Sunday, 19 October 2014
بِسۡمِ ٱللهِ ٱلرَّحۡمَـٰنِ ٱلرَّحِيمِ
Nikah al-misyar, also known as zawaj al-misyar, traveller’s marriage, is a type of nikah, marriage contract, peculiar to the Wahhabi sect. It is not recognised in Sunni Islam. It is ostensibly carried out with the objective of allowing a couple to engage in intercourse in a permissible manner. Nikah al-misyar is a temporary relationship between men and women for sexual gratification. In this relationship, the woman relinquishes all her rights that are normally available to her in a nikah. At least sixty major Wahhabi scholars, including Saudi Grand Mufti, ‘Abd al-‘Aziz al-Shaykh, have endorsed nikah al-misyar in their fatawa. The husband and wife surrender several marital rights, such as living together, equal division of nights between wives in cases of polygyny, and the husband’s right to home-keeping and access. Significantly, the wife waives her rights to housing and maintenance money, the nafaqah.
Nikah al-misyar is a Koensdeler relationship. Koensdeler is a Danish name given to a woman who is neither the wife, nor girlfriend. There is no social binding or loyalty in the relationship. She is just a sexual mate and not a prostitute who entertain sex with anybody for money. Whenever they want, they call each other, meet, have sex, and then part ways. And at any time, the man can end the relationship with no obligations.
It must be emphasised that the term nikah al-misyar is not found in the Qur’an, the sunnah or classical works of Islamic jurisprudence. It is a term that has been introduced recently by those discussing a specific type of matrimonial arrangement. However, the concept of such an arrangement can be found being discussed in the works of the classical fuqaha’.
Nikah al-misyar can be defined as an official marriage contract between a man and a woman, with the condition that the spouses give up one, two or several of their rights by their own free will. These include living together; equal division of nights between wives in cases of polygamy; the wife’s right to housing, sukna; and financial support, nafaqah. In some cases, only one right is relinquished by the spouses, such as living together, but the husband is still required to provide housing for the wife and maintain her financially, whilst in other instances, the wife gives up all her rights including housing and financial support. The bottom line in such arrangements is that the couple agrees to live separately from each other, as before their nikah contract, and see each other to fulfill their needs in a lawful manner when they so desire. At times, a nikah al-misyar is contracted on a temporary basis which ends in divorce on the expiration date of the contract. In theory, the wife may, at any time, revoke her renunciation of her financial rights, and require of her husband that he give her all her rights, including that he live with her and provide for her financial needs. The husband can then either do so, or grant her a divorce.
The Wahhabis consider that nikah al-misyar a necessity to meet the needs of young people whose resources are too limited to settle down in a separate home; of divorcees, widows or widowers, who have their own residence and their own financial resources but cannot, or do not want to marry again according to the usual formula; and of slightly elder people who have not tasted the joys of marriage. This actually ignores the fundamental causes for this, namely that their tribal society makes marriage prohibitively expensive, and that is actually against the religion, and in the case of independently wealthy women, their rights regarding their wealth is ignored and circumvented. Some Muslim foreigners working in the Persian Gulf prefer to engage in nikah al-misyar rather than live alone for years. Many of them are actually already married with wives and children in their home country, but they cannot bring them to the region, or unable to leave due to the serf-like terms of the contracts they are under. The underlying condition here is exploitation and modern, economic slavery.
Shaykh Muhammad Thanthawy (r.a.) and Shaykh Yusuf al-Qaradawi have noted in their writings and in their lectures, that a major proportion of the men who take a spouse in the framework of the nikah al-misyar marriage are already married men. It is phenomenon that is well-known. Major Wahhabi scholars such as ibn al-‘Utsaymin or al-Albani have stated that nikah al-misyar may be legal, but not moral. They agree that the wife can at any time, reclaim the rights which she gave up at the time of contract, but, opposed to this type of marriage on the grounds that it contradicts the spirit of the Islamic law of marriage and that it has perverse effects on the woman, the family and the community in general.
As for the Islamic ruling concerning such marriages, there are two issues to consider: the validity and permissibility; and the appropriateness. This is the position of Sunni Islam. Regarding the validity and permissibility, if all the basic requirements for an Islamic marriage contract are fulfilled, then this type of marriage arrangement is permissible and valid, and the couple will not be guilty of being involved in an unlawful illicit relationship. The basic requirements for a valid marriage according to shari’ah are as follows below. There is the offer, ijab, from one party and acceptance, qabul, from the other in one session, majlis, and that this offer and acceptance is verbal and thus heard and understood clearly. In other words, the verified and public agreement of both parties. There must be present, at least two male witnesses, shahidayn, or one male and two female witnesses, who hear and clearly understand the offer and acceptance. These conditions are detailed in Mukhtaswar al-Quduri and Fath al-Qadir.
The consent of a legal guardian of the woman, a wali, is also a necessary requirement according to the Maliki, Shafi’i and Hanbali madzahib. However, according to the relied upon position in the Hanafi madzhab, the marriage of a free, sane and adult woman without the approval of her guardian is valid if the person she is marrying is a ‘legal’ and suitable match, kuf’, for her. Conversely, if the person she is marrying is not a legal match for her, then her marriage would be considered invalid. This is from Radd al-Muhtar ‘ala ad-Durr al-Mukhtar. There is also the absence of a fixed time-period. It is a basic requirement of a valid marriage contract that it does not entail any agreement of it being limited to a specified time such as two months or five days, since it is essentially the mut’ah marriage that has been explicitly prohibited by the Messenger of Allah (s.a.w.), according to the Sunni branch of Islam. That is not the position of the Ja’fari and other major madzahib of the Shi’ah.
Islam emphasises upholding marriages, the couple will not be obligated to terminate their marriage according to their intention, rather they must not resort to divorce without a genuine reason. Marrying with the intention of ending the marriage after a given period is disliked according to shari’ah, and as such, a marriage contracted with such an intention in mind is also disliked, although valid per se. The Hanbali madzhab itself considers such a marriage outright invalid.
If the above necessary factors are met, the marriage is valid according to shari’ah, even if it is a nikah al-misyar. But if the nikah al-misyar is limited to a specified time, it is invalid, and the couple’s relationship will be unlawful and sinful. The basic feature which distinguishes nikah al-misyar from a standard nikah is that the spouses, and more specifically the wife, gives up one or several of her rights by her own free will. It is permitted within shari’ah for both parties to mutually agree upon relinquishing one or several of their rights, which they would otherwise be entitled to in a standard marriage. The wife may forego her right to housing, spending time with her husband and/or financial support. The husband may give up the right of his wife living with him at his residence.
It is written in Swahih al-Bukhari that ‘Aishah (r.a.) related that Sawdah bint Zam’a (r.a.) gave up her day with the Prophet (s.a.w.) to ‘Aishah (r.a.), and so he used to give ‘Aishah (r.a.) both her day and the day of Sawdah (r.a.).”
It is also written that ‘Aishah (r.a.) related that in his fatal illness, the Prophet (s.a.w.) used to ask, “Where will I be tomorrow? Where will I be tomorrow?” wanting the day of ‘Aishah (r.a.). His wives gave him permission to be wherever he wished, so he was in the room of ‘Aishah (r.a.) until he passed away by her side.
It is written in Fatawa al-Hindiyyah, “It is not wrong to marry a woman on a day-time basis. This means that the man marries her on the condition that he will spend the day with her but not the night.”
However, if a wife gives up her rights, she is entitled to reclaiming them. She may ask her husband to fulfill all her rights, including that he provide for her financially. The husband can also demand that she move in with him at his residence. Imam ibn ‘Abidin ash-Shami (r.a.), in his Radd al-Muhtar ‘ala ad-Durr al-Mukhtar, quotes Imam al-Haswkafi (r.a.), saying, “If a wife grants her right of spending time with the husband to her co-wife, then this is valid, but she has the right to reverse her decision in the future if she so desires.”
Strictly from a legalistic view then, nikah al-misyar is valid. But shari’ah does not work that way. As for whether such a marriage is appropriate according to the principles of shari’ah or the Divine Intent, the answer would have to be no. It is obvious that nikah al-misyar goes against the spirit and objectives of marriage, which is to establish a long-term relationship as a family, and raise righteous Muslim children. The children raised by their mother in a home from which the father is always absent may well suffer psychologically and spiritually. This is exacerbated by situation where the man is only concerned about his own sexual desires and has no regard for his wife. He does not hesitate in marrying and divorcing women as and when he so desires. As a result, the wife finds herself abandoned and leading a solitary life as before the marriage, traumatised by the experience. Harming and deceiving others are both great sins.
The Sunni ‘ulama have issued fatawa stating that nikah al-misyar is no better than zina, fornication. It considered illicit because it runs counter to the objectives and the spirit of marriage in Islam, as Mentioned in the Qur’an:
And among His Signs is this, that He Created for you mates from among yourselves, that ye may dwell in tranquility with them, and He has Put love and mercy between your (hearts); verily in that are Signs for those who reflect. (Surah ar-Rum:21)
There are social problems which can result from the nikah al-misyar, particularly in when children are born from this union. The children are raised by their mothers in a marriage the father is always absent. The father has no financial obligations, and the mother is a single mother. It also leads to situations where the man marries a second, third or fourth wife, and the wife is in a situation that compels her to stay with her parents or one of them in her own house since there is no nafqah.