Shaykh Abu Yusuf Tawfique Chowdhury’s view on the new Muslim Marriage contract:
Assalamualiakum wa rahmatullahi wa barakatuhu,
Finally after the people of the land have spoken about this contract do I feel it appropriate to speak about this contract in my own capacity. I also speak with reservation and althought I too disagree with it, I urge all the students to show due respect to the fact that some people of knowledge may have supported it, such as Mufti Barakatullah hafidahullah who I know him to be knowledgeable and not a follower of desires alhamdulillah. So I would urge everyone to discuss the contract objectively without giving a ruling on those who are behind it. Remember: Everyone’s statement is to be taken and rejected except that of Rasulullah sallallahu alaihi wa sallam. It is my sincere hope that if we speak with more clarity, strenght of proof and with some softness and kindness, that the better ones amongst them may recant and reject the contract and all good is from Allah.
As Sh Haitham hafidahullah pointed out, the contract is riddled with problems and in all truth, it plays on the concessions of scholars, goes against established rulings of fiqh, goes against the truth in many matter, goes against points of ijma sukuti in some, using daeef ahadeeth in quoting facts and in others there seems to be a blatant misunderstanding of the fiqh of some of the nikaah terms - such as in talaq at-tafweed.
I too hold this contract to be at odds with the goals and principles of the Shariah in marriage and do not consider the contract with its present conditions and wording to be valid. This is apart from the fact that the contract lowers the status and position of the husband treating him constantly from an angle of mistrust, whereas the position of the husband is one of highest importance and one of having tremendous right over the wife. There is no mention of this nor any alluding to this in the contract since it seems to have been designed to counter unscrupulous husbands. No only this, but if we were to put the rulings of halal and haram aside - is it not illogical to propose the disolution of the husband’s sole right to talaq, taking second wife etc.. and at the same time oblige a mahr on him?! If indeed, instead of equity you are after equality, then where is the equality in obliging a mahr on the man when so many of his rights are totally removed away from him?
I am however concerned that perhaps many points of what Sh Haitham is mentioning in his video may not be clearly understandable to those who listen to it, so I would suggest that people NOT miss the upcoming AlKauthar A-Z of love and mercy course in London 1st/2nd November where all the issues and more will be explained in great detail so that everyone will be easily able to find the faults with contracts like this in the future inshaAllah. I am also afraid that many of those who are pushing the contract don’t understand how they may have misunderstood the issues of fiqh themselves eg in matters of talaq tafweed.
I would summarize (very concisely without detailed explanations) the problems in the contract from my own reading of it, as the following 6 major issues:
1. To say that witness in Islam is gender/faith neutral: Is a poor and weak argument. Firstly as far as gender is concerned, if two muslims are getting married, no scholars have allowed except for 2 male muslims or 1 male and 2 female (as many have allowed) but never 4 female at all. Secondly regarding witnesses being faith neutral - If the authors are alluding to the opinion of Imam Malik rahimahullah that witnesses are not compulsory, but that the matter be known widely, then this is also incorrect, since the Maliki madhab requires it to be made known in Muslim areas, not ahlul-kitab and dhimmi areas. If the authors have based this opinion based on the fiqh issue of a muslim marrying a dhimmi, and some minority opinion allowing witnesses from the dhimmis non-muslims - this itself is a really weak opinion and the vast majority of the ulema require the witnesses to be muslim even if the wife is dhimmi and/or ahlul kitaab.
2. Misunderstanding of talaq tafweed: Whereby scholars have allowed the husband to give his agent (in this case, his own wife) the right to divorce - the right for her to pronounce the divorce is only for that instance and only for one pronunciation of divorce, not for more than that. The right thus transferred, expires right after and does not perpetually stay with her and so it is of no consequence if she came tomorrow and divorced herself from him - it would not be of any consequence. Thus - to propose that the talaq tafweed is perpetual for the length of the duration of the marriage is a new matter and this is directly against the verse where Allah specifically makes talaq from men to women only [2:231, 236 etc].
3. To negate the condition of the wali - or to propose as in the explanatory notes that guardianship stops at puberty - is a false statement as far as marriage is concerned. Even the Ahnaf agree that guardianship in marriage continues even after puberty in the case of a slave girl - which is how they understand the hadeeths where rasulullah sallallahu alaihi wa sallam obliged women to get married only with a wali (they said that he was referring to slave girls that must have their master or inother words, their wali’s permission for marriage whereas free women dont need walis according to them). However even the Ahnaf (i.e Hanafis) - although they dont oblige a wali for ennactment of marriage, however they disallow its establishment if the family of the girl disapproves and does not think that the man is kufu’/kafaa’ah (suitability and good comparision) for the bride. So for example, even if the wali is not obligatory in the hanafi madhab may Allah have mercy on them, still however, the father of an arabian sister may object to her daughter’s marriage to a non-Arab as in the hanafi madhab. So if the wali is not a condition in marriage, however the wali’s role can come in by way of kafa’ah. So practically speaking, the removal of stipulation of a wali does not remove the stipulation of kafa’ah and thus practically - the effect is still the same - the blessings of the wali is still required for the marriage to not be hindered. So this non-stipulation of the wali (even if we give the excuase that the hanafis dont stipulate it) gives the wrong message and in no case, is the sister free of needing her wali’s blessing for the continuation of the marriage.
4. The contract stipulates that a second wife not be taken formally or informally here or abroad since the laws of the land forbid it. This extending the law of the land into a moral territory and to make it a moral police and to extend its jurisdiction into other countries - is a matter in which the law simply does not extend its own jurisdiction to itself.
5. Some of the stipulations individually may have been acceptable on their own if they were individual stipulations (eg if a sister put the condition for her husband not to take a second wife - such as in the hanbali madhab), however when the whole spirit of the contract is based on achieving a whimsical equality and appeasement and gratification of so called modern muslim values; as a collection, the conditions go against the goals and purposes of Islam no doubt. I have little doubt that this contract will fail to achieve the goals for which it was designed. And Allah knows best.
6. I was surprised to find that the contract allowed mutual amendaments to the contract by both parties - something quite new to me. If what is intended is that the sister does not demand certain conditions anymore - such as allowing her husband to take on another wife, talaq tafweed condition etc.. then this wording of this condition permits this and more. If more is intended, then I would love to see the basis of the authors for allowing this sitpulation in the contract. This condition is against the clear injunctions of the sunnah of Rasulullah to carry out the conditions by which a person has made sexual intimacy with his spouse permissible. [AlBukhari]
[Also as a side point for benefit of the students]
There are some statements in the explanation of the contract based on daeef hadeeth: such as the statement that divorce is regarded by Allah as the most hated thing - is unauthentic as graded by Ibn Hajr rahimahullah in AlFath and AlAlbani rahimahullah in Daeef Sunan Abi Dawood.
I would say that if this contract is pushed out to people of UK without strong opposition - very soon the effect of it will be that the number of divorces would increase, the number of brothers seeking brides from their own countries back in the subcontinent would increase, the number of unmarried women will increase, the ages of sisters getting married will increase, the number of self styled islamic feminists will skyrocket, the number of sisters traumatised and hurt by fleeting marriages will skyrocket and for the first time we will surely see a trend wherein some woman get married only for the mahr then divorce soon after only to repeat this with other unsuspecting men - a phenomenon quite common in Iranian mutah marriages. Infact I have little doubt that this contract will actually result in the exact opposite of the noble aims that it set out to achieve. But as the saying goes: The road to jahannam is paved with good intentions!
I would appreciate if the students could post this post on various forums and on email lists so people can benefit and understand the points clearly inshaAllah.
AlKauthar and Mercy Missionhttp://muslimmatters.org/2008/08/16/uks-marriage-contract-if-not-zina-it-is-close-to-zina-adultery/