Placing conditions in the contract of Marriage

http://islamqa.org/hanafi/daruliftaa/7871

I would like to find out whether a woman can stipulate in her marriage contract that She would like to study (deen) at a certain place for a minimum number of years (say 6) and if that is not fulfilled, she would opt to divorce!

Also, that during such period she would not want to have any kids. How would you advise such a woman, who holds her studies above everything else and is considering marriage? The brother in question is also interested in studying for a long time (although not bent on six years being the least and also not placing a maximum amount of years on the time he would be willing to study). pls your advise is needed.

ANSWER

In the name of Allah, Most Compassionate, Most Merciful,

Conditions stipulated in the marriage contract are at times attached to the right of divorce for the wife, and at other times, only the conditions are mentioned. I will attempt to (Insha Allah) shed some light on both of these situations, and what implications they have on the marriage.

1) Conditions without the right of divorce:

Conditions set in the contract of marriage (without the mention of divorce) are mainly of three types:

a) Conditions that highlight and give emphasis to those rights of the spouses which are obligatory due to the contract of Nikah, e.g. the condition that the wife shall receive financial support, clothing and shelter. The condition that the husband will look after the wife in a proper manner (ma’ruf). Similarly, the condition that the wife will be obedient to the husband in everything permissible that is related to their marriage, etc…

The ruling for such conditions (with the consensus of the scholars) is that, it is necessary for both spouses to fulfil them, even if they were not stipulated in the contract of marriage. If the husband fails to act in accordance with such conditions, the wife has a right to demand for a legal divorce in an Islamic court. (See: Fath al-Bari, 9/217, Umdat al-Qari, 14/106 & Radd al-Muhtar, 2/45).

Uqba ibn A’mir (Allah be pleased with him) narrates that the Messenger of Allah (Allah bless him & give him peace) said:

“The conditions (stipulated) most rightful to be fulfilled are those with which you are given the right to enjoy the woman’s private parts (meaning conditions stipulated in the contract of marriage).” (Sahih al-Bukhari, no.4856)

b) Those, which are contrary to the concept of marriage according to Shariah. In other words, they oppose the conditions mentioned in (a). E.g. the condition that the wife will not receive her dowry, financial support, or the condition that the husband will not have the right to have sexual intercourse with the wife, or that he will divorce his first wife, etc…

The ruling (hukm shar’i) for such conditions is that they will be void and the marriage will be valid. They will have no effect on the validity of the marriage; neither will any of the spouses be obliged to fulfil them.

Imam al-Bukhari (Allah have mercy on him) formed a separate chapter in his famous ‘Sahih’ on the impermissibility of such conditions under the title: “Chapter regarding conditions that are unlawful in the contract of marriage”. Thereafter he produced the following Hadith:

Sayyiduna Abu Huraira (Allah be pleased with him) narrates that the Messenger of Allah (Allah bless him & give peace) said:

“It is unlawful for a woman to ask the divorce of her sister (would-be co- wife) in order to have everything for herself, for she will only receive what is predetermined for her.” (Sahih al-Bukhari, no: 4857)

He also quoted the following statement of Sayyiduna Ibn Mas’ud (Allah be pleased with him):

“A woman should not make a condition (at the time of marriage) of her (Muslim) sister being divorced.” (ibid)

c) The third category of conditions is those that are neither of the two, in that they don’t confirm the established rights of the spouses, neither do they contradict them. However, there is some benefit in them (usually) for the wife, such as: the condition of not marrying again, or that the husband will not force her to leave her home town, etc…

Regarding the fulfilment of these conditions, there is a difference of opinion between the jurists (fuqaha). The view of Imam Ahmad ibn Hanbal (Allah have mercy on him) is that it is necessary to fulfil these conditions, and if the husband is negligent in any way, the wife will have the right to demand nullification of the marriage. (Ibn Qudama, al-Mugni, 7/71).

However, according to the other three schools of thought (i.e., Hanafi, Maliki & Shafi’i), it is a religious duty of the husband to fulfil these conditions, but it is not binding on him legally in so far as it is not something that can be enforced through the courts, and the wife can not demand to nullify the marriage. (See: for the Hanafi Madhhab: Radd al-Muhtar, 3/203, the Shafi’i Madhhab: al-Majmu’ & Maliki Madhhab: Bidayat al-Mujtahid: 2/59).

Some of the evidences in support of this view:

1) The Messenger of Allah (Allah bless him & give him peace) said:

“Every condition that is not in the book of Allah is invalid.” (Sahih al-Bukhari)

2) The Messenger of Allah (Allah bless him & give him peace) also said: “All the conditions agreed upon by Muslims are maintained, except a condition which permits what is prohibited or prohibits what is permitted.” (Sunan Tirmidhi)

They (the three Madhhabs) say that marrying a second wife, etc… is lawful for the husband, and to stipulate a condition that prevents him from exercising this permissible right will not permissible.

However, it is the moral responsibility of the husband to fulfil his promise, as Allah Most High says:

“And fulfil (every) engagement (promise), for every engagement will be enquired into (on the day of Reckoning).” (Surah al-Isra, 34).

The Messenger of Allah (Allah bless him & give him peace) regarded not fulfilling of promises as “the sign of a hypocrite”, thus a person will be sinful for not fulfilling these conditions, but it will not have an effect on the marriage.

(2) Conditions attached with the right of divorce for the wife: 

Many times certain conditions are stipulated in a way that if the husband fails to fulfil them, the wife will have the right to divorce herself. This (giving the wife the right to divorce herself), is known as Tafweed in the Fiqh terminology

There are three situations here:

a) If the Tafweed took place after the spouses had entered into wedlock, then this, without doubt, can be done. However, the husband here will be free to accept such conditions, as he is already in the marriage.

When the husband gives this right of divorce to the wife, she will only have this right in the session (majlis) that she is in. If she did not exercise her right, then this right will go in vain.

However, if the husband granted this right for a specific period (e.g. 5 years) or permanently, then she will have this right accordingly.

b) The second situation is when Tafweed takes place at the time of contracting the marriage, meaning the wife stipulates the conditions, and demands the right to divorce herself in the case of non-fulfilment.

This is also permissible and valid, provided one condition is met, which is that the offer of marriage is initiated by the woman coupled with the demand for Tafweed, and the man accepts this. If the opposite takes place, it will be void. (See: Ibn Abidin, Radd al-Muhatr, 2/285 & al-Bahr al-Ra’iq, 3/318).

In the above case, if the woman initiated the marriage agreement and asked for the right to divorce herself if certain conditions were not fulfilled, then she will be entitled to this right, and whenever she divorces herself (if the conditions are not fulfilled by the husband) it will be valid.

c) The third situation of Tafweed is when it takes place before the actual contract of marriage has taken place. In other words, the woman stipulates certain conditions to be fulfilled if they are to get married, and if the conditions are not fulfilled, she has the right to divorce herself.

This is also permissible, but subject to one condition that the husband attributes the Tafweed to the marriage. Meaning he says: “If I marry you, and fail to fulfil such and such condition, then you have the right to issue one irrevocable divorce upon yourself.” (Radd al-Muhtar, 2/681, Bab al-Ta’liq)

In this case, if they do enter into wedlock, and the husband fails to fulfil the conditions, the wife will have the right to divorce herself.

It should be remarked here that although the power to give a divorce belongs primarily to the husband, he may delegate this power to his wife, with or without the conditions. Once this power is delegated, it can not be revoked, unless the wife hands it back to him.

In the light of the above explanation, the following is the answer to your question:

If you delegate the right of divorce to your wife in a way that you refer it to your marriage, then she will have this right, with or without conditions. If you tie this right with certain conditions, she will have this right when these conditions are not fulfilled.

However, if you do not give her the right to divorce herself, rather only the conditions are stipulated, then the condition of not having children will be classed from the first category, and it will be invalid.

The reason behind this is that, it is the established right of the husband to have sexual intercourse with his wife without using any contraceptive methods. Therefore, you will not be obliged to fulfil this condition.

As far as the condition of studying is concerned, the husband’s established right is that the wife stays with him and not emerges from the house without his permission. If she stipulates the condition that you travel with him in order for her to study, then this will be classed from (and Allah knows best) the second category, thus according to the Hanafi school, it will a moral responsibility that you fulfil it.

One must always keep in mind that to keep a marriage free from conditions is the best form of action. The best way to work things out is through mutual understanding by exercising the character, manner and Akhlaq of the best of creation, who is an example for the whole of humanity.

And Allah Knows Best

[Mufti] Muhammad ibn Adam
Darul Iftaa
Leicester , UK

Delegating the Right of Divorce to the Wife (tafwidh) 

Question #: 5591 

Date Posted: 29-03-2004 

<QUESTION>

Is it valid for a woman to put as a stipulation in a written Islamic contract that she will have the open right to divorce, as opposed to her naming the specific conditions under which this right will be carried out?

Also the woman’s father is representing the bride at the nikah ceremony, she will not actually be present during the nikah; how will this contract be signed and presented in her absence?

<ANSWER>

In the name of Allah, Most Compassionate, Most Merciful,

According to Shariah, the right to divorce belongs primarily to the husband and not the wife. There are many reasons and wisdoms behind this ruling, which have been explained in detail in an earlier post.

However, although the power to issue a divorce belongs in principle to the husband, he may delegate this power to his wife or a third party, with or without stipulating conditions. Once this power is delegated, it can not be revoked or withdrawn. This is known in the Fiqh terminology as “Tafwid”.

This is based upon the incident where the Messenger of Allah (Allah bless him & give him peace) gave his wives the option to remain in his marriage or be divorced. Allah Most High said to the Messenger of Allah (Allah bless him & give him peace):

“O Prophet! Say to your wives: “If it be that you desire the life of this world, and its glitter, then come! I will provide for your enjoyment and set you free in a handsome manner. But if you seek Allah and His Messenger, and the Home of the Hereafter, verily Allah has prepared for the well-doers amongst you a great reward.” (Surah al-Ahzab, 28)

The Messenger of Allah (Allah bless him & give him peace) deserted his wives for a period of around one month, after which the above verse was revealed. 

Sayyida A’isha (Allah be pleased with her) narrates: “When the Messenger of Allah (Allah bless him & give him peace) was commanded to give an option (of divorce) to his wives, he started with me saying: “I am going to mention to you a matter in which you should not (decide) hastily until you have consulted your parents.” She (A’isha) said that he already knew that my parents would never instruct me to seek separation from him. She said: “Then he said: Allah, the Exalted and Glorious, said: “O Prophet, say to your wives: If it be that you desire the life of this World, and its glitter, then come! I will provide for your enjoyment and set you free in a handsome manner. But if you seek Allah and His Messenger, and the Home of the Hereafter, verily Allah has prepared for the well-doers amongst you a great reward.” Sayyida A’isha (Allah be pleased with her) says that I said to the Messenger of Allah (Allah bless him & give him peace): “About this should I consult my parents, for I desire Allah and His Messenger and the abode of the Hereafter?” She (A’isha) said: “Then all the wives of the Messenger of Allah (Allah bless him & give him peace) did as I had done.” (Sahih Muslim, no. 1475)

Sayyida A’isha (Allah be pleased with her) also narrates that the Messenger of Allah (Allah bless him & give him peace) gave us the option (m: to remain with him or to be divorced), so we chose (and preferred) Allah and His Messenger. Giving us that option was not regarded as a divorce.” (Sahih al-Bukhari, no. 4962)

Imam al-Sarakhsi (Allah have mercy on him) states:

“If a man delegates the right to divorce to his wife, then this is similar to giving an option (khiyar) in trade, except that this is completely valid and logical, for the husband is the owner of issuing the divorce, thus he is in a position of delegating something that he owns. Hence, it will be binding, in that the husband will not have the right to revoke this delegation.” (al-Mabsut, 7/221)

The Companions (Sahaba, Allah be pleased with them all) also unanimously agreed upon the validity of delegating the right to divorce to the wife. (See: al-Mawsili, al-Ikhtiyar li ta’lil al-Mukhtar, 2/166 & Zaylai’i, Nab al-Raya, 3/229)

Rules concerning the delegation of the right to divorce (tafwid)

There are certain rules and regulations with regards to this delegation that need to be understood properly:

1) When the husband delegates the right to divorce to the wife, she will only have this right in the session (majlis) that she is in. If she did not exercise her right, then this right will go in vain. However, if the husband delegates this right for a specific period (e.g. 5 years) or permanently, then she will have this right accordingly. (Radd al-Muhtar & al-Ikhtiyar)

2) The wife will only have a right to divorce herself according to what was delegated to her. If the husband delegated to her the right to divorce herself once (and not two or three times), or he delegated the right to divorce herself irrevocably, then she will have this right accordingly. She will only be allowed to utilize this right in a manner it was delegated to her. (Radd al-Muhtar)

3) If the husband gave his wife the right to divorce herself a specific number of divorces, then she will not have a right to divorce herself more than the number of divorces that were delegated to her.

4) Once the husband delegates this right to his wife, he can not overturn or revoke it. (Durr al-Mukhtar)

5) If the right to divorce was delegated for a specific period of time and the wife did not utilize this right in that period, then upon the termination of this period, the right will also no longer remain. (al-Ikhtiyar)

6) By delegating the right to divorce, the husband still has a right to divorce his wife. Delegation of this right does not imply that the husband no longer has a right to issue a divorce. (al-Ikhtiyar)

7) If the wife rejects accepting this right of divorcing herself, then if the delegation was permanent, her rejection will be of no consequence, in that she will still have this right permanently despite rejecting the offer. However, if this delegation was not permanent, then by rejection, the right to divorce will terminate. (al-Ikhtiyar)

Different stages of delegation

There are different stages and times when the man delegates the right to divorce to the woman. In summary, there are three situations here:

a) If the delegation (tafwid) took place after the spouses had entered into wedlock, then this, without doubt, can be done. However, the husband here will be free to accept this, as he is already in the marriage. 

b) The second situation is when this delegation (tafwid) takes place at the time of contracting the marriage.

This is also permissible and valid, provided one condition is met, which is that the offer of marriage is initiated by the woman coupled with the demand for Tafwid, and the man accepts this. If the opposite takes place, it will be void.

Imam al-Haskafi (Allah have mercy on him) states:

“If the man married her on condition that she will have the right to divorce herself, then this will be valid.”

Allama Ibn Abidin (Allah have mercy no him) commentates on this by saying:

“(Imam al-Haskafi’s statement “this will be valid”), this is subject to the condition that the woman initiates the contract of marriage with her offer by saying: “I marry myself to you on the condition that I will have the right to divorce myself whenever I wish” and the husband says: “I accept this”. However, if the husband initiated the contract of marriage, she will not have a right to divorce herself, as mentioned in al-Bahr.” (Radd al-Muhtar ala al-Durr, 3/329)

Thus, if the woman (or her representative) initiated the marriage contract by the offer (ijab) and asked for the right to divorce, then she will be entitled to this right, and whenever she divorces herself, it will be valid.

c) The third stage of Tafwid is when it takes place before the actual contract of marriage. In other words, the woman demands the right to divorce herself if they are to get married.

This is also permissible and valid, but also subject to one condition, that the husband attributes the Tafwid to the marriage. Meaning he says: “If I marry you, then you have the right to issue one irrevocable divorce upon yourself.” However, if the man did not attribute this to the marriage, it will be void.

It is stated in Durr al-Mukhtar:

“The condition of its validity is having ownership (m: by actual marriage) or referring it to the marriage…such as he says: “If I marry you, then you are divorced (m: or you have the right to divorce yourself).” (See: Radd al-Muhtar ala al-Durr al-Mukhtar, 3/344 & al-Ikhtiyar, 2/ 170)

As far as your second question is concerned, the woman can appoint her father as her representative (wakil) to contract the marriage on her behalf. It is not necessary for the woman to be present in the session of the marriage contract. Her representative will have the same authority as she herself has.

And Allah knows best

[Mufti] Muhammad ibn Adam
Darul Iftaa
Leicester , UK