Chapter II: The Muslim Community's Responsibility for the Formation and Protection of the Family

 

 

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    The Islamic Charter on Family

     

    Chapter II: The Muslim Community's Responsibility for the Formation and Protection of the Family

    This Chapter discusses the Muslim community's responsibility to encourage marriage and protect and care for the family, as well as the means of protecting the family.  These points are covered in three sections:

    Section One:

    The Muslim Community's Responsibility to Encourage Marriage

    This Section discusses the responsibility of the Muslim community to encourage marriage; it clarifies the basis of this responsibility in addition to clarifying the facilitation of the means of Shari'ah sanctioned marriage.  It also discusses the encouraging of marrying the youth.  These points are mentioned in three articles.

    Article (21)

    The Basis for This Responsibility

    The responsibility of the Muslim community for its members is based on the principle of the relationship between a whole and its parts, or an entity and its members. Thus, the Muslim community is made up of families that are connected and cohesive, like a single body, rather than detached individuals; and this cannot take place except through marriage.

    The Muslim community that adheres to the path of guidance concerns itself with establishing righteous plans and programs to encourage marriage - and to encourage it early on, out of concern for the community's development and strength, and to prevent immorality.

    --------------------------------

    This Article is based on fundamentals and principles of sociology, and on the Words of Allah the Exalted:

    [ ] ( : 103)

    [And hold fast, all of you together, to the Rope of Allah (i.e. this Qur'an), and be not divided among yourselves, and remember Allah's Favor on you, for you were enemies one to another but He joined your hearts together, so that, by His Grace, you became brethren (in Islamic Faith), and you were on the brink of a pit of Fire, and He saved you from it. Thus Allah makes His Ayah (proofs, evidences, verses, lessons, signs, revelations, etc.,) clear to you, that you may be guided.] (3:103)

    It is also based on the statement of the noble Prophet (may blessings and peace be upon him) who said, "The believers, in their love, mercy, and kindness to one another are like a body; if any part of it is ill, the entire body shares with sleeplessness and fever."[1]

    Article (22)

    Facilitating Shari'ah Ordained Marriage

    Islamic Shari'ah has made it incumbent upon the Muslim community to facilitate the means of Shari'ah sanctioned marriage and to remove any obstacles and difficulties that deter people from it.  These include:

    1.      Solving material problems, particularly the problems of unemployment and housing, and offering material assistance to those desiring marriage.

    2.      Raising the Muslim community's awareness of the importance of marriage in Islam and the individual's right to get married.

    3.      Inviting and emphasizing Islamic behavior that is balanced by the Shari'ah regulations regarding the type of interaction between men and women and which is permitted by Shari'ah.  Such interaction should maintain a middle path, avoiding the extremes of extravagance and negligence, or those of overly strict limitations and wanton liberty.

    4.      Discouraging expensive dowries and wastefulness in marriage parties, and opposing evil social customs related to marriage; all effective measures should be taken to put a stop to these trends.

    --------------------------------

    This Article states one of the fundamentals of enlightened society; facilitating the means of Shari'ah sanctioned marriage and eliminating the obstacles and difficulties that turn people away from it.  This is a community obligation that is mandatory on the society as a whole and it serves to protect a number of Shari'ah aims that have been previously mentioned in Section Five of Chapter I. Following this, the Article mentions some of the means of facilitating marriage as examples, and not as a complete list.

    *  Clause (1)

    This clause of the Article is based on the principles of justice in the distribution of wealth between members of the society, achieving social and political takaaful (solidarity)[2] that was instituted by the divine laws, and the resulting legislation of civil and moral laws that enables these aims to be achieved in society. These aims include solving material problems, particularly the problem of unemployment and the housing crisis, and offering material assistance to those desiring marriage.

      Allah the Exalted says:

    [ ] (: 7)

    [...so that it will not be a perpetual distribution among the rich from among you... ] [59: 7)

    Allah the Exalted also says:

    [ ] (: 33)

    [. And give them from the wealth of Allah which He has given you.]  (24: 33)

    Similarly, it was mentioned in the hadith narrated by Abu Hurayrah (may Allah be pleased with him) that the Messenger of Allah [may blessings and peace be upon him) said, "There are three who have a right to the help of Allah: The one who fights in the cause of Allah; the slave whose master has agreed to his buying his freedom when he wishes to pay the sum, and the one who marries out of the desire to live a chaste life.[3]

    Takaaful between Muslims is a community obligation, and considering the fact that the crucial factor is meeting the needs of the poor and needy, if some of the people meet their needs then the rest of the people are absolved of the obligation, as long as they are not remiss in paying the obligatory zakaah.  And if some of the people are not able to provide for their needs, then it becomes an obligation on the entire community, including the government, to meet their needs, otherwise they will all be sinful as is indicated by the noble verse of the Qur'an:

    [ ] (: 2)

    [.And cooperate in righteousness and piety, but do not cooperate in sin and aggression.] [5: 2)

    Also, Allah ordered that a specific percentage of zakaah from the wealth of the rich should be a known right for the poor.  This is indicated in the hadith of Ibn 'Abbaas (may Allah be pleased with him), who reported that the Messenger of Allah (may blessings and peace be upon him) said to Mu'aadh ibn Jabal when he sent him to Yemen, "Then inform them that Allah has made charity [Zakah] obligatory upon them. [It is] to be taken from their rich and given to their poor."[4]

    Also, it was reported by Al-Mugheerah ibn Miqdaam that when 'Umar ibn 'Abd Al-'Azeez became the Caliph, he gathered the clan of Marwaan and said, "Fadak[5] belonged to the Prophet (may blessings and peace be upon him) and with the income from it, he would meet his own expenses, help the needy from the clan of Haashim, and assist the unmarried among them to marry.  Fatimah asked him to give it to her, but he refused.  That is how matters remained during the lifetime of the Messenger of Allah (may blessings and peace be upon him) until he passed on. [6]

    *  Clause (2)

    This Clause indicates the obligation of working to develop awareness within the Muslim community of the importance of marriage in Islam, based on the words of the Prophet (may blessings and peace be upon him):

    O young people! Whoever among you can marry, should marry,  for marriage is the best means of keeping one's gaze lowered and his sexual organs protected [i.e. protected from committing illegal sexual intercourse, etc.], and whoever is not able to marry, should fast, as fasting is a shield for him [by lessening his sexual desire]."[7]

    This Clause is also based on general proofs of the government's responsibility to spread awareness and general moral and religious knowledge; these proofs include the words of Allah the Exalted:

    [ ] (: 67)

    [O Messenger, announce that which has been revealed to you from your Lord, and if you do not, then you have not conveyed His message.] (5: 67)

    Also, when the Messenger of Allah (may blessings and peace be upon him) sent 'Ali ibn Abi Taalib on an expedition he advised him, "Proceed without rushing until you arrive in their midst, then call them to Islam and inform them of their duties to Allah in Islam. By Allah, if He may guide through you a single man to Islam then it is better for you than the red camels."[8]

    *  Clause (3):

    This Clause affirms the Shari'ah ruling related to intermixing between men and women.  It is permissible as long as the Shari'ah regulations are followed, such as lowering the gaze, not shaking hands with men in general situations, avoiding seclusion between a man and a woman, avoiding long repeated meetings, avoiding situations that could cause suspicion, avoiding anything that is sinful whether from within or without, abiding by the Shari'ah sanctioned dress code, avoiding using perfume, seriousness while speaking, and being dignified in one's movements.  Thus, the moderation that is specified in the ruling of permissibility is the correct way according to Shari'ah; avoiding the extremes of extravagance and negligence, and strict limitations and wanton liberty.

    *  Clause (4):

    This Clause warns against some of the evil social customs related to marriage which include:

      Increasing the amount of dowries.  Scholars of Islamic jurisprudence have agreed that there is no maximum limit on dowries as there is nothing in the Shari'ah that mentions an upper limit that is not to be exceeded, and it is not permissible to set limitations without evidence.  However, the Sunnah of the Prophet (may blessings and peace be upon him) encourages minimizing the price of the dowry and not making it exorbitant.  It was related on the authority of 'A'ishah (may Allah be pleased with her) that the Messenger of Allah (may blessings and peace be upon him) said, "The marriage with the most blessing is that which involves the least financial burden."[9]  It was also related from 'A'ishah (may Allah be pleased with her) that the Messenger of Allah (may blessings and peace be upon him) said, "The blessing in a woman is that her engagement and dowry are made easy."[10]  Likewise, it was reported by Abu Al-'Ajfa' As-Salmi that 'Umar ibn Al-Khattaab (may Allah be pleased with him) said:

    Do not make the dowries of women extravagant, for if it were a sign of honor in this life, or piety according to Allah, the Prophet of Allah (may blessings and peace be upon him) would have been more worthy of it. I don't know that the Messenger of Allah (may blessings and peace be upon him) married any of his wives or married off any of his daughters for more than twelve ooqiyahs (a measure equal to forty dirhams).[11] 

    These hadiths indicate that in principle, dowries should be economical, as this is more likely to achieve the aims of Shari'ah to protect the chastity of youth, facilitate lawful options for them, and increasing progeny.  Also, making the dowry easy for the husband is following the Sunnah of the Messenger of Allah (may blessings and peace be upon him) as he was never given the choice between two issues except that he would choose the easier of the two, as long as it did not involve any sin.

      Extravagance in wedding parties:  Committing excess is prohibited according to Shari'ah.  Allah the Exalted says:

    [ ] (: 141)

    [.Eat of [each of] its fruit when it yields and give its due [zakaah] on the day of its harvest. And be not excessive. Indeed, He does not like those who commit excess. ]) 6: 141)

    He also says:

    [ ] (: 31)

    [O children of Adam, take your adornment at every mosque, and eat and drink, but be not excessive. Indeed, He likes not those who commit excess.])7: 31)

    Likewise, the Messenger of Allah said, "Eat, give in charity, and wear clothing without going to excess or being arrogant."[12] In this way, Shari'ah combats the evil social customs related to marriage, and takes all of the necessary steps to prevent and put an end to them.

    Article (23)

    Encouraging the Youth to Marry

    Islamic Shari'ah encourages youth to get married early to prevent moral and sexual deviance.

    --------------------------------

    Proceeding from the Muslim community's responsibility for its members, Islamic Shari'ah encourages youth to marry early to prevent the causes of moral and sexual deviance.  It was related on the authority of 'Abdullah ibn Mas'ood that the Messenger of Allah (may blessings and peace be upon him) said:

    O young people! Whoever among you who is able to marry should do so,  for marriage is the best means of keeping one's gaze lowered and his sexual organs protected [i.e. protected from committing illegal sexual intercourse, etc.], and whoever is not able to marry, should fast, as fasting is a shield for him [by lessening his sexual desire]."[13]

    It was also related on the authority of Abu Hurayrah (may Allah be pleased with him) that the Messenger of Allah (may blessings and peace be upon him) said, "If someone proposes to you and you are satisfied with his religion and his manners, then marry him; for if you don't it will lead to sedition on Earth and widespread corruption."[14]  Also, Abu Ruhm narrated that the Messenger of Allah (may blessings and peace be upon him) said, "From among the best types of intercession is to intercede between two people for the sake of marriage."[15] Abu Sa'eed narrated that 'Umar addressed the people and said, "Allah gave permission to His Prophet (may blessings and peace be upon him) for whatever He wanted, and the Prophet of Allah (may blessings and peace be upon him) passed away. So complete the Hajj and 'Umrah (minor pilgrimage) as Allah the Mighty and Glorious has commanded you, and protect the chastity of these women."[16]  Jaabir ibn 'Abdullah (may Allah be pleased with him) said that the Messenger of Allah (may blessings and peace be upon him) said, "Today, you are on a religion, and I will be proud of your great number before the other nations, so after me do not regress."[17]

    Section Two:

    The Muslim Community's Responsibility to Protect and Care for the Family

                This Section discusses the Muslim community's responsibility to protect and care for the family,  clarifying the basis for this responsibility as well as the necessity of achieving balance between rights and obligations.  It also clarifies the benefit of documenting the marriage contract and discusses the stipulation of witnessing and announcing the marriage contract and the importance of registering newborns.  It calls for combating non-Shari'ah sanctioned forms of marriage and deviant ideas, and it encourages spreading awareness of the value of marriage and its manners. These topics are covered in eight articles.

    Article (24)

    The Basis for this Responsibility

    This responsibility is based on two pillars:

    1.      It achieves one of the aims of Shari'ah; Islam has ruled that the basic rule for marriage is continuity and permanence of the family and this is the aspect that completes the obligation to encourage marriage, for marriage cannot meet the aims of Shari'ah unless it continues and is protected and cared for.

    2.      The Muslim community, when it protects the family from the forces of collapse and deterioration, is at the same time protecting itself and its social and moral values.

    --------------------------------

    This Article clarifies the principles that are the bases for the Muslim community's obligation to protect and care for the family.

    * The first basis refers to the principle: Whatever is necessary to perform something that is obligatory is obligatory in and of itself; and the family cannot continue to exist without protection and support.

    * The second basis indicates the Muslim community's responsibility to protect the family as it is considered the basic unit of its structure.  Thus, protecting the family is in essence protecting the society, while neglecting to protect the family and its values leads to the collapse of the society and its values. For this reason, there are numerous texts that call on the Muslim community to put their efforts into to preventing the dissolution of the family.  Allah the Exalted says:

    [ ] (: 35)

    [And if you fear dissension between the two, send an arbitrator from his people and an arbitrator from her people. If they both desire reconciliation, Allah will cause it between them. Indeed, Allah is ever Knowing and Acquainted [with all things]. ] (4: 35)

    Scholars of fiqh explain this to mean that if there is discord between the spouses, the governor should provide them with accommodations near a trustworthy source who is charged with the responsibility of investigating their case and preventing the oppressive party from continuing to commit oppression.  If the situation escalates and their disagreement continues for a long period of time, then the governor should appoint a trustworthy member from the woman's family and a trustworthy member from the man's family to meet and look into the couple's situation, and ultimately, to do whatever they believe to be best, whether it be divorce or reconciliation, however, reconciliation is anticipated as Allah the Exalted says:

    ] [

    [. If they both desire reconciliation, Allah will cause it between them.][18]

    Also, it was narrated from Abu Hurayrah that the Messenger of Allah (may blessings and peace be upon him) said, "None of us have turned a woman against her husband or a slave against his master."[19]

    This is considered one of the community obligations that has been made obligatory upon the Muslim community as a whole.  The obligation is to be carried out by the leader on behalf of the Muslim community with the assistance of his employees who are specialized in this field, however, in some situations it may become an individual obligation if it is dependant upon a specific person and no one else.

    Article (25)

    The Balance Between Rights and Responsibilities

    It is allowed to clearly and precisely define the stipulations of each spouse when filling out the marriage contract, taking care to maintain justice and balance between the rights and obligations of each party, according to the fundamentals and rulings of Shari'ah and in order to protect the family life and its continuity.

    --------------------------------

    This Article clarifies a number of important issues that are essential to protect family life and its survival.  They include:

      The permissibility of filling out the marriage contract, precisely and clearly defining each spouse's stipulations in the cases wherein they are permitted by Shari'ah.  It has already been mentioned in the commentary on Article (9) that the human self has a tendency to greedily hoard its material and non-material possessions, and because of this, he may deny the rights that are due of him after having acknowledged them. In order to prevent this, stipulation of rights is an important and essential means of protecting people's rights from being usurped, and preventing the human self from denying these rights.  This is achieved by informing each party of his obligations and rights by way of the conditions that are mentioned in the marriage contract.  The basic principle is that which the Messenger of Allah (may blessings and peace be upon him) stated, "Muslims are to abide by conditions they agree to."[20]  Another narration of this hadith adds, "except for any condition that makes the prohibited permissible, or the permissible prohibited."[21]  'Abdurrahman ibn Ghanm related:

    We were with 'Umar (may Allah be pleased with him) and my knees touched his.  A man came to him and said, "O Prince of the Believers, I married this woman and I agreed to the condition that she reside in her house, and I am preparing to move to such and such a land."  He answered, "She has the right to her condition."  The man said, "Woe to men! Any woman who wants to divorce her husband can divorce him." 'Umar replied, "Muslims are accountable to fulfill their conditions when the rights of the parties conflict." Another narration states, "Conditions are imposed in the case of conflicting rights; and she is due that which she has stipulated."[22]

      Taking care to maintain justice and balance between the rights and obligations of each spouse according to the principles and regulations of Shari'ah that are necessary to protect the family life and its survival.  Each spouse has rights that the other is obliged to fulfill, just as each has obligations that he must fulfill in return.  This is true justice, Allah the Exalted says:

    [ ] (: 228)

    [And due to the wives is similar to what is expected of them, according to what is reasonable. ]  (2: 228)

    Also, each right and obligation should be given its proportional weight and actual importance.

    Details of some of these rights will be provided in Section Four of Chapter III.

    * * *

    Article (26)

    Documenting the Marriage Contract

    Officially documenting the marriage contract achieves interests that are affirmed by Shari'ah and which benefit the society as it prevents either spouse from denying the marital relationship and protects the rights of the wife and children.

    ----------------------------------

    This Article affirms one of the important means of protecting and caring for the family; documenting the marriage contract.  In principle, this is not a condition for the validity of the marriage; if the marriage is offered and accepted, and the contract is conducted with the acceptable phrasing in the presence of the guardian and witnesses to the contract, then the contract is considered valid and becomes effective as will be clarified in Section Two of Chapter III.

    When marriage was performed according to this simple form, there was no potential problem of people denying the marriage as the societies were small and limited, and tribal or community life presided over people.  However, as life changed, the social ties that used to bond people began to unravel, the number of people increased, issues began to diverge, and people's morals and consciences became corrupt.  Thus, it became difficult to leave affairs according to the previous status quo and it became necessary to document the marriage contract as it is related to many affairs within the institutions of the government, such as education, health, foreign travel, military service, etc.  The laws in some countries of the Muslim world even go so far as to stipulate that if one of the spouses denies the marriage, the claim of marriage is not to be recognized unless the marriage contract is officially documented by the authorized employee or the responsible institution or body.

    Leaving the marriage contract without documentation usually leads to corruption and harm such as denying the marital relationship and the loss of the children's rights, and according to Shari'ah, corruption and harm are to be driven away and prevented.  The Messenger of Allah (may blessings and peace be upon him) said, "There is no harm and no reciprocating harm."[23]

    * * *

    Article (27)

    Witnessing and Announcing the Marriage Contract

    Shari'ah stipulates that the marriage contract must be witnessed as a means of including the Muslim community in the building of the family, and to serve as a sign that differentiates between those relationships between men and women that are permissible, and those that are impermissible. Also, the recommendation that the marriage be announced is a way of m

     
     

     

     

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