Marriage contracts: What is allowed for women and what is not. “The Book of Marriage, Bulūgh al-Marām” (no. 995) – Shaikh al-Fawzān

Title: Kitaabun-Nikaah (The Book of Marriage) from Shaikh Saalih al-Fawzaan’s explanation of Buloogh al-Maraam min Adillatil-Ahkaam of Al-Haafidh Ahmad Ibn `Alee Ibn Hajr al-Asqalaanee (Born 773H, Died 852H). Shaikh Al-Fawzaan’s tremendous explanation is entitled Tas-heel al-Ilmaam bi-fiqhil-Ahaadeeth min Bulooghil-Maraam and is printed in seven volumes. The following is a translation of this important and very enlightening chapter, adapted in places for brevity and simplicity. The following is from volume 4, no. 995 (English, 847)

Al-Haafidh Ibn Hajr (rahimahullaah) said:

وَعَنْ عُقْبَةَ بْنِ عَامِرٍ – رضي الله عنه – قَالَ: قَالَ رَسُولُ اللَّهِ – صلى الله عليه وسلم: «إِنَّ أَحَقَّ الشُّرُوطِ أَنْ يُوَفَّى بِهِ, مَا اسْتَحْلَلْتُمْ بِهِ الْفُرُوجَ». مُتَّفَقٌ عَلَيْهِ.

 

صحيح. رواه البخاري (٢٧٢١)، ومسلم (1418)، واللفظ لمسلم.

995: Narrated `Uqbah Ibn `Āmir (radiyallaahu ‘anhu) that Allāh’s Messenger (salallāhu `alaihi wassallam) said:

“The most deserving conditions to be fulfilled are those by which you make sexual relations lawful for yourselves.”  

Agreed upon: Bukhaaree no. 2721; Muslim no. 1418.

Shaikh Saalih al-Fawzaan (hafidhahullaah) said:
Explanation:

contractShuroot (conditions) is the plural of shart. In the language it refers to: “a sign”. In the Sharee`ah, it is: when one party compels the other to uphold an agreement that the two parties have agreed upon in fulfilling the agreement with that which is beneficial to that party. So this is what is meant by a condition in a contract – and from those contracts is the contract of nikāh.

So if the woman introduces a condition into the marriage contract with her husband at the time of marriage, in that which has a benefit to her, then it would be obligatory upon the husband to fulfil it [if he agreed to it at the time of marriage]. And if the husband breaks any of those contracted conditions then the wife is allowed to call for a nullification of the marriage. For example: If she made a condition that he is not allowed to take another wife whilst married to her, then this is a sound contractual condition because it is in her benefit. So if he went ahead and took another wife, then she has a choice – if she wishes she can stay with him, and if she wishes, she can seek a nullification. Or, for example, she makes a condition that he cannot take her out of her home, or out of her country, and that she will not travel with him to his land – then this condition is valid since there is within it a benefit for her. Therefore, a condition which contains within it a benefit for her is not forbidden. So these conditions are valid and it is obligatory to fulfil them. Rather, these conditions have a greater right that they be fulfilled because due to them the private parts are made permissible.

“…by which you make halāl the private parts…” This is drawing attention to the importance of fulfilling the conditions of the marriage contract. This is because this contract contains the amount of the dowry, and in general that which will make sexual relations permissible – so it is obligatory upon the husband to fulfil these conditions that were agreed upon [at the point of marriage].

If there is a forbidden (harām) condition, then it is not permitted, neither in a marriage contract nor in other contracts due to the saying of the Prophet (salallāhu `alaihi wassallam): “Any condition that is not in the Book of Allāh then it is invalid, even if it be a hundred conditions.” (Bukhāree, no. 2563; Muslim, no. 1504) So if she makes a condition that he cannot take pleasure from her, or not have sexual intercourse with her – then this condition is invalid because it opposes the purpose of marriage. Also, if she was to make it a condition that she will not have children, and that she will use contraception to avoid pregnancy – then that is an invalid condition because it opposes the purpose of marriage [and the contract of marriage]. Rather it opposes the greatest of the goals of marriage and that is reproduction and producing offspring. Likewise, if she makes it a condition that the right of divorce is in her hands, then this is an invalid condition because Allāh placed the divorce in the hands of the husband, and not in her hands. So all of these are invalid conditions – they oppose the Book of Allah so they are invalid. But if any conditions that do not oppose the Book of Allah and are in the benefit of the woman, then it is obligatory to fulfil them [if they were agreed to]. Indeed they are more worthy of being fulfilled because they were the conditions that made her private parts permissible for the man.

 

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