Khalid Chraibi - 'misyar' Marriage

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"Misyar" marriage Wednesday, August 02, 2006

Khalid Chraibi “(Lawful unto you in marriage) are (not only) chaste women who are Believers, but chaste women among the People of the Book, revealed before your time, when ye give them their due dowers, and desire chastity, not lewdness, nor secret intrigues.” (Quran V,5) Summary of major findings : Contrary to widely-held beliefs, misyar marriage fits within the general regime of marriage in Muslim law, and not in a special regime. Its fulfillment of all the requirements of the sharia is a sine qua none condition for its validity. Muslim law confers on the parties the right to set up in the marriage contract certain particular stipulations relative to their reciprocal rights and obligations. When the parties agree, within the framework of the marriage "misyar", that the woman will give up some of the rights the law confers to her as a wife, this is perfectly legal, if that is her will freely expressed. But, in the event of a change of circumstances, she can assert all the rights which the law confers to her in her capacity as a wife (like the "nafaqa" for example), because these are inalienable rights within the framework of the marriage. The clause of renunciation constitutes only a promise not to assert certain rights. It has an undeniable standing as a moral commitment, but is of no value on the legal level. The wife can thus respect it as long as she wishes, and reclaim all her legal rights when she needs to do so. Such a clause does not affect in any way the rights of the children who could be born from this union, such as the recognition of paternity, the effects of filiation, the financial responsibility of the father for his children, or the lawful rights of the wife and children to their share of inheritance, etc. Despite the fact that the "misyar" marriage is perfectly legal, according to the theologians, and that the wife can reclaim at any time the rights which she gave up at the time of establishment of the marriage contract, many theologians like Muhammad Ibn Othaymin or Nassirouddine Al-Albany, as well as many Al Azhar professors, are opposed to this type of marriage because it contradicts the spirit of the islamic law of marriage and has perverse effects on the woman, the family and the community in general.

Definition of a Misyar Marriage "Nikah Misyar" or "travellers' marriage" (Arabic language|Arabic]]: {{Ar|‫ )}}نكاح المسيار‬can be described as a legal framework of [[marriage]] in which a [[Islam|Muslim]] couple is united by the bonds of marriage, based on the usual Islamic marriage contract, but without the husband having to take the usual financial commitments with respect to his wife. The latter exempts him from some of them by a clause of the marriage contract through which she gives up some of her rights (such as cohabitation with the husband, the equal division of the nights between all the wives in the event of [[polygamy]], the residence, the subsidy of maintenance "nafaqa", etc...). (1) The wife continues to carry out a separate life from that of her husband, living in her home and providing for her needs by her own means. But her husband has the right to go to her home (or to the residence of her parents, where she is often supposed to reside), at any hour of the day or the night, whenever he wants to. The couple can then appease in a licit way their "legitimate sexual needs" (to which the wife cannot refuse herself). The marriage misyar represents, according to some, a spontaneous adaptation of the mode of marriage to the concrete needs of people who are not able any more to marry in the traditional way in countries such as [[Saudi Arabia]], [[Kuwait]] or the [[United Arab Emirates]], because of the dearness of the rents ; the high cost-of-life in general; the high amounts of [[dowry]] required; and other similar economic and financial reasons. (2) It fits the needs of a conservative society which punishes severely “[[zina]]” ([[fornication]]) and other sexual relationships which are established outside the bonds of marriage. The [[Theology|theologians]] explain that it is suitable for young people whose resources are too limited to found a home ; for the all too-numerous widows living in the area, who have their own residence and their own financial resources, and who cannot hope to marry again according to the usual formula (or do not wish to), because they have dependent children, for example ; for the numerous divorcees ; as well as for the "old maids" who see their youth fading in an involuntary celibacy, without having tasted the joys of marriage, for one reason or another. Thus, a million and half women are reduced to a situation of forced celibacy in Saudi Arabia alone. (3) The Sheikh of [[Al-Azhar]] [[Muhammad Sayid Tantawi]] and the well-known theologian [[Yusuf Al-Qaradawi]] note, however, in their writings and in their lectures, that a major proportion of the men who take a spouse in the framework of the marriage "misyar" are already married men. (4) Some traits of this marriage are reminiscent of the Nikah [[Mut'ah]] which was practised in Arabia before Islam, and is still practised by [[Shia]] Muslims as a legitimate form of marriage, although it is considered as an illicit one by [[Sunni]] Muslims. (5) But, whereas the Nikah Mut'ah is based on a contract with a fixed date of expiration, the Misyar marriage contract is concluded for an indeterminate period (even though the husband who enters into this union looks at it only as a temporary marriage, which ends up in divorce in 80 % of the cases). The popularity of misyar marriage today results, probably, from a misunderstanding about its

real nature, and about its true legal implications for the husband, the wife and the children that may be born from this marriage.

Licitness of misyar marriage From a legal standpoint, the marriage "misyar" raises several complex issues : is it licit ? Doesn’t it violate the wife’s legitimate rights ? What is the legal value of the wife’s renunciation to some of her rights ? What effets does this situation have on the family and at the social level ? Contrary to widely-held beliefs, misyar marriage fits within the general regime of marriage in Muslim law, and not in a special regime. Its fulfillment of all the requirements of the sharia is a sine qua none condition for its validity. Thus, when Muslim theologians say that the "misyar" marriage is perfectly licit, all they mean is that the contract on which it is based must fulfill all the requirements set out by the charia (agreement of both parties ; presence of a tutor in certain rites ; payment by the husband to his wife (or to the "tutor") of a dowry of an amount agreed upon between them (which can be important or modest, according to their wishes) ; presence of witnesses ; publicity of the marriage...). (6) The Islamic Fiqh Academy (IFA), a specialized body of the Organization of the Islamic Conference (OIC), has conforted this point of view in a fatwa (7) of April 12, 2006. (8) and (9) The clause by which the woman gives up some of her rights (the cohabitation of the couple, the residence, the subsidy towards maintenance (nafaqa)...) raises, for its part, more subtle points of law. Does it belong with this category of well-known clauses in Muslim law which are against the essence of the marriage contract, and which vitiate the latter and make it null, as well as the legal union which is based upon it? Or, maybe, with this second category of clauses which are struck of nullity, whereas the marriage contract remains valid? The Sheikh of Al-Azhar Muhammad Sayyed Tantawi reminds one, in this respect, that Muslim law confers on the parties the right to set up in the marriage contract certain particular stipulations relative to their reciprocal rights and obligations. When the parties agree, within the framework of the marriage "misyar", that the woman will give up some of the rights the law confers to her as a wife, this is perfectly legal, if that is her will freely expressed. (10) The former mufti of Egypt Nasr Fareed Wassel adds, for his part, that the woman can legitimately give up some of her rights at the time of marriage, if she so wishes, owing to the fact that she has private means, for example, or that her father intends to continue to provide for her needs. But, in the event of a change of circumstances, she can assert all the rights which the law confers to her in her capacity as a wife (like the "nafaqa" for example), because these are inalienable rights within the framework of the marriage. (11) Wassell notes that the clause of renunciation constitutes only a promise not to assert certain rights. It has an undeniable standing as a moral commitment, but is of no value on the legal level. The wife can thus respect it as long as she wishes, and reclaim all her legal rights when she needs to do so.

He adds that such a clause does not affect in any way the rights of the children who could be born from this union, such as the recognition of paternity, the effects of filiation, the financial responsibility of the father for his children, or the lawful rights of the wife and children to their share of inheritance, etc. (12) The eminent Saudi theologian Abdullah bin Sulaiman bin Menie, a member of the Higher Council of Ulemas of Saudi Arabia, corroborates this point of view. In his opinion, the wife can denounce at any time the renunciation she agreed to at the time of marriage, and require of her husband that he give her all her rights, including that he live with her and provide for her financial needs ("nafaqa"). The husband can then either give her satisfaction or grant her a divorce (a right that any husband can exercise at any time, anyway). (13) Professor Yusuf Al-Qaradawi , for his part, observes that he doesn’t support this type of marriage, but has to recognize that it is licit (14). He then states straightforwardly his preference that the clause of renunciation be not included within the marriage contract, but be the subject of a simple verbal agreement between the parties (15). He underlines the fact that Muslims are held by their commitments, whether they are written or verbal. He thus conforts the point of view of Wassel and bin Menie on this question. He adds that the inclusion of this clause in the act would not invalidate the latter, which rejoins the point of view of the other two lawyers when they say that the clause can be denounced by the woman, and be declared without legal value, without calling into question the validity of the marriage itself.

Negative effects of misyar marriage Despite the fact that the "misyar" marriage is perfectly legal, according to the theologians, and that the wife can reclaim at any time the rights which she gave up at the time of establishment of the marriage contract, many theologians like Muhammad Ibn Othaymin or Nassirouddine Al-Albany (16), as well as many Al Azhar professors (17), are opposed to this type of marriage because it contradicts the spirit of the islamic law of marriage and has perverse effects on the woman, the family and the community in general. It leads to a degradation of men’s morals, resulting in an irresponsible behaviour towards their spouses. Based on the experience of the "misyar marriage agencies", the man who resorts to the "misyar" marriage is usually married to a first wife with whom he shares a residence, and to the financial needs of whom he provides. (18) It wouldn’t come to this man’s mind to marry a second wife within the regime of polygamy, if he had to obtain the agreement of his first wife and to assume important additional financial responsibilities towards his second wife. But, thanks to the "misyar" marriage, this man feels relieved of any financial or moral responsibility towards his second wife, as if she were only a licit sexual partner, a mistress “halal”. He thinks he can bring this relationship to an end by a mere act of repudiation, at any time, without any negative consequences for himself. (19) Since he usually refrains from telling his first wife of his second marriage, the relationship within the couple is distorted, resulting at times in major complications which can even end in divorce, when the first wife finds out about the situation.

As to the second wife, her status is devalued, because she does not have any right on her husband, be it over the time he gives her, his presence at her home, or his financial contribution to help her cover her own needs. Moreover, this type of marriage ends up sooner or later in divorce, (in 80 % of the cases, according to some), when the wife is no longer to the liking of the husband. She finds herself abandoned, to lead a solitary life as before the marriage, but traumatized by the experience. Her social status also suffers from her repudiation. For these reasons, Al-Albany considers that the "misyar" marriage is not licit, because it runs counter to the objectives and the spirit of marriage in islam, as described in this verse from the Quran : “And among His Signs is this, that He created for you mates from among yourselves, that ye may dwell in tranquillity with them, and He has put love and mercy between your (hearts)…” (20) It also seems to run counter to the recommendations of this well-known verse from the Quran : “(Lawful unto you in marriage) are (not only) chaste women who are Believers, but chaste women among the People of the Book, revealed before your time, when ye give them their due dowers, and desire chastity, not lewdness, nor secret intrigues.” (21) Al-Albany and Wassel also underline the family and social problems which result from the “misyar” marriage, particularly in the event that children are born from this union. The children raised by their mother in a home from which the father is always absent, without reason, may develop serious disturbances on the psychological level (16) and (22). The situation becomes even worse if the wife is abandoned or repudiated by her husband "misyar", with no means of subsistence, as usually happens. As for Ibn Othaymin, he recognizes the licity of “misyar” marriage from the legal standpoint, but considers that it should be opposed because it has been turned into a real merchandise that is being marketed on a large scale by “marriage agencies”, with no relation to the nature of Islamic marriage. (16) The authors who oppose this type of marriage also underline its harmful effects on the community at large, in that it allows the development of questionable sexual practices which put the community's religious beliefs, values and practices in a dubious light. Thus, wealthy Muslim tourists from the Gulf region regularly go on vacation to exotic places where they “marry" local call-girls according to Islamic rites, in order for their frolicking to be "halal" (licit in a religious sense). In some cases, the notary of the local “marriage agency” prepares simultaneously the papers of marriage and those of divorce, to save time. (23) Such parodies of islamic marriage carry a prejudice to the image of the whole community, and can also have a bad influence on the younger generation.

New family law codes

The proponents of the marriage "misyar", though they recognize that it can result in such drifts, observe that it doesn’t have a monopoly on them. They result, more generally, from the way in which men interpret and apply the rules of Muslim law : unslung polygamy, easy repudiation, associated with great wealth, are its basic factors. It would therefore be more accurate to explain this state of things as a heritage from medieval times, when marriage was defined by Muslim authors as "a contract posed in order to acquire the right to enjoy the woman". (24) Women organizations often observe, in this respect, that the Quranic verses and the Hadiths which deal with these issues have, more often than not, been interpreted, throughout Muslim history, in favour of men and at the expense of women's and children's rights. (25) They remind one that numerous feminine movements and reformist authors have been asking, throughout the 20th c., for a different reading of Muslim family law, using a modern point of view, in order to adapt it to the needs of a modern society. In their view, one can scrupulously respect both the provisions of a religious nature and women's and children’s rights, as established by modern international law. (26) But this requires that the modern Muslim community recognize at its proper value the central role of the woman and the family within the community, instead of devaluing them. It wouldn’t be possible, anymore, for men to resort to "hiyals" (legal gimmicks to go around the law) such as those on which the marriage "misyar" is based, to treat their spouses as second class citizens. Various Islamic countries have reinterpreted the provisions of the charia relative to family law, in the light of the needs of a modern society, through their own "ijtihad" (legal scholarship) efforts. Each one of them has set for itself new rules of application of these dispositions, based on its own circumstances, needs and social objectives. The following definition of marriage, which one can read in a recently adopted Code of family law, illustrates how these countries are trying to establish a new equilibrium in the relationships within the family, between husband and wife : “Marriage is a pact based on mutual assent in order to establish a legal and durable union, between a man and a woman. Its purpose is a life in reciprocal fidelity, purity and the foundation of a stable family under the direction of the two spouses, in accordance with the provisions of this Code.” (27) In the countries which have promulgated such laws, "misyar" marriage cannot take place.

Notes and Références (1) Al-Qaradawi, Yusuf : Misyar marriage [http://www.islamonline.net/servlet/Satellite?pagename=IslamOnline-EnglishAsk_Scholar/FatwaE/FatwaE&cid=1119503544160 ] (2) Al-Qaradawi, Yusuf : Misyar marriage [http://answeringislam.org.uk/Index/M/misyar.html]

(3) Al-Qaradawi, Yusuf : Zawaj al misyar, (1999), (in arabic), p 10 (4) Jobarti, Somayya : Misyar marriage – a marvel or misery ? [http://www.arabnews.com/?page=9§ion=0&article=64891] (5) Al-Qaradawi, Yusuf : Mut’ah marriage [http://www.islamonline.net/servlet/Satellite?cid=1119503544100&pagename=IslamOnlineEnglish-Ask_Scholar%2FFatwaE%2FFatwaEAskTheScholar ] (6) Al-Qaradawi, Yusuf : Misyar marriage [http://www.islamonline.net/servlet/Satellite?pagename=IslamOnline-EnglishAsk_Scholar/FatwaE/FatwaE&cid=1119503544160 ] et Zawaj al misyar, p 11 (7) A fatwa, whether it originates with the Sheikh of Al-Azhar, with the Mufti of Egypt, or with the Islamic Fiqh Academy (IFA), for example, is not a text of law or a court order with which everybody must comply, whether he likes it or not. A fatwa’s objective is merely to present a qualified legal point of view, which makes it possible for all interested parties to better understand what the law has to say on a given topic, according to the author of the fatwa. The only person that is committed to the fatwa is its author. Thus, none of the 43 member States of IFA is under any compulsion to apply the IFA fatwa, whose provisions may even be incompatible with the national codes of family law of some of them. * See for example an interview given by Sheikh Abdul Mohsen Al-Obeikan, vice-minister of Justice of Saudi Arabia, to the arabic daily "Asharq al awsat" on July 9, 2006, in which he discusses the legal value of a fatwa by the Islamic Fiqh Academy (IFA) on the subject of misyar marriage, which had been rendered by IFA on April 12, 2006. Some relevant excerpts follow : (Asharq Al-Awsat) From time to time and through its regular meetings, the Islamic Fiqh Academy usually issues various fatwas dealing with the concerns Muslims. However, these fatwas are not considered binding for the Islamic states. What is your opinion of this? (Obeikan) Of course, they are not binding for the member Islamic states. (Asharq Al-Awsat) But, what is the point of the Islamic Fiqh Academy's consensus on fatwas that are not binding for the member States? (Obeikan) There is a difference between a judge and a mufti. The judge issues a verdict and binds people to it. However, the mufti explains the legal judgment but he does not bind the people to his fatwa. The decisions of the Islamic Fiqh Academy are fatwa decisions that are not binding for others. They only explain the legal judgment, as the case is in fiqh books. (Asharq Al-Awsat) Well, what about the Ifta House [official Saudi fatwa organism] ? Are its fatwas not considered binding on others? (Obeikan) I do not agree with this. Even the decisions of the Ifta House are not considered binding, whether for the people or the State.[http://www.asharqalawsat.com/english/news.asp?section=3&id=5572] (8) Al-Marzuqi Saleh Secretary General IFA, interviewed by TV Alarabiya.net on 12/04/06 concerning the IFA decisions [http://metransparent.com/texts/ulemas_legalize_misyar_marriage.htm] (9) An-Najimi, Muhammad : member of IFA, interviewed by TV Alarabiya.net on 28/04/06

concerning the IFA decisions [http://www.alarabiya.net/Articlep.aspx?P=23324] (10) quoted in Hassouna addimashqi, Arfane : Nikah al misyar (2000), (in arabic), p. 14 ; see also Al-Qaradawi, Yusuf : Zawaj al misyar, (1999), (in arabic), p. 12 (11) quoted in Hassouna addimashqi, Arfane : Nikah al misyar (2000), (in arabic), p. 16 (12) quoted in Hassouna addimashqi, Arfane : Nikah al misyar (2000), (in arabic), p. 16 ; see also Al-Qaradawi, Yusuf : Zawaj al misyar, p. 15 in which he recommends that the marriage contract be registered to protect the rights of children in case of dispute. (13) quoted by Al-Hakeem, Mariam : Misyar marriage gaining prominence among Saudis [http://www.gulfnews.com/Articles/RegionNF.asp?ArticleID=165873] (14) Al-Qaradawi, Yusuf : Zawaj al misyar p. 8 (15) Al-Qaradawi, Yusuf : Zawaj al misyar , pp.13-14 (16) Bin Menie, Abdullah bin Sulaïman : fatwa concerning the marriage misyar (and opinions by Ibn Othaymin, Muhammad Saleh et Alalbany, Nassirouddine on the same subject) (in arabic) [http://www.bab-albahrain.net/forum/showthread.php?p=329473#post329473] (17) Yet another marriage with no strings [http://www.metimes.com/articles/normal.php?StoryID=20000407-042210-7478r] fatwa committee of al azhar against misyar (18) Al-Qaradawi, Yusuf : Zawaj al misyar, p. 24 - see also : Jobarti, Somayya : Misyar marriage – a marvel or misery ? [http://www.arabnews.com/?page=9§ion=0&article=64891] (19) Marriage of convenience is allowed, says Grand Imam Tantawi [http://www.dailyexpress.com.my/news.cfm?NewsID=42349] (20) (Quran, XXX : 21) (21) (Quran, V : 5) (22) Wassel quoted in Hassouna addimashqi, Arfane : Nikah al misyar (2000), (in arabic), p 16) (23) Arabian Sex Tourism [http://www.danielpipes.org/article/3022] – see also : Indonesia Deports Saudis for Running Marriage Racket [http://www.arabnews.com/?page=1§ion=0&article=85970&d=3&m=8&y=2006] (24) Chehata, Chafik : droit musulman, Dalloz, Paris, 1970, p. 68 (25) See for example Ahmed, Leila : Women and gender in islam, Yale University Press, 1992 – or Hassan, Raf’at, Islam and women’s rights (arabic translation, 2000) – or Amin, Qassim : Tahrir al mar’a

(26) See for example Zineddine, Nadhera : Assoufour wal hijab – or Zineddine, Nadhera : Alfatat wa chchouyoukh (27) Kingdom of Morocco, Code of family law, 3 February 2004, art. 4 [http://66.102.9.104/search?q=cache:Im_QZ2myMBsJ:www.a-er.org/fileadmin/user_upload/Commissions/EqualOportunities/EventsAndMeetings/2006/Kirun aLe_nouveau_Code_de_la_famille_au_Maroc.ppt+Maroc+code+famille+2004&hl=fr&gl=ma &ct=clnk&cd=6&client=firefox-a]

External links English * Al-Qaradawi, Yusuf : Misyar marriage [http://www.islamonline.net/servlet/Satellite?pagename=IslamOnline-EnglishAsk_Scholar/FatwaE/FatwaE&cid=1119503544160 ] * Al-Qaradawi, Yusuf : Mut’ah marriage [http://www.islamonline.net/servlet/Satellite?cid=1119503544100&pagename=IslamOnlineEnglish-Ask_Scholar%2FFatwaE%2FFatwaEAskTheScholar ] * Al-Qaradawi, Yusuf : The philosophy of marriage in islam [http://www.islamonline.net/servlet/Satellite?pagename=IslamOnline-EnglishAsk_Scholar/FatwaE/FatwaE&cid=1119503543574] * Kutty : Conditions of valid marriage [http://www.islamonline.net/servlet/Satellite?cid=1119503546572&pagename=IslamOnlineEnglish-Ask_Scholar%2FFatwaE%2FFatwaEAskTheScholar ] * Siddiqi : Witnesses and mahr (dower) for marriage [http://www.islamonline.net/servlet/Satellite?cid=1119503549066&pagename=IslamOnlineEnglish-Ask_Scholar%2FFatwaE%2FFatwaEAskTheScholar ] * Al-Qasim : Temporary marriage (mut'ah) [http://www.islamtoday.com/show_detail_section.cfm?q_id=367&main_cat_id=17] * Urfi marriage [http://marriage.about.com/od/islammarriage/g/urfi.htm?once=true&] * Yet another marriage without strings [http://www.metimes.com/articles/normal.php?StoryID=20000407-042210-7478r] fatwa committee of al azhar against misyar * Misyar marriage [http://answering-islam.org.uk/Index/M/misyar.html] * Misyar marriage [http://lexicorient.com/e.o/misyar.htm] * Misyar marriage [http://marriage.about.com/od/islammarriage/g/misyar.htm] * Misyar marriages [http://ziadrazak.net/?p=176] * Dahiru Atta, Aisha : Misyar marriages : a puzzle or a solution ? [http://www.islamonline.net/English/family/2005/07/article04.shtml] * Misyar marriage – a marvel or misery ? [http://www.arabnews.com/?page=9§ion=0&article=64891] * Misyar offers marriage-lite in strict Saudi society [http://news.yahoo.com/s/nm/20060719/od_nm/saudi_marriage_dc_3] * Al-Hakeem, Mariam : Misyar marriage gaining prominence among Saudis [http://www.gulfnews.com/Articles/RegionNF.asp?ArticleID=165873] * Part time marriage the rage in Egypt [http://answeringislam.org.uk/Index/M/passerby_marriages.html]

* No strings attached marriage enrages Gulf women [http://www.metimes.com/articles/normal.php?StoryID=20060425-070226-4676r] * Prostitution is now official and religiously condoned in Arab land [http://sabbah.biz/mt/archives/2006/04/27/prostitution-is-now-official-and-religiouslycondoned-in-arab-land/] * Marriage or mockery ? [http://www.saudigazette.com.sa/index.php?option=com_content&task=view&id=10823&Ite mid=116] * Al-Obeikan, Sheikh Abdul Mohsen, vice-ministre de la Justice d'Arabie Saoudite : interview de Asharq al-Awsat du 09/07/06 où il discute de la valeur légale de la fatwa de l'AIF [http://www.asharqalawsat.com/english/news.asp?section=3&id=5572]

Arabic * Al-Marzuqi Saleh Secretary General of IFA, interviewed by TV Alarabiya.net on the subject of the IFA decisions on 12/04/2006 [http://metransparent.com/texts/ulemas_legalize_misyar_marriage.htm] * An-Najimi, Muhammad : member of IFA, interviewed by TV AlArabiya.net on the subject of the IFA decisions on (28/04/06) [http://www.alarabiya.net/Articlep.aspx?P=23324] * Bin Menie, Abdullah bin Sulaïman : fatwa concerning marriage misyar (and opinions of Ibn Othaymin and Al-albany on the same subject) * [http://www.bab-albahrain.net/forum/showthread.php?p=329473#post329473]