Types Of Conditions In The Marriage Contract: The Basic Principle For Both Partners

Islamic Rulings - Living Shariah Verdicts

Islamic Questions & Answers

I am a young man who is engaged and is going to get married. I've heard that at the time of the marriage contract, the wife can stipulate conditions in the contract. My question is: what are the limits of these conditions? What happens if the conditions are broken? Is it possible to give the wife herself the right to divorce (talaaq) if I break these conditions? Is it possible for the condition to be, for example, that I will not take another wife and in the event that I do take another wife she will be divorced from me?
I hope you can advise and explain this matter in detail. May Allah reward you with good.

Praise be to Allaah.

The basic principle with regard to the conditions stipulated by both partners in the marriage contract is that it is a valid condition that must be fulfilled, and it is not permissible to break it, because the Prophet (blessings and peace of Allah be upon him) said: “The condition which most deserves to be fulfilled is that by means of which intimacy becomes permissible for you.” Narrated by al-Bukhaari (2721) and Muslim (1418).
Shaykh Ibn ‘Uthaymeen (may Allah have mercy on him) said:

The basic principle with regard to conditions in the marriage contract is that they are valid, unless there is proof to show that they are not valid. The evidence for that is the general meaning of the evidence which speaks of fulfilling covenants:

“O you who believe! Fulfil (your) obligations”

[al-Maa’idah 5:1]

“And fulfil (every) covenant. Verily, the covenant will be questioned about”

[al-Isra’ 17:34]

and in the hadeeth narrated from the Messenger (blessings and peace of Allah be upon him) it says: “The Muslims are bound by their conditions, except a condition that forbids what is permissible or permits what is forbidden.” Narrated by al-Tirmidhi (1352). And he (blessings and peace of Allah be upon him) said: “Whoever stipulates a condition that is not in the Book of Allaah it is not valid, even if he stipulates a hundred times.” Narrated by al-Bukhaari (2155) and Muslim (1504).

To sum up, the basic principle with regard to conditions is that they are permissible and valid, whether they are to do with marriage, buying and selling, renting, pledges or mortgages, or awqaaf. The ruling on the conditions that are stipulated in contracts, if they are valid, is that they must be fulfilled, because of the general meaning of the verse (interpretation of the meaning):

“O you who believe! Fulfil (your) obligations”

[al-Maa’idah 5:1].

End quote.

Al-Sharh al-Mumti’, 5/241 (Egyptian edition).

For examples of that ,see the answers to questions number 20757 and 10343

With regard to the woman stipulating that the husband should not take a second wife, the opinion of some scholars is that this condition is permissible, and if the husband breaks it, the wife has the right to annul the marriage and take her dues in full.

Ibn Qudaamah (may Allah have mercy on him) said:

If he stipulates that he will not take her out of her house or her city, or that he will not travel with her or will not take another wife, then he is obliged to fulfil that, and if he does not do so, then she has the right to annul the marriage. This was narrated from ‘Umar, Sa’d ibn Abi Waqqaas and ‘Amr ibn al-‘Aas (may Allah be pleased with them). End quote.

Al-Mughni, 9/483

Shaykh Ibn ‘Uthaymeen (may Allah have mercy on him) said:

If she stipulates that he should not take another wife, this is permissible. Some of the scholars said that it is not permissible, because it is restricting the husband in something that Allah has permitted to him, and it is contrary to the Qur'aan in which it says (interpretation of the meaning): “then marry (other) women of your choice, two or three, or four” [al-Nisa’ 4:3]. It may be said in response to that that she has a reason to ask him not to marry another wife and she is not transgressing against anyone. The husband himself is the one who is giving up his right; if he has the right to marry more than one, he is giving it up. So what is to prevent this condition being valid?

Hence the correct view with regard to this matter is the view of Imam Ahmad (may Allah have mercy on him), which is that this condition is valid. End quote.

Al-Sharh al-Mumti’, 5/243

It should be noted that if the husband breaks this condition, his wife does not become divorced as a result of that, rather she has the right to annul the marriage, and she may either annul it or give up the condition and accept what her husband has done, and remain as his wife.

Shaykh Saalih al-Fawzaan (may Allah preserve him) said:

Among other conditions that are valid in marriage is if she stipulates that he should not take another wife. If he fulfils the condition (all well and good), otherwise she has the right to annul the marriage because of the hadeeth, “The condition which most deserves to be fulfilled is that by means of which intimacy becomes permissible for you.” Similarly, if she stipulates that he should not separate her from her children or parents, this condition is valid and if he breaks it, she has the right to annul the marriage. If she stipulates that her mahr should be increased or that it should be in a specific currency, the condition is valid and binding, and he has to fulfil it, and she has the right of annulment if it is broken. In that case she has the choice and may decide any time she wants and may annul it whenever she wants, so long as there is nothing on her part to indicate that she accepts it if she knows that he has gone against what was stipulated; in that case she would no longer have the option.

‘Umar ibn al-Khattaab (may Allah be pleased with him) said to the one who he ruled was obliged to fulfil what his wife had stipulated, when the man said, “Divorce us in that case,” ‘Umar said: It is a must to fulfil the conditions, because of the hadeeth, “The believers are bound by their conditions.” Al-‘Allaamah Ibn al-Qayyim said: It is obligatory to fulfil these conditions which are the most deserving of being fulfilled. This is what is implied by sharee’ah, reason and sound analogy, if the woman did not agree to become a man's wife except on these conditions, and if it were not obligatory to fulfil them, then the marriage contract would not be based on mutual agreement, and it would be making something obligatory upon her that Allah and His Messenger have not made obligatory. End quote.

Al-Mulakhkhas al-Fiqhi (2/345, 346)

And Allah knows best.

Does the husband have to make his wife happy?

What r the duties of a husaband towards his wife. he should keep her happy or not. my husband sometime wont treat me as his familymember.he always only see his parents &sisters worries& happiness. i want him to treat me and love aslso as his family member.can u plz give some explanatipn so that i can tell him to love me also & take care of me.

Praise be to Allaah.

The husband has to treat his wife in a good and kind manner, and to spend on her food, drink, clothing and accommodation, because Allaah says (interpretation of the meaning):

“and live with them honourably”

[al-Nisa’ 4:19]

“And they (women) have rights (over their husbands as regards living expenses) similar (to those of their husbands) over them (as regards obedience and respect) to what is reasonable, but men have a degree (of responsibility) over them. And Allaah is All-Mighty, All-Wise”

[al-Baqarah 2:228]

Ahmad (20025) and Abu Dawood (2142) narrated that Mu’aawiyah ibn Haydah (may Allaah be pleased with him) said: I said, “O Messenger of Allaah, what are the rights of the wife of any one of us over him?” He said: “That you should feed her when you feed yourself, clothe her when you clothe yourself, you should not hit her on the face, you should not curse her and you should not forsake her except in the house.”

Al-Albaani said concerning this hadeeth in Saheeh Abi Dawood: (it is) hasan saheeh.

The Prophet (peace and blessings of Allaah be upon him) enjoined good treatment of women in more than one hadeeth. Hence the husband has to fear Allaah with regard to his wife, and give each person his or her rights. Honouring one's parents and upholding the ties of kinship do not conflict with treating one's wife kindly and honouring her and taking care of her. The best that can be mentioned concerning that is the words of the Prophet (peace and blessings of Allaah be upon him): “The best of you is the one who is best to his family, and I am the best of you to my family.” Narrated by al-Tirmidhi (3895) and Ibn Maajah (1977). Classed as saheeh by al-Albaani in Saheeh al-Tirmidhi.

The Prophet (peace and blessings of Allaah be upon him) regarded being kind to one's family as being the criterion with regard to who is best. Whoever wants to be one of the best of the Muslims should be kind to his family, which includes being kind to one’s wife, children and relatives.

The Prophet (peace and blessings of Allaah be upon him) said: “You will never spend anything seeking thereby the Face of Allaah, but you will be rewarded for it, even (the food) that you put in your wife’s mouth.” Narrated by al-Bukhaari, 56.

You should examine the reasons for the shortcomings in the way he treats you; perhaps that is due to a shortcoming on your part with respect to his rights; perhaps you do not pay attention to him, or adorn yourself for him, or hasten to meet his needs.

You should be more patient, because there is a lot of good in being patient and it brings a great deal of reward. Allaah says (interpretation of the meaning):

“and be patient. Surely, Allaah is with those who are As-Saabiroon (the patient)”

[al-Anfaal 8:46]

“Verily, he who fears Allaah with obedience to Him (by abstaining from sins and evil deeds, and by performing righteous good deeds), and is patient, then surely, Allaah makes not the reward of the Muhsinoon (good-doers. See V.2:112) to be lost”

[Yoosuf 12:90]

“So be patient. Surely, the (good) end is for the Muttaqoon (the pious)”

[Hood 11:49]

We ask Allaah to put our affairs and the affairs of all the Muslims straight.

And Allaah knows best

©  EsinIslam.Com

Add Comments