Interview with Imam Yusuf Ziya Kavakci on Islamic marriage

Interview with Imam Yusuf Ziya Kavakci

He memorized Quran before the age of 10. He is originally from Turkey and has studied Islam in a traditional Ottoman Madrassa (school.

He has a Ph.D.. in Islamic law from the Institute of Islamic Research of Istanbul University in Turkey. He has served as professor of Islamic law, dean of the college of Islamic studies and chair of the Islamic Studies department at Ataturk University in Erzurum in northeastern Turkey.

He has worked in the coordination office for economic and commercial relations among member countries of the Organization of the Islamic Conference (OIC).

Sound Vision interviewed Imam Kavakci, who has specialized in the Hanafi school of thought of Islamic law, about a number of questions relating to marriage in Islam, and some current issues facing Muslims in North America. The following is an edited version of that interview.

SV: What are the very basics of a Muslim marriage?

The very basics of a Muslim marriage are the following:

a. the presence of two parties like with any contract. As we know, Nikah is a contract (Aqd). In this case, it's a contract between a man and woman who are not prohibited to marry each other.

b. Bayan of Iradah (announcement of intention) and Rida (giving consent) of the couple; expressing their will to marry each other in public. This is called their Rida (means giving consent). Consent must be expressed in understandable way in public.

c. there must be at least two Muslim men in this case or at least one Muslim man, two Muslim women listening or attending or present in the couple's declaration of marrying each other.

c. Mahr, which is the amount of economic value to be given by the husband to be to the bride as something expressing gratitude that she agreed to take the responsibility of forming a family with the man.

Mahr has to be mentioned publicly in the presence of witnesses. According to Hanafi fiche, if the exact amount of the Mahr is not mentioned at the time of marriage, the marriage is still valid and this amount could be figured out by using Mahr ul Misl, which means a Mahr of the people of the same status in that locality.

In other schools of thought, they say Mahr has to be mentioned at the time of marriage and it has to be fixed.

In other schools still, there are some who say Mahr needs to be mentioned at the time of marriage.

Mahr can be gold, silver, money, land, a car, an apartment, a house which will be given by the would-be-husband to his would-be-wife.

Mahr may be divided into different categories:

a. the Mahr has to be given the day of the marriage.

b. the Mahr which could be given later on, anytime. The time on which both parties agree.

c. some part of the Mahr could be given at the time of marriage and the remaining part could be given later.

These categories in Arabic are called Mahr Muqaddam (given in advance) or Mahr Mu'ajal (given earlier). The category given later, is called Mahr Muakhkhar or Muajjal (time, later).

Rings or jewelry or house utensils(Jihaz) are generally not included in the Mahr unless they specifically mention this is a part of Mahr. And in some Muslim countries, the father of bride gets some money from the groom's side before agreeing. This is not Mahr.

Mahr is the property or the wealth of the bride. The bride owns the Mahr. She will dispose of it as she wishes. Even if the husband did not pay his wife's Mahr and died, this delayed, unpaid amount of Mahr has to be taken from the husband's estate as something he owed to others but did not pay.

In Islamic law, when somebody dies, four categories of things need to be done one after the other:

1. The burial expenses need to be paid out of the deceased's estate, like for washing body, carrying body, expenses for graves, etc.

2. All debts, all credits, anything he owes to others needs to be paid out of the remaining estate. Mahr falls under this category if it was left unpaid.

3. If a person left a living will and they wanted to give something for charitable purposes, then that is to be executed but up to the level of one-third of the estate after burial expenses and have been paid.

4. What is left needs to be distributed among the inheritors.

SV: Who is a Wali in marriage and what do they do?

Wali, as I know, is in English guardian or custodian. In Islamic law, including in Hanafi fiche, there is a Wilaya system in place. In families, for example, generally speaking, the father is Wali. That means he is responsible for the family unit, as the head of the unit.

Financial responsibility, the execution of the practice of Islamic law requirements in that family, legally, Tarbiyya (training)and Taleem (education)-wise, socially, he is responsible for the overall practice of Islamic law in that unit. If the father is not there, then the father's eldest son is Wali.

There is, in Islamic law a list of these Wali, who would come before the others, if he is not there who would be the second in command. We have a Wali list.

Mainly this is the father, then the eldest son, then the other son, then the other son. In a family unit, the husband is also Wali. What we see in the Quran as Qawwamun, men are qawwamun (see Quran 4:34), this is the meaning of it, that they are responsible for that family unit. Islamic law be applied and practiced in that family through the Wali.

Walis are not like commanders or rulers who can order others to do whatever they want. They are the persons who will take the burden of the application of Islamic law (Deen) in that family.

In this category the girl who is marrying has a Wali who would take care of her things, her will, her desire in marriage. Her father or if her father is not there, her eldest brother. So this is the general picture.

A woman's Wali in marriage is a person responsible for that sister. If there is none available, like if relatives have passed away or are absent, then the Wali is the Imam. The Imam is Wali of the people who have no Wali.

But the problem here is what that ?Imam? means. The Imam in this case means head of the state or his representative, leader of Muslim Ummah in the ideal sense at least. But there are Muslims who have no Khalifah, no Imam, no Amir al-Mumineen (commander of the believers). Hopefully, their community's religious leader in whom they have trust, with whom they have Baya (a pledge of allegiance), could be the Wali of that sister who has no Wali.

In Islamic law, there is a view that some of the Madhabs (schools of thought) have that say if there is no Wali, then a sister cannot marry. But there are also minority views that say it is okay if the sister directly gives her consent without a Wali. In other words, if there is no Wali the marriage is okay. This is mainly a saving point which brings easiness to sisters who have converted to Islam or those whose families don't accept whom they want to marry. It is also for those where suitable Imams are not present.

SV: What are the groom's obligations in a marriage?

The groom's obligations are the following:

a. he needs to fulfill what he promised in the marriage contract, the way he promised, the time, the place, the amount, he needs to observe that.

b. when he is actually united in marriage, he needs to take the role of Wali in the family. He is responsible for the overall wealth, health and practice of Islamic law in that family unit.

He needs to observe all rights and rules imposed by Shariah (Islamic law) in that family. He becomes a relative of his wife?s father, mother, sister, brother and all relatives, as she, the bride, becomes a relative of his relatives.

Because of that groom the needs to observe all Islamic rules towards his wife's blood relatives, they become like his blood relatives. These relatives have rights on them and the groom has rights and duties to them.

In Islamic law, parties, male and female, don't marry each other individually. Families marry each other through these two people. That is why in Islamic law, Wilaya is important. Parents' involvement in marriage plays a role because families and family support are important. Family members have duties rights and privileges to each other.

When the groom becomes a husband, he needs to take care of his wife financially, for her food and everything (Nafaqa in Arabic) as well as taking care of her dwelling place (Sakana in Arabic), in addition to her clothing needs. The food, shelter and clothing should not be lowered from her pre-marriage status, which is one of the end results of the rule of Kufu (compatibility or eligibility in matching each other).

SV: What are the bride's obligations in a marriage?

The bride's obligations in simplistic terms, are loyalty to her promise of whatever she promised to be as a wife of her husband, accommodating him in conjugal relations, allowing him to benefit from her sexually. Her main obligation is to accommodate her husband in that house in privacy, to let him enjoy from her body, her beauty and to bear him children.

Of course, she has a duty towards his relatives, like his mother, father, and sister, but she is not a slave in that house. She is not servant in that house. She is not someone who would serve as her in-laws wish.

By the way, she has no obligation, according to Islamic procedural law (Qada in Arabic Qaza in Persian and Urdu), to cook food for her husband, no obligation to wash clothes for her husband, even I would say no obligation to clean, take care of the baby she gave birth to from her husband. She has no duty to clean her own food, her own clothes. The husband is the one who will take care of finding servants or cooking himself, or hiring someone who will take care of the baby if the wife doesn't?t want to do it herself. He cannot oblige her to do all of those things. This is speaking from the perspective of Islamic procedural law.

If the wife herself wants to do that, like during the time of the Prophet Muhammad (peace and blessings be upon him), his wives did and Fatima (the daughter of the Prophet) did for her husband Ali that?s good. We don?t want to see a tug of war in the house. We want love, care and compatibility in the family. The husband must be careful and the wife needs to be careful. If she herself does this to please her husband, there is no problem.

SV: What is a Walima?

This is a party given on the occasion of marriage by the couple, which the husband pays for. Walima is a party of joy for the celebration of the newly formed family and for announcing that this couple are now husband and wife.

During the celebration, relatives and friends of both the husband and the wife, as well as community members are invited to get acquainted with each other, to enjoy food and to relax and begin a nice relationship through the marriage.

Walima is Sunnah.

Some of the conditions of a Walima include making sure that the food is Halal and that Islamic rules pertaining to music and Hijab are observed.

SV: Where should the marriage ceremony be held?

Theologically, no space is fixed for Nikah, for contract for wedding, for the party, whatever we may call it. Any decent, Islamically acceptable place, house, home is fine.

If the Nikah is held in a Masjid, we must not use, preferably, the main part of Masjid which is properly dedicated for the sake of Allah, what we call Waqf, for Ibadah, Salah. That part cannot be used for an elaborate wedding party because that is dedicated for Salah and Ibadah in the strict sense.

But the part that is not dedicated to that, like meeting places and classrooms can be used. Of course this is part of the bigger picture of what is the definition of Masjid.

SV: Is it Haram (forbidden) to have Mehndi/henna party?

I cannot say it is Haram because Haram is something that needs to be based on Nass or evidence expressed clearly in the Quran or Sunnah . I would say it is cultural, it is okay. I would not say it is something clearly based on Sunnah or something like that.

As long as it fits in general restrictions, observes rules and regulations in general terms, I would say it is okay for sisters to have a little celebration to prepare the bride for this big responsibility she is getting ready for. Henna is allowed, it?s okay, as long as whatever they put on the body does not interfere with Wudu (i.e. nail polish) and rules of Awra and Hijab are respected.

SV: Is it Halal to have bridal shower?

I know in this country there is something called bridal shower as there are other (i.e. baby) showers taking place. I could not say it is Haram because the definition of Haram needs to be based on evidence in Quran and Sunnah.

At the same time I would not say it is Sunnah. But I would say it is okay that a bridal shower is specially done for that sister who is getting married by her friends as long as Islamicity is observed in general terms.

I would not say it is Haram because other people do it and it looks like their practices (i.e. Christians and non-Muslims). I am not going to ascribe to that view.

One Hadith says that anyone who imitates a people is of them. One must not forget that the term used in this Hadith "Tashabbaha" has a "shadda" in it. This comes from Baab Tafa?ul which is for Takalluf which basically means anybody who does something with the intention of looking like others.

This refers to the ones who want to look like non-Muslims in religion, in Deen, in their rules, that is the subject here, not the cultural, not general appearances. Non-Muslims have two legs, Muslims have two legs too. We have hundreds of similarities, but we are talking about having intention in the heart to adopt non-Muslim Aqidah (creed), to prefer their belief system to ours.

SV: Who is qualified to officiate marriages?

According to Islamic law, there is no official officiating man in office fixed for marriage. You may have noticed that in the requirements of the marriage contract, we did not mention the presence of an Imam.

In Islamic law, marriage is a contract a man and a woman eligible to marry each other and they could directly marry each other, no officiating person is necessary.

So if would be husband asks for marriage to a marriageable woman in front of two Muslim male witnesses and she accepts, that is a marriage.

In some Madhabs, a verbal promise of fixed Mahr would also be a condition.

It is not necessary to have a written marriage contract, however, it is recommended to write it down.

SV: Is it Haram to offer food on marriage day (Nikah)?

It is not Haram to offer food on the wedding day or any other day. One may offer food, one may not offer food. This is not something binding in Sunnah but it is not Haram, it is cultural.

It is totally okay to eat as long as the food is Halal, the earning of the person who offered this food has no Haram in it, but it is not Haram as long as the food is Halal and the environment is okay.

SV: Is it Halal to do paper marriage?

I find it difficult to answer this question. There is a conflict of laws involved here. But I will give you my personal interpretation, and I totally understand if someone disagrees with me.

First, decency and truthfulness are the bases of human relations as well as according to Islamic law between men and women, husbands and wives. Truthfulness, keeping the promise and loyalty are very very important, especially for the husband and wife.

From that point of view, something with a hidden agenda in those contracts is not something encouraged by Islam. The persons who are doing any type of marriage relations between each other, men and women, according to Islamic law, and Hadith, even if they do it jokingly that is to be taken as a valid one because there is a Hadith which says Nikah (marriage), Talaq (divorce) and emancipation of slaves, the joking one (Hazl) and serious ones (Jidd) are the same.

Because of that, I feel personally, difficulty in qualifying marriage on paper for the purpose of green card only or other purposes as invalid in Islamic law, nonexistent in Islamic law or nil as they say, void or Baatil. I would say yes it is a marriage, there is a Nikah (Aqd) between this man and woman since they have this agreement with each other, even if it is in appearance.

So all of the obligations and duties of marriage must be applied by the husband the wife involved in a paper marriage.

SV: Is it halal to marry second wife which is prohibited by law in the US and may involve one wife not having any legal rights?

From the Muslim perspective, as a general rule, a second wife is not something scripturally prohibited as long as necessities lead to that according to Islam. There are some necessities, some conditions, if they need Islam does not prohibit (second marriages). The Quran and Sunnah do not prohibit having a second wife as long as the requirements are there in a general sense, as opposed to American law and Western laws. So Islam is a little bit favorable towards having a second wife, with conditions and everything.

Now a Muslim who is going to take a risk by clashing with the law of the land and he thinks that the conditions of Islam for a second wife are there and he is taking this risk of clashing with law of the land, I think in case of taking this risk, he needs to foresee the problems and needs to guarantee all Islamically required needs of the second wife be provided and be guaranteed in this setting here in America which does not recognize legal rights for second wife.

But he, that Muslim who is taking this risk, needs to find a way to create the environment in which her rights are met and her needs are answered here in this country.

I would not say according to Islamic law it is Haram to have a second wife if conditions meet here, but I would say it needs the rights of women to be guaranteed in one way or another when this risk is taken here in this country.

Of course, the consent of first wife, her conditions she put at marriage time all need to be observed and I am not saying at all that he, the husband is free to do whatever he wants to marry second wife even if she (the first wife) did not allow him to do that in the marriage contract. The husband needs to follow the conditions promised in the marriage contract if she put this condition.

If the husband is really not eligible to marry a second wife, financially and physically, he could be violating a lot of human rights (Huqooq al Ibad in Arabic, which means the rights of others, including his wife). He may be very much in trouble on the Day of Judgment when he has to answer for the hurt he caused to his family as we have experienced in grave cases in this type of situation.

SV: If a woman becomes Muslim who is happily married to a non-Muslim husband, what should we advise her to do if he does not want to become Muslim or wants to take time to think about it?

First, in Islamic law, a sister who becomes Muslim, having married earlier, she becomes automatically divorced from a non-Muslim husband and no procedural things are needed for that to happen.

I would say of course, if the husband accepts Islam, they can continue living as husband and wife. If they simultaneously become Muslim, no new Nikah is necessary.

But if she became Muslim earlier and it took time for him, then a new Nikah is necessary.

But practically struggling with these issues here and knowing other brothers who are struggling with these issues here longer than me, I would say we need to find a soft way of tacking this subject, like giving this sister a chance to to tell her husband, 'I cannot be your wife anymore if you don?t accept Islam. I don?t want to be your wife anymore if you don?t accept Islam'.

We need at least a separate room if not house for the wife to go to to give some time to that husband to think about it and adjust himself to the situation.

SV: Is a civil marriage valid Islamically if the bride and groom were married in front of witnesses?

I would divide this answer into two perspectives.

If it is done anywhere with two Muslim male witnesses or one Muslim male and two Muslim females, and with Ijab (offer of marriage) and Qubool (acceptance) with the announcement of Iradah (consent), I think that is an Islamically acceptable marriage.

From my perspective, marriages done in the presence of a judge here in this country, if witnesses were there, from my perspective that is an Islamically valid marriage.

According to the Hanafi Madhab, the civil marriage could still be valid if Mahr was not fixed in the contract since the Mahr al Misr rule (see above) is in effect.

However, other Madhabs would not recognize the civil contract due to the lack of Mahr, for instance.

But if the marriage is done by the authority of another religion, other than Islam, like marriages done in churches, synagogues, Buddhist or Hindu temples, by the authority of that religion, who observed the rules of their own religion, other than Islam, I feel difficulty in qualifying these types of marriages as Islamically acceptable or valid marriages according to Islamic law.

A note on prenuptial agreements

Since this is a country where Islamic law is not the law of the land, it is always good to take measures where Islamic law could be applied as much as possible and the rights of Muslims, husbands and wives, could be guaranteed as much as possible.

It is good, I would say necessary, to benefit from the law of the land and to get their protection, the protection of the law of the land, in terms of documentation, in terms of court systems.

For this purpose, I think no Muslim marriage must be performed without having a marriage license given by marriage offices of the state. These marriage licenses with their blank spaces may be used by Islamic centers, by Imams in their marriage contracts and everything could be recorded on that paper.

'In this context, Muslims could benefit from the prenuptial agreement system by writing down all conditions they would observe in their married life including following Islam and Shariah and that conflicts will be solved by Muslim courts. In case there are none, then by Muslim mediators and arbitrators who would be selected by the parties and Islamic law would be followed in the solution of these conflicts.

So couples may prepare these prenuptial marriage agreements, with their signatures on them and get them notarized. Then the rights of couples according to their belief system will be guaranteed and practiced in any condition everywhere in the world.

Prenuptial agreements come before the law of the land when conflict arises. So this is a nice opportunity for Muslims to guarantee their rights of Islamic belief and also to let Islamic law be applied on their family life.

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Imam Yusuf Ziya Kavakci is Imam of the Dallas Central Mosque in Richardson, Texas.

He memorized Quran before the age of 10. He is originally from Turkey and has studied Islam in a traditional Ottoman Madrassa. He has a Ph.D.. in Islamic law from the Institute of Islamic Research of Istanbul University in Turkey.

Sound Vision interviewed Imam Kavakci, who has specialized in the Hanafi school of thought of Islamic law, about a number of questions relating to marriage in Islam, and some current issues facing Muslims in North America.

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