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THE ASSEMBLY’S FAMILY CODE FOR MUSLIM COMMUNITIES IN NORTH AMERICA

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The Assembly of Muslim Jurists of America
The Assembly’s Family Code
For Muslim Communities in non-Muslim Societies

اضغط هنا لقراءة وثيقة المجمع للأحوال الشخصية باللغة العربية


Prepared By
Dr. Salâh al-Sawy
Secretary General of Assembly
Reviewed and Revised
The Assembly’s 8th Annual Conference
Held in Kuwait during Jumâdâ al-Awal 1433H ~ March 2012
Preamble to the Legal Code
In the name of Allah, the Most Merciful, the Bestower of Mercy


       All praise is for Allah, and may salutations and peace be upon the
Messenger of Allah, and upon his family, his companions, and those loyal to him.

The family is the most essential social nucleus in human life. A man’s usrah
(family) entails his household, his relatives, and his closest kin. Originally,
the term usrah denotes an impregnable shield, and it was used in reference to a
man’s household and his relatives because he is empowered through them.

       Family life has preceded human existence atop the Earth. Allah (st)
wished that the human being belong to a family before he descends to the Earth,
namely Âdam (as) who was in Paradise with his wife, and we do not know that he
(as) ever lived alone. Rather, Allah created for him a wife, Hawâ’, from the
very beginning.

Likewise, the Islamic call did not commence in Mecca until after the family was
composed, due to the positive role played by the family to ensure peace of mind,
and enhance emotional and social stability.

       The spine of the family structure in the Sharia, as well as all the
heavenly revelations, is based on tranquility, love, and mercy. The noble verse
in Surat ar-Room concisely outlined this concept in a few words, and considered
this phenomenon one of the signs of Allah – the Mighty and Majestic – and thus
listed it amidst a series of universal signs which the mindful ponder over to
attain faith and become steadfast upon it. Prior to it, signs were mentioned
such as creating the human being from dust, and then the creation of the heavens
and Earth, and then the variety of languages and colors. Then, the Most High
said, “And of His signs is that He created for you from yourselves mates that
you may find tranquility in them; and He placed between you affection and mercy.
Indeed in that are signs for a people who give thought.” [ar-Room: 21]

Prior to that, the Most High said, “And of His signs is that He created you from
dust; then, suddenly you were human beings dispersing [throughout the
earth.” [ar-Room: 20]

       And then following that, the Most High said, And of His signs is the
creation of the heavens and the earth and the diversity of your languages and
your colors. Indeed in that are signs for those of knowledge. [ar-Room: 22]

       Therefore, fueling the clash between the male and female in family
relationships, and portraying it as an actual conflict and a legitimate dispute
is a malicious secular agenda which no heavenly law approves of, nor does it
agree with basic human nature, nor is it consistent with the rationale of the
sensible.

He who created the male and female says in His Noble Book, “that you may find
tranquility in them; and He placed between you affection and mercy.” [ar-Room:
21] Hence, may the propagators of falsehood be defaced, and may the deniers be
disgraced – those who strive to defy the signs of Allah!

Legislating family laws has occupied a distinct position in the Noble Qur’an,
wherein it elaborated matters in great detail, and established rulings for it
and reiterated them, all in light of its vital importance in building societies
and civilizations, and because Allah – the Mighty and Majestic – had foreknown
that these family laws would be subjected to storms of alienation and aggression
which seek to uproot them, annihilate this framework, and distort its features!
For that reason, we find these brilliant Qur’anic details that explain its
rulings in a manner that no other area of legislation has received.

       Finally, this code is an attempt from the Assembly to organize the family
rulings for those abroad, outside the lands of Islam, in a manner resembling
that of our modern day legal codes. It deals with the rulings concerning the
various family relationships, from the time that building this family was a
dream entertained by the imaginations of this couple, and continuing through all
the phases and steps involved in building it, maintaining it, and dealing with
the smoke and clouds that darken its skies. Then, it concludes by explaining the
rulings on separation between the spouses, the rulings on custody, and the
rights of children.

The objective here is to provide the Muslims outside the lands of Islam with a
definitive document that one can easily refer back to its articles, one that
takes into consideration their particular circumstances of time and place, and
facilitates presenting it to the judicial and executive bodies of the countries
where Muslims live as minorities.

       These codes did not restrict Muslims abroad, to one specific juristic
school (madh-hab) which could overburden them, and limit them in a matter that
the Sharia had provided flexibility in. Rather, considering the strength of the
evidences and the outweighing benefits were behind its choices from our rich
juristic heritage. This stems from its belief that Allah – the Glorified and
Exalted – did not allot decisive proofs for every ruling in the Sharia. Instead,
He made them speculative as a form of leniency for the liable individuals! At
the same time, this code did not pick the unusual views and the unjustifiable
concessions of each madh-hab, but treaded a middle path in the matter as best it
could, seeking to uphold the decision which the Assembly previously concluded in
its Charter of Honor regarding the protocol of giving fatwa (religious edicts).
Therein, it was decided to, “Direct the layman to the customary, moderate
position from the scholarly views, while avoiding the odd and unusual
positions.”

       Then, this document was crowned with a discussion by the Assembly during
its 8th annual conference, where an entire conference was dedicated to its
revision at the hands of its members and experts. Over the course of four full
days, it was discussed, paragraph by paragraph and word by word, until it was
finally produced in this manner which I expect was an exhaustive effort that
left us feeling that we could not possibly add anything at the current time.

       We extend this document to the esteemed Imâm(s) of the mosques, and to
the arbitrators who mitigate family disputes in Western societies, to be a
reference for them by which the fatâwâ and arbitration verdicts could become
more unified. In the future, if the practical application reveals the need to
add, revise, or verify, then our chests will not be discomforted by that.
Rather, we are vigilant for just that, and openly awaiting your remarks, for the
truth is ancient and nothing will change it!

Finally, we recognize that this document, within its intended scope of
application, will only serve as an advisory and consultative reference, and the
actual implementation of its rulings will be contingent upon the mutual
acceptance of the concerned parties. Moreover, individual cases may vary, and
the contextual differences must be taken in consideration while applying the
general guidelines. The use of this document in arbitration may serve the
purpose of pre-court conflict resolution. Such arbitration may also be used by
the judicial authorities, when applicable, to save the judiciary the effort and
cost of resolving a plethora of family problems.  In the instance that one or
both parties involved in a dispute refuse to accept the Shariah guidelines for
dealing with family affairs, it will be left to the jurisdiction of the local
court and legal system to settle their dispute.  In this setting, the court may
or may not consider the guidelines of the Islamic faith.  For this reason, we
advise all parties in this case to fear Allah and take only that which He
designated for them.

We also recognize that we are not the first religious community to have their
own teachings codified for arbitration. We were preceded in this regard by the
Jews and Catholics as well as others. Such religious arbitration is expected to
cause greater stability of the family structure and more harmony between the
different parties in that institution.

And Allah is behind our motives, and He alone is the Guide to the straight path.
     


CHAPTER ONE

The Engagement
Section One
The Nature of the Engagement and the Interactions Therein



Article 1: The engagement is a request and mutual promise to marry. No
particular wording is stipulated for it, but rather it is effected by anything
that customarily indicates it. It is not considered a marriage, but rather a
preamble to it, and hence does not assert any marital rights, nor any financial
responsibilities, nor does it permit anything ordinarily unlawful between the
two parties.

Article 2: The norm is that suitors propose to the woman or one from her kin.
 It is also permissible for the woman to propose to a righteous suitor or his
agent if needed.

Article 3: For a valid engagement with a woman, she must not be currently
unavailable for marriage due to any reason, nor currently engaged to another
suitor.

Article 4:      Each of the engaging parties has the right to see the other’s
face and hands, and they can speak to one another in an appropriate manner
without seclusion, and the fiancée’s permission or knowledge is not a condition
for looking at her.  

Section Two

Those Unlawful for Engagement

Article 5: It is unlawful to engage whoever is unlawful to marry. Hence, it is
unlawful to engage any woman who is permanently unlawful for marriage due to
ancestry, marriage, or nursing, or those who cannot be married due to being
temporarily unlawful.

Article 6: It is unlawful to engage a currently engaged woman who has chosen a
suitor, unless he ends the engagement or permits that.

Article 7:      It is unlawful to explicitly propose to any woman observing
her ‘iddah (waiting period), irrespective of what kind of ‘iddah. As for
insinuating that intention, that is permissible for the wife whose husband has
died, or divorced her irrevocably, or when the marriage has been dissolved due
to a reason that warranted it. 

Section Three

Ending the Engagement and Compensation for That

Article 8: Engagement is a non-binding promise to marry, and therefore each
party reserves the right to end it when warrated. It is disliked to end an
engagement without a legitimate justification, such as discovering a deficiency
in the other’s religious commitment or manners, or some inherent personality
imbalance, or due to an unbearable psychological aversion.

Article 9:      Ending the engagement does not require compensation. However, a
criminal investigation can sometimes be warranted for violations that accompany
ending the engagement which harm the other party, such as spreading harmful
rumors to justify why the engagement was terminated.

Section Four

Retrieving the Gifts and Advance Sadâq upon Ending the Engagement

Article 10:    The party that ends the engagement without a valid reason must
return the gifts presented to him/her if they still exist, or their likes, or
their value on the day of receipt, if they have been consumed, or if they were
usable by nature such a food, sweets, and the likes.

Article 11:    Upon ending the engagement, the suitor has the right to retrieve
the sadâq (wedding gift) he had given if it still exists, or its likes, or its
value on the day it was received. 

CHAPTER TWO

The Marriage Contract

Article 12:    Marriage is a contract between a man and woman that entails the
permissibility of enjoying one another within the legal parameters of the
Sharia.

Section One

Conditions Stipulated within the Marriage Contract

Article 13:    The spouses must abide by their conditions, except for a
condition that permits the unlawful or prohibits the lawful.

Article 14:    The wife has the right to stipulate in the marriage contract, or
her husband can stipulate for her, whatever involves a lawful benefit for the
woman that does not contradict the essence of marriage – such as completing her
studies, remaining in her job, him not marrying another alongside her, him not
relocating her outside her hometown or country, and the likes. If the husband
does not uphold this condition, then the wife is entitled to demand an annulment
or legal enforced divorce. She can also determine, by mutual consent with the
husband, other forms of penalty that don’t violate the Sharia, such as a
monetary compensation, in exchange for foregoing her right to litigation upon
acquiring the agreed upon settlement.

Article 15:    When a Muslim is marrying a woman from the People of the Book
outside the lands of Islam, he must stipulate in the marriage contract that
Islam is the religion of the children, and that the spouses will seek judgment
from the Islamic Sharia in the matters related to family law such as marriage,
divorce, inheritance, bequests, and custody – and that decisions will be sought
with an Islamic entity in times of dispute. This is what is Islamically binding
on the Muslim, and it will be finally up to the other party to accept such
clause or reject it.([1])

Article 16:    If the marriage contract involves a stipulation that undermines
its essence, then the condition is null and the contract is valid.  

Section Two

The Guardian’s Role in the Marriage Contract

Article 17:    The default is that the Muslim woman’s wali (guardian), or his
deputy, are to perform her marriage contract after she has been consulted and
consents. His permission is both a religious and social necessity.

Article 18:    Marriages whose validity is controversial between the jurists are
not to be annulled, although it is preferred for them to be redone as a
precautionary measure. An example of this is a contract being effected with a
compatible suitor but without a wali, for the sadâq of her likes, given that the
woman was a sane adult.

Article 19:    The Muslim judge in the lands of Islam, or those in his position
abroad (namely the arbitrators and those appointed by the Muslim community to
perform marriages, and are licensed by the state to carry out marriage
contracts), should undertake the marrying of new Muslim sisters who have no
paternal relatives upon Islam. If no entity exists that is responsible for
performing such marriage contracts, then she would delegate in that case any man
from the Muslim community whom she accepts to represent her.

Article 20:    A woman from the People of the Book is married off by her
guardian from the People of the Book, or the Muslim judge, or those in his
position. Her marriage should not be annulled if she marriages herself off, or
if she appoints a Muslim to marry her off, or a Muslim agrees to marry her
through a judge from the People of the Book.

Article 21:    The wali position in marriage is restricted to the paternal
relatives: the fathers, followed by the sons, followed by the brothers, followed
by the paternal uncles. If two guardians are equidistant in their relationship,
then either of them executing the marriage contract with its proper conditions
is permissible, and it becomes obligatory upon the one whom the bride selects
for this.

Article 22:    It is stipulated that the wali carrying out the marriage contract
must be a competent (namely a sane adult) Muslim male, and that his willing
consent isn’t compromised (such as being forced, mistaken, or tricked), and that
he isn’t observing a state of ihrâm for Hajj or ‘umrah.

The Absence or Hindrance of the Wali

Article 23:    In order for marrying a sane adult woman to be valid, it must
happen with her permission and consent. It is impermissible for her guardians to
prevent her from marrying any compatible suitor she pleases, just as they cannot
prevent a divorcee from returning to her husband if it were revocable.

Article 24:    If the wali refuses to marriage the woman to someone compatible,
without a legitimate justification, then his guardianship is transferred to the
Muslim judge or those in his position outside the lands of Islam.

Article 25:    If the nearest wali is absent for a long time, or his location is
unknown, or he is unreachable, then his guardianship is transferred to the
following wali if the Muslim judge permits, or to the Muslim judge himself, or
to those in his position outside the lands of Islam.     

Section Three

The Wording of the Marriage Contract

Article 26:    A marriage is contracted by one of the two parties, or his
deputized representative, making an offer and it being accepted by the other, or
his deputized representative, in a manner that clearly denotes the intended
meaning in light of the Sharia. This can be in any language understood by both
contracting parties, and if there exists an inability to speak, then by writing,
or by an intelligible gesture when writing also is not possible.

Article 27:    It is necessary that the acceptance be identical to the offer,
and that it be stated in the same gathering as the offer, and that they are both
effective immediately, and that each of the contracting parties hears the words
of the other.

Article 28:    Stipulating a timespan in a marriage contract invalidates it.



Contracting a Marriage Over the Telephone

Article 29:    A marriage can be contracted over the telephone, on the condition
that both the offering and accepting parties have foreknowledge about one
another, and that the witnesses hear both their statements. It is preferred that
this take place using any other means [of communication], in order for the two
contracting parties and the witnesses to communicate audibly and visually. When
that is not possible, the absent party may delegate someone to perform the
contract in his place.

Article 30:    A marriage cannot be contracted using e-mail, nor by text
messaging, due to the witnesses not being able to verify the identities of its
parties, and the absent person delegating another suffices the need for
resorting to these means.

Article 31:    Documenting the marriage is not one of its pillars, nor a
condition for its validity. However, it is certainly needed nowadays to ensure
the preservation of rights, and to prevent denial in disputes, and the legal
authorities have the right to obligate it.  Muslims should follow the local
jurisdiction or authority in the requirements for the documentation and
recording of the marriage process.

Section Four

The Women Forbidden for Marriage

Article 32:    For a valid marriage contract, it is stipulated that the woman
not be from among those forbidden to marry, namely those with a particular
degree of relationship to the groom. This can be due to ancestry, being an
in-law, or because of nursing. It makes no difference whether this forbiddance
is temporary or perpetual, and it is also necessary that this woman is not
currently preoccupied with another marriage or ‘iddah (waiting period).

Women Perpetually Forbidden

Article 33:    The women perpetually forbidden due to ancestry are: the mothers
and grandmothers (continuing upwards), the daughters and granddaughters
(continuing downwards), the sisters, the daughters of his brothers and sisters,
and the maternal and paternal aunts.

Article 34:    The women perpetually forbidden due to marriage (in-laws) are:
the wives of the fathers and grandfathers (continuing upwards), the wives of the
sons and grandsons (continuing downwards), the wives’ mothers (continuing
upwards), and the wives’ daughters (continuing downwards) if the man had
consummated with their mothers.

Article 35: 1-     Nursing forbids for marriage in the same ways that ancestry
and marriage do.

2- Nursing forbids for marriage when it takes place during the first two years,
and atolls to five separate, filling, feedings of breast milk.

3-  The “forbidden for marriage” relationship arises between the child who
nursed from one angle, and between the woman who nursed him, the causer of the
milk (the wet-nurse’s husband), as well as their ancestry, descendents, and
their siblings.

Article 36:    It is forbidden for an individual to marry his children
(continuing downwards) from fornication, just as it is forbidden for him to
marry someone he practiced li‘ân (public imprecation) against, as well as his
daughter which he denied using li‘ân (public imprecation).

Article 37:    Fornication contributes to the “forbidden for marriage” category,
whereby a person cannot marry the ancestors and descendents of the woman he
fornicated with.

Women Temporarily Forbidden

Article 38:    The women temporarily forbidden to marry are: the woman married
to another, the woman observing ‘iddah (waiting period after divorce from
another man), the woman divorced by him thrice until she marries another and
consummates the marriage with him then gets a divorce and her ‘iddah expires,
the woman in ihrâm for Hajj or ‘umrah, the woman who does not ascribe to a
heavenly religion, combining between two sisters, or between any two women who
could not marry one another – had one of them been a male – due to either
ancestry or nursing, and the fifth wife for someone who currently has four
wives, until he divorces one and her ‘iddah expires.

Article 39:    When warranted, a man is entitled to combine between more than
one wife, but it is forbidden for him to increase beyond four. However, to avoid
harm to themselves and their communities, Muslims should adhere to the local
laws and rulings on marriage restrictions.([2]) 

The Invalidity of a Muslim Woman Marrying a Non-Muslim

Article 40:    It is unlawful for a Muslim woman to marry a non-Muslim. If that
takes place, the marriage is invalid.

Article 41:    It is unlawful for a Muslim man to marry a woman that does not
ascribe to a heavenly religion. If that takes place, the marriage is invalid.

Article 42:    If a woman becomes Muslim, but her husband remains upon other
than Islam, it becomes unlawful for them to have marital intimacy, though the
marriage remains suspended throughout the ‘iddah period. If he embraces Islam,
then their marriage continues. If he refuses, she is given the choice between
dissolving the marriage in order to become lawful for other suitors, and legal
measures are taken to enable her to do that, or she can choose to be patient in
anticipation of him embracing Islam. Once he embraces Islam, she can return to
him with a new marriage contract. All of this stands on the condition that he
does not have intimacy with her throughout this period, since he is foreign to
her.([3])

Article 43:    A Muslim man marrying a chaste woman from the People of the Book
is lawful, on the condition that it be stipulated in the contract that the
Sharia rulings are the reference point during disagreements, and that Islamic
arbitration is sought to judge in the disputes that take place between the
spouses. This is what is Islamically binding on the Muslim, and it will be
finally up to the other party to accept such clause or reject it.

Compatibility in Marriage

Article 44:    Compatibility in marriage is a right that is particular to the
woman and her guardian, and it is a condition for the contract beingbinding, but
not a condition of validity. The factors to be considered for compatibility are:
religious commitment, manners, and the absence of a defect that is repelling or
harmful to the healthy party.

Section Five

The Sadâq (Wedding Gift)

Article 45:    The sadâq (also called: mahr) is the wealth or benefit offered by
the husband to the wife for the sake of marrying her, and from the objectives of
the Sharia regarding it is to make it easy and feasible.

Article 46:    There are two types of sadâq. One is the specified sadâq, which
is what the two parties expressly state, regardless of whether it is small or
much. Another is the sadâq of her likes, which is what the likes of this wife
are customarily given, meaning her peers from the mother’s or father’s families,
or those of her land, when no specific sadâqhas been stated.

Article 47:    There is no minimum or maximum limit for sadâq, and everything of
value that the Sharia deems to have value qualifies to be a sadâq, on the
condition that it is known.

Article 48:    The sadâq becomes binding upon a valid contract, and the parties
cannot agree on dismissing it. This sadâqbecomes all due upon consummation or an
actual seclusion – unless both spouses affirm that no consummation took place.
It also becomes all due upon the death [of either party], regardless of whether
the death was before or after consummation.

Immediate and Deferred Sadâq

Article 49:    The sadâq is completely the woman’s entitlement. Therefore, she
can deal with it as she pleases, and can agree to either demand it (or part of
it) immediately or defer it to an appointed term. She has the right to refuse
consummation until the immediate portion of her sadâq is paid to her, and if she
accepts consummation before receiving it, then it becomes a debt upon the
husband that he is liable for.

Article 50:    The deferred portion of the sadâq becomes due upon the first of
the two terms; death or divorce, unless the contract states otherwise.

Article 51:Before consummation, the divorcee is entitled to half thesadâq if it
was specified, unless the separation was due to the marriage being dissolved or
annulled for a defect, in which case she would not be entitled to any of
the sadâq. If no sadâq had been specified, the judge or those in his position
allot her an alimony, which is an amount of wealth or benefit paid to a divorcee
that is determined by the customs and norms, while taking into consideration the
solvency and insolvency of both spouses.

Article 52:If thesadâq was not specified before or during the contract, and the
spouses did not agree on it thereafter, or it was an invalid form of sadâq, or
consummation had taken place in an invalid or mistaken marriage, then it will be
referred to the sadâq of her peers.

Article 53:If someone gets married during his death illness, for
a sadâq equivalent to that of the bride’s peers, and he was in need of that,
then this sadâq is to be taken from his inheritance after death. If it exceeds
the sadâq of the bride’s peers, then the excess is governed by the rules of the
bequest. If he was not in need of that, then it is taken entirely from the
1/3rd of his inheritance after his death, and is given precedence over the other
bequests.

Furnishing the Marital Home

Article 54:    The default is that the husband is completely responsible for
furnishing the marital home, within the bounds of reasonability. In turn, that
becomes his property, unless he makes this furniture a portion of the sadâq. The
wife is not responsible for any of that, unless she willingly contributes, and
she reserves the right [of ownership] for whatever she contributes.([4])

Section Six

Witnesses for the Marriage Contract

Article 55:    The marriage contract being witnessed is a condition for its
validity, due to it entailing social approval of this new family being
established and involving the ummah in building it. For marriage, two Muslim men
are the minimum required for witnessing a marriage between Muslims. If the woman
was from the People of the Book, the witnessing of one man and two women was
accepted by some jurists. In light of that, a marriage to a woman from the
People of the Book that was already done with a witnessing of one man and two
women should not be dissolved due to some jurists permitting that. Likewise, a
marriage to a woman from the People of the Book that was already done with a
witnessing of two men from her religion should not be dissolved due to some
jurists permitting that.

Article 56:    To qualify as a witness, the conditions are: being an adult,
sensible, credible, male that hears the wording of the contract and understands
its meaning. As for requiring that the witness be a Muslim, this is a matter of
agreement when both spouses are Muslim, and a matter of controversy when a
Muslim is marrying a woman from the People of the Book. Hence, if the witnessing
– in the latter case – was done by two men from Ahl al-Kitaab (People of the
Book), then it should not be dissolved in light of the existing disagreement
about the matter.

Article 57:    When there is a necessity, the parents (or grandparents) of the
bride and groom, as well as their children (and grandchildren), can be accepted
as witnesses of the contract – so long as he is not the wali (guardian) in this
contract – based on the position of the jurists who permitted that.

Article 58:    If a marriage contract was not witnessed, then it is invalid and
legally inconsequential before consummation, and if this was not rectified until
consummation had actually taken place, then the contract is still deemed
invalid, but it results in the sadâq [becoming mandatory], ‘iddâh (being
observed), and asserting paternity, according to most of the jurists.

Section Seven

Marital Rights

Rights and Obligations Shared by the Spouses

Article 59:    The rights and obligations that are shared by both spouses are:

a)   Living together in harmony, caring for the welfare of the family,
consulting one another about the decisions related to it, avoiding everything
that scathes the other’s dignity, respecting the other’s relatives, upholding
kinship ties on both sides, visiting family, and inviting them to visit
according to what is appropriate.

b)   Living together Islamically, which includes marital intimacy, and each
being loyal to the other in terms of protecting their religion, honor, progeny,
and wealth.

c)   Caring for the children and rearing them in a righteous fashion.

d)   Concealing marital secrets.

e)   Observing the rights of inheritance between them.

Wife’s Rights upon her Husband

Article 60:    The wife’s rights upon her husband are:

a)  The mahr/sadâq, which is what the husband pays to the wife for the sake of
marrying her, whether it be wealth or another benefit qualified by the Sharia.

b) Spending on her food, clothing, treatment, housing, and everything necessary
to sustain a livelihood, to the degree of his solvency or insolvency, without
extravagance or stinginess.

c)  Not touching any of her wealth except with her permission.

Husband’s Rights upon his Wife

Article 61:    The husband’s rights upon his wife are:

a)  Recognizing his position as a maintainer, director, and advisor, in order to
protect her religiosity and secure her hereafter. Part of that is keeping her
chaste and modest, having her abide by the Islamic attire, and preventing her
from everything that is considered an evil in the Sharia.

b) Obeying him in that which is good, namely everything permissible in the
Sharia that will not inflict harm([5]) upon her.

c)  Looking after the marital home, managing its affairs, and safeguarding is
possessions.

d) Prudently dealing with the husband’s wealth, namely by spending from it in
proportion to her need, and the need of her children, according to that which is
appropriate, without being extravagant and wasteful. She should not spend any of
his wealth unless he permits, or it’s within the bounds of what is customarily
acceptable.

e)  Caring for his children which she mothered, and nursing them unless she
cannot.

The Wife Working Outside the Marital Home

Article 62:    The default is that the wife remains in her home to look after
her husband and children. There is no harm in her working outside the house when
needed, within the bounds of the following guidelines:

1- The work must be permissible in the Sharia, and suitable for the nature of a
female and the interest of the community.

2- There must be consultation and acceptance between the spouses, to ensure the
best interests of the family.

3- Priority must be given to the interests of the children in terms of their
care and righteous upbringing. This should be given precedence to everything
else when there is a conflict of interests.

4- The Sharia guidelines must be observed in how she leaves the home, and in the
nature of her work.

Article 63:    When governed by the aforementioned guidelines, a woman has the
right to work in the following circumstances:

1- If she stipulates the right to work in the marriage contract, or was working
before the contract and the husband did not stipulate that she leave work, or
when a woman working is customarily the norm.

2- If the husband permits that, even if that wasn’t stipulated in the contract.

3- If a need prompts that, or a necessity such as the husband falling ill, or
him not being able to spend, or his absence, or the likes.

Article 64:    The woman has the exclusive right to her earnings from this work,
and her husband has no right to her earnings unless she willingly accepts that,
or an agreement between them dictates it.

Article 65:    Regardless of whether the woman is a Muslim or non-Muslim, she
has the exclusive right to her money. Hence, she can autonomously spend from
whatever wealth she owns, and whatever resources she acquires. It is recommended
that she consult her husband when spending more than a third of it, but she is
not interdicted except due to the general reasons for which the Sharia warrants
interdiction, which apply to men and women alike.

Article 66:    It is permissible for the spouses to agree that the working wife
should partake in spending on the house, in exchange for depriving her husband
of someone that stays home to look after his house and children. Such
consultation should take place between them in an atmosphere of good will and
reasonability.

Article 67:    If the wife shares in her husband’s work, or business
investments, with her skills, then she is entitled to a share of his resources
that is proportionate to her contribution in this work. Estimating this share
should be referred back to the experts, and the two spouses should negotiate in
good will concerning that, and should agree from the start on clear terms in
order to prevent dispute.

Section Eight

Types of Marriage in Terms of Validity and Invalidity

Article 68:    Marriage is either valid or invalid, and the invalid includes
both the null (bâtil) and the irregular (fâsid).

Article 69:    A valid marriage is when its conditions and pillars are met, and
its impediments are absent. Once that happens, all the effects of marriage
immediately ensue, namely those of rights and responsibilities.

Article 70:    A marriage is null (bâtil) when the deficiency exists in the
offer and acceptance [during the actual contract], such as there being no
congruence between them, or when a temporary or permanent impediment to marriage
is present, such as contracting in marriage with a mahram relative, or a Muslim
woman marrying a non-Muslim man, or a Muslim man marrying a woman that is
neither Muslim nor of the People of the Book, or a woman getting married while
currently observing another marriage or ‘iddah.

Article 71:    A marriage is irregular (fâsid) when the deficiency exists in one
of the conditions for its validity, such as the sadâq and the permanency of
marriage.([6])

Article 72:    A null marriage does not result in any effects before
consummation. Even upon consummation, it has no effects unless the two spouses
presumed it was valid due to some misunderstanding, and their likes are
excusable due to ignorance. In that case, it would result in the sadâq [being
due], the obligation of ensuring the vacancy of the womb, establishing
paternity, and the in-laws becoming unlawful for marriage.

Article 73:    An irregular marriage due to a compromise of the sadâq – such as
agreeing on there being no sadâq, or agreeing on it being an Islamically
unacceptable currency such as wine – does not result in any effects before
consummation. After consummation, it can be corrected by allotting her
the sadâq of her peers.

Article 74:    An irregular marriage due to a deficiency in its permanence –
such as agreeing on a timespan for the marriage, or stipulating that it be for a
single consummation to validate her remarrying a former husband – is to be
dissolved before and after consummation. Before consummation, none of the
effects of marriage result from such a contract. After consummation, it results
in the sadâq [being due], the obligation of ensuring the vacancy of the womb ,
attributing paternity, and the in-laws becoming unlawful for marriage.

Misyâr Marriage

Article 75:    A misyâr (traveler’s) marriage is when the woman foregoes her
right to housing, or spending, or intimacy, whether entirely or partially. It is
a valid marriage when its conditions and pillars are met, and its impediments
are absent.

‘Urfi Marriage

Article 76:    A ‘urfi (informal) marriage is a marriage that has not been
documented by an official entity. Documenting marriage is not one of the
conditions or pillars for its validity, but should be sought in order to
safeguard rights and prevent denial in times of dispute. If the ‘urfi marriage
fulfills the pillars and conditions of marriage, and is free of its impediments,
then it is valid. If there is a deficiency in any of that, it is either null or
irregular, depending on the situation.

Pretend Marriage

Article 77:    A pretend marriage is when its parties do not intend to actually
get married in the manner legislated by Allah and His Messenger. It is not
sought to make intercourse lawful, or for them to remain together. In reality,
it is merely an administrative measure to acquire some benefit or avoid some
harm.

Article 78:    A pretend marriage of this nature is unlawful in the religion,
due to it stripping this sacred contract of its Sharia objectives, and due to it
involving conditions that contradict its nature, and due to it violating public
order and the contract of security that embodies the relationship between the
people and the countries that host them.

Article 79:    When a pretend marriage fulfills its conditions and pillars, and
its impediments are absent – which rarely occurs – then it is deemed technically
valid, since jest and seriousness in marriage are equal, and renewing the
contract upon deciding to make it real and permanent is prescribed.

Pretend Divorce

Article 80:    A pretend divorce which some husbands perform to acquire some
legal benefits is held against its performer so long as he uttered it, or
delegated another to execute it in his place, irrespective of whether he
intended it or not. It is countable among the number of allowable divorces, and
no consideration is given to him pretending since jest and seriousness in
divorce are equal.

Marrying a Fornicator

Article 81:    In order for marrying a fornicator to be valid, two conditions
must be met: repenting from fornication, and ensuring the vacancy of the womb to
avoid paternity mix-up. But if she is going to marry the person she fornicated
with, then ensuring the vacancy of the womb is not a condition.


CHAPTER THREE

THE EFFECTS OF MARRIAGE
Section One
Spending


General Rulings

Article 82:    The default is that the woman resides in her home to care for her
husband and his children, and the obligation upon her husband is that he spends
on her appropriately. She is not obliged to partake in spending on the house,
even if she is wealthy, unless she voluntarily partakes in that based on her
agreement with her husband.

Article 83:    It is obligatory on the husband to spend on his wife once there
is a valid marriage contract between them, and she offers herself – even if just
in principle – to him.

Article 84:    Due spending entails that which suffices the needs of food,
clothing, shelter, medical treatment, and the likes – according to what is
customarily reasonable.

Article 85:    The obligatory spending becomes binding in the amount decided by
a mutual agreement of the spouses, or by the decision of a judge, in proportion
to the solvency or insolvency of the husband. It is permissible to reevaluate
it, for either an increase or decrease, due to a fluctuation in living costs, or
the husband becoming poorer or wealthier, or when this amount is confirmed to
either be insufficient or in excess.

Article 86:    If the husband is absent, or travels, or disappears, and leaves
his wife without money, and the wife chooses to refer her affair to the judge,
then a monetary allowance is determined for her which becomes a debt that the
husband is responsible for. This is contingent upon the judge confirming that a
valid marriage is ongoing between them, and after he confirms via testimony that
her husband did not leave money for her expenses, and that she is not
rebellious, nor is she a divorced woman whose ‘iddah has ended.

Article 87:    If the husband becomes insolvent in terms of spending, and his
wife demands it, the judge can determine a monetary allowance to her which would
be a debt that the husband is responsible for, after confirming that a valid
marriage is ongoing between them. He will also permit the wife to take a loan in
her husband’s name.([7])

The Obligation to Spend on Divorcees

Article 88:    It is obligatory to spend on a divorcee from a revocable divorce
that is currently in her ‘iddah (waiting period), regardless of whether she is
pregnant or not. For the woman that is irrevocably divorced, it is obligatory to
spend on her, if she is pregnant, until the conclusion of her pregnancy, and if
she is not pregnant, he must provide her housing only. It is not obligatory to
spend on a widow during her ‘iddah, nor a wife whose contract has been dissolved
for a legitimate cause.

Absolved of the Obligatory Spending

Article 89:    The obligatory spending on a wife is absolved when she refuses to
move into the marital home for a reason that deems the woman rebellious, or if
she deserts the marital home, or prevents the husband from entering it, or
refuses to travel with him without an Islamically valid justification or her
stipulating that in the marriage contract.

Article 90:    The obligation to spend on the wife ends with its payment, or
being absolved of it, or either spouse dying. However, this obligatory spending
being absolved by death does not controvert the previously established debt he
had become liable for [towards her].

Article 91:    It is mandatory upon the husband to prepare for his wife
appropriate housing, one that is Islamically acceptable and suitable for them
both. It is mandatory upon the wife to move to it, and to move from it once he
leaves it, unless she stipulates otherwise in the marriage contract or he seeks
by that move to harm her.

The Extent of Each Spouse’s Right to House Their Dependents When There Is a Need

Article 92:    It is impermissible for either spouse to house with the other, in
the marital home, anyone of his/her relatives, even if s/he is liable for
spending on that person – unless that takes place based on mutual consent and
consultation, in order to safeguard for each spouse their right to privacy in
the marital home.

Spending on the Relatives:

a) Spending on the Children

Article 93:    a)    Spending on the child that has no wealth for himself is
obligatory upon his father. The obligation to spend on the girl is not absolved
until she no longer needs to be spent on; either because her husband is now
obligated to spend on his wife, or because she has become financially
independent to an extent that suffices her needs. The obligation to spend on the
son is not absolved until he becomes capable to earn, or possesses wealth that
suffices his expenses, unless he is a student that is currently continuing his
studies, in which case his right to sustenance will continue until he is
customarily capable of earning a living.([8])

b)         Spending on the older son/ daughter that is incapable of earning due
to a handicap or otherwise is obligatory upon his/ her father, unless s/he
possesses wealth from which s/he can spend.

c)          If a woman is divorced, or her husband dies, and she has no wealth
nor a job to earn from, her sustenance becomes incumbent upon her father, unless
her expenses are shouldered by someone else.

Article 94:If the father is partially or entirely incapable of spending on his
children, and the mother is solvent, she becomes obligated to spend in the
amount that the father was incapable of providing. Likewise, she is obligated
with this spending if he dies and does not leave behind that which could be used
to spend on his children.

b)         Spending on the Parents, and their Rights

Article 95: The children are obligated with many rights towards their parents.
Of the most emphasized of them are:

1- Living with them honorably, even if they follow another religion or ideology.

2- Being kind to them, generous with them, upholding their rights, caring for
them in old age, and particularly the mother.

3- Respecting them, and not annoying them. Thus, a child is not to raise his
voice against them, nor chide them, nor annoy them in the least, not even with a
gesture.

4- Maintaining their rights after their death by supplicating for them,
fulfilling their wills and testaments, honoring their friends, and keeping their
kinship ties.

Article 96:    There is no contradiction between kindness to parents and living
honorably with the wife. Each of them has rights that must be fulfilled, and it
is impermissible to transgress against one party under the claim of being kind
to the other.

Article 97:    It is obligatory upon the solvent children, or those capable of
earning, whether male or female, and whether young or old, to spend on their
parents in part or in whole, to the degree of their need. The duty should be
shared between them based on the solvency of each, and if one child volunteers
to shoulder the expenses, then he has no right to [later] demand that from each
of his brothers and sisters, unless there is a prior agreement between them
stating that, or a prior judicial decision that determines each child’s share of
that obligation.

c)         Spending on the Close Relatives

Article 98:    It is obligatory upon every solvent relative, who would inherit
from a person, to spend on him/ her when s/he qualifies for that, based on their
order and share of the inheritance. If the inheritor is insolvent, then the
obligation falls upon the next person that follows him in inheritance.

Article 99:If the relatives qualified for being spent on are multiple, and there
is not enough wealth for everybody, precedence is given to spending on the wife,
and then spending on the children, while including his parents that qualify for
spending to his family – if his finances allow for spending on them alongside
his wife and children. Then, there comes spending on the remaining relatives.

d)         Spending on the Foundling

Article 100:Spending on a foundling of unknown parents is from his own wealth,
if he possesses wealth. If none exists, and none volunteers to spend on him,
then spending on him falls upon the entity responsible for undertaking such
cases, if it exists. If it does not exist, then spending on him becomes an
obligation on those solvent from the Muslim community.

Section Two

Paternity

General Rulings

Article 101:  Paternity is a legal bond between a father and his child,
connecting the ancestors and descendants, and safeguarding this bond is from the
objectives of the Sharia.

Article 102:  Of the means by which the Sharia preserves lineages from mixing is
prohibiting fornication and taking precautionary measures against it,
legislating specific rulings concerning the ‘iddah (waiting period), prohibiting
the concealment of pregnancy, the propensity to affirm paternity, and the
prohibition of denying it.

Article 103:Paternity is only established by the marital bond, or affirmation,
or clear proof, or common knowledge.

Establishing Paternity by the Marital Bond

Article 104:  a)    The child is attributed to the marital bond if [born] after
the minimum term of pregnancy has passed since the valid marriage contract,
namely six months (the experts should be consulted for cases less than that), if
the impossibility of the spouses meeting has not been proven.

              b)    The paternity of the child is also established from an
invalid contract when he is born after the minimum term of pregnancy since the
date of intercourse, and the same applies for mistaken intercourse.

Article 105:  The minimum duration of a pregnancy is six months (and experts
must be consulted for less than that), and its maximum duration is legally a
full lunar year.

Establishing Paternity by Claiming the Child

Article 106:  Claiming the child refers to affirming fatherhood in cases when
the paternity is unknown, and it establishes paternity – even if done on the
death bed – on the following conditions:

1- The affirmer must be competent, namely a sane, willing, adult.

2- The age difference between them must allow for the correctness of that
affirmation.

3- The child whose paternity is being affirmed here must acknowledge that upon
becoming a sane adult.

Article 107:  If the affirmer is a married woman, or a woman in her ‘iddah, then
the child’s paternity to her husband is not established unless he confirms that,
or clear proof is established in support of that, and this is not controverted
by  li‘ân, or the impossibility of them meeting being proven.

Article 108:  When a child with no lineage affirms that someone is his/her
father or mother, that affirmation will not establish parenthood unless that one
claimed to be a parent concurs and he/she is a sane adult. It will also be
established is there is clear proof on it and the age difference deems it
possible. Affirming a child whose paternity or maternity is unknown isn’t
established unless the child being claimed acknowledges that as a sensible
adult, or clear proof is established in support of it, and the age difference
deems this possible.

Article 109:  Affirming lineage for other than the child, father, or mother [Ex:
Affirming that someone is one’s sibling], only applies to the affirmer unless
the affirmed for acknowledges that, or clear proof is established about it.

Article 110:  Claims of non-paternity that are made by the affirmer’s heirs are
to be dismissed once paternity has been established through a valid affirmation.

Establishing Paternity by Clear Proof

Article 111:  DNA is the genetic code that exists inside the cells of every
living organism, and it is what makes every living thing distinct from another.

Article 112:  The utmost caution and privacy must be maintained when using DNA
in the field of paternity, and for that reason, the texts and principles of the
Sharia must be given precedence over DNA testing.

Article 113:  It is permissible to depend on DNA for establishing paternity in
the following cases:

a)  When there is a mix-up of children in hospitals, daycare centers, and the
likes. The same applies to discrepancies that take place with test-tube babies.

b) When children are lost or mixed up due to accidents, disasters, and wars, and
identifying their families is not possible. The same applies when corpses are
found that cannot be identified, or when investigating the identities of
prisoners of war and missing persons.

c)  When there is dispute regarding a child whose paternity is unknown. It makes
no difference whether the disputation is due to the absence of evidence, or due
to conflicting evidences, or due to mistaken intercourses with multiple
partners, and the likes – while not violating Article 105 which asserts that the
child belongs to the marital bond (legitimate husband).

Article 114:  It is impermissible to use DNA to confirm paternity in cases when
the paternity has already been established in the eyes of the Sharia. It is also
impermissible to use it as an alternative to li‘ân for denying paternity.

Denying Paternity by Li‘ân

Article 115:  Li‘ân is a procedure where the man swears by Allah four times that
he is truthful in accusing his wife of fornication, and that the son she
delivered is not from him, and then swears a fifth time that the la‘nah (curse)
of Allah be upon him if he was of the liars. In order for his wife to avoid the
legal punishment, she swears by Allah four times that he is of the liars, and
then swears a fifth time that the anger of Allah be upon her if he was of the
truthful.

Article 116:  The man has the right to deny paternity of the child, by li‘ân,
within one week of either the birthdate or when he discovers it. However, it is
stipulated that he not have previously admitted paternity for that child
explicitly or implicitly, such as thanking a person who congratulated him about
it, or remaining silent and not denying it, or allowing time to pass wherein he
could have denied but didn’t despite knowing of the birth. Lastly, the claim
of li‘ân must be submitted [for judgment] within two weeks of discovering the
birth.

Article 117:  Li‘ân results in that child being severed from the man in terms of
paternity, the permanent separation between this man and woman, and them
becoming perpetually unlawful for one another.

Article 118:  Paternity is established, even after a judgment of its denial,
when the man belies himself.

Article 119:  It is impermissible in the Sharia to depend on DNA to deny
paternity. It is also impermissible to give it precedence over li‘ân. However,
DNA can be used as a corroborative proof to support the husband’s demand
for li‘ân, or it could indicate other than his claim and thereby dissuade him
from li‘ân. 

CHAPTER FOUR



SEPARATION BETWEEN THE SPOUSES

Types of Separation

Article 120:  Separation between the spouses occurs by:

1)   The desire of the husband, which is called a divorce (talâq).

2)   The desire of both spouses, which is called a wife initiated divorce
(khul‘).

3)   The decision of a judiciary, which is called a legally enforced divorce
(tatleeq) or a dissolution of the marriage (faskh).

4)   The death of either spouse.

Section One

Divorce (Talâq)

General Rulings

Article 121:  Divorce is the termination of marriage, immediately [as in
irrevocable divorce] or eventually [after the ‘iddah in revocable divorce], with
the wording codified for it by the Sharia. It is the last remedy used to resolve
marital conflict.

Article 122:  The Sharia is keen on the continuity of marriage and avoiding
irremovable conflicts between the spouses. It works to limit the scenarios
conducive to divorce, and invites both spouses to being patient with their life
partners and enduring them to the extent of their respective capacities. It
stresses that divorcing a righteous woman without due fault is a transgression
against her.

Article 123:  An Islamically legal divorce is when the husband divorces his wife
a single time during a period of purity (non-menses) in which he did not have
intercourse with her.

Article 124:  Divorce during the period of menstruation, or during a period of
purity wherein he had intercourse with her, or during her ‘iddah (waiting
period), is an unlawful divorce by virtue of it being an innovated practice [in
the religion], but is an effective divorce nonetheless. Repeating a divorce in
the same gathering counts against him [as multiple divorces] if he intended
multiplicity by it. If he intended emphasis by that repetition, it is only
counted as one [divorce]. During judgment, the mufti has the right to refer the
questioner to the views of the jurists who don’t believe the divorce is
effective in these cases, or can refer him to the Muftis who uphold those views
in order to save the family relationship, since there is a difference of opinion
on this matter.

Article 125:  Divorce takes place by utterance, writing, or by an understandable
gesture when neither of those is possible. The divorce that takes place via the
different means of communication such as electronic mail, telephone, or
otherwise, is considered a valid divorce.

Article 126:  The husband possesses three divorces to use against his wife.

Article 127:  It is permissible to establish the occurrence of a divorce through
the general forms of admissible evidences such as testimony, admission, writing,
and their likes. The actual occurrence of divorce is not contingent upon those
proofs.

Article 128:  Divorce is performed by the husband, or by someone he deputizes
specifically for that, or by the wife if the husband allots that right to her.

Article 129:  A legally enforced divorce that is performed by the man-made
judicial system outside the lands of Islam, when contrary to the desire of the
husband, only terminates the civil marriage contract. As for the marital bond in
the eyes of the Sharia, that is referred back to the husband, or the Islamic
judge, or those in his position. But if the husband willingly signs the divorce
papers, then the divorce becomes legitimate, and the role of the man-made
judicial system in that case would simply be a documentation of that.

Article 130:  It is stipulated that the divorcer be sane and willing. Hence, the
divorce performed by the child and the insane is ineffective, as well as the
bewildered, the coerced, the drunk, and the person whose anger reached a point
where it hindered his mind from realizing what he is saying and doing.

Article 131:  A divorce is only effective against a woman whose marriage
currently stands, either in actuality or technicality.

Sworn Divorce and Conditional Divorce

Article 132:  a)    Swearing to divorce is not deemed a divorce when the oath is
breached, unless he meant it literally. But if he only meant to urge or deter
[someone] by it, then his obligation in that case would be to expiate for this
oath.

b)    A divorce that is contingent upon doing something, or leaving it, follows
the same protocol as swearing to divorce. Thus, it does not take effect when its
condition is met, unless he meant by it an actual divorce. If he only meant by
it to pressure the person, then it is considered an oath, and he is indebted to
offer expiation for this oath once the oath is broken.

Compound Divorces

Article 133:  A divorce wherein a number is mentioned, whether by utterance or
writing or gesture, only counts as a single divorce.

Types of Divorce

Article 134:  Divorce is two types: revocable and irrevocable.

Article 135:  A revocable divorce does not terminate the marriage unless
the ‘iddah (waiting period) ends without revocation. The default is that a woman
remains in the marital home following a revocable divorce until her ‘iddah ends.
Hence, it is unlawful for her husband to drive her out, or for her to leave,
except due to an adultery she committed, or a necessity that dictated that, and
she is entitled to being spent on just as she was before the divorce.

Article 136:  An irrevocable divorce terminates the marriage contract from the
moment it takes place, and it has two types:

a)  A minor irrevocable divorce, which terminates the current marriage, and that
divorced woman does not become lawful for her divorcer except with a new
contract and new mahr (wedding gift). This type of divorce results from a
divorce before consummation, or a legally enforced divorce carried out by a
judge, or the ‘iddah following a revocable divorce ending without revocation, or
a divorce [initiated by the wife] in return for compensation.

b) A major irrevocable divorce, which results from the third divorce, and
immediately terminates the current marriage. In this case, that divorced woman
does not become lawful for her divorcer except after completing her ‘iddah from
another husband that actually consummated with her in a valid marriage that was
not merely to make her lawful [for the original divorcer].

Revocation and its Rulings

Article 137:  Every divorce that takes place is revocable, except the third
divorce, or a divorce performed before consummation, or a divorce in return for
compensation, or annulment, or a legally enforced dissolution of the marriage.

Article 138:  The husband is more entitled to returning his divorcee upon whom
he effected a revocable divorce, so long as she remains in her ‘iddah, and he
does not lose this right by foregoing it. Once the ‘iddah of this woman ends,
she becomes completely severed from him, and he no longer has access to her
without a new contract and new mahr.

Article 139:  Revocation can happen by statement, and by action – namely
intercourse and foreplay if he intended by it to recant his divorce. It can also
take place by writing, or by an understandable gesture when neither uttering nor
writing is possible.

Article 140:  It is recommended that the revocation is witnessed, and that the
wife is informed of it immediately.

Article 141:  If the husband forces his wife out of the house, or if she leaves
due to an emergency that necessitates that, or if it was an irrevocable divorce,
the judge or those in his position outside the lands of Islam should – based on
her request – issue instructions about how much she must be given for her
expenses throughout her ‘iddah, and the expenses of the children, and who is
entitled to custody and the visitation of those in custody. This judicial order
is considered binding from moment of its issuance.

Article 142:  A woman who is divorced before consummation or actual seclusion is
entitled to alimony if no mahr has been decided for her. If a mahr has been
decided for her, then she is entitled to half of it, as well as a recommended
alimony. Once there is consummation, this alimony is mandatory for every
divorce, even if her mahr had been decided at the time of the marriage contract.
The alimony is determined based on the solvency of the divorcer, as well as the
status of the woman and what is customary for her likes. It is impermissible to
use this as a means to justify what the man-made laws permit of dividing all the
possessions acquired after the marriage in half between the two parties.

Section Two

Wife Initiated Divorce (Khul‘)

Article 143:  Khul‘ is a termination of the marriage contract in exchange for a
compensation that is paid by the wife, or without compensation if the severing
takes place using the term khul‘. This happens when a woman hates her husband,
and is incapable of bearing to live with him, without a just cause that would
warrant a legally enforced divorce due to harm.

Article 144:  For a valid khul‘, it is stipulated that the wife be competent in
her dealings, and that the husband qualifies to effect a divorce. 

Article 145:  Any permissible compensation in the Sharia qualifies to be the
compensation for the khul‘, without being deliberately incapacitating or
excessively exorbitant, although there is no minimum or maximum for this
compensation.

Article 146:  A khul‘ is considered a minor irrevocable divorce which grants the
wife independence of her affairs following it. Thereafter, her husband has no
access to her except with a new contract and new mahr.

Article 147:  It is impermissible for the khul‘ compensation to be forsaking
custody of the children or their expenses. If that happens, the khul‘ is valid
and its terms are dismissed.

Article 148:  The wife is entitled to retrieve the amount she paid for khul‘ if
she proves that this khul‘ was resultant of her being forced or harmed by the
husband. As for divorce, it is effective in all cases.

Article 149:  The default is that khul‘ happens by agreement from both spouses.
If the husband does not accommodate her request in order to deliberately
incapacitate her, the wife refers her matter to the Islamic judge or those in
his position outside the lands of Islam, and he decides between them after the
arbiters he sends to reconcile between them are incapable of doing so. If the
discord was due to misbehavior from the wife’s end, the two arbiters are to
determine a compensation for the khul‘ that can be less or more than
the mahr amount. If the discord was due to misbehavior from the husband’s end,
the two arbiters are to suggest to the judge that he separate between them
without a compensation.

Article 150:  Those in the position of an Islamic judge outside the lands of
Islam should not rush to issue the documents for a  khul‘ or legally enforced
divorce due to harm before the civil divorce papers are issued, in order to
avoid the harm that could be provoked by spiting this angered husband.

Article 151:  If the two spouses agree on the concept of proceeding with
a khul‘, but disagree on the compensation amount, then the matter should be
referred to a judiciary to determine it after the attempts to reconcile between
the spouses fail. When calculating this amount, of what should be considered is
the mahr amount, the duration of the marriage, the reasons for seeking a khul‘,
and the financial status of the two spouses.

Article 152:  If the wife seeks a khul‘ before consummation and seclusion, and
she surrenders the mahr she received, and what the husband spent for the
marriage, but the husband still refuses and the judge and those in his position
fail to reconcile, then a verdict of dissolving the marriage is granted.

Section Three

Legally Enforced Divorce (Tatleeq)

Demanding Divorce for a Defect

Article 153:  The wife can demand a divorce due to a defect in the husband that
affects the objectives of marriage, makes continuing the marital life difficult,
and is not expected to be resolved within a year. It makes no difference whether
the defect is mental or physical, and the experts are to be sought for precisely
identifying the defect. If the defect is expected to be resolved within a year,
the defective party is deferred for a year before a legally enforced divorce is
carried out.

Article 154:  In order to accept the wife’s demand to end the marital
relationship, it is stipulated that she had not known about the defect at the
time of the [marriage] contract, and that she did not exhibit any indication of
accepting the defect after knowing that it was incurable.

Article 155:  When the wife’s right to demand a divorce for a defect is
dismissed, either because she was aware of it before the contract or accepted it
after, but she could not bear it any longer, she is still entitled to demand a
divorce if she can prove her being harmed by it, or a khul‘ if she cannot prove
it.

Article 156:  If a man divorces his wife before consummation due to a defect, he
is not obligated to pay half the sadâq(wedding gift) unless he knew of the
defect before the contract. If he divorces her after consummation, he has the
right to pursue the amount of sadâq from the person who deceived him, or
deliberately concealed the defect from him.

Demanding Divorce for Not Paying the Currently Owed Sadâq

Article 157:  Before consummation, the wife can be granted a legally enforced
divorce for not being paid the currently owed sadâq if her husband has no
apparent wealth which the sadâq can be taken from, or he is apparently
insolvent, or has unknown circumstances and has not paid the sadâq by the
deadline set by the judge for its payment, and has no guarantor from either an
entity or a solvent individual. Ideally, the likes of these cases should be
sponsored by the public treasury.

Article 158:  After consummation, a legally enforced divorce is not to be
granted to the wife for not being paid her currently owed sadâq, and it remains
as a debt that the husband is liable for.

Demanding Divorce for Harm and Dissent

Article 159:  A wife has the right to demand a legally enforced divorce for a
harm that makes continuing the marital life difficult between her and her
husband.

Article 160:  The harms considered a legitimate basis for demanding divorce are:
every practice or behavior of the husband that is condemnable, inconsistent with
praiseworthy manners, and adversely affects the wife – tangibly or emotionally –
in a manner that makes her incapable of continuing in the marital relationship,
such as fornication, drunkenness, and the their likes.

Article 161:  Every infringement upon the conditions of the marriage contract is
considered a harm that qualifies demanding a divorce, such as him accepting her
stipulation that he not marry [another wife] alongside her, or that he not
relocate her elsewhere, or the likes.

Article 162:  The occurrence of harm is confirmed through any admissible
evidence recognized by the Sharia.

Article 163:  If the harm is proven before a judge or someone in his position,
and he is unable to reconcile [between them], then a legally enforced divorce is
warranted.

Article 164:  If the harm is not proven, and the dissent continues, and
reconciliation is unreachable, then the judge or those in his position are to
appoint two arbiters to investigate the causes of this dissent and exhaust their
efforts to reconcile between the two spouses. A period of arbitration should be
allotted for them, and if they are unable to resolve the matter, then the judge
or those in his position are to execute a legally enforced divorce based on the
report of the two arbiters.

Article 165:  The two arbiters are to present the judge with a report that
outlines what they discovered, including therein the degree each spouse harmed
the other, or [at least] how one harmed the other, and what solutions they
suggest. If the two arbiters dispute, the judge or those in his position are to
assign others in their place, or add a third to them.

Article 166:  The judge reserves the right to accept the report of the two
arbiters, or to assign another two arbiters – for a valid reason – to begin a
new arbitration.

Article 167:  When the judge decides to execute a legally enforced divorce,
based on a harm suffered by a woman who had consummated her marriage, then she
is entitled to her sadâq in full. But if the harm was fully or mostly from her
end, then the judge or those in his position are to determine what portion of
the sadâq she must return to her husband.

The Effect of Either Spouse Committing Adultery

Article 168:  The adultery of either spouse does not automatically dissolve the
marriage contract.

Article 169:  If the husband is accused of adultery, and that becomes known in
the community surrounding the family, and the wife is harmed by that, then it is
permissible for her to demand separation via a legally enforced divorce. It is
upon the arbitration entity to grant her that, and should suffice themselves
with hearing from credible individuals or finding obvious corroborative proofs
for this, even if that isn’t confirmed through the established Sharia principles
used to prove adultery.

Article 170:  If the wife is accused of adultery, and that becomes known in the
community surrounding the family, then it becomes permissible for the husband to
divorce her and push her to forego her legal entitlements – if that is based on
hearing from credible individuals in his locale or finding obvious corroborative
proofs for this, even if that isn’t confirmed through the established Sharia
principles used to prove adultery. It is also permissible for him to keep her
[as his wife] if he senses the genuinity of her repentance.

Demanding Divorce for Not Spending

Article 171:  A wife has the right to demand a divorce when the husband fails to
spend the currently owed expenses due upon him. If he has wealth that can cover
these expenses, he is to be judicially obliged to spend from it and the legally
enforced divorce is not to be granted. Otherwise, the divorce is carried out
after deferring him for a period determined by an Islamic judiciary, or by those
serving in its place outside the lands of Islam.

Article 172:  A wife is not to be divorced from her husband, due to his
insolvency, if she knew of this solvency before marriage and accepted it.
Similarly, a solvent wife is not to be divorced from her insolvent husband if he
is expected to become solvent and repay what she spent on herself during his
phase of insolvency.

Demanding Divorce for Absence or Disappearance

Article 173:  A wife has the right to demand a divorce due to her husband’s
absence, when his location or place of residence is known, even if he has wealth
that can be used to fulfill her expenses. However, she is not granted that until
he is forewarned to either reside with his spouse, or relocate her to him, or
divorce her, and after deferring him for a period no less than four months, and
not exceeding one year.

Article 174:  When the husband’s location or place of residence is unknown, and
the wife is harmed by that, her affair is referred to an Islamic judiciary to
consider separating between her and her husband due to harm. That would follow
exhausting the efforts to reach him, demanding his return to his wife, or
relocating her to him.

The Wife of a Prisoner

Article 175:  The wife of a prisoner whose prison sentence is finalized, for a
period no less than three years, has the right to demand a divorce if she is
harmed by that, but should not be granted it except after six months have passed
from his imprisonment.

Demanding Divorce for Eelâ’([9]) and Dhihâr([10])

Article 176:  A wife has the right to demand a legally enforced divorce when her
husband swears to forsake laying with her in bed [for intercourse], whether
indefinitly or simply for a period exceeding four months. The judge is to defer
him until the four months expire, and if he does not recant during them or
shortly thereafter – within a period decided by the judge, then he is to be
legally divorced from her.

Article 177:  a)    A wife has the right to demand a legally enforced divorce
for dhihâr if the husband refuses to expiate for it.

              b)    The judge is to warn the husband to expiate for
the dhihâr within four months from the date of the warning. If he refuses
without an excuse, the judge effects a divorce.

Article 178:  While considering the claims for a legally enforced divorce, if
the spouses living together is not possible, it is upon the judge and those in
his place outside the lands of Islam to provide temporary measures for whatever
he sees necessary to ensure the wife and children are spent on, as well as
arranging for their custody and visitation.

Section Four

Annulment (Faskh)

Article 179:  The default in a marriage contract is it being a binding
agreement, one that does not become null by mutual exoneration. However, it can
be annulled in exceptional circumstances, when it involves that which
contradicts its very essence, or when factors surface that prevent its
continuity.

Article 180:  The marriage does not take effect when one of its pillars are
absent, or when it involves that which hinders its validity, such as marrying
one of the mahram relatives. In such cases, it becomes obligatory to separate
between the spouses, and the mahr (wedding gift) is not entitled if separation
takes place before consummation or seclusion, and is entitled if the separation
happens thereafter.([11])

Article 181:The marriage contract is annulled when there surfaces that which
prevents its continuity in the Sharia, such as either spouse apostatizing from
Islam, or when the woman embraces Islam and her husband refuses Islam until
her ‘iddahexpires.

Article 182:Separation due to li‘ân (public imprecation) is an annulment, and it
is unlawful for the two spouses who practiced li‘ân against one another to ever
get married together again.

Article 183:Annulling the marriage due to a defect in the wife disqualifies
the sadâq if the annulment takes places before consummation. When it takes place
after it, she remains entitled to the sadâq and the husband is to pursue it from
the one who deceived him, while seeking the aid of a medical entity that is
specialized in the defects that warrant separation.

Article 184:  Annulling the marriage due to a defect in the husband does not
disqualify the woman’s right to sadâq. If the annulment takes place before
consummation, then she is entitled to half the sadâq, and if it takes place
after it, then she is entitled to the sadâq in full.

Article 185:  Annulment is not considered a divorce, and hence it does not
decrease the number of divorces allotted by the Sharia to the husband.

Section Five

The Effects of the Spouses Separating

Effect One

The ‘Iddah (Waiting Period)

Article 186:  The ‘iddah is the waiting period which the wife is obligated to
remain unmarried, which takes place following a revocable or irrevocable
divorce, or a legally enforced divorce, or a khul‘ (divorce initiated by the
wife), or a li‘ân (public imprecation), or a marital annulment, or a separation
due to an invalid marriage, or death. Its count begins from when the separation
first takes place, regardless of whether the marriage was valid or invalid.

Article 187:  The ‘iddah in cases of mistaken intimacy begins from the last
instance of intercourse.

The ‘Iddah for Death

Article 188:  The ‘iddah of a widow from a valid marriage is four months and ten
days, even if she was widowed before consummation, unless she is pregnant. The
months taken into consideration for all Sharia timespans are the lunar months.

Article 189:The ‘iddah of a pregnant widow ends by the conclusion of her
pregnancy, or the miscarriage of a fetus with a discernable human figure, and
determining that is left to the physicians.

Article 190:The ‘iddah of a woman who consummated an invalid marriage, or a
mistaken marriage, is one menstrual cycle after the man’s death – to ensure the
vacancy of her womb.

The ‘Iddah for Divorce

Article 191:  There is no ‘iddah for a woman divorced before consummation or
actual seclusion.

Article 192:  The ‘iddah of a pregnant woman endsby the conclusion of her
pregnancy, or the miscarriage of a fetus with a discernable human figure, and
determining that is left to the physicians.

Article 193:  The ‘iddah of a non-pregnant woman is:

1) Three full menstrual cycles for those who menstruate.

2) Three months for those who haven’t yet menstruated, whether due to illness or
something else, or those who no longer menstruate (due to an abnormality or
being post-menopausal). If she finds herself menstruating before the three
months are finished, she is to begin a fresh count of three menstrual cycles.

3) Three months for a woman who experiences istihâdah (non-menstrual vaginal
bleeding) and does not have a regular menstrual cycle. If she does have a
regular menses which she can recall, then she is to consider that for
calculating her ‘iddah.

4) Three months, after confirming with the physicians that she isn’t pregnant,
for those women whose menstrual cycle has stopped without a known reason before
the age of menopause.

5) If her menses had stopped due to a known cause, she should wait for three
months after medically confirming the absence of pregnancy. [This view was
approved by the Permamnent Fatwa Committee of AMJA]

One ‘Iddah Superseding another ‘Iddah

Article 194:  When the husband dies during the ‘iddah of the woman upon whom he
effected a revocable divorce, it transforms from a ‘iddah of divorce to
a ‘iddah of death, and what has passed is no longer counted.

Article 195:  When the husband dies during the ‘iddah of the woman he
irrevocably divorced, she is to complete her ‘iddah of divorce and not observe
the ‘iddah of death. If the divorce happened during his death sickness, whereby
the divorce was to hinder her from inheriting, then she is to observe
the ‘iddah of a widow and inherit from her divorcer.

The Rights of Divorced Women

Article 196:  A revocable divorce does not remove a woman from
the ‘ismah (marital bond) of her husband. Thus, she remains entitled to being
spent on and housed, but does not reserve the right to her share of intimacy. It
is not lawful for her husband to expel her from her home, and she must not leave
unless she fell into confirmed infidelity, or due to a necessity that forced her
to leave.

Article 197:  A widow observing the ‘iddah of death can leave during the daytime
to accomplish her needs, and should not leave at nighttime unless there is a
necessity.

Article 198:  When an irrevocable divorce takes place, the divorcee becomes
entitled to the remainder of the sadâq (wedding gift), in addition to the
alimony which is determined by a judiciary to help the divorcee overcome the
heartbreak of divorce.

Article 199:  The alimony is a monetary provision that is proportionate to the
husband’s solvency, the duration of the marriage, and the degree which each
spouse contributed to the divorce. It serves to console the divorcee, and to
compensate her for the harms she was subjected to because of the divorce.

Effect Two

Physical Custody

General Rulings

Article 200:  Physical custody entails that those entitled to this right
safeguard the child, care for him, and manage his day-to-day affairs until a
certain age.

Article 201:  Physical custody is established for the best interests of the
child. Hence, just as it is the right of the custodian, it is also the right of
the child upon his custodian. For that reason, it is not permissible to abdicate
it, or relinquish it in exchange for khul‘.

Article 202:  Physical custody is both the right and responsibility of both
parents for as long as they remain married. The child cannot be severed from
either or both of them except for a pressing necessity, such as one of them
being unqualified for physical custody and the likes. Of course, it is essential
that this necessity first be gauged precisely.

Article 203:  The parents are responsible for the welfare of the child, his
interests, and his livelihood, and this responsibility is carried out through
their mutual consultation. They can seek aid through the official social welfare
entities, and through the judiciaries, whenever that is needed to secure this
care and ensure these interests.

The Conditions for a Custodian

Article 204:  It is stipulated that the custodian be an adult that is sane,
trustworthy, not an open regular sinner, free of serious contagious diseases,
and capable by himself or through another to care for the child in custody’s
religion, manners, health, and education.

Article 205:  If the custodian is a woman, it is also stipulated that she not be
married to a husband that is foreign to the child in custody, when there is a
contendor for physical custody, unless the child is in the period of nursing, or
will be harmed by separation from her, or suffers from some handicap that makes
his physical custody difficult for other than the mother. If the custodian is a
man, it is stipulated that a woman who is qualified for physical custody be
present with him, and that he is a mahram relative to that child in custody if
that child is a female.

Article 206:  The mother is most entitled to the physical custody of the
youngster by unanimous agreement of the scholars. Her getting married does not
disqualify her from being the custodian when the child is in the period of
nursing, or will be harmed by separation from her, or suffers from some handicap
that makes his physical custody difficult for other than the mother.

A Non-Muslim Mother’s Entitlement to Physical Custody

Article 207:  Being of a different religion does not disqualify the mother’s
right to physical custody; she is still most entitled to the physical custody of
the youngster, even if she is a Jew, Christian, or Fire-Worshipper. This is
because the compassion [of a mother] does not change from one religion to
another, but it remains the guardian’s responsibility to keenly ensure the
religious education and upbringing of his child. Part of that is enrolling this
child in Islamic nurseries and schools, whereby he could be there by morning and
with his mother at night.

Article 208:  The non-Muslim mother’s physical custody continues until seven
years of age for the male, and nine years of age for the female, unless the
Islamic judge – or the arbitrators that serve in his stead – deem otherwise for
the best interests of the child in custody. In cases where the father fears that
his children might adopt a religion other than Islam, he becomes religiously
obligated to pursue the rescue of his children through every legal means
available to him in his country of residence.

The Right to Physical Custody when the Parents Separate

Article 209:  When the parents separate, physical custody belongs to the mother,
and then the mother’s mother, continuing upwards. Then, it belongs to his
paternal grandmother, continuing upwards. Then, it belongs to the father, and
when that isn’t feasible, the Islamic judiciary – or those in its place outside
the lands of Islam – can allot the physical custody to the relatives most
qualified for custodianship, and those most likely to actualize the best
interests of this child, in light of the following suggestion: the child’s
sister, then his maternal aunt, then his mother’s maternal aunt, then his
mother’s paternal aunt, then his paternal aunt, then his father’s paternal aunt,
then his father’s maternal aunt, then his brother’s daughter, and then his
sister’s daughter. Throughout, the full sibling is given precedence, then the
maternal relatives, and then the paternal relatives. When no relatives can be
identified, custody is transferred to the paternal kin, while asserting that
suitable housing being made available for the child in custody is part of the
mandatory financial obligations due to him.

Article 210:  Once the custodian becomes unqualified for physical custody, or is
feared to harm the child in custody, his custodianship is dismissed and
transferred over to those after him. It is the obligation of the arbiters to
evaluate the interests of the child in custody, for the rulings on this topic
all revolve around that.

The End of the Mother’s Mandatory Physical Custody

Article 211:  The default is that the child remains in the custody of the mother
until the male reaches puberty and the female gets married.([12]) This stands
unless a dispute arises over a child that has reached the age of discernment, or
wishes to be transferred to his paternal relatives. If there is a dispute over
him, he is to be given the choice. If he remains silent, he is to remain with
his female custodian. He reserves the right to choose between his
female mahram relatives and his male paternal relatives. The arbiter should use
his discretion to guide his choice, because physical custody is established for
the best interests of the child, and all the rulings on this topic revolve
around that. Lastly, a girl is not to be given to a man unless he is
a mahram relative to her.

Article 212:  If none exists among those qualified for physical custody who
accept it, or they exist but don’t possess all the necessary qualifications, a
judge chooses someone he sees fit from among the child’s relatives, or others,
or one of the institutions dedicated to that service.

Article 213:  Nushooz (wife’s rebelliousness) does not disqualify this right.
Hence, if the mother abandons the marital home due to conflict or the likes,
physical custody belongs to her unless a judge deems otherwise. And if the child
is young and cannot fend without his mother, she is obligated to accept physical
custody of him.

Article 214:  It is mandatory upon the father, or any other guardian of the
child in custody, to maintain his upbringing, discipline, guidance, and
education. The default is that he does not sleep except with his custodian,
unless the judicial entity decides otherwise, or when both parents agree to
other than that.

Article 215:  It is not permissible for the custodian to travel outside the
country with the child unless his guardian consents, and the appropriate
judicial entity permits. When the guardian objects to that, the matter is
referred to arbitration.

Physical Custody Wages

Article 216:  The wages for physical custody and its expenses are the
responsibility of the person obligated to spend on the child. This differs from
the wages for nursing, nafaqah (sustenance), and housing, and the mother is not
eligible for these wages so long as the marital relationship remains in
actuality or in ruling. Upon separation, she has the right to being spent on if
she frees herself up for the physical custody of that child.

The Custodian becoming Disqualified for Custody

Article 217:  The custodian’s right to custody becomes disqualified in the
following circumstances:

1) When one of the conditions stipulated by the Sharia for custody is
compromised.

2) When the custody takes residence in a land that makes it difficult for the
guardian of the child to fulfill his responsibilities. In that case, they can
either come to a mutual agreement, or seek arbitration from a Muslim arbiter who
will decide based on the best interests of the child, while not depriving either
parent of his/her rights as best as possible.

3) When someone entitled to custody abstains from demanding it for an entire
year, without excuse, in a way that would indicate to the arbiter his
disinterest in the child.

4) When the new female custodian takes residence with someone whose right to
custody has become disqualified for other than physical inability. The exception
to that would be if she and that child are independent [of the former custodian]
in terms of their living and dining quarters.

5) When the female custodian marries someone foreign to the child in custody,
and is disputed with by the father – or anyone more rightful than him – for
custody of that child.

Article 218:  Custody returns to those disqualified for it once the reason for
that disqualification disappears.

The Right to Visit, be Visited, and Meeting

Article 219:  When the child is in the custody of one parent, the other is
entitled to visiting him/her, being visited by him/her, and meeting him/her
according to a mutual agreement between them. However, the parents must be
careful to avoid being alone together after divorce has made them foreign to one
another. If they dispute, the matter is referred to a judiciary which will
determine windows of visitation, and set the time and place in a fashion that
will prevent loop-holing in its execution as best as possible.

Article 220:  Regardless of whether these visitations are established by
agreement of the parents or a judicial verdict, when new circumstances arise
that cause such arrangements to be harmful to either party or the child, the
matter is referred to a judiciary to decide whatever is most suitable. That
could involve adjusting the visitation format, voiding the right of custody when
agreements are breached, or when there is loop-holing in the execution of the
agreed upon or decreed visitation format.

Article 221:  When one of the two parents is deceased or absent,
the mahram relatives of the child in custody are entitled to visit him/her
according to a mutual agreement between them. If they dispute, the matter is
referred to arbitration.

Article 222:  When the child is not in the custody of either parent, the judge
is to determine which of his mahram relatives are entitled to visitation.

Article 223:  When the child becomes sick, the mother is more entitled to
nursing him if she is competent in doing that. If one of the two parents becomes
sick, and the child is with the other parent, then the child must not be
prevented from visiting that parent, irrespective of whether the child is a male
or female.

CHAPTER FIVE



The Rights of Children In Sharaa

Article 224:  From the moment of early embryogenesis, the fetus has an
inviolable right to life, survival, and growth. Thus, abortion becomes unlawful
after the soul has been blown into it, unless the mother’s life is jeopardized
by a confirmed danger that cannot be avoided without abortion. Abortion is also
not allowed before that, except for an obvious need related to its health or the
health of its mother. In fact, this fetus even has a right upon the parents
which precedes its existence; namely that they correctly choose their life
partner who will be the other parent of their children.

Article 225:  The child is entitled to good medical care and appropriate
nutrition. This is accomplished through the good prenatal care of his/her
mother, and then taking good care of him/her from the moment of his/her birth
onwards, until he/she becomes independent.

Article 226:  Once born, the child is entitled to being named properly, and that
joy and contentment are expressed for his/her arrival, regardless of whether
that child is a male or female. Being disappointed for receiving a female is
prohibited, as is doing anything that would harm her materially or
psychologically.

Article 227:  The child is entitled to being attributed to his legitimate
parents. For that reason, every practice that elicits doubt in a child’s
attribution to his parents is unlawful, such as gestational surrogacy, sperm
banks, and the likes.

Article 228:  The nursing child is entitled to being breastfed by his mother,
unless the best interests of the child deem otherwise, or when that poses a
serious health risk to the mother.

Article 229:  The child is entitled to proper custody, to ensure his
development, rearing, and the fulfillment of his physical and emotional needs.
The mother is most entitled to the custody of her child, and then those that
follow her according to the rulings of the Islamic Sharia.

Article 230:  The right to custody extends to include orphan children,
foundlings, the handicapped, the refugees, and those permanently or temporarily
displaced from their family environment. In such cases, their custody becomes
the communal obligation of the Muslim community.

Article 231:  Adoption, with the changing of a child’s identity, is prohibited
in the Sharia, but that does not contradict the social responsibility, in all
its forms, that is entitled to the orphans and foundlings. This stands
irrespective of their identity, and is considered one of the greatest acts of
devotion to Allah. To remove the unease of having a foreign (foster) adolescent
and adult mixing with the opposite gender members of the foster family, it may
be prescribed here to let the foster mother feed the infant during the first two
years of life. It may be also exceptionally permitted to feed them with her
breastmilk after this age, considering the dire need that exists sometimes. 

Article 232:  A concession is granted for registering Muslim orphan refugees
outside the lands of Islam under the names of their caretakers, when that has
become the only means to rescuing them. However, this should be coupled with
practical measures to prevent unlawful interactions [between the genders] and to
safeguard the system of inheritance structured by the Sharia.

Article 233:  The child is entitled to enjoy his childhood. Hence, he cannot be
stripped of his right to rest, enjoy his free time, play with toys, recreate,
and freely partake in a social life that suits his age and safeguards his
identity, while distancing him from the forms of entertainment that are
prohibited either by the Sharia or the local laws.

Article 234:  The child is entitled to a lifestyle that suits his physical,
mental, religious, and social growth. Primarily, this right is shouldered by the
father, and then whichever of his relatives are well off, if he is poor. This
right continues for the boy until he becomes capable and finds an opportunity to
work, and for the girl until she is married and moves to her marital home, or
when she becomes financially independent.

Article 235:  The child is entitled to being reared in an upright and balanced
fashion. Of the priorities of this upbringing is teaching him the fundamentals
of faith, having him grow upon the worship of Allah and obedience to Him,
instilling the religious values and ettiquettes and the noble manners within
him, and accustoming him to avoid the prohibited and other harmful habits.
Furthermore, they should distance him from bad company, direct him to healthy
sports, interest him in beneficial reading, and his parents or caretakers should
be a practical righteous example for him in all that.

Article 236:  The child is entitled to being protected from all forms of harm,
trauma, harshness and negligence. He should not be dealt with in a manner that
causes him to suffer physically, mentally, or emotionally, and should not be
subject to any conduct that violates his honor by any individual that deals with
that child or cares for him. This right does not hinder the necessary measures
required to refine and discipline the child, and whatever that entails of
rewards and punishments that are acceptable for child rearing. With wisdom and
balance, one should combine between the means of persuasion and encouragement,
and the means of punishment and deterrence, all within the Islamic, legal, and
psychological guidelines.

Article 237:  The child is entitled to an education that is complete and
balanced in terms of ideology and skills, one that aims to:

a)  Develop his outlook on the realities of existence; namely about the almighty
Creator, the universe under His control, the human being having a purpose, this
world being a life of tests, and it leading to a life of repayment in the
hereafter.

b) Develop his personality, talents, and both his physical and mental strengths
to their greatest potential, so that he can fulfill his purpose in life.

c)  Develop his respect for the rights of a human being, his fundamental
freedoms, and to build his awareness of his general and specific
responsibilities.

d) Develop within the child a respect for himself, his identity, his culture,
his language, and the values particular to his religion and his ummah (religious
community).

e)  Prepare the child for a life wherein he feels responsibility in a free
society, seeks to protect his religious and human values, and seeks to draw
nearer to his highest values through a spirit of understanding, peace,
tolerance, equality between the genders in terms of human dignity, and mutual
recognistion between various national, ethnic, and religious groups and peoples.

f)   Develop a respect for the environment, by being cognizant that the universe
was created for the human being, to enable him to fulfill his purpose in life as
a being commissioned to better the world around him.

Article 238:  The child is entitled to being protected from every form of
exploitation, sexual abuse, and illegally violating his honor or reputation. He
is entitled to being protected from using narcotics, mind altering substances,
alcoholic beverages, smoking, and the likes. Additionally, he is entitled to
being safeguarded from being kidnapped, sold, and traded with.

Article 239:  A child is entitled to developing good social habits. At their
forefront is being keen to preserve the bonds of family and community, and that
is by encouraging compassion and mercy between the family members and other
relatives, whether by upholding the kinship ties, or by being kind to parents,
or by obeying them in lawful matters, or by spending on them, or by fulfilling
their needs when elderly or dependent, or by extending every other right
allotted to them by the Sharia. This also includes becoming respectful to
elders, merciful with youngsters, wishing well for humanity, and being
cooperative in matters of goodness and piety.

Article 240:  The child is entitled to being protected from economic
exploitation, and from performing any job that endangers his life, or deters him
from consistently pursuing his basic, mandatory degree of education, or is
harmful to his health, or to his physical, mental, religious, emotional, and
social growth. Part of this is setting a minimum age for allowing children to
perform different jobs, and placing an appropriate system for the hours and
conditions of such work.

Article 241:     The child is entitled to have access to the information and
programs broadcasted by the media outlets, those which strengthen his social
competence, deepen his religious culturing, and protect his physical and mental
health. Alongside this, he is also entitled to being curbed from the information
and programs that harm all of these aspects of his life.

Article 242:  The child is entitled to being protected during adolescence from
that which would provoke his sexual desires, and incite compulsive reactions
during sexual education. Due to that, the following is mandatory:

a)  Using the appropriate expressions, which suit each phase of the child’s
mental and emotional growth, whenever referring to this matter.

b) Incorporating the sexual education, in a fashion appropriate for his age,
within its relevant contexts of the other sciences such as biology, health, Fiqh
of Worship, family law, and religious studies. Also, this sexual education
should be coupled with deepening the Islamic ethics relevant to this matter,
such as discerning the lawful from the unlawful, and explaining the dangers of
sexual misbehavior and departure from the lofty teachings of Islam.

 _____________________________________________________

([1]) Note that upon divorce and custody arrangements, this won’t be uphelp by
the public courts if the non-muslim parent doesn’t want to oblige and she has
the children.

([2]) Currently, polygamy is prohibited across the USA.

([3])  This generally does not require a new marriage contract in the local
governmental jurisdiction.

([4])  Some states have adopted Community Property or Quasi-Community Property
laws which may affect one spouse’s ability to possess the property described
above. 

([5]) Such obedience to the husband is mandatory in light of him being the
maintainer of the family. This station of “maintainer” does not entail
subjugation and abuse, but rather a responsibility and obligation to look after
the family, protect it, and ensure its tangible and psychological interests are
realized.

([6])  Note that some American jurisdictions recognize putative spouses, where
one spouse reasonably and genuinely believed that a marriage had occurred.  In
some jurisdictions, this grants the same rights as a married couple.

([7]) Note that in the USA, all expenses, incurred for the livelihood of the
marriage and family, are shared by the husband and the wife. In case the spouses
do not mutually agree on the Islamic terms here above, the court will not uphold
them.

([8])  Note that support of one’s children may be compelled differently by the
local authority in varying jurisdictions.

([9]) An eelâ’ is an oath that is sworn. In family law, it refers to a husband
swearing that he will not have sexual intercourse with his wife.

([10]) Dhihâr comes from dhahr (back). It refers to a husband declaring that his
wife is as forbidden for him – in terms of intercourse – as his own mother’s
back.

([11]) Note that in jurisdictions which recognize putative spouses, the rights
of a married couple may be granted by court.

([12]) Note that local jurisdictions may have alternate requirements.  

 

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