IN ISLAM the
word most commonly employed for marriage is nikah, which means
literally 'sexual intercourse'. As a legal term it denotes the situation
resulting from a particular contract, entered into by a man and a woman,
by which sexual intercourse between them becomes legitimate in the eyes of
God and society. The only other mode of legitimizing this sexual
relationship is by a man's purchasing a female slave, but this is a
complicated discussion that cannot concern us here.
Marriage as a
legal institution is defined and described in terms of a number of
'pillars' (arkan) and 'statutes' (ahkam), which are
discussed in what follows. The pillars are those elements of the marriage
contract whose absence nullifies the contract. The statutes are the rules
and regulations that govern the contract. A brief account will also be
given of certain other legal points relating to marriage, namely divorce,
the waiting period, forswearing, sworn allegation, zihar, and
I. The Pillars
Of The Marriage Contract
Marriage has a
set number of pillars, two according to the Shi'is, three according to the
Malikis and Hanafis, and four according to the Hanbalis and Shafi'is. All
schools agree on the first two pillars, 'formula' and 'persons'.
A. The Formula
legalized by a contract ('aqd), which, like all other contracts in
Islam, consists of a declaration (ijab) and an acceptance (qabul).
The woman declares that she is entering into a relationship of
marriage with the man, and he accepts her as his wife.
differ as to the exact words that may be employed in the woman's
declaration. The Shafi'is and Hanbalis hold that a formula derived from
the words 'I have married you' (ankahtu-ka) or 'I have espoused
you' (zawwajtu-ka) are valid. The Malikis maintain that if the
amount of the dower to be paid to the wife (see IlA below) has been
specified, the woman may also say 'I give myself to you' (wahabtu-ka).
The Shi'is do not include the verb 'to give', but they add the
formula, 'I surrender myself to your pleasure' (matta'tu-ka).
The Hanafi school is the freest in respect of the formula, allowing
any number of expressions to be employed, even certain indirect formulas.
agree that the man may show his acceptance by employing any word which
denotes his satisfaction with the contract.
Maliki, and Shi'i schools hold that the verbs for both declaration and
acceptance must be in the perfect tense. According to the Hanafis, the
present tense may be employed as long as what is meant is directed toward
the future, i.e., does not denote the seeking of a promise of marriage;
according to the Shafi'is, the present tense may be used if it excludes
the possibility of being interpreted as a promise of marriage, e.g., by
adding the word 'right now' (al-an).
All agree that both declaration and acceptance must be uttered at a
single session. It is not necessary for the declaration to precede the
acceptance, except according to the Hanbalis.  A
person who knows Arabic must pronounce the formula in that language, but
those who do not know Arabic may employ equivalent terms in their own
language. A mute may employ sign language.
B. The Persons
The man and
woman must be free of all shar'i hindrances to their marriage, as
explained below. The identity of the spouses must be clearly specified.
Thus, for example, if the guardian (below, C) should say: 'I give one of
my two daughters to you in marriage', and the man should accept, the
contract is invalid.
A woman may
not marry a husband who is not 'equal' (kafa) to her. According to
the Shi'is, this means only that the woman's husband must be a Muslim.
Sunni schools add equality in terms of various social considerations. Not
only must the man be a Muslim, he must also have a social standing at
least equal to the woman's. In other words, she may not marry anyone below
her rank in society, though a man may do so. 'Equality' here is defined in
terms of a number of factors which differ slightly among the four schools.
The Hanafis mention Islam, lineage, profession, liberty (as opposed to
slavery), piety, and property. The Shafi'is list lineage, religion, and
profession, differing only slightly in the words employed from the
Hanbalis. The Malikis mention piety and freedom from physical defects
detrimental to marriage.
A man and
woman may be forbidden from marrying for several reasons:
relationship (qaraba). A man may not marry the following women: (a)
His mother or any of his grandmothers; (b) His daughter or granddaughters,
no matter how far removed; (c) His sister; (d) His nieces, his aunts, or
his great aunts.
Relationship by marriage (musahara). A man may not marry: (a) The
mother or grandmothers of his wife; (b) The daughter, granddaughter, etc.,
of a wife with whom his marriage has been consummated; (c) The ex-wife of
his son, grandson, etc.; (d) The ex-wife ofhis father, grandfather, etc.
3. There are
certain women whom a man may marry singly, but not at the same time. These
are (a) two sisters, and (b) a woman and the sister of her mother or
father. In the second case, the Shi'is take exception to the four Sunni
schools by saying that if the aunt agrees to share her husband with her
niece, the contract is valid.
Except for the
daughter of his wife, in the three other instances of relationship by
marriage, the women become forbidden to the man as soon as the marriage
contract is concluded; consummation of the marriage is not necessary. But
if a man wants to marry the daughter of a wife with whom he has not
consummated his marriage, he can do so if he first divorces the wife. Once
the marriage has been consummated, the wife's daughter is forbidden to him
forever, whether or not the marriage contract is valid. If a man should
marry both a woman and her daughter or two sisters in a single contract,
both marriages are invalid. In both cases, should he first marry one and
then the other, the first contract is valid and the second void.
The schools of
law differ as to what exactly establishes the unmarriageability of a woman
as the result of a relationship by marriage. For the Hanafis,
unmarriageability is established by a valid marriage contract, sexual
intercourse in whatever context (i.e. whether as the result of a valid
contract, an invalid one, or fornication), love play, or looking at the
private parts of a person of the opposite sex.  The
Shafi'is hold that unmarriageability is established only by a valid
marriage contract or by the consummation of an invalid marriage contract.
They do not consider any other factors, such as fornication or love play,
as sufficient to establish unmarriageability. 
The Maliki position is the same as the Hanafi, except in the case of
fornication; like the Shafi'is, the Malikis hold that no honour or respect
can be paid to fornication. 
In the Hanbali view an invalid contract, like a valid one, results in
unmarriageability, as does sexual intercourse. 
The Shi'is hold the same position as the Shafi'is except that the opinion
of the 'ulama's split on fornication; one group says that it
results in unmarriageability, another group says it does not.
relationships because of suckling (rida'). In establishing
unmarriageability, a foster mother who suckles an infant is considered
exactly as the infant's real mother, provided that all the shar'i
conditions for this relationship are fulfilled, as detailed below. In
other words, the children of the foster mother are considered as the
child's siblings, and all of her other relatives are considered exactly as
if they were truly the child's relatives by blood or marriage.
and Hanbalis hold that the mother's milk must have been the result of
pregnancy from marriage. 
The Shafi'is hold that the mere physical possibility of pregnancy is
sufficient. Thus, for example, if a married nine year old girl should
have begun menstruation and her breasts produce milk, and if she should
provide milk for a foster child, the shar'i foster relationship
is established. 
The Malikis and the Hanafis maintain that it is only necessary for the
woman to have given milk for the relationship to be established; it
makes no difference if she should also be an unmarried virgin, or if she
is too young to marry or too old to bear children.
the Hanbali and Shafi'i schools, if the foster mother should have become
pregnant through fornication, the relationship of unmarriageability is
established only with the mother's blood relatives, not with the
father's, since he has no legitimate relationship with the mother. The
Hanafi and Maliki schools say that unmarriageability is established also
with the father's relatives. 
The Shi'is hold that in the case of fornication no relationship of
unmarriageability is established whatsoever, since fornication deserves
no respect. 
four of the schools, the foster child must have been suckled before it
reaches two years of age for unmarriageability to be established. The
Malikis set the age at two years and two months.
all the schools, the milk must have entered the infant's stomach.
hold that the infant must have suckled at the breast of the foster
mother. Hence, if the milk is placed in a container and fed to the
child, the foster relationship is not established.
The Sunni schools hold that the means of drinking the milk is
differ as to how many times milk must be drunk. The Shafi'i and Hanbali
schools hold that the infant must suckle at least five times.
The Shi'is hold that it must suckle over a period of twenty-four hours
or at least fifteen times, and each time it must drink a quantity of
milk that would customarily be called a 'feeding'.
According to the Hanafis and Malikis, a single act of suckling, even if
the infant drinks only one drop of milk, is sufficient to establish the
and the Shi'is add that the foster mother must be alive when the milk is
drunk.  The other schools hold that even if for some reason an infant
should suckle at the breast of a corpse, the foster relationship will be
difference. A woman may not marry a non-Muslim. In Sunnism, a man may
marry a woman who is one of the 'People of the Book' (ahl al-kitab,
i.e., Christians, Jews, and other religions with revealed scriptures). But
in Shi'ism a man may not contract a permanent marriage with a non-Muslim,
though he may marry one of the People of the Book temporarily.
If either of the spouses should become an apostate, the marriage is
number of wives. A man may not have more than four wives at one time. If a
man should divorce one of his wives, he cannot remarry until her waiting
period (below, IV) is completed, unless the divorce should be of the
irrevocable type (ba'in, see below under III).
7. Divorce. If
a man should have divorced his wife irrevocably, she is forbidden to him
forever, unless she should marry another man and obtain a divorce from
him. Once the woman's waiting period has expired, she may remarry her
first husband. The woman's husband is known as the muhallill, 'he
who makes [marriage to her first husband] lawful'. The marriage with the
muJ:tallil must be consummated.
allegation. Having annulled his marriage through 'sworn allegation' (li'an,
below, VII), a man may never remarry the woman.
guardian in the marriage contract may be the father, the father's father (Hanafi,
Shafi'i, Shi'i), the executor of the father's will concerning the marriage
(wasi), the governor of the town (hakim) in case of the
nonexistence of the others (Hanbali), and the owner of a slave (Maliki).
The mother has no guardianship except in the Hanafi school, which holds
that if there is no close male relative, close female relatives may assume
the guardianship and conclude the marriage contract.
In the Maliki
and Shafi'I schools, the participation of the legal guardian is one of the
pillars of the marriage; in the Hanbali school it is a condition (shart)
of the contract, which means that if the contract is concluded without the
guardian, it will be valid only on condition that the guardian gives
permission afterwards. 
Hence in these three schools the woman does not have the right to conclude
a marriage contract without the participation of her guardian.
In the Shi'i and Hanafi schools the presence of the guardian is required
only at the marriage contract of a girl not of age, that is, one who has
not yet reached puberty (saghira), or of an incompetent or insane
girl or woman of age. In both these schools a girl who is physically
mature may marry whomsoever she wishes, and the validity of the contract
is not conditional upon the presence of the guardian.
However, the Hanafis add that since social equality (kafa') is a
condition for a valid contract, a guardian may annul a contract concluded
by a woman on her own behalf with an unequal man.
In the Maliki,
Hanbali, and Shafi'i schools, the guardian may give a virgin in marriage
without her consent, whether or not she is of age. But a woman or girl who
has been married before may not be given in marriage without her
The Hanafis and Shi'is hold that only a girl not of age may be given in
marriage without her consent. 
The Shafi'is add here that if an underage girl has already been married,
she may not be given in marriage again until she comes of age.
regulations of guardianship also apply to boys not of age (saghir)
and mentally incompetent men.
Hanbali, and Hanafi schools hold that the presence of two witnesses is a
pillar of marriage and that without their presence, the contract is
invalid.  The Malikis hold that the presence of two witnesses is necessary
at the time of the marriage's consummation (dukhul), but not during
the contract, when their presence is merely recommended.
The Shi'is maintain that the presence of one or more witnesses is not a
pillar of the contract, so a man and woman may conclude a contract
secretly if they so wish.
Statutes Of Marriage
A. The Dower
Whenever a man
marries a woman, he must give her a dower in return for the sexual
gratification he is to receive. The dower must consist of a specified
amount of property, cash, or profit. It must be ritually pure and owned by
the husband. All schools agree that the dower does not have to be
mentioned in the contract. If it is mentioned and does not fulfill the
conditions required for dowers, the contract is valid but the dower must
There are two
kinds of dower. The 'specified dower' (al-mahr al-musamma) is one
upon which the man and the woman agree. The 'normal dower' (a!-mahr a!-mathal)
is what the woman receives if she cannot come to an agreement with her
husband over the specified dower, or if for some reason the specified
dower should be invalid. The normal dower is the amount of property, in
cash or kind, which other women of the same social status, age, beauty,
etc., are receiving in the society of the time.
four of the schools, as soon as the marriage contract is concluded, the
woman becomes the owner of the whole dower; the Malikis maintain that only
one-half of the dower belongs to her at this point.
Should the wife demand the dower from her husband immediately, he must pay
it to her; but if he should divorce her before consummation and she has
not yet taken the dower, he only has to pay her one-half.
schools, consummation of the marriage or the death of one of the spouses
necessitates payment of the full dower. The Malikis add that if the wife
should live with her husband at least one year, there being no hindrance
to consummation of the marriage, he must pay the full dower.
The Hanafis maintain that it is sufficient for the man to be alone with
his wife on one occasion when there is no hindrance to consummation.
According to the Hanbalis, being alone with the wife, love play, and
seeing her private parts are all sufficient cause for the payment of the
consummation of the marriage, payment of all or part of the dower may be
nullified for the following reasons: I. One-half is nullified through
divorce. 2. If the woman should become an apostate, she loses the whole
dower. 3. If the man should become an apostate, the marriage is void, but
he still must pay one-half the dower. 4. If the man or woman should annul
the marriage because of physical disability or deception by the partner,
she forfeits the whole dower; however, the Shi'is hold that if the woman
should annul the marriage by reason of the man's impotence, she will be
entitled to one-half the dower. 
5. If a man and woman should suddenly become forbidden to each other
through the establishment of some relationship, e.g. a foster
relationship, where the woman is not at fault, she receives one-half the
dower; if she is at fault she loses all of it.
the Maliki, Hanbali, and Shi'i schools, if the marriage contract should be
invalid but copulation takes place, the woman is entitled to the specified
dower.  The Shafi'is hold that in such a case, she receives the normal
dower.  The Hanafis rule that she will receive whichever of the two
dowers is less. 
In a case of 'mistaken intercourse' (waty a!-shubha), where
copulation takes place because the man and woman mistakenly believe
themselves to be husband and wife, the woman is entitled to the normal
The woman may
refrain from sexual intercourse as long as she has not received the dower.
In such a case the man may not claim conjugal rights unless it was
explicitly stated in the marriage contract that the dower would be paid at
some later date. But if the woman should accept intercourse before
receiving the dower, from then on she may not refuse her husband, unless
it is proven that he has no ability to pay the dower; here the Shi'is take
exception, holding that once the marriage is consummated, the wife may not
refuse intercourse because of the husband's inability to pay the dower.
The Hanbalis, Shafi'is, and Malikis say that if the husband's inability to
pay is proven before consummation, the woman may annul the marriage; with
the exception of the Hanbalis, they hold that she may not do so after
consummation, since her willingness to engage in sexual intercourse proves
that she accepted the marriage's validity; the Hanbalis say the woman may
annul the marriage even after consummation. 
The Hanafis and Shi'is hold that the woman may not annul the marriage, but
she may refuse to engage in intercourse.
If the woman
should decide to return part or all of her dower to her husband, he is
then free from the obligation to pay it to her.
Once the woman
has taken up residence with her husband, he must support her in a mode
corresponding to the support received by her equals. Support includes such
things as food, clothing, shelter, and other necessities. Payment of the
dower becomes incumbent on the husband as a result of the marriage
contract, but payment of support only becomes incumbent as a result of the
contract and the wife's obedience to her husband. If the wife does
not obey her husband, he is not obliged to support her.
Here it should
be kept in mind that in Islamic society a wife must 'obey' her husband
only within the shar'i limits, which is to say that the woman obeys
the man on condition that he is obeying God. Should he tell her to do
something not sanctioned by the sharia her duty is to follow God,
not her husband.
A woman who is
in the 'waiting period' (below, IV) after having been divorced, but not
irrevocably, by her husband, is entitled to support, since she is still
his wife. A woman who is in the waiting period of irrevocable divorce must
be supported only if she is pregnant.
the Hanbalis, Malikis, and Shafi'is, if it is proven that the man does not
have the ability to support his wife with the necessities of life, she has
the right to seek to annul the marriage through a qadi (shar'i
judge). The Hanafis and Shi'is maintain that a woman not adequately
supported by her husband may complain to a qadi, who must then take
whatever action he thinks necessary to rectify the situation, e.g.,
pursuading the husband to take employment.
Any time a
spouse has certain specified physical or mental disabilities which make
continuation of the marriage difficult, the other spouse may annul the
marriage. These disabilities vary according to the different schools. All
schools except the Hanafi list insanity, emasculation, and impotence for
the men, and insanity, leprosy, and a blocked vagina for the wife; each of
them except the Hanafi then adds various other disabilities of the same
sort. In the Hanafi school the wife has the right to annul the marriage
only for the three grounds listed, while the husband has no grounds for
annulment on the basis of disabilities.
The spouse who
discovers a disability in the other spouse must exercise the right of
annulment immediately or lose the right. Similarly, if there was knowledge
of the disability before the marriage, the marriage is in effect an
expression of satisfaction with the disability, so there is no grounds for
annulment; however, the Shafi'is and Malikis hold that a woman's knowledge
of the man's impotence before marriage does not effect her right to annul
the marriage. 
If the annulment takes place before consummation, the wife receives no
dower; if the marriage has been consummated, she receives the full dower .
agree that disabilities which existed before the marriage are grounds for
annulment, but there is a difference of opinion about disabilities which
appear after the marriage. The Malikis hold that in the case of such later
disabilities, the wife-but not the husband-has the right to annulment
before consummation, so long as the husband was healthy before the
marriage; however, in the case of insanity and leprosy, the husband has
one year in which to undergo treatment, If he is not cured in one year ,
the annulment takes place, 
All schools agree that a full year is needed before the man can be judged
impotent; after a year, the annulment takes place, The Shafi'is and
Hanbalis maintain that both spouses retain the right to annulment, whether
before or after consummation, The Sunni schools agree that the annulment
should be declared by a qadi. The Shi'is say that disabilities
occurring after marriage do not establish grounds for annulment, with the
exception of the husband's insanity, which is grounds for annulment even
after consummation; as for impotence, the wife should seek the qadis
pronouncement of the one year period, but then she herself annuls the
III. Divorce (Talaq)
The pillars of
divorce differ according to the schools. The Hanafis and Hanbalis hold
that there is only one pillar, i,e., the formula through which it takes
place. In the view of the Shafi'is and Malikis, the pillars are (I) the
existence of the husband and the wife, (2) the formula of divorce, and (3)
the intention. 
The Shi'is maintain that the pillars are (1) the husband and wife, (2) the
formula, and (3) two witnesses, 
The husband may divorce the wife, but not the reverse. In contrast to
marriage, the wife's consent is not necessary.
The man must
be in possession of his rational faculties, have reached physical maturity
(except in the Hanbali view), and be acting of his own free will (except
according to the Hanafis). The Hanbalis maintain that a youth who has not
reached puberty but who understands the meaning of divorce and its
consequences may divorce his wife of his own accord; the Hanafis say that
even if the formula is pronounced under duress, it is still valid.
To the views shared with the other schools, the Shi'is add that the
husband must pronounce the formula with the intent of divorcing his wife,
although unlike the Shafi'is and Malikis, they do not make this a pillar
The wife must
be a free woman, a permanent wife, and faithful, since there is no divorce
in the case of a slave woman, a temporary wife (in Shi'ism), or an
The man must
employ words in the formula that denote divorce directly or indirectly,
though the Shi'is hold that the word 'divorce' itself must be employed. A
dumb man may divorce his wife through gestures. The Malikis and Hanafis
hold that a man may divorce his wife in writing.
must be pronounced three times in the manner described below.
two general categories depending on the time the man chooses to pronounce
the formula: 'traditional' (sunni) divorce, which is permitted, and
'non-traditional' (bid'i) divorce, which is prohibited.
divorce is traditional or non-traditional depends upon the woman's state
of ritual purity when the man pronounces the formula and his manner of
reciting the formula. During menstruation and confinement after childbirth
a woman is ritually impure, and she does not become pure again until her
situation changes and she performs the major ablution (ghusl). For
the traditional divorce to take place, she must be in a state of ritual
purity and her husband must not have had sexual intercourse with her
during her last menstrual period (this condition is added for reasons of
precision, even though sexual intercourse during that time is forbidden)
or from the time she performed the major ablution after her period or
confinement, According to the Shi'is, if the woman is in the state known
as mustaraba (i,e., she is approaching menopause, her menstrual
period is delayed, and she mayor may not be pregnant), the husband must
wait three months in order to determine her condition, and only then can
he divorce her. 
The man must pronounce the formula on three separate occasions separated
by a specific period of time, as explained below.
non-traditional divorce is forbidden with certain exceptions in the view
of some schools, it may still take place. It is divided into several
kinds: A divorce given while the woman is in (I) her menstrual period or
(2) confinement, (3) A divorce given by pronouncing the formula three
times on a single occasion; here the Shafi'is maintain that this form of
divorce is permissible. 
(4) Divorce when the woman is ritually pure after menstruation, but sexual
intercourse has taken place; the Malikis hold that this form of divorce is
not forbidden, only reprehensible (makruh ).
In spite of
the fact that non-traditional divorce is forbidden, the Sunnis hold that
the formula pronounced under any of the above conditions is still valid.
However, the Hanafis and Malikis say that the man must return to his wife
and consider himself as her husband; if he still desires to divorce her,
he must wait until she has purified herself after her second menstrual
period from the time he originally pronounced the formula and then
pronounce it once more. If the man does not return to his wife, the
divorce is valid, but the man has then definitely sinned against the
shari'a; however, no punishment is to be inflicted in this world
before the Day of Judgment, .
maintain that non-traditional divorce is invalid, with the exception of
the form in which a man pronounces the formula three times at once; such a
divorce is then irrevocable.
cases, the temporal categories delineated by 'traditional' and
'non-traditional' do not apply. Thus a man may divorce at any time a woman
with whom he has not consummated the marriage, a girl who has not reached
puberty, a woman who has reached menopause, and a pregnant wife. In three
of the schools, these types of divorce are considered traditional, while
the Shafi'is and Hanbalis hold that they are outside the classification.
According to three of the schools, divorce initiated by the wife (khul'
and mubarat, discussed below), divorce as a result of
'forswearing' (I'la, below V), and divorce ordered by a qadi
have no temporal conditions. The Malikis and Shi'is hold that these
are types of traditional divorce with the same temporal conditions.
For a divorce
to become final, in most cases the man must pronounce the formula on three
different occasions, as described below. Technically, his first and second
pronouncements are also divorces, but they are 'revocable' (rij'i).
Hence, divorce may be divided into the revocable and
(ba'in) forms. In the following cases, divorce is irrevocable:
I. The divorce
of a wife with whom marriage has not been consummated.
2. The divorce
of a wife who has not yet reached puberty.
3. The divorce
of a wife who has reached menopause.
initiated by the wife (khul' and mubarat ).
5. The third
divorce after two revocable divorces.
irrevocable divorce has taken place, a man may not remarry his wife unless
she first marries another man and consummates the marriage; having been
divorced irrevocably from her second husband, she may then remarry her
first. The second husband is known as the muhallil, as mentioned
above. In such a situation, it would be normal practice for some sort of
agreement to be made between the wife and her second husband. However, it
is not permissible for a condition of subsequent divorce to be entered
into the marriage contract. Outwardly the contract must be the same as for
any permanent marriage.
A woman who
has been revocably divorced keeps the status of wife, and the husband may
return to her and have sexual intercourse with her if he so wishes. But
according to the Malikis, he must make the mental intention of returning
to her before doing so; and according to the Shafi'is, he must express the
intention verbally to his wife.
permissible to include a condition of divorce in the marriage contract in
certain cases. Hence, for example, a wife may stipulate that if her
husband should marry a second wife, she will have the right to be
the man has the right to pronounce the formula of divorce, the woman may
take the initiative in khul' and mubarat. These two terms
are almost synonymous, but in the case of khul', the wife must have
an aversion to her husband; in muharat, there should be mutual
aversion. In each case the wife agrees to pay her husband a certain amount
of property in cash or kind if he divorces her. According to the Shi'is,
the amount in muharat must not exceed the amount of the dower,
while in khul' there are no conditions on the amount, These
divorces are irrevocable, except according to the Shi'is, who hold that
during her waiting period the woman may take back her property from her
husband, in which case he has the right to conjugal relations.
The Hanbalis maintain that khul' is a form of annulment, not
types of divorces are in reality a kind of contract, they require a
declaration (ijab) and an acceptance (qabul). The woman must
say something like: 'Divorce me in exchange for such and such', while the
man must answer something like: 'I accept' or 'I divorce you'. The Sunnis
hold that the husband may employ any number of words in the formula, such
as 'divorce' or words derived from the same roots as khul' and
muharat. The Shi'is say that the word 'divorce' itself must be
the Sunni schools, a third party may initiate a khul' divorce. In
other words, he may offer the husband a sum in exchange for which the
husband will divorce his wife. The Shi'is maintain that this is forbidden.
discuss in detail the nature of the property which may be exchanged in
khul' and mubarat, differing on many minor points. In general
it must be lawful and intrinsically valuable, like the property which
constitutes the dower. If not, the divorce will be valid, but there is
then a difference of opinion as to whether it is revocable or irrevocable.
Waiting Period ('Idda)
When a woman
is divorced or her husband dies, she must wait for a prescribed period of
time before she can remarry.
If the woman's
husband has died, the waiting period differs according to whether or not
she is pregnant; if she is not, she must wait four months and ten days.
Such things as her physical maturity, whether or not she has reached
menopause, and whether or not the marriage has been consummated are
irrelevant. If the woman is pregnant, according to the Sunnis her waiting
period terminates when she gives birth to the child; according to the
Shi'is, she must wait either four months and ten days or the term of her
pregnancy, whichever is longer. 
If a woman's husband should be away on a journey when she hears of his
death, according to the Sunni schools her waiting period begins on the
date of his death; the Shi'is hold that it begins on the day she receives
period for divorce differs according to circumstances and the views of the
different schools. A woman with whom the marriage has not been consummated
has no waiting period. A girl less than nine years old has no waiting
period according to the Hanbalis and the Shi'is; but the Malikis and
Shafi'is hold that if she was mature enough to participate in sexual
relations, she must wait three months; the Hanafis hold that in any case
her waiting period is three months. A woman who has gone through menopause
must wait three months in the view of the Sunni schools, but the Shi'is
say that she has no waiting period. A woman who menstruates and who is not
pregnant must wait either three tuhrs (periods of purification
after menstruation) according to the Shi'is, Malikis, and Shafi'is, or
three menstrual periods according to the Hanafis and Hanbalis. A woman who
is old enough to menstruate but who does not or who is in the state of
mustaraha must wait three months. A woman who is pregnant must wait
until she has delivered her child.
means to swear an oath in God's name not to have sexual relations with
one's wife, either absolutely, or for a period of more than four months.
Since the sharia forbids a husband from refraining from sexual
intercourse with his wife for more than four months, once the four months
have passed, the wife has a valid reason to have recourse to a qadhi.
If the husband should break the oath, he must pay the expiation
(kaffara) set by the law for the breaking of an oath. If he holds to
his oath and the four months pass, the wife may go before a qadi
and request that he clarify her marital situation. According to the wife's
wishes, the qadi will either order the husband to return to
his wife or to divorce her. If the husband is ordered to return to her but
refuses, the qadi will then order him to divorce her. If he also
refuses that, the qadil will grant her a revocable divorce. The
Shi'is differ here by holding that the qadi does not have the right
to grant divorce in the husband's stead; however, he can force the
husband-by imprisonment or other means at his disposal-to take one of the
two courses open to him, i.e., to return to her or divorce her.
The Hanafis say that once the period of the husband's oath comes to an
end, the woman is divorced irrevocably, without any need for the husband's
pronouncement of the formula. 
The Shi'is hold that forswearing may not take place in the case of a
virgin.  The Sunni schools disagree and add that if her husband divorces
her, the divorce is irrevocable.
times the Arabs practiced a form of divorce which amounted to the
husband's reciting the formula, 'You are to me as my mother's back
(zahr)', a practice referred to as zihar. Although Islam
forbids zihar (cf. Qur'an 33:4, 58:2), if a man should recite this
formula to his wife--or an equivalent formula, by substituting a reference
to any other female forbidden to him-sexual intercourse with his wife is
forbidden to him. Zihar's conditions are the same as those of
divorce; hence in Shi'ism two witnesses must hear the formula recited.
allegation' is a procedure whereby a man may take his wife before a
qadi and either accuse her of infidelity or deny his fathering her
child. The man then pronounces this formula four times: 'I testify before
God that I speak the truth concerning what I say about this woman.' The
qadi will then counsel the man concerning the gravity of his
accusation. If he should repent of his words, he will receive the
punishment for false accusation (eighty lashes). If he maintains the truth
of his accusation, he must repeat a second formula four times: 'God's
curse be upon me if I am a liar'.
The judge then
turns to the wife. She may either face the penalty for adultery (stoning
to death) or repeat this formula four times: 'I testify before God that he
is a liar'. The judge will counsel her concerning the gravity of falsely
swearing before God. If she continues to maintain her innocence, she must
pronounce a second formula four times: 'God's wrath be upon me if he is
telling the truth '. If she refuses to pronounce the formula, she will
suffer the penalty for adultery.
allegation, the man and woman are forbidden to each other forever, without
divorce. If the husband denies the parentage of a child, the child is
illegitimate. If the man should ever repent of his allegation, he must
suffer the penalty for false accusation. In case a child is involved, its
legitimacy will then be restored; according to the Sunnis, in such a case
the father and the child inherit from each other, but according to the
Shi'is, the father may not inherit from the child.
The woman continues to be forbidden to the man.
wife inherit from each other according to set rules. The only condition
for inheritance is a valid marriage contract, not consummation of the
If the wife
should die childless, the husband inherits one-half of her property; if
she had a child or children, he inherits one-fourth. If the husband should
die childless, the wife inherits one-fourth of her property; if he had
children, she inherits one-eighth.
deceased wife should have no other relatives, all property goes to the
husband. If the deceased husband should have no other relatives, the wife
will inherit one-half the property and the rest will go to the bayt
al-mal (the community treasury), except according to one of two Shi'i
opinions, which holds that she inherits all the property.
If the deceased husband had more than one wife, the wife's share is
divided among them equally.
inherits from everything left by the wife. According to the Sunni schools,
the wife also inherits from everything left by the husband; in general the
Shi'is hold that if she does not have any children from the husband, she
inherits from all property except land, though she does inherit from the
value of property situated upon the land, such as buildings, trees,
If a woman
should be in a period of revocable divorce when she or her husband dies,
her situation is the same as that of an ordinary wife. But when
irrevocable divorce has taken place, there is no inheritance, with the
exception of divorce during illness. If the husband should be ill and
divorce his wife irrevocably, and if she should then die, he does not
inherit from her; but if the husband should die as a result of the
illness, the schools differ as to the situation. The Hanbalis hold that
the wife inherits as long as she has not remarried. The Hanafis say that
she inherits as long as she is still in her waiting period. The Malikis
hold that she inherits in any case. The Shafi'is have two opinions, one
that there is no inheritance, the other that the situation is as the
Hanafis say. The Shi'is maintain that she may inherit within one year of
the divorce provided she has not remarried.
. 'Abd al-Rahman al-Jaziri,
al-Fiqh 'ala al-madhahib al-arba'a (hereafter cited as
Fiqh), Cairo, 1969, IV, 24.
. Al-Shahid al Thani (Zayn
al-Din Muhammad ibn 'Ali al-Jab'i al-'Amili [d. 965/1558]), al-Rawdat
al-bahiyya fi sharh al-lum'at al-Dimashqiyya (hereafter cited as
Sharh al-luma), Beirut, 1967, v, 108.
. Fiqh, IV, 13.
. Ibid., 18.
. Ibid., 25.
. Sharh al-lum'a. v.
. Fiqh, IV, 54-60.
. Sharh al-lum'a, V,
181; Muhammad 'Ali al-Tabataba'i (d. 1231/1816), Riyad al-masail
(also known as al-Sharh al-Kabir), Tabriz, 1308/1890-9 1,II, 94.
. Fiqh, IV, 63.
. Sharh al-lum'a, v,
176-82; Riyad, II,96-97.
. Fiqh, IV, 268;
Riyad, II, 86.
. Fiqh, IV, 256.
. Riyad, II, 86.
. Fiqh, IV, 253.
. Riyad, II, 86.
. Riyad, II, 87.
. Fiqh,IV, 257.
. Ibid., 256; Sharh
al-lum'a, II, 63.
. Fiqh, IV, 254,255,
. Sharh al-lum'a, v,
156; Riyad, II, 105-06.
. Fiqh, IV, 77-84;
Riyad, II, 181; Sharh al-lum'a, VI, 46.
. Fiqh,IV, 27.
. Ibid., 46--47.
. The major sources for this
ruling are two hadith: 'If any of your women marry without the
permission ofher guardian, the marriage is invalid (batil)' (Abu
Dawud, Nikah 19; al-Darimi, Nikah 11). 'A woman may not be
given in marriage by a woman, nor may a woman give herself in marriage'
(Ibn Maja, Nikah 15 Malik, Nikah 5).
. Fiqh, IV, 46--47;
Sharh al-lum'a, V, 112; Muhammad b. al-Hasan al-Hurr al-'Amili (d.
1104-1693), Wasa'il al-shi'a, Tehran, 1385/1965-66, XIV, 220-221,
. Fiqh, IV, 46.
. Ibid., Sharh al-lum'a,
. Fiqh, IV, 51-52.
. Sharh al-lum'a, V,
112; Riyad, II, 70.
. Fiqh, IV, 108.
. Ibid., III.
. Sharh al-lum'a, II,
101; Riyad, II, 135.
. Fiqh, IV, 120-21;
Sharh al-lum'a, II,101; Riyad, II, 135.
. Sharh al-lum'a, v,
371-72; Riyad, II, 149
. Fiqh, IV, 165.
. Ibid., 163; Riyad,
. Fiqh, IV, 581;
Sharh al-lum'a, v, 237-38; Riyad, II, 109-10.
. Fiqh, IV, 189-92.
. Sharh al-lum'a, v,
387; Riyad, II, 132-35.
. Fiqh,IV, 280.
. Sharh al-lum'a,vi,
11; Riyad,II, 168-75.
. Fiqh, IV, 284.
. Sharh al-lum'a, VI,
14-21; Riyad, II, 172.
. Riyad, II,171.
. Sharh al-lum'a, VI,
31-32; Riyad, II, 176.
. Fiqh, IV, 305, and
. Ibid., 302; Sharh
al-lum'a, VI, 36-37; Riyad, II. 176.
. The necessity for the
muhallil is established by Qur'an 2:230. , And if he divorces her
finally, she shall not be lawful to him after that, until she marries
another husband. If he divorces her, then it is no fault in them to return
to each other.'
. Fiqh, IV, 435-41.
. Sharh al-lum'a, VI,
104-07; Riyad, II, 196.
. Fiqh, IV, 424.
. Sharh al-lum'a, VI,
87-89, and 111-13; Riyad, II, 107.
. Sharh al-lum'a, VI,
. Ibid., 62-63; Riyad,
. Sharh al-lum'a, VI,
65-66; Riyad, II, 188.
. Fiqh, IV, 540-52;
Sharh al-lum'a, VI, 57-65; Riyad, II,183-86.
. Sharh al-lum'a, VI,
160; Riyad, II, 123.
. Fiqh, IV, 485.
. Riyad, II,122.
. Sharh al-lum'a, VI,
210-12; Riyad, II, 217-18.
. Sharh al-lum'a,
VIII, 65-66; Riyad, II, 366.
. Sharh al-lum'a,
VIII, 172 74; Riyad, II, 367.
. Sharh al-lum'a,
VIII, 172; Riyad, II, 367, 369.