Bidayat al-Mujtahid

The Distinguished Jurist’s Primer

Ibn Al Hazm
(Comparative Fiqh)

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THE BOOK OF NIKAH (MARRIAGE)

The principles of this book are covered in five chapters:

Chapter 1: Preliminaries of marriage;

Chapter 2: Requirements for the validity of marriage; Chapter 3: Requirements for an option (khiyar) in marriage;

Chapter 4: Marital rights; and

Chapter 5: Marriages prohibited by law.

18.1. Chapter 1: Preliminaries of Marriage

In this chapter there are four issues: the hukm of marriage; the hukm of the proposal (khitba) for marriage; proposal to a woman proposed to already; and glancing at the woman to be proposed to (makhtuba).

18.1.1. Issue 1: The hukm of marriage

group of jurists maintained that the hukm of marriage conveys recommendation. These are the majority (jumhur). The Zahirites said that it is obligatory. The later Malikites held that for some it is obligatory, for others recommended, and for the rest it is permitted. This depends on the extent to which an individual fears falling into evil.

The reason for their disagreement lies in whether the form (sigha) of the command-in the verse: “[M]arry of the women who seem good to you”,’ and in the tradition, “Marry, for through you I wish to outnumber the nations”, and in other traditions like it-implies obligation, recommendation, or permissibility. Those who say it is obligatory for some, recommended for others, and permitted for the rest, have recourse to maşlaḥa (secured interest), which is a kind of analogy called mursal. It is a principle for which there is no determined source of reliance; it has been rejected by a number of jurists. The preferred opinion in Malik’s school is based on it.

1 Qur’an 4 : 3

2 The word mursal, from irsal, means “to let go”. This term is used with reference to qiyas, which is analogy within a narrow framework tied down to a particular text. Maşlaha is undertaken with reference to the meaning of the texts considered collectively, free from the hold of a particular text.

THE DISTINGUISHED JURIST’S PRIMER

The form of the proposal for marriage transmitted from the Prophet (God’s >eace and blessings be upon him) is not obligatory according to the majority. Dawud said it is obligatory. The reason for their disagreement lies in whether he act of the Prophet (God’s peace and blessings be upon him) related to this mplies an obligation or recommendation.

18.1.2. & 18.1.3. Issues 2 & 3: Proposal of marriage (Khitba) and the hukm of proposal to a woman proposed to already

The proscription from the Prophet (God’s peace and blessings be upon him) bout a proposal made while another’s proposal is pending is well established. The jurists differed as to whether it indicates rescission of the second proposal? If it does indicate rescission, then under what circumstances? Dawud said it is escinded while al-Shafi’ and Abu Hanifa said it is not. Both opinions are narrated from Malik, and a third is that it is rescinded, before consummation and not after it. Ibn al-Qasim said that the proscription has meaning when a ighteous person proposes during the proposal of another righteous person; however, if the first person is not righteous while the second is, it is permissible. About the time of the second proposal, the majority are of the opinion that it irises when the matter of the first has been referred to a third party, but not in the early stages of the proposal. This is based on the tradition of Fatima bint Qays ‘when she came to the Prophet (God’s peace and blessings be upon him) and mentioned to him that Abu Jahm ibn Hudhayfa and Mu’awiya had both proposed to her. He said, ‘As for Abū Jahm, he is a person who does not lift his stick off women, and Mu’awiya is destitute having no wealth, but marry Usama’ “.

18.1.4. Issue 4: Glancing (for approval) at the woman to be proposed to Glancing at a woman prior to proposal was permitted by Malik up to the face and hands alone, while others permitted it for the whole body except the private parts. Some have prohibited this without qualification. Abu Hanifa permitted glancing at the feet along with the face and the hands. The reason for their disagreement is that the command permits glancing at women in general terms and the proscription also prohibits it in general terms. It is also laid down in qualified terms, that is, glancing at the face and the hands, which was the interpretation of most of the jurists of the words of the Exalted, “[Women] are not to display their adornment save that which is apparent”,3 that they mean the face and the hands. Further, there is the analogy of the permissibility, according to the majority, of uncovering them during hajj. Those who forbade the use of this principle did so because of the absolute prohibition of looking at women.

3 Qur’an 24: 31

Bidayat al-Mujtahid The Distinguished Jurist’s Primer

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