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Injunctions of the Qur'an
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Ahadith of the Holy Prophet
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Rights in the Light of Qur'an and Hadith
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Views of the Scholars
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Islamic Law and
Figh
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Law in Pakistan
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Marriage in Other Societies and Reforms by Islam
I ‑ INJUNCTIONS OF THE QUR'AN
The
injunctions of the Holy Qur'an about the rights of woman pertaining to
marriage, as contained in its various verses, are quoted as follows:
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A
.divorce is only permissible twice: after that, the parties should
either hold together on equitable terms or separate with kindness. It
is not lawful for you, (Men), to take back any of your gifts (from
your wives). Except when both parties fear that they would be unable
to keep the limits ordained by Allah. If ye (judges) do indeed fear
that they would be unable to keep the limits ordained by Allah, there
is no blame on either of them if she gives something for her freedom.
(2:229)
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When ye
divorce women, and they fulfil the term of their (‘Iddat), do not
prevent them from marrying their (former) husbands, if they mutually
agree on equitable terms. This instruction is for all amongst you, who
believe in Allah and the last day. That is (the course making for)
most virtue and purity amongst you, and Allah knows, and ye know not.
(2:232)
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If any of
you die and leave widows behind, they shall wait concerning themselves
four months and ten days: When they have fulfilled their term, there
is no blame on you if they dispose of themselves in a just and
reasonable manner. And Allah is well acquainted with what ye do.
(2:234)
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If ye
fear that ye shall not be able to deal justly with the orphans, marry
women of your choice, two, or three, or four; but if ye fear that ye
shall not be able to deal justly (with them), then only one, or (a
captive) that your right hands possess. That will be more suitable, to
prevent you from doing injustice. (4:3)
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And give
the women (on marriage) their dower as a free gift; but if they, of
their own good pleasure, remit any part of it to you, take it and
enjoy it with right good cheer. (4:4)
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Prohibited to you (For marriage) are:‑ Your .mothers, daughters,
sisters; father's sisters, Mother's sisters; brother's daughters,
sister's daughters, foster‑mothers (who gave you suck),
foster‑sisters; your wives' mothers; your step‑daughters under your
Guardianship, born of your wives to whom ye have gone in,‑ no
prohibition if ye have not gone in;‑ (Those who have been) wives of
your sons proceeding from your loins; and two sisters in wedlock at
one and the same time, except for what is past; for Allah is
Oft‑Forgiving, most Merciful;‑
Also
(prohibited are) women already married, except those whom your right
hands possess. Thus hath Allah ordained (prohibitions) against you;
except for these, all others are lawful, provided ye seek (them in
marriage) with gifts from your property,‑ Desiring chastity, not lust,
seeing that ye derive benefit from them, give them their dowers (at
least) as prescribed; but if, after a dower is prescribed, ye agree
mutually (to vary it), there is no blame on you, and Allah is
All‑Knowing, All‑Wise. (4:23‑24)
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Men are
the protectors and maintainers of women; because Allah has given the
one more (strength) than the other, and because they support them from
their means.
Therefore
the righteous women are devoutly obedient, and guard in (the
husband's) absence what Allah would have them guard. (4:34)
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This day
are (all) things good and pure made lawful unto you. The food of the
People of the Book is lawful unto you and yours is lawful unto them.
(Lawful unto you in marriage) are (not only) chaste women who are
believers, but chaste women among the People of the Book, revealed
before your time,‑ when ye give them their due dowers, and desire
chastity, not lewdness, nor secret intrigues. If anyone rejects faith,
fruitless is his work, and in the Hereafter he will be in the ranks of
those who have lost (all spiritual good). (5:5)
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Marry
those among you who are single, or the virtuous ones. among your
slaves, male or female; if they are in poverty; Allah will give them
means out of His grace; for Allah encompasseth all. And He knoweth all
things. (24:32)
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II ‑ AHADITH OF THE HOLY PROPHET
Traditions
of the Prophet of Islam on the subject of woman's rights regarding
marriage are as follows: ‑
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Abu
Hurairah reported that the Messenger of Allah said: A previously
married woman shall not be married till she gives consent, nor a
virgin be married till her consent is sought. They asked; How shall be
her consent? He said: If she remains silent. (Bukhari and Muslim)
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Abu
Hurairah reported that the Prophet said: A grown ‑up girl shall be
asked permission about herself. If she is silent, it is her permission
and if she declines there shall be no compulsion on her. (Tirmizi, Abu
Daud, Nisai)
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Jaber
reported that the Messenger of Allah said: when one of you seeks a
woman in marriage and then if he is able to have a look at whom he
wishes to marry, let him do. (Abu Daud)
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Anas
reported that the Messenger of Allah noticed 'a sign of yellow colour
on Abdul Rahman‑b‑Auf. He asked: What is this? He replied: I have
married a woman for a measure of 5 dirhams of gold. He said: May Allah
bless you. Give a feast even though with a goat. (Bukhari, Muslim)
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Ibn Abbas
reported that a virgin grown‑up girl came to the Messenger of Alla"i
and narrated that her father had given her in marriage, which was
disliking to her. The Messenger of Allah gave her option. (Abu Daud)
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Ali
reported that the Messenger of Allah prohibited Mu'ta marriage
(temporary marriage) with women on the day of Khaiber .... (Bukhari
and Muslim)
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7. Meswar-b‑Makhramah
reported that Sobaiata al Aslamiyah was subject of blood after
childbirth for some nights after the death of her husband. She came to
the Prophet and sought his permission to get married. He gave her
permission and then she was remarried. (Bukhari)
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8. Ibn
Omar reported that the Apostle of Allah forbade Shigar, and Shigar is
a man giving his daughter in marriage on condition that another would
give his daughter in marriage to him; and that there would be no dower
between them... (Bukhari, Muslim)
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Ayesha
reported that toe Apostle of Allah said: Whatever is unlawful by
reason of consanguinity is unlawful by reason of fosterage. (Bukhari)
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III ‑ RIGHTS IN THE LIGHT OF QUR'AN AND HADITH
Rights
conferred on a Muslim woman pertaining to marriage are discussed in the
light of the Qur'an and Sunnah of the Prophet (PBUH) as under:‑
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A Woman
has got as much right to marry as a man has. The Qur'an says. "Marry
those among you who are single"‑(24:32). The Arabic word Ayyama' means
single or solitary. A single person, may be a man or a woman, should
be married. He or she may be single on account of having not yet
married or on account of dissolution of his or her marriage by divorce
or by death of the other spouse. Whatever may be the reason for being
single, he or she has the right to marry or remarry. Even poverty is
no excuse or justification to keep an unmarried man or woman away from
marriage, as the Qur'an says in .this very verse "If they are in
poverty, Allah will give them means out of His grace."
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The woman
has‑been granted as much freedom in the choice of her husband as the
man has been granted in choosing his wife. Nobody has any right to
give her away in marriage without her consent. A tradition reported by
Abu Hurairah in Bukhari and Muslim states that the Prophet (May
Allah's peace be upon him) said: "A previously married woman (whose
marriage is dissolved) shall not be married till she gives consent nor
a virgin be married till her consent is sought... and, her silence is
her consent." No compulsion or coercion can be exercised to force a
woman into marriage.
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A minor
girl, when given in marriage by her guardian, has the option to
repudiate the marriage when she attains puberty. The Prophet of Islam
annulled the marriage of a girl who had been given ire marriage by her
father, since she disliked it (Bukhari). However, repudiation must be
made immediately after she attains puberty and before cohabiting with
the husband.
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Islam
permits a divorcee or a widow to remarry. AlQur'an says: "And when
you have divorced women and they reach their term, place not
difficulties in the way if their marrying their husbands"‑ (2:232).
About the widow's right of second marriage the Qur'an says, "When they
have fulfilled their term, there is‑ no blame on you if they dispose
of themselves in a just and reasonable manner‑" (2:234) According to a
Tradition reported in Bukhari, Prophet Muhammad (May Allah's peace be
upon him) permitted a widow Sobaiata‑al‑Aslamiyah to contract second
marriage.
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Islam
confers an unfettered right on a woman to obtain dower from her
husband. The Qur'an says: "And give the women (on marriage) their
dower as a free gift"‑ (4:4) For details see chapter on dower.
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Islam
also gives the right to, a woman to seek divorce from her husband,
e.g., by Khula or by dissolution of marriage in certain situations.
For details see chapter on divorce.
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The woman
is entitled to have maintenance from her husband. See chapter on
maintenance; for details.
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Prohibited degrees of marriage (where man and woman cannot marry on
account of close relationship or on account of certain legal
disability) have been mentioned in the Qur'an in the verses, 22, 23,
24 and 25 of its chapter 4. The Prophet of Islam also prohibited the
union of males with certain females in some situations.
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Prophet
Muhammad (May Allah's peace be upon him) prohibited temporary
marriages (Mu'ta) and exchange marriages (Shigar), thus protecting the
rights of females against evil and oppressive customs.
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Woman
also enjoys certain rights and protection in case of her husband's
polygamy. For details, please see chapter on polygamy.
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A Muslim
male is permitted to marry a woman of those who received the scripture
‑ Ahle Kitab like Jews and Christians. (Al‑Qur'an 5:6)
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IV ‑ VIEWS OF THE SCHOLARS
Views of
some eminent scholars regarding mutual rights of the contracting parties
in marriage are cited as under:‑
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Maulana
Fazl‑ul‑Karim, in ‘Al‑Hadith', writes about Marriage in Islam. "A
Muslim marriage is a civil contract based on mutual consent of the
bride and bridegroom, as distinguished from the sacramental form of
marriage. Most of. the incidents of contract are consequently
applicable to such a marriage, for example, consideration of marriage
in the form of dower, breach of the contract by divorce, giving of
legal rights and obligations on the contractual parties, and bestowing
`no greater power on the husband than what the contract provides in a
lawful manner. A Muslim marriage requires no priest and no sacramental
rights. At best, the registration of mutual consent may be done: A
woman has got absolute right in her acquired properties before and
after her marriage. In addition, she has a distinct lien upon her
husband's property for her ante‑nuptial settlements."
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Abdul
Hamid Siddiqi writes about the institution of marriage. "Marriage is a
social institution as old as the human race itself. It may be defined
as a relation between a man and a woman which is recognised by custom
or law and involves certain rights and duties, both in the case of the
parties entering the union, and in case of the children born of it.
Marriage has thus two main functions to perform: it is the means
adopted by human society for regulating relations between the sexes;
and it furnishes the mechanism by means of which the relations of a
child to the community is determined."
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Justice
(retired) Aftab Hussain in his book "Status of Woman in Islam",
writes: "Regarded as a social institution, marriage, under the Muslim
Law is essentially a civil contract. Its validity depends upon
proposal on one side and acceptance by the other. The law does not
insist upon any particular form in which the contract should be
effected and completed. Before the promulgation of the Family Laws
Ordinance which provides for compulsory registration of marriage it
was not necessary in Pakistan that the union should be evidenced by
any writing.
A
marriage‑contract, as a civil institution, rests on the same footing
as other contracts. The parties retain their personal rights against
each other as well as against strangers; and according to the majority
of schools, have power to dissolve the marriage tie, should
circumstances render this desirable."
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V ‑ ISLAMIC LAW AND FIQH
Rules and
regulations of marriage and mutual rights of the husband and wife under
the Islamic Law and Fiqh are:
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Nikah,
Or Agd which is the Arabic word equivalent of English
word "marriage", means uniting or union. Marriage has been defined in
various ways. According to Hedaya, "Marriage is a legal process by
which the sexual intercourse and procreation and legitimation of
children between man and woman is perfectly lawful and valid." In the
words of Ameer Ali, "marriage under Muhammadan law is essentially a
civil contract. Its validity depends on, proposal on one side and
acceptance on the other". According to Baillie's . digest, "marriage
‑is a contract for the purpose of legalising sexual intercourse and
procreation of children." Mahmood J. observes: "Marriage according to
Muhammadan Law is not a sacrament but a civil contract. All the rights
and obligations it creates arise immediately and are not dependent on
any condition precedent such as the payment of ‑dower by a husband to
wife" Mulla says: "Marriage is defined to be a contract which has for
its object the procreation and legalising of children."
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Every
adult Muslim of sound mind can enter into a marriage contract. The
contracting parties must be acting under their free will and
consent. When consent to a marriage has been obtained by force or
fraud, the marriage is invalid unless it is ratified. Where consent to
the marriage has not been obtained, consummation will not make the
marriage valid. Lunatics and minors may' be validly married through
their guardians.
Views differ regarding
the age of puberty. Abu Hanifa fixes the age of puberty in case of
boys at 18 years and in case of girls at 17 years: According to Abu
Yusuf, it is >15 years for both. Hedaya places the earliest period of
puberty in respect of .a boy at 12 years and in respect of a girl at 9
years. The Child Marriage Restraint Act, 1929, has fixed the age of
puberty for male at 18 years and for female at 16 years.
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Essentials of a marriage have been beautifully laid down by Mulla in
these words: It is essential to the validity of a marriage that there
should be a proposal made by or on behalf of one of the parties to the
marriage, and an acceptance of the proposal by‑:or on behalf of the
other, in the presence or hearing of two male or one male and two
female witnesses, who must be sane and adult Muhammadans. The proposal
and acceptance must both be expressed at one meeting; a proposal made
at one meeting and. an acceptance made at another meeting do not
constitute a valid marriage. Neither writing nor any religious
ceremony is essential.
However in Pakistan,
marriage is to be registered with Nikah Registrar under Sec. 5 of the
Muslim Family Laws Ordinance, 1961.
According to Shia
Law, witnesses are not necessary at the time of marriage but they are
required at the time of divorce.
Another important
essential of a valid marriage is that the female with whom a male
wants to marry should not be one among the prohibited degrees of
marriage on the basis of consanguinity, affinity or fosterage.
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A Muslim
male can contract a marriage with a Kitabia woman i.e. Jew or
Christian. But a Muslim woman cannot marry a Kitabi man i.e. Christian
or a Jew; she can only marry a Muslim. However a Muslim male or female
cannot marry a non‑believer or idolater.
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A valid
marriage confers upon the wife right of dower, maintenance and
residence in her husband's house. She has also right to visit or be
visited by her blood relations. However, it imposes on her the
obligation to be faithful and obedient to her husband, to admit him to
sexual intercourse and to observe the Iddah on dissolution of
marriage by divorce or husband's death. It also creates between the
parties prohibited degrees of relationship and reciprocal rights of
inheritance. So a valid marriage creates mutual rights and obligations
for both the husband and wife.
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VI ‑ LAW IN PAKISTAN
I. The
Muslim Family Laws Ordinance, 1961, requires the registration of
marriages. Section 5 of this Ordinance reads:
(1) Every
marriage solemnized under Muslim Law shall be registered in accordance
with the provisions of this Ordinance.
(2) For
the purpose of registration of marriages under this Ordinance, the
Union Council shall grant licences to one or more persons, to be
called Nikah Registrars, but in no case shall more than one Nikah
Registrar be licensed for any one ward.
(3) Every
marriage not solemnized by the Nikah Registrar shall, for the purpose
of registration under this Ordinance, be reported to him by the person
who has solemnized such marriage.
(4) Whoever contravenes the provisions of subsection (3) shall be
punishable with simple imprisonment for a term which may extend, to
three months, or with fine which may extend to one thousand rupees, or
with both.
2. The
Dowry and Bridal Gifts (Restriction) Act, 1976 was passed in 1976 to
restrict the evil of Jahez (dowry) which is basically a Hindu Custom but
unfortunately it is firmly established in our society with the result
that it has become extremely difficult for a man of average means to wed
his daughters: The Act provides:‑
(1)
Neither the aggregate value of dowry and presents given to the bride
by her parents nor the aggregate value of bridal gifts or of presents
given to the bridegroom shall exceed five thousand rupees (Sec. 3)
(2) All
property given as dowry or bridal gifts and all property given to the
bride as a present shall vest absolutely in the bride and her interest
in the property however derived shall hereafter not be restrictive,
conditional or limited. (Sec. 5) .
(3) The
total expenditure on a marriage, excluding the value of dowry, bridal
gifts and presents, but including the expenses on mehndi, baarat and
walima, incurred by or on behalf of either party to the marriage shall
not exceed two thousand and five hundred rupees (Sec. 6)
(4) The
parents of each party to a marriage shall furnish to the Registrar
lists of dowry, bridal gifts and presents given or received in
connection with the marriage. [Sec. 8(1)]
(5) The
parents of each party to a marriage shall furnish to the Registrar the
details of expenditure incurred by them on the marriage within one
week. [Sec. 8(4)]
(6) Whoever, contravenes or fails to comply with, any provision of
this Act or the rules made thereunder, shall be punishable with
imprisonment of either description for a term which may extend to six
months, or with fine which may extend to ten thousand rupees or with
both, and the dowry, bridal gifts or presents given or accepted in
contravention of the provisions of this Act shall be forfeited to the
Federal Government to be utilized for the marriage of poor girls in
such a way as may be prescribed by rules made under this Act. (Sec. 9)
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VII ‑ MARRIAGE IN OTHER SOCIETIES AND REFORMS BY
ISLAM
All
societies have rules or shared patterns of behaviour that regulate
sexuality, birth and child rearing. Marriage is the institution that
encompasses these rules and patterns of behaviour.
There are
various forms of marriage. Monogamy is a marriage‑ between two
individuals, one male and one female. Polygamy is marriage between three
or more individuals. If one male is married to more than one female it
is polygamy. If one female is married to more than one male it is known
as polyandry. In case of group marriage, two or more males are married
to two or more females. Exogamy is marriage outside group, while
marriage within the group is known as endogamy.
The
institution of marriage has existed in one form or the other throughout
human civilisation. Various customs and rituals have come to be
associated with marriage. Among the warlike tribes of the antiquity
there was a custom of wife capture whereby a woman was captured forcibly
and made wife against her and her family's will. Much social and
military honour was attached to this form of marriage. System of wife
purchase was prevalent in many societies and it survives even today in
some societies. It was there in Roman civilization and under many
others. According to the system, a woman was purchased and made wife.
This system also helped the development of polygamy among the affluent
classes. In some societies like Hindu society, substantial amount of
Jahez or dowry is given by the family of the bride to the
bridegroom. Since the Hindu customary law deprives the daughters from
inheritance, the daughters are given huge dowries at the time of their
marriage. Among some nations, marital arrangements provide for the
exchange of women without any payment. One man gives his sister in
marriage to the other man who gives his sister in marriage to him.
In many
communities of the world a system of arranged marriages exists in which
choice of the bridegroom and bride does not matter, neither their
consent is taken particularly that of the bride. In some cases even the
groom and the bride have not seen each other before marriage and they
meet each other for the first time at the wedding ceremony. In almost
all societies, marriage has become a publicly celebrated ceremony
involving many socio‑religious customs, formalities and rituals. These
rituals, more than often, cost heavily in terms of time and money.
Economic burden generally falls more heavily on the family of the bride
who provides not only rich. feasts to the groom and his party but also
gives large dowry to the bride which she takes to her husband's house.
Thus we see
that in most of the rituals, ceremonies and forms of marriage, the
females are generally at a disadvantage.
Islam
abolished many evil customs and rituals connected with marriage thereby
redeeming the position of the woman. A brief resume of the reforms
introduced by Islam with regard to marriage is given as follows:‑
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System of
exchange marriages, bride purchase and bride capture was abolished by
Islam.
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No
Jahez
or dowry is to be given by the family of the bride
under compulsion. On the other hand the husband has to give Mahr
or dower to the wife compulsorily.
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It is not
obligatory on the family of the bride to provide luxurious feasts or
meals to the groom and his party. On the other hand, it is obligatory
on the bridegroom to host a feast for his friends and relations to
celebrate his marriage. According to some well known traditions, the
Holy Prophet enjoined his followers and companions to host
marriage‑feast or walima, how much simple it may be, to entertain
their friends and relations when they marry the women.
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What to
speak of male, even a female cannot be forced into marriage. Marriage
has to be contracted with consent and even the consent of the girl
has. to be obtained.
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If a
minor girl is given in marriage by her guardian, she can exercise her
option and repudiate the marriage when she attains puberty.
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Man and
woman can look at each other before marriage and can express or
communicate their liking or disliking to the proposal.
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Certain
marital alliances were forbidden as unlawful; for example marriages
between brother and sisters, parents and children etc. In some ancient
societies, incest marital relationships had existed which have been
strongly condemned by the Qur'an as an evil way.
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Marriage
in Islam is a very simple affair. No elaborate and expensive rituals
or ceremonies are held. One of the parties proposes and the other
accepts. A marriage is contracted in the presence of two witnesses. A
marriage feast is to be hosted by the husband.
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