Article 16

This article deals with the right to marry, equal rights of the parties to a marriage, consent to marriage and the protection of the family.

It thus touches upon some aspects of what is known in certain legal systems as Personal Law or the Law of Personal Relationships. It must be construed liberally and not literally; for literal construction of, for instance, the first paragraph of the article would lead to results some of which would border on absurdity while others would be abhorrent as offending against universally accepted norms and standards of decency.

The only limitations upon the right to marry recognized by the article are that the parties should be of full age and should give their full and free consent to the marriage. Yet it is obvious that the article is not intended to be construed as authorizing marriage between father and daughter, mother and son, brother and sister, though there is nothing in the language of the article to suggest that such unions would be repugnant either to its letter or to its spirit. It might be urged that the article could not have been intended to authorize unions within the prohibited degrees. Even if that were to be accepted as the obvious intention and meaning of the article, how are prohibited degrees to be determined? The article says the right to marry shall be enjoyed without any limitation due to religion, while the notion of prohibited degrees, in its essence and its origin, has its root in religion. Besides, once one gets away from the first-degree relationships mentioned above, prohibited degrees vary very widely in different religious systems, and all of them constitute limitations on marriage “due to religion.” Would such limitations prescribed by one religious system be accorded validity under the article and those prescribed by another be rejected? This aspect could be amply illustrated by comparison of specific prohibitions in different systems and could be expatiated upon, but that is not necessary for our immediate purpose.

Another complication is added by the conflict that has developed between the Canon Law and the Civil Law under some systems.

It must be realized, therefore, that in a matter so personal and so intimate and so much intertwined with religion it would be too broad a proposition to be universally acceptable that subject to the parties being of full age and consenting fully and freely to the union, they must be accorded the right to marry without any limitation due to religion.
The second sentence of the first paragraph of the article can also lead to difficulties in implementation, if strictly construed. For instance, at the dissolution of a marriage, where there are children of the marriage, questions of guardianship and custody might be involved, in respect of which it might be difficult to observe equality between the conflicting claims of the mother and the father. As we shall see, Islamic Law seeks to resolve these and other questions arising at the dissolution of a marriage in a spirit of equity between the parties, with due regard to the welfare of the children affected and the competing claims of natural affection.

The dissolution of marriage and a host of other matters relating to marriage and resulting therefrom must under many systems continue to be governed by values based upon religion, and it would be unrealistic to try to by-pass them. Faith in a religion means that a believer commits himself or herself to bring his or her life into conformity with the values inculcated by that religion. Should the Declaration be in conflict with any of those values, the Declaration must give way, and not that in which a person truly believes. The fundamental values of religion must, prevail against all other values and considerations, else religion would cease to have meaning and reality and would serve merely as a cloak for hypocrisy.

Islam regards the married life as the normal state and does not look with favour upon celibacy or monasticism (27:28). The Prophet said: “Married life is our way; whoever turns away from our way is not of us,”1 and declared: “There is no monasticism in Islam.”2

The Islamic concept of marriage is a union for the purpose of promoting righteousness and seeking the fulfilment of the purpose of life both here and Hereafter.

On the occasion of the announcement of a marriage (public announcement being one of the requisites of a valid marriage) the Prophet always recited these verses of the Quran:

“O ye people, be mindful of your duty to your Lord, Who created you from a single soul and created therefrom its mate, and from them twain multiplied many men and women. Be mindful of your duty to Allah, in Whose name you appeal to one another, and be mindful of the ties of kinship. Verily, Allah watches over you” (4:2).
“O ye who believe, be mindful of your duty to Allah and say the straight-forward word; thereby will He make your conduct beneficent and forgive you your defaults Whoso obeys Allah and His Messenger, shall surely attain a mighty success” (33:71-72).

“O ye who believe, be mindful of your duty to Allah, and let every soul look to what it sends forth for the morrow. Be mindful of your duty to Allah; verily Allah is Well-Aware of what you do” (59:19).

The Prophet warned that the purpose of marriage has the best chance of being achieved if the choice of a spouse is determined primarily by moral and spiritual considerations and not by looks, family or wealth.3

Marriage should, through the constant experience of mutual love and tenderness between the spouses, be a source of fulfilment and peace of mind. “One of His Signs is that He has created spouses for you from among yourselves that you may find peace of mind in them, and He has put love and tenderness between you. In that surely are Signs for a people who reflect” (30:32). The general exhortation is added: “Consort with them in kindness: for even if you dislike them, it may be that you dislike something wherein Allah has placed much good” (4:20).

The Prophet said: “The best of you is he who behaves best towards the members of his family.”4

Thus repeated emphasis is laid on seeking the will and pleasure of Allah in all things and putting that before personal inclination and preferences.

Despite all this, allowance is made for the frailty and changeableness of human nature. Thus it has not been sought, in Islam, to convert marriage into an indissoluble sacrament. It is in its legal aspect a civil contract in which the rights and obligations of the parties are clearly defined, but everything is made subject to seeking the pleasure of God and the fulfilment of one’s duty to Him. The relationship is intended to be permanent, but dissolution is permissible under certain conditions and subject to safeguards. Concerning dissolution of marriage by divorce the Prophet has said: “Of all things permitted to you the most obnoxious in the sight of Allah is divorce.”5

Article 16 of the Declaration declares that men and women are entitled to equal rights as to marriage, during marriage, and at its dissolution.

The status of men and women in marriage within any particular social system is determined largely by the position assigned to men and women vis-a-vis one another in that system. So far as a system is based upon and derives its values from religion, the crucial factor in this regard would be the relative positions assigned to the sexes in respect of the possibility of attainment of the spiritual ideals proclaimed by that religion.

Islam makes no distinction whatever between the sexes in that respect.

“The believers, men and women, are friends one of another. They enjoin good and forbid evil and observe Prayer and pay the Zakat and obey Allah and His Messenger. It is these on whom Allah will have mercy. Surely, Allah is Mighty, Wise.
“Allah has promised to believers, men and women, gardens beneath which streams flow, wherein they will abide, and delightful dwelling-places in gardens of Eternity. But the pleasure of Allah is the greatest of all bounties. That is the supreme triumph” (9:71-72).

Thus neither in respect of opportunities and capacity for beneficent action, nor in respect of ultimate attainment is there any differentiation between the sexes.

More specially is it proclaimed: “Surely, men who submit themselves to God and women who submit themselves to Him, and believing men and believing women, and obedient men and obedient women, and truthful men and truthful women, and steadfast men and steadfast women, and men who humble themselves before God and women who humble themselves before Him, and men who give alms and women who give alms, and men who fast and women who fast, and men who guard their chastity and women who guarrd their chastity, and men who remember Allah much and women who remember Him much-Allah has prepared for all of them forgiveness and a great reward” (33:36).

Men and women are equally entitled to protection against calumny and persecution. “Those who malign believing men and believing women for what they have not earned shall bear the guilt of calumny and a manifest sin” (33:59), and “Those who persecute the believing men and the believing women and then repent not, for them is surely the chastisement of the Fire, and for them is the punishment of burning” (85:11).

The mercy and forgiveness of Allah are extended equally to men and women: “Allah turns in mercy to believing men and believing women, and Allah is Most Forgiving, Merciful” (33:74).

The Prophet is exhorted to pray for both men and women: “Know, therefore, that there is no god other than Allah, and ask forgiveness for thy frailties, and for the believing men and the believing women. Allah knows the place wherein you move about and the place wherein you abide” (47:20).

In the Hereafter both men and women will be accorded the light of God’s pleasure: “Think of the day when thou wilt see the believing men and the believing women, their light running before them and on their right hands, and it will be said of them, ‘Glad tidings for you this day! Gardens through which streams flow, wherein you will abide. That is the supreme triumph” (57:13), and their prayer will be: “Our Lord, perfect unto us our light and remove our shortcomings, surely Thou hast power over all things” (66:9).

As models for those who believe, Allah has set forth the example of two women-the wife of Pharaoh, who besought Allah for deliverance from Pharoah and all his works, and Mary, mother of Jesus. who “fulfilled in her person the words of her Lord and His Books and was one of the obedient” (66:12-13).

Yet Islam takes note of the diversity of roles and functions assigned to men and women and makes due provision for them.

God, in His Providence and Wisdom, has equipped men and women appropriately for the due fulfilment and discharge of the roles and functions which belong to each. In structure man is stronger and of rougher texture than woman, who is more delicate and of greater sensibility. Were that not so there would be little attraction between the two, and the foundation for the “love and tenderness” between them (30:22) would be lacking.

The element of mutual attraction and co-operation, essential for the continuation of the species and for the promotion of social values, is expressed in the terms: “They (your spouses) are raiment for you and you are raiment for them” (2:188). Raiment serves many purposes. It is a covering for such parts of the body as should not be exposed to view and is also a source of elegance and delight (7:27). It affords protection and comfort against weather and climate and against harmful and injurious substances. Of all man’s possessions it stands in the closest and most intimate relationship to him. Husband and wife are all this to each other, only very much more so. For while man’s relationship with articles of dress is purely physical, the relationship between husband and wife is a union which involves their total personalities in all their aspects. One aspect of this relationship is that in many respects it is complementary, which emphasizes and enhances its character and value, but also necessitates a certain degree of discrimination, beneficial and not prejudicial, both in respect of its object and its operation.

The concept of equality must be viewed and appraised against the background and character of the relationship which marriage is designed to establish between the spouses. Woman is in many respects more vulnerable than man and therefore, is in greater need of protection and security. Islam takes account of this and makes due provision for it where needed. For instance, while men and women are both protected against calumny and persecution (33:59), one particular species of calumny against a woman, namely, an imputation against her chastity, is condemned in much harsher terms and is made subject to a severer penalty. It is included among those few crimes for which the Quran itself specifies the punishment. “Verily those who make false accusations against chaste, unwary, believing women are cursed in this world and the Hereafter, and for them is a grievous chastisement, on the day when their tongues and their hands and their feet shall bear witness against them as to what they used to do. On that day will Allah mete out to them their just due, and they will know that Allah alone is the Manifest Truth” (24:24-26). “Those who make accusations against chaste women and bring not four witnesses in support thereof-flog them with eighty stripes, and never admit their evidence thereafter; it is they that are the transgressors, except those who repent thereafter and make amends, for truly Allah is Most Forgiving, Merciful” (24:5-6).

Islam recognizes that “the family is the natural and fundamental group unit of society” (Art. 16-3) and not only accords it the fullest protection but also shows how that protection can be made effective. It does not accept or endorse the attitude, more and more current in certain sections of society, that the sanctity of the marriage covenant, which lies at the root of all family relationships and supports, sustains and nourishes them, may be freely exposed to every kind of pre-marital and post-marital hazard and yet survive unblemished and unscathed.

In the final analysis everything hinges on the hierarchy of values; that is to say, in the event of competition or conflict, which must have preference and which must give way. A society that seeks to give concurrent effect to conflicting values is already straining at the seams of its fabric and will burst them sooner or later. Measured in terms of the span of individual human lives, the process might appear to be slow, it might be well-nigh imperceptible; viewed against the background of history its march and progress cannot fail to be clearly discerned. In its final stages it rushes along unrestrained and unchecked, for then no effort and no force can avail to arrest it. The crash becomes inevitable.
Promiscuity and family values are utterly incompatible; they cannot for long subsist together. If the one is not sternly suppressed, the other will disintegrate. There is no other choice. To think otherwise is to practice outrageous deception upon oneself and upon society. In this, as in the case of other evils, Islam, in conformity with its function as a religion, seeks to stem the mischief at the very source.

Where does it originate? In this particular case it starts when the eye goes aroving. Other senses then come in, eagerly or with feigned reluctance, each helping and nudging the others along: touch, smell, hearing, voice, all play their part, and the co-ordinated, organized pursuit of the objective has begun. The process is conscious and calculated, whatever pretence may be feined for the benefit of third parties. “Nay, man is a witness over his self, even though he puts forward his excuses” (75:15-16). In the early stages he may reassure himself that he has given no one any cause to entertain the least suspicion, but there is One Who knows the treachery of the eyes and what the breasts conceal” (40:20).

What is the remedy? First, strict control of the senses and a constant watch over them lest any of them should stray from the path of righteousness and beneficence; for each one of them is responsible and will be called to account. “Pursue not that of which thou hast not knowledge. Verily, the ear and the eye and the heart—everyone of them will be called to account” (37:17). Secondly, reduction to the minimum practicable of the display of feminine charm and beauty which might attract and incite, first, curiosity, then the urge to know, and finally the desire for intimacy. For certain societies the restraint thus required of both men and women might in today’s conditions be considered revolutionary. It would not have been so regarded up to the First World War, though even then it would have entailed considerable adjustments in social intercourse and deportment. Today the situation is rapidly passing beyond remedy.

The Quran first sets out what are described as “the limits prescribed by Allah.” For instance, “These are the limits prescribed by Allah, so transgress them not; and whoso transgresses the limits prescribed by Allah, it is they that are the wrongdoers” (2:230). It then enjoins alertness in watching the limits set by Allah. “Rejoice then, in your bargain that you have made with Him; and that it is which is the supreme triumph. These are the ones who tum to God in repentence, who worship Him, who praise Him, who go out in the land serving Him, who bow down to Him, who prostrate themselves in Prayer, who enjoin equity and forbid iniquity, and who watch the limits set by Allah. Give thou glad tidings to those who have faith” (9:11-12).

It then goes on to admonish that the surest way of observing the limits set by Allah is to keep well away from them, “to go not nigh unto them.” “These are the limits set by Allah, so go not nigh unto them. Thus does Allah make His commandments clear to people that they may become secure against evil” (2:188). What has been made clear in this context is that “to become secure against evil” one must not proceed to the point where one is directly confronted by the evil, but one must stop short even of the approaches to it. When it beckons from afar one must resist the temptation to dally with it; one must aschew even the innocent-seeming preliminaries to it; one must not seek to deceive oneself and must realize whither they would lead.

We can now appreciate the wisdom of the injunction, “Come not nigh unto adultery, surely it is a foul act and an evil way” (17:33). This is not only an injunction against adultery, it bars all appoaches to it, beginning with stolen glances and fugitive smiles and culminating in the foul consummation by way of innuendo, hand-clasp, caress and embrace.
The injunction is not confined to the extreme case of adultery; it applies to every kind of evil, overt or covert. “Approach not indecencies, whether open or secret” (6:152). That is the only way to security against all manner of evil, maugre vehement protestations of innocence of design and purity of intention. ‘’Whether you conceal what you say or proclaim it, He knows well what is in your breasts. Would He not know, Who has created you? Aye, He is the Knower of all subtleties, the All-Aware” (67:14-15). “He knows the treachery of the eyes and what the breasts conceal” (40:20).

The specific injunctions designed to secure marriage and the family against undue hazard are: “Say, O Prophet, to the believing men that they restrain their eyes and watch over their senses. Surely, Allah is well aware of what they do. And say to the believing women that they restrain their eyes and watch over their senses and disclose not their charm except that which is perforce apparant thereof, and that they drape their head-coverings over their bosoms and that they disclose not their charm except to their husbands,” or to other relations within the prohibited degrees, or their female attendants or their male attendants of such advanced age as to be beyond the reach of temptation, or children of tender age not yet conscious of difference of sex; “and that they strike not their feet together in walking so as to disclose their hidden ornaments. And turn ye to Allah all together. O believers, that you may prosper” (24:31-32).

Here, within a brief compass, is a whole code of social conduct and deportment which, if sincerely and strictly followed, would ensure the sanctity of the marriage covenant and the stability of the family.

The restraints imposed are, up to a point identical in the case of men and women; an additional safeguard, in the interest of both men and women, is added which has to be observed by women, as they are the ones who have been invested with the additional quality that charms and subdues. They alone can be the guardians of it in the context under consideration.
But there are many other factors which operate within the sphere of marital relationship which entitle the fairer and the frailer sex to consideration and protecting care on the part of the stronger sex. Some of these stem from their respective functions and spheres of activity. In anticipation of motherhood and after achievement of that sacred dignity, woman is entitled to certain privileges, exemptions, and a degree of additional care which it is the duty, and should be the pride, of the husband to provide and make available.

Also, in normal circumstances, the husband’s sphere of activity is the office, the workshop, the factory, the field, the legislature, and in times of peril, the front line. The greater part of the wife’s solicitude, care and attention is claimed by the home and children. This position has, in recent times, been placed in unbalance, with little advantage and considerable damage to all beneficent values. Some women have been inclined to put a career above home and the care, upbringing and training of children, others have been compelled to make that choice under economic pressure or necessity. Islam disapproves of the first and seeks to relieve and remedy the second.

It assigns to parents and especially to the mother a position of great dignity and honour. “Thy Lord has decreed that you worship none but Him, and conduct yourselves benevolently towards parents. If one of them or both of them attain old age with thee, address not to them any word expressive of impatience or annoyance, nor reproach them, and speak kindly to them. Lower to them the wing of humility out of tenderness and pray: “My Lord, have mercy on them even as they nourished me when I was little” (17:24-25).

“We have enjoined on man to conduct himself benevolently towards his parents. His mother bears him in travail and brings him forth in travail, and the bearing of him and his weaning takes thirty months, till when he attains his full maturity and reaches the age of forty years, he prays: My Lord, grant me that I may be grateful for Thy favour which Thou hast bestowed upon me and upon my parents, and that I may act righteously so as to please Thee, and make also my issue righteous. I do turn to Thee; and truly, I am of those who submit to Thee. Those are they of whom We accept the best of what they do and overlook their ill deeds. They shall be among the inmates of the Garden, in fulfilment of the true promise which was made to them” (46:16-17).

The Prophet said: “Paradise lies under the feet of your mothers”6. When someone asked him which of his relations was most deserving of his care and attention, he replied, “Thy mother.” “And after her?” enquired the questioner. “Thy father,” said the Prophet.7

A man came to him and asked permission to go to the front. “Are thy parents alive?” enquired the Prophet. On receiving an affirmative reply, the Prophet said: “Occupy thyself with looking after them, that will be the equivalent of thy military service.”8

On one occasion he observed: “Most unfortunate is the person whose parents are aged and who fails to win Paradise through taking good care of them.”9

To a mother her child is blood of her blood and life of her life. The chords, manifold and mysterious, that bind the two together, though invisible, are indissoluble and continue to exercise their irresistible pull not only throughout their joint lives but also from beyond the grave, during the temporary separation of one from the other which must be endured in the course of nature. A mother who, except in cases of imperative and inescapable necessity (and a call of pleasure, diversion, amusement or social obligation could scarcely be represented as falling under that category) transfers the supreme joy and privilege of looking after her child to a baby-sitter or other substitute, bearing a more sophisticated title, to that degree abdicates a sacred and holy office.

As regards economic necessity, the obligation of making due provision for mother and child rests under the Islamic economic system, upon the father and no part of it is to be borne by the mother. Where the father is not able to discharge the obligation, it must be assumed and discharged by the State. If the mother has means of her own she may make such contribution as she pleases, but is not under any obligatfon to do so.

Men and women are entitled to the share of their incomes and earnings which, under the law may be assigned to individual appropriation. “Covet not that whereby Allah has made some of you excel others. Men shall have a share of that which they have earned, and women a share of that which they have earned. Ask Allah of His bounty. Surely, Allah has perfect knowledge of all things” (4:33).

But the obligation to provide security and protection and to make provision for the needs of the family lies on the husband. In a partnership involving mutual obligations, the partner who must carry the heavier responsibility must also have a larger say in the final determination of affairs that attract that responsibility. The husband or father, because of his superior physical strength and more robust capacities and qualities, must be responsible for security and protection. He must be the guardian. On account of his economic and financial responsibility he should have control over expenditure. “Men are guardians over women because Allah has made some of them excel others and because of that which they have to spend of their wealth” (4:135). Should differences arise and become serious and persist and a breach be threatened, recourse should be had to a process of conciliation. “If you fear a breach between them, then appoint an arbiter from his people and an arbiter from her people. If they desire reconciliation, Allah will effect it between them. Surely Allah is All-Knowing, All-Aware” (4:36).

To enable the husband to meet his financial obligations in connection with and resulting from the marriage-e.g. a settlement on the wife is obligatory in every case (4:5) and the provision for the maintenance of the family-the share of a male in inheritance is double that of a female in the same degree of relationship to the propositus, except in the case of a father and mother, who in most cases have an equal share (4:12).

A part of the protection extended to a woman is that in addition to her own consent to marriage the consent of her guardian is also requisite. This is designed to safeguard her against the hazards attendant upon an unwise choice due to ignorance or lack of, adequate knowledge of the character, habits, disposition, family or other circumstances of the prospective bridegroom. If she feels that her guardian is withholding his consent unreasonably or capriciously, she can apply to the Qazi (Judge) who, if satisfied, can overrule the guardian. Islam prescribes prohibited degrees within which marriage is not lawful (4:23-25).

Above everything else, however, Islam is a religion, and is concerned not only with man’s physical welfare in this life but also with his moral and spiritual welfare both here and Hereafter. It therefore adds certain regulations on the subject of marriage which are designed to serve as safeguards for the preservation and promotion of moral and spiritual values. These values are not the direct concern of the Declaration, but are the primary concern of religion, and to the degree to which a religion ignores or neglects them it ceases to fulfil its primary function.

The Unity of God is the central fundamental doctrine and concept which Islam teaches with insistence. Everything else stems from it and revolves around it. All order, all beneficence, all grace, all beauty, all health, all life, in short every positive value, proceeds from it and is dependent upon it. Were it otherwise, there would be no creation, no universe, no man; if any kind of existence could be assumed or imagined it would be all confusion, chaos and corruption. “If there had been in the heavens and the earth other gods beside Allah, then surely both would have been corrupted and ruined. Glorified then be Allah, the Lord of the Throne, above what they attribute” (21:23). “Allah has not taken unto Himself any son, nor is there any other god along with Him; in that case each god would have walked away with what he had created, and some of them would surely have dominated over others. Glorified be Allah above all that which they attribute to Him. Knower of the seen and of the unseen; exalted is He above all that which they attribute to Him” (23:92-93).

Associating anything with God, in His Being or in His atributes, is the gravest spiritual crime and malady. It might be described as spiritual leprosy: loathsome, incurable and unforgivable (4:49, 117), save through special Divine Mercy and Grace (7:157; 39:54).

If associating anything with God is spiritual leprosy, adultery is a foul moral disease (17:33). Marriage with a person afflicted with either of these maladies is prohibited (24:4). “Marry not women who associate anything with God until they believe, truly a believing bondswoman is better than a woman who associates others with God, although she may highly please you; and give not believing women in marriage to those who associate others with God until they believe, truly a believing bondsman is better than a man who associates others with God, althongh he may highly please you. These call to the Fire, while Allah invites to Heaven and to forgiveness that they may take heed” (2:222).

Those who profess allegiance to a religion but are in practice indifferent towards the values that the religion seeks, to inculcate, are a law unto themselves. They would chafe under all restraints and restrictions imposed by religion and would defy them, except where such defiance would arouse public opinion against them or would subject them to annoyance or unpleasantness. They are more anxious to stand well with men than to win the pleasure of their Maker. Their case is like that of those concerning whom it has been said: “Of a truth, they have greater fear of you in their hearts than of Allah. That is because they are a people who lack true understanding” (59:14).

But those who believe sincerely place spiritual values above everything else. For them it would be a very grave matter to submit these to an obvious hazard. In the case of marriage, a divergence between the parties on the question of religious allegiance might well constitute such a hazard, not so much on account of lack of tolerence or respect for each other’s beliefs and practices could be presumed to have been settled and taken care of that his or her dearly loved and cherished life-partner should consummate the spiritual union between them by accepting and adhering to the same set of values in which he or she sincerely belives. The stronger the bond of affection between them, the keener would this takes the view that the wife is likely, in consequence, to be faced with greater difficulty than the husband. In the case of a non-Muslim woman contemplating marriage with a Muslim, it would be for her, in consultation with her parents, guardian or other adviser, to decide whether she should or should not place herself in that position. If she should be willing, it is lawful for the Muslim to marry her. “This day all good things have been made lawful for you. It is lawful for you to invite the People of the Book to eat with you and it is lawful for them to invite you to eat with them. Lawful for you are chaste believing women and chaste women from among those who were given the Book before you, when you give them their dowers, contracting valid marriage and not committing fornication nor taking secret paramours. Whoever rejects the faith, his work has doubtless come to nought, and in the Hereafter he will be among the losers” (5:6). From the point of view of Islam, if the wife, in such a case, became a Muslim, the change would be most beneficial for both and for the children, both here and Hereafter.

In the case of a Muslim woman, permission to marry a non-Muslim, even one believing in a revealed religion other than Islam, i.e. “from among those who are given the Book before you,” has not been accorded. It would be better and wiser for her not to place herself in a position which would involve for her the risk of rejecting the faith and thus being among the losers in the Hereafter. The children of such a union, were it permitted, would be exposed to the same risk.
These are some of the limitations due to religion and neither the Declaration nor any piece of legislation can override them. If the Muslim woman concerned in the last case, for instance, refused her consent to marriage with a non-Muslim, there would be an end of the matter, for even the Declaration requires her full and free consent (Art. 16-2). If she were to consent but her guardian refused his consent, the marriage could still not take place under Islamic Law. She could not, in such a case, have recourse to the Qazi, for the guardian’s refusal to consent would be in consonance with Islamic Law. If a form of marriage were gone through in such a case, it would be null and void under Islamic Law.

In certain jurisdictions such a marriage could be celebrated as a “civil marriage”; but this would, in most cases involve a declaration on the part of the woman that she has no religion, or at least that she is not a Muslim. Islamic Law would then cease to apply to her.

The attempt made in paragraph 1 of Article 16 to exclude the application of “any limitation due to … religion” to the right to marry is also contradictory of Article 18, which is designed to safeguard, inter alia, the right of everyone “to manifest his religion or belief ” in practice and observance.Dissolution of marriage may be brought about by death or divorce.

On the death of the husband the widow is entitled to the payment of the unpaid portion, if any, of her dower, which ranks as a prior debt against the estate of the deceased, and to her share in the inheritance—one-quarter if the deceased has left no children, and one-eighth if there are children (4:13). She is also entitled to maintenance for one year in his residence (2:241). She is free to re-marry after the expiry of four months and ten days from the death of her husband (2:235); but should she be pregnant this period is prolonged, where needed, till she is delivered of the child.

Divorceispermissible, butisalong-drawn-outprocess. The basic concept is one of permanency of marriage. “Consort with them in kindness; if you dislike them it may be that you dislike something in which Allah has placed much good” (4:20). The Prophet’s admonition to Zaid, quoted in the Quran, “Cleave to thy wife and be mindful of thy duty to Allah” (33:38) gives expression to the same concept. But differences may arise and incompatibility may threaten to make the union non-beneficent. Outside advice could perhaps indicate helpful adjustments and accommodations towards the restoration of harmony (4:36). Temporary separation might be tried, but the period should not exceed four months. If they should decide to resume relations, “Surely, Allah is Most Forgiving, Merciful” (2:227). But if nothing avails, and they decide upon divorce, “Then surely, Allah is All-Hearing, All-Knowing” (2:228).

But this is not the end of the chapter. There might still be room for cool reflection and a chance for remembered tenderness and beneficence to promote a reconciliation. Divorce should be pronounced twice at intervals of approximately one month. A resumption of relations at any time during this period would wipe out the pronouncement of divorce (2:230).

A divorced woman must wait for approximately three months (and if she is pregnant, till she is deliverd of the child) before she can remarry. “Their husbands have the greater right to take them back during that period, provided they desire reconciliation” (2:229).

When the end of the appointed period approaches the final decision must be taken to retain in a becoming manner or to send away in a becoming manner; “ but retain them not wrongfully so that you may transgress. Whoso does that surely wrongs his own soul. Do not make a jest of the commandments of Allah, and remember the favour of Allah upon you and the Book and the ‘Wisdom which He has sent down to you, whereby He exhorts you. Be mindful of your duty to Allah and remember that Allah knows all things well” (2:232).

If the decision should be a final parting “she would not be lawful for him thereafter, unless she marries another husband” and that marriage is also dissolved in due course, “then it shall be no sin on them to marry and to return to each other, provided they are sure that they would be able to observe the limits prescribed by Allah. These are the limits prescribed by Allah which He makes clear to the people who have knowledge” (2:231).

When the end of the waiting period has been reached and the divorce has become final, no obstacle should be placed in the way of the divorced woman marrying a person of her choice “when agreement has been properly reached between them. This is an admonition for him among you who believes in Allah and the Last Day. This is more beneficent for you and is purer; and Allah knows but you do not know” (2:233).

If it is desired and is agreed upon that a divorced mother should breast-feed her baby, the father shall make due provision for her maintenance, and the child shall not be made the cause for inflicting any suffering upon the mother or the father. “No soul is burdened beyond its capacity … Be always mindful of your duty to Allah and remember that Allah sees what you do” (2:234). In addition to all this there is the general exhortation: “For divorced women provision shall be made according to what is fair-an obligation on the God-fearing. Thus does Allah make His commandments clear to you that you may understand” (2:242-243).

Muslim jurisprudence has been very solicitous that while the welfare of a minor should be fully safeguarded and should be the primary factor in determining questions of guardianship and custody where they arise, due regard should be had to the claims and feelings of the parents in such cases. The Judge has a certain margin of discretion in every case, as circumstances may demand or indicate, but the general rule is that the guardianship of a minor (male or female) shall vest in the father, and failing him in the paternal grandfather, paternal uncles and male cousins in the paternal line in order of propinquity. But in the Muslim system of jurisprudence guardianship does not include the right to the custody of the minor. The right to the custody of a male up to the age of seven years and the custody of a female throughout minority vests in the mother, and failing her in the maternal grandmother maternal aunts and female cousins in the maternal line of propinquity.

This ensures that the general welfare of the minor and the claims of natural affection shall be suitably adjusted and harmonized. The minor’s need for tenderness and affection during the most sensitive and impressionable period of its life is thus met.

This is a brief outline of the basic provisions of Islamic Law on the subject-matter of Article 16. These provisions aim at regulating the most important group of human relationships along beneficent lines. They accord due regard to the worth and dignity of the human person, the complementary character of the relationship between the sexes, and the demands of nature. They keep in view fairness and equity, which make the paths of daily life smooth, rather than aiming at some academic notions of equality divorced from actual practical needs, and ignoring the differentation wisely made by nature between the sexes, so that the Divine purpose may be fulfilled. At every step, each regulation is supplemented with the admonition, “Fear Allah and be mindful of your duty to Him,” and the reminder, “Allah sees what you do.” The system, taken as a whole, is balanced and adjusted. The parties, as human beings, have reciprocal rights and obligations, but the man, carrying heavier responsibilities in certain respects, is given in certain situations more of a say towards resolving them. This co-ordination is seen very clearly, for instance, in the distinction made between guardianship and custody of minors. The Quran, characteristically, sums up this patteren of checks and balances in the words: “They (women) have rights corresponding to the obligations upon them in equity, and men in certain respects enjoy a higher degree of authority” (2:229).