. (Anderson, "Recent
Developments in Shari 'a Law V", The Muslim World, Vol. 41, p. 271).

Certainly the one section in the Qur'an giving the standard teaching on divorce (Surah 2.
228-232) speaks only of husbands divorcing their wives and addresses its exhortations to
men only.

The Qur'an has one law regarding divorce that is truly hard to commend or understand. It
is found in these words:

So if a husband divorces his wife (irrevocably), he cannot, after that, re-marry her
until after she has married another husband and he has divorced her. Surah 2.230
In the previous verse it is said that "divorce is only permissible twice" (Surah 2.229) and
Islamic jurists have concluded that a man is entitled to divorce his wife twice and duly
remarry her but, after divorcing her a third time, may not remarry her until she has
married another man and has become divorced from him. The object of this teaching is
clearly to inhibit men from divorcing their wives frivolously or abusing divorce as a
means of causing their wives constant insecurity. In the end, however, it seems to fail in
its purpose by obliging the wife to enter into a second union before the first may be
resumed. The Hadith, true to the letter of the law, make this teaching more absurd than
ever:

Narrated Aisha: A man divorced his wife thrice (by expressing his decision to
divorce her thrice), then she married another man who also divorced her. The
Prophet was asked if she could legally marry the first husband (or not). The
Prophet replied, "No, she cannot marry the first husband unless the second
husband consummates his marriage with her, just as the first husband had done".
(Sahih al-Bukhari, Vol. 7, p. 136).

In passing it is interesting to note that this tradition is interpreted to mean, not that three
separate divorces must first take place, but that on the required threefold declaration of
divorce the first time, the husband may not take his wife back before she marries again. A
Western scholar interprets this subject in the same way: "An absolute divorce, or Talaq i
Mutlaq, consists of the mere repetition of the words 'Thou art divorced' three times. A
woman so divorced cannot be restored to her husband until she has been married to
another and again divorced" (Hughes, Notes on Muhammadanism, p. 122). Either way
one cannot help being taken aback by the rigid stipulation that the second marriage must
first be consummated. Here indeed the letter of the law has made no allowances for the
reflections, misgivings or regrets of the parties ant appears to force on the woman what
Jesus regarded adultery (Matthew 5.32), even though she is willing to return to her true
husband without violating the intimate relationship she has enjoyed with him. The same
tradition in the Sahih al-Bukhari is also found in the other great work of Hadith and here
it is said that Muhammad's answer was "No, until the second one has tasted her sweetness
as the first one had tastes" (Sahih Muslim, Vol. 2, p. 730), even though the second
husband had already divorced her. This seems to be a gross injustice calculated to punish
the first husband for being double-minded once too often about his relationship

In some Muslim communities, especially in North Africa divorce is quite common and a
normal event in society. Elsewhere, particularly where monogamy has become the norm,
it is a rare occurrence.

4. Hudud - the Penal Laws of Islam.

In recent years there have been many reports of Muslim countries applying the shari'ah
in their legal systems. This means in principle that the law of the Qur'an has become the
law of the la d. In practice this means that prescribed Qur'anic punishments, such as
flogging for adultery and amputation for theft, have again become enforceable. One reads
often of such punishments being meted out in countries like Sudan, Pakistan, Saudi
Arabia and the like. In Mauritania a thief is entitled to have his arm anaethetised before
the amputation but in countries like Saudi Arabia no such mercy is shown to him. While
such practices seem truly barbaric to the rest of the world, conservative Muslims, in their
fanatical zeal to uphold original Islam, do all they can to enforce them. In the process
Islam is discredited. One writer speaks of recent developments in Pakistan:

Theft (sarqa) is now punishable by the amputation of the hand, adultery (zina),
committed by Muslims, by stoning consumption of liquor by Muslims with eighty
lashes and so on. The hudud punishments have been enforced in their primitive
form under pressure from the ulama who refused to accept any changes whatever
to bring them into line with modern conditions. (Nazir Ali, Islam: A Christian
Perspective, p. 126).

The Qur'an teaches quite plainly that adulterers are to be lashed a hundred times (Surah
24.2) and in pursuance of the sunnah (as we have seen) the provision is made to apply to
unmarrieds committing adultery with married men or women while the later are stoned to
death. In Saudi Arabia the penalty for adultery is usually beheading. Regarding the
penalty for theft, the Qur'an openly sanctions amputation:

As to the thief, male or female, cut off his or her of example, from God, or ends: a
punishment by way of example, from God, for their crime: And God is Exalted in
Power. Surah 5.41
In the Hadith this penalty is restricted and is only applicable where something of value
has been stolen:
Aisha reported Allah's Messenger (may peace be upon him) as saying: The hand
of a thief should not be cut off but for a quarter of a dinar and upwards. (Sahih
Muslim, Vol. 3, p. 907).

Other traditions say that a hand is not to be cut off where plants or fruit are stolen, where
slaves steal their master's property (because the slave and all that he has remains the
master's property), or where the value of the property stolen is less than a quarter of a
dinar. In any event the punishment seems to be unduly harsh and more suited to primitive
customs and times. At least one tradition in the Hadith aggravates the barbaric nature of
this penalty in that it humiliates the victim even further: "A thief was brought to the
Apostle of Allah (may peace be upon him) and his hand was cut off. Thereafter he
commanded for it, and it was hung on his neck" (Sunan Abu Dawud, Vol. 3, p. 1230). For
sometime he had to walk around with it - a truly revolting penalty. Over two hundred
years ago a Western scholar observed:

Theft is ordered to be punished by cutting off the offending part, the hand, which,
at first sight, seems just enough; but the law of Justinian, forbidding a thief to be
maimed, is more reasonable; because, stealing being generally the effect of
indigence, to cut off a limb would be to deprive him of livelihood in an honest
manner. (Sale, The Preliminary Discourse to the Koran, p. 150).
It is therefore alarming to see these hudud ("limits") once again becoming effective in
Muslim. One can only hope that the saner sentiments of twentieth-century civilization
will prevail in years to come over the retrogressive mentality of those quarters in Islam
that would turn back the clock to unhealthier times.

5. Foods and Drinks Forbidden in Islam.

Most people will know that Muslims, like Jews, make distinctions between foods that are
lawful and those that are prohibited. In Islam they are called respectively halaal (that
which is "loosed", that is, free from restrictions) and haraam (that is, "set apart". The
word can be used in a positive or negative sense, denoting that which is holy and
consecrated, or that which is forbidden). There are many similarities between the Jewish
and Muslim faiths in the matter of foods forbidden. The Qur'an sets these out in the
following verse from which it will be seen that the prohibitions are not absolute and can
be relaxed in extreme cases:

He hath only forbidden you dead meat, and blood, and the flesh of swine, and that
on which any other name hath been invoked besides that of God. But if one is
forced by necessity, without wilful disobedience, not transgressing due limits, -
then he is guiltless. For God is Oft- forgiving, Most Merciful. Surah 2.173

All breeds of fish and other aquatic game are lawful to Muslims (Surah 5.99). The foods
forbidden to Muslims in the verse quoted were not only forbidden to Jews but it appears
that even the early Christians, notwithstanding eeter's liberating vision (Acts 10. 9-16),
had similar scruples.

It is curious that this list, apart from the mention of pork, should be so like that in
Acts xv.18; and one wonders whether this represents a common level of
observance among monotheists in the Arabian peninsula, both Jews of Arab
descent and Christians. (Watt, Muhammad at Medina, p. 200).

Even meats which are lawful to Muslims only become so if they have been slaughtered
with the name of God pronounced over them (Surah 5.5). The tasmiyah must be invoked
over the animal (that is, the bismillah, "in the name of Allah", must be recited).
Nonetheless the Qur'an declares that the foods of the uwtul-Kitab, the "people of the
Book" (that is, Jews and Christians), are lawful to the Muslims and it is permissible for
Muslims to sit at table in Jewish and Christian homes and vice versa. It is unlikely that
there would be much division between Jews and Muslims in matters relating to lawful
and prohibited foods.

The above quotations show us that the prophet was well acquainted with the
Jewish dietary laws. And according to Muhammed these laws were imposed upon
the Jews on account of their iniquity. Still he did not find it possible, even if he
desired, to abolish all distinctions, and to declare that every kind of food was
equally clean and lawful to eat ... For, in most cases, he declares to be unlawful
those things which are also prohibited by the Jewish code, as, for instance, that
which had died of itself, blood, swine's flesh, etc. (Roberts, The Social Laws of
the Qoran, p. 113).

The tasmiyah is also used as a form of grace before a meal. A pious Muslim should also
give praise to God after he has taken his fill of food.

It is recommended that hands should be washed before the taking of food and
after finishing it, and that when one begins a meal, he should do so with the
pronouncement of bismillah, and that when he finishes it, he should give thanks to
God or say al-hamdu li-llah. (Ali, The Religion of Islam, p. 601).

The scruple about washing hands as a form of ablution before a meal would not be
sanctioned by Christians, however, as it is one of those typical rituals in Islam that is but
a "shadow of the good things to come" (Hebrews 10.1) and one that invariably lends
itself to petty self-righteousness and a judgmental spirit (Matthew 15.2).

All intoxicating drinks are forbidden to Muslims The Qur'an at first allowed that there
was some good in wine, stating simply that it lent itself more to sin than to benefit (Surah
2.219). In another verse believers were bidden not to come to prayer in an intoxicated
state (Surah 4.43) but later on wine was disapproved of altogether (Surah 5.93-94).

The social laws of Islam have a universal, binding effect on the Muslim world and
condition the way of life of every individual Muslim. While many of them are
commendable, many others appear to be worthy of considerable censure.