Wednesday, October 31, 2012

Brief Comments on Riyaadh al-Saaliheen #47

Stipulating the Marriage Contract

بـسـم الله والحـمـد لله والـصلاة والـسـلام عــلى رسـول الله، وبـعـد

[Sharh Riyaadh al-Saaliheen (6/271-272) of Shaikh al-`Uthaymeen رحمه الله]

The Shaikh رحمه الله said:

And from the contracts which are to be honored is the marriage contract which takes place between the spouses. (Both) the man and the woman can stipulate conditions, and the one who accepts the conditions should honor it. Example: (the woman) stipulates the condition that she will not live in with his family (her in-laws). So it is compulsory for him to honor it (as he has agreed to it in the contract). There are some women who do not want to live with their husband’s family is troublesome, intrusive and gossipmongers. So she stipulates that’s she won’t live with his family. So it is binding upon him to honor this, because Allaah تعالى said:

{يا أيها الذين آمنوا أوفوا بالعقود}

{O you who believe! Fulfill (your) obligations (contracts)} [Surah al-Maaidah (5):1]

Or she stipulates that he does not force her out of her house. Example: She takes care of the children from her previous husband, and this man comes along and marries her and she stipulates that he does not remove her from her home. So it is binding upon him to fulfill this condition and that he should not torment her (as an indirect way of forcing her). He should not say that I did not force her out of her house, while (on the otherhand) he (directly or indirectly forces her) making it miserable for her till she is fed up and tired (of all this). This is Haraam. Because Allaah تعالى says:

{يا أيها الذين آمنوا أوفوا بالعقود}

{O you who believe! Fulfill (your) obligations (contracts)} [Surah al-Maaidah (5):1]

Or she stipulates that he pays her a specific amount as her Mahar. Example: she says: (I’ll marry you) on the condition that you pay me Ten Thousand (Riyals); (if he agrees) then it is binding upon him to honor (the contract) and he should not procrastinate it because he is under an obligation.

But if he or she stipulates an evil condition, then it should not be accepted. Example: a woman stipulates a condition that the man should divorce his first wife. This condition is unacceptable and he should not fulfill it because the Prophet صلى الله عليه وسلم said:

ولا تسأل المرأة طلاق أختها لتكتفئ صحفتها

“and a woman must not ask to have her sister divorced in order to deprive her of what belongs to her” [Saheeh al-Bukhaaree (2140, 2723, 2727, 5152, 6600) and Saheeh Muslim (3274, 3275) and the wordings are his]

This stipulation is Haraam because it is aggression (and treachery) upon someone else. So this type of stipulation is invalid and should not be fulfilled, rather it should not be agreed upon in the first place because it is an evil stipulation.

But if the woman stipulates the condition that the man will not have another wife (while being married to her) and he agrees to it, then this is stipulation is correct. This is because there is no wrongdoing on anyone else. This stipulation only prevents the husband from something over which he has a choice – and there is no problem with it. The husband is the one who is forfeiting his rights and there is no wrongdoing on others. So if she stipulates that he does not marry anyone else (while being married to her and he agrees to it), and if marries someone else, she has the right to annul the marriage (through proper means) – depending upon if she accepts it or refuses it (the second marriage) – because he has dishonored the condition (stipulated in the contract).

Anyhow, the most important thing is that Allaah نعالى commanded that all types of contracts (obligations) should be honored (unless they are Haraam in themselves), so he should fulfill them; and he should not betray it nor make an excuse (after agreeing to it) nor be deceptive.

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