MARRIAGE

In Muslim societies marriage is a contract regulated by a code of law rooted in religious precepts—the shari?a. The relations between the precepts and the law are complex, the interpretations of the law vary considerably, and the social practices of marriage constitute a major part of the rich cultural diversity of the Muslim world. Moreover, marriage rules and customs have been central to ongoing debates over issues of modernity and women's status in Islam, starting with the anticolonial and nationalist movements of the early twentieth century. The codification and reform of shari?a rules governing marriage in the first part of the century, and the more recent emergence of Islamist movements and their demand for a return to shari?a, have highlighted the ideological dimension of the legal regulation of marriage.

Marriage in Islamic law is based on a strong patriarchal ethos, imbued with religious ideals and values. It is one of the few contracts that straddles the boundary between the two main categories: ?ibadat (spiritual/ritual acts) and mu?amalat (social/private acts). In spirit, marriage belongs to ?ibadat, in that Muslim jurists define it as a religious duty. In form, it comes under the category of mu?amalat, is defined as a civil contract, and is patterned after the contract of sale, which has served as a model for other contracts. In this respect, there is no difference among the various schools: all share the same conception of marriage. If they differ, it is to the extent to which they translate this conception into legal rules.

In its legal structure, marriage (nikah) is a contract of exchange, with fixed terms and uniform legal effects. Its essential components are the offer (ijab), which is made by the woman or her guardian (wali), the acceptance (qabul) by the man, and the payment of dower (mahr or sadaq), a sum of money or any valuable that the husband pays or undertakes to pay to the bride before or after consummation. With the contract, a wife comes under her husband's ?isma (dominion and protection), entailing a set of defined rights and obligations for each party—some supported by legal force, others by moral sanction. Those with legal force revolve around the twin themes of sexual access and compensation, embodied in the concepts of tamkin (submission) and nafaqa (maintenance). Tamkin—defined as unhampered sexual access—is the husband's right and thus the wife's duty; whereas nafaqa—defined as shelter, food, and clothing—is the wife's right and the husband's duty. A wife is entitled to nafaqa only after consummation of the marriage, and she loses her claim if she is in a state of nushuz (disobedience).

The contract establishes neither a shared matrimonial regime nor identical rights and obligations between the spouses: The husband is sole provider and owner of matrimonial resources and the wife is possessor of mahr and her own wealth. The only shared space is that involving the procreation of children, and even here the wife is not legally compelled to suckle her child unless it is impossible to feed it otherwise. Likewise, only a man can enter more than one marriage at a time (four permanent contracts in Sunni schools of law; and, in Shi?a law, as many temporary ones as he desires or can afford). Only the husband can terminate each contract at will: He needs no grounds and neither the wife's presence nor her consent. Wives can, however, through the insertion of stipulations in the contract, modify some of its terms and acquire, for example, the right to choose the place of residence or to work, or the delegated right to divorce if the husband contracts another marriage.

Muslim jurists claim that this construction of marriage, based on their readings of the sacred texts, is divinely ordained. But marriage as lived and experienced by Muslims involves a host of customary obligations and social relationships that have always gone far beyond juristic constructions. Some of these are rooted in the ideals of the shari?a and enjoy its moral support, though they are not reflected in legal rulings. In Muslim societies, marriage in practice not only creates a matrimonial regime but takes a wide range of forms, varying according to customary practices, individual inclinations and characters, the social origins (rural/urban, class) of the partners, and their economic resources. Men's unconditional legal rights to divorce and polygamy are often checked in practice by social mores, the pressures of the extended family, and the stigma usually attached to both polygamy and divorce.

With the emergence of modern nation-states and the creation of modern legal systems in the early part of the twentieth century, the juristic rules of marriage were selectively reformed, codified, and grafted onto a unified legal system (as in most Middle Eastern and Asian Muslim countries) or were left intact to be applied by Islamic judges (as in most African and Persian Gulf countries). Turkey was the only state in the Muslim world to introduce a Western code to replace juristic rules, though these continued to govern marriages in rural areas and among religious groups. In most Muslim countries during the twentieth century, as women's access to education and work, and consequently their aspirations for equality, increased, so did the gap between juristic and social notions of marriage widen. On the whole, until the rise of political Islam in the 1970s, marriage was acquiring a more egalitarian legal structure in the Muslim world. More recently, the patriarchal juristic model has been widely reasserted. Despite wide-ranging variations and changes in practice, the jurists' notions continue to dominate both the reality of marriage in contemporary Muslim societies and debates about the issue. Not only do most Muslims believe the juristic conception to be divinely ordained, but it informs the legal rules in most Muslim countries.

An image of a young Muslim couple in traditional wedding attire appears in the volume two color insert.

See alsoDivorce ; Gender ; Law ; Mahr .

BIBLIOGRAPHY

?Abd Al ?Ati, Hammudah. The Family Structure in Islam. Indianapolis: American Trust Publication, 1977.

El Alami, Dawoud. The Marriage Contract in Islamic Law. London, Dordrecht, and Boston: Graham & Trotman, 1992.

Anderson, J. N. D. "The Eclipse of the Patriarchal Family in Contemporary Islamic Law." In his Family Law in Asia and Africa. London: George Allen & Unwin, 1968.

Mir-Hosseini, Ziba. Marriage on Trial: A Study of IslamicFamily Law: Iran and Morocco Compared. London: I. B. Tauris, 1993.

Nasir, Jamal J. Islamic Law of Personal Status. 2d edition. London: Graham & Trotman, 1990.

Ziba Mir-Hosseini