IUGH6316 (Issues In Islamic Family Law )

MARRIAGE IN ISLAMIC LAW : THE MODERNIST VIEWPOINTS

NURUL SAFWAH BINTI MOHD AMINUDDIN ZAKI AINON MARDHIAH BINTI ZAWAWI

IGA130052 IGA130072

MARRIAGE IN ISLAMIC LAW : THE MODERNIST VIEWPOINTS

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INTRODUCTION BACKGROUND 2.1 MARRIAGE IN ISLAMIC LAW

2.2

MARRIAGE LAW IN MODERN ISLAMIC

NATION

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ANALYSIS CONCLUSION

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INTRODUCTION

This article was written by Majid Khadduri on titled "Marriage In Islamic Law: The
Modernist viewpoints". This article discusses in detail about marriage in Islamic law, such as polygamy, divorce and also inherintance from the modernist viewpoints. Majid Khadduri in this article explain that Islamic marriage law is very useful for giving nonmuslim a better understanding of the Muslim community.

The writer in this article tries to discuss about the modernist view of Islamic law system

with specialized his study on Islamic family law and illustrates the problems of Islamic
family law that are available in modern Islamic nation.

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BACKGROUND MARRIAGE IN ISLAMIC LAW

Before the existence of Islamic law-there is no limitation to the men to marry more than one or get a divorce. The existence of a new Islamic law - Shari'ah reforms in marriage practices, - but still does not eliminate polygamy or prohibit divorce.

Before the existence of Islamic law - the status of women on patria potestas (power of a father) and the woman does not have any rights. Then the Islamic Shari'ah came and women were given some rights. Thus, a marriage changed into an institution of marriage that respects women.

Sir Henry Maine the shariah also changed the nature of marriage from "status" to "contract," : An offer of marriage Acceptance Payment of dowry Womens consent is important if the contract is to be binding. The offer and acceptance must be made in the presence of at least two witnesses for the marriage contract to be valid.

In Shariah does not prescribe any particular form for the marriage ceremony (no problem to hold marriage ceremony). The main thing is the marriage contract, whether oral or in written form.

 As a contractual agreement, marriage under orthodox doctrine is the same as it is in heterodox doctrine. Syiah law recognizes a short-term marriage contracts known as mut'a, or temporary marriage.

Sunni law condemns the mut'a as being contrary to the real Islamic law. Whereas Sunni law permits a man to marry a non-Muslim - dhimmi (Jewish or Christian woman) while Syiah law only allows a man to enter into a temporary marriage with a non-Muslim.

 Marriage law remained essentially unchanged throughout the Islamic world until the beginning of the twentieth century, although its application varied from country to country and even from province to province especially those relating to criminal, administrative and financial matters, were modified and supplemented by decree (government). And the law of personal status, which certain parts relating to marriage and inheritance (property) were obtained directly from the Quran, it stilll remain until modern times.

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MARRIAGE LAW IN MODERN ISLAMIC NATION

When Tanzimat - a series of liberal reforms designed to promote efficiency in the administration of the Ottoman Empire has commenced, certain parts of the Islamic Shariah, especially those related to contractual obligations, was drafted based on the European model and the Ottoman Civil Code enacted in 1877.

The code is referred to as Majalla (Majallah al-Ahkam al-Adliyyah). Family law, although a main part in the shari'a, it is not included in Majalla, because Majalla based on the Hanafi law (the official Ottoman school of law)- while the law of personal status in each province of the empire had traditionally been based on the school of law which prevailed there. (for muslim conservatism)

 It was not until 1917, when the Ottoman Empire was on the verge of collapse, that Ottoman reformers were able to enact the Ottoman Law of Family Rights, which codified the law of personal status in accord-ance with the Hanafi school, but made allowances for the differences between Hanafi doctrine and that of the other schools.

After the fall of the Ottoman Empire, the reform of family law was widespread in modern Islamic nation.

EGYPT began modifying its family law following (reforms) : i) World War I - reorganizing its religious courts ii) After World War II - law of inheritance, abolished the waqf, and unified its judicial system by abolishing religious courts

 The reform movement also affected marriage.

i) The Egyptian Law of Personal Status, enacted in 1962, restricted-but did not abolish-polygamy by prohibiting the husband from unilaterally divorcing his wife.

ii)The Syrian Law of Personal Status (1953) permitted a man to take a second wife only if he could prove his ability to support her.

Only two countries moved to abolish polygamy and to liberalize their laws of
inheritance : i) Tunisia in 1956 - still in force ii) Iraq in 1959 - face of strong conservative opposition, so the was modified in 1963 to permit restricted polygamy, but retained the liberal provisions taken from the Shi 'i law of inheritance.

 Tunisia became the first Islamic nation to liberally reform its legal system when, in 1960, the Bey (Ruler of Tunisia) promulgated a written constitution based on European models at the urging of Khayr al-Din Pasha, the nation's Prime Minister. The Tunisian Law of Personal Status contained three revolutionary reforms : i) abolition of polygamy (Article 18) - it is impossible for a husband to be just in his relations with more than one wife. - Tunisian law refer (Surah an-nisa : 129)- that a man cannot possibly be just if he marries more than one wife - the law was obviously contrary to the surah an-nisa (4:3) which permits plural marriage. ii) The law also gave women an equal right to divorce (Articles 30-31), and provided that a divorce could only be obtained through a court proceeding. While this provision may not seem as revolutionary as the abolition of polygamy - radical departure from the past practice that allowed a husband to divorce his wife at will. iii) The law provided that a husband should have a reason for divorce, unlike before the husband can divorce his wife without any reason.

 In IRAQ, after the fall of the monarchy, the revolutionary regime has issued a new personal laws in 1959 where polygamy is prohibited except with the permission of the judge under certain conditions (Article 3) - depends on the ability to judge the truth of her husband provide maintenance to his wife and there is a valid reason to marry another one.

Iraq also adapt Tunisian law in polygamy provisions of law which provides for
punishment to any man who violates the provisions of: imprisonment for one year and / or the payment of one hundred dinars.

 However, this new law is considered too radical by the conservative elements, and are
not supported and are often ignored in practice.In 1963, the law was revised after the fall of the Qasim regime overthrown by the Ba'th Party. The provisions regarding prohibition of polygamy and women equal rights in inheritance has been removed, because it is incompatible with the teachings of the Koran. Iraq had followed the pattern of Syria and Egypt law where polygamy is not eliminated but restricted.

Reformers also introduce Sanctions Procedures in Shariah law of divorce to limit the
exercise of this right. The purpose of modern reformist rather than to deprive the husband in a divorce, but they just want the wives should be given the same rights for divorce and the court is the only absolute authority to decide the divorce.

Reformers viewpoints on polygamy:

a. b.

advocate outright prohibition. those who urge practice of polygamy is permitted subject to certain restrictions.

Restrictions: i. ii. through self-imposed, such as Moroccan marriage law, or subject to review by the judges, as Iraqi law.

The legislator are reluctant to enact laws that conflict with the Quran. But the reformist find a justification to restrict the poligamy trough the same versus but if you fear to be equitable, then only one.

Monogamy law practiced in Tunisia is justified based on the other Quranic versus: you will not be able to be equitable between your wives, even though you be eager to do

so.
Muhammad Abduh, the reformer and Grand Mufti of Egypt, often said that no husband can be just to more than one wife under modern living conditions.

It might be a question of whether the law of Qur'an seeks to allow polygamy or reform principles with quantitative and qualitative restrictions on the practice. The Prophet Muhammad (s.a.w) have made a revolutionary principle in pagan society- a belief in one God. The prophet did not make a turned in the social system as he felt the radical change might affect the spread of his religious teachings. Looking from this perspective, it would seem as if the law of the Quran on marriage, not intending to endorse the practice of polygamy, but more of an effort to revamp the practice of polygamy as far as possible at the time. To abolish polygamy, which is a habit among the people of Saudi Arabia, is a very difficult undertaking. By restricting the practice of polygamy, the main intention of the Prophet is to transform marriage from polygamy to monogamy marriage. The main purpose of marriage laws, the Quran, (from Khadduri point of view) is to confirm the monogamous marriage, rather than to support polygamy .

Islamic nations may be divided into three categories with regard to marriage law: 1. Completely/partially abolished Shariah law and adopted a secular law

Turkey. Tunisia, still adhering to the Shariah law but have abolished
polygamy. 2. Still follow the Shariah in principle but has implemented a revolution to try to adapt to modern life. (northern countries of the Middle East). 3. Still recognize Shariah as the fundamental law of the country and did not make any effort to change the basic principles of the Shariah law. (Most states of Arabian Peninsular).

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ANALYSIS

The author tried to explain the characteristics of marriage in Islamic law refer to marriage before and after the existence of Islamic family law . The author also make comparisons on marriage, mut'a based on Shia and Sunni law. To study about islamic marriage law from the viewpoint of modernist, the author has discussed the perspective of Islamic marriage law in Islamic countries such as Egypt, Iraq , Syria , Tunisia , Turkey , Morroco, and Saudi Arabia . The explanation given is based on Islamic marriage laws that exist in these countries . This article begins with a deeper discussion of family law in the administration of the Ottoman Empire, revolutionary ( reform ) law is happening in Egypt and Syria , and describes the three revolutions in The Tunisian Law of Personal Status , such as abolition of polygamy , equal rights to divorce, and the husband must give a reasons for requesting a divorce .

This article originally stated that Iraq has abolish polygamy , but the law has been modified, accordance with the law in Syria and Egypt where polygamy is permitted in certain circumstances. However , equal rights of inheritance rights for women still remain under inheritance law Shia and Sunni .

 Discusses different views of muslim reformist and modern reformist in the issue of polygamy through Quran, Surah an- Nisa : 3 dan Surah an-nisa : 129. Through the two reformist points of view , the author observe that the practice of polygamy

should not be abolished , but improve the practice of polygamy should be done .

Strengths Disadvantages :

: good comparative article, brief and concise . : theres no case refer to application in islamic marriage law.

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CONCLUSION

This article discusses the overall issues of marriage in Islam. The author in this article using the comparison method explained on the issue of marriage by making a comparison of Islamic family law in modern countries. The existence of this article will be useful for researchers who want to study about marriage in Islam especially to non-Muslim researchers. The existence of this article can also contribute to the research on marriage in Islam where we can see not all Muslim countries adopting Sharia law actually / fully. However, the provision does not mean modern Muslim family laws that apply to show modern countries want to change the status of the Nation of Islam to the secular state. Although these countries using the European model in the law, but the basic principle of shariah is still upheld especially in the personal laws. Therefore, we must preserve the Islamic Shariah law, so it can continue to remain in the law of administration in Islamic countries.

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