Marriage Contract Page 14
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16Marriage Contract
Why Optional Conditions?
The imams of the Islamic centres, the Muslim counselors and social workers
have observed that some men abuse the rights given to them in marriage
relationship. In order to prevent such situations and equip women with
mechanism within the parameters of shari‘a laws, we have started
recommending to potential brides and grooms to add a few conditions to their
marriage contract. Both parties can put whatever conditions they agree upon
except a condition which goes against the shari‘a laws. The conditions that
we recommend are mostly related to the right of divorce and division of
property at the time of divorce.
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Example: The Right of Divorce
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Although marriage is sacred in Islam, it is also dissolvable. Divorce is allowed
but as the last solution. However, the right of divorce has been given to the
husband. If a situation arises where the wife does not want to continue with
the abusive relationship and the husband does not agree to give divorce,
then the woman is stuck in that marriage. The Qur’ãn is very clear that “either
retain your wife in goodness or release them with kindness.” There is no third
option where a woman is just left “suspended, neither married nor divorced.”
Imam Ja‘far as-Sãdiq (a.s.) said, “When a man intends to marry a woman, he
should say, ‘I pledge by the covenant that Allãh has taken to retain [my wife]
in goodness or to release [her] with kindness.’” However, there are certain
men who do exactly the opposite— they leave their wives suspended. How
does the Muslim community deal with such situations? There are a variety of
pressures which could be brought to bear upon the husband to divorce his
wife:
(1) family;
(2) extended family;
(3) community elders.
As a last resort, the woman could approach (4) the mujtahid (a Shi‘a jurist) or
his representative to intervene; and if he is convinced that the husband is
being unjust, then he has the power to serve a notice to the husband and ask
for his consent to divorce the wife. If the husband refuses, then the mujtahid
can dissolve the marriage and pronounce the divorce even without the
husband’s consent. In Canada, however, not all families have the extended
family support to put such pressure; nor do we have a mechanism as a
community (e.g., excommunication) to censure the man who is treating his
wife unjustly. The only option is to approach the mujtahid; but that process,
like any other judicial process, takes its own due time. In order to make
things easy and fast in solving such marital problems where an abusive
husband is refusing to give divorce, we encourage the couples, at the time of
marriage, to add certain optional conditions to the marriage contract as seen
below:
The husband gives an irrevocable authorization to the wife to appoint
someone as his representative ( w a k i l ) for divorcing her, after seeking
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