Muslim Marriage

Note: The information is mostly drawn from two publications which are based on research by local legal experts and activists in the Muslim community: Knowing Our Rights: Women, family, laws and customs in the Muslim world, and
Home Truths: A Global Report on Equality in the Muslim Family.

Written Marriage Contracts & Registration of Marriage

The vast majority of women live in situations where women’s marital rights are not as well protected as men’s. As the more vulnerable party in a marriage, a woman benefits from documentation of the marriage because it increases her chances of being able to access the inherent rights of a wife in a Muslim marriage as well as any rights the bride may have negotiated with the groom in the marriage contract.

With changes in society, earlier mechanisms of social control have broken down: families and communities can no longer bring effective pressure on men who do not respect their wives. Oral promises are nowadays not enough to ensure a smooth marriage. Women who lack marriage documents are even more vulnerable because oral contracts are difficult to enforce: who can prove she was married, when and with what contractual agreements? People move houses and towns, witnesses and the imam who celebrated the marriage are not always easy to trace.

In most Muslim countries, a marriage has to be registered and there are penalties such as light prison sentences and/or fines for failure to register the marriage. For example, in 1974 Bangladesh strengthened the marriage registration laws by passing the Muslim Marriages and Divorces Registration Act. In 2000 in Pakistan, the Federal Shariat Court upheld the registration of marriages as Islamic (Allah Rakha and another vs. Federation of Pakistan and Others PLD 2000 FSC 1). This shows how important marriage registration is in Muslim societies outside Britain. Muslim family laws for example in Bangladesh and Pakistan also regard the person who solemnized the marriage as responsible for registration.

The following are some of the countries whose laws require written marriage contracts and registration of marriage:

Algeria, Bangladesh, Egypt, Gambia (marriages under Muslim laws), Indonesia, Iran, Malaysia, Morocco, Pakistan, Philippines, Senegal, Sudan, Tunisia, and Turkey.

The Right of an Adult Muslim Woman to Contract her own Marriage

In Tunisia, under Article 9 of 1956 Code du Statut Personnel (Personal Status Code), both the husband and wife have the right to contract their marriage themselves or appoint proxies, and Article 3 regarding validity does not require the consent of the wali. Under Article 25 of the 2004 Moudawana (Morocco’s Muslim family law), a woman of legal majority may conclude her marriage herself, or delegate this power to her father or one of her relatives. In other words, both Morocco and Tunisia’s laws have made wali optional.

The laws that govern Muslims in the following countries do not require a wali at all for an adult Muslim woman getting married: Bangladesh, India, Kyrgyzstan, Pakistan, Senegal, Turkey, Uzbekistan. In Pakistan, the question of whether a Muslim marriage is valid without a wali has often been debated in the courts and the higher courts have consistently over many decades upheld an adult Muslim woman’s right to choice in marriage. Some of the most prominent cases include Mst. Humera Mehmood vs. The State and Others PLD 1999 Lahore 494 and Hafiz Abdul Waheed vs. Miss Asma Jehangir and Another PLD 1997 Lahore 301.

Even in countries where the law requires a wali, there are different interpretations about the wali’s role. For example, in Sudan’s law a wali is called a vakil and his role is simply as an agent whose duty is to convey the woman’s wishes.

In Malaysia, it is now very common for Muslim judges to authorise marriages opposed by the normal wali if the couple moves to another town. Section 13 of Malaysia’s Islamic Family Law (Federal Territories) Act 1984 (which was intended as a model for each of Malaysia’s 13 States) allows dispensation of the wali’s consent in favour of consent by the court if there are valid grounds for dispensation, “after due inquiry in the presence of all parties concerned”. In Azizah vs. Mat (1976) 2 Jurnal Hukum 251, the father of a young woman refused to give his consent to her marriage, wanting her to earn a living first. On her application to the Registrar, he (the Registrar) transferred the marriage guardianship to a wali raja (meaning the court). Her father was allowed to give evidence, and it transpired that his refusal to give consent was based on the fact that he wanted compensation for maintaining her. The consent to the marriage was given by the court.

Most countries do not require a wali if the woman is re-marrying.

The Rights of the Spouses to Add Other Conditions to the Marriage Contract

Muslim marriage is a contract, and therefore the spouses have the right to negotiate conditions to the marriage, as long as they are not contrary to the meaning of marriage (for example, that the spouses will live separately). This right is recognised in the laws of many Muslim countries and communities. See the entry about muslim marriage contracts.

Resources

Further Reading

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• El-Alami, D., The Marriage Contract in Islamic Law: The Shariah and Personal Status Laws of Egypt and Morocco (London: Graham & Trotman, 1992)
• El-Azhary Sonbol, A., Women, the Family, and Divorce Laws in Islamic History (Syracuse: Syracuse University Press, 1996)
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