Prohibited Marriages In Islam

Submitted to:-

Dr. Akbar Khan

By:-

Muhammad Mohsin Ahmad

Section:- (C)

Registration No:- 2983-FSL/LLB(E)F16

International Islamic university,Islamabad,H10

Prelude:-

As marriage is a legal and pure Islamic concept. It is the need of every man after he becomes

adult. While where Islam orders to marry on time; besides this Islam also prohibited to marry

some relations like fosterage and Affinity etc. Now we will discuss that what is marriage and with

whom relations it not allowed in Islam and also discuss that what orders Islam gives in the context of

marriage relations.

What is marriage?

Muslim Jurists have formulated various definitions highlighting distinct features of Marriage.

Thus in the light of their definitions a Marriage contract can be described in the following way:

1. Marriage is a contract to render sexual relations between a man and woman licit or lawful.

2. It is a contract for the gratification of sexual needs and procreation of children.

3. Marriage is a legal relationship established by an agreement between man and woman

entitling them to sexual enjoyment.

General Definition of Marriage:-

Marriage, also called matrimony or wedlock, is a socially or ritually recognised union between

spouses that establishes rights and obligations between those spouses, as well as between
them and any resulting biological or adopted children and affinity (in-laws and other family

through marriage)

Prohibited Marriages:-

24-4:22(




)

And marry not women whom your fathers married except what has been done in the past: it
was shameful and odious an abominable practice indeed. Prohibited to you [for marriage] are
your mothers, daughters, sisters, your maternal and paternal aunts, the daughters of your
brothers and sisters; your mothers who have suckled you and your sisters through fosterage,
the mothers of your wives, your step-daughters raised under you born of your wives with
whom you have lain no offence if you have not lain with their mothers, and the wives of your
begotten sons, and two sisters in wedlock at the same time, except for what has already
happened. God indeed is Oft-Forgiving, Most Merciful. Also [prohibited are] women already
married, except those whom your right hands possess; this is a written obligation upon you
from God. (4:22-4)

The above quoted verse enlists women with whom marriage has been prohibited. The list

begins with the step mother and ends with women who are married to someone. In between

these two, the prohibited women mentioned are based on the three bases of relationship:

Lineage, Fosterage and Marriage.

Islamic law prescribes many prohibitions within which a boy or girl marry. These prohibitions

can be divided into permanent prohibitions and temporary prohibitions. Permanent

prohibitions arise from

1. Consanguinity

2 .Affinity

3. Fosterage.

Temporary prohibitions arise from causes, which render the marriage irregular (fasid), for the

cause, which creates the bar, that may be removed subsequently, rendering the amrriage valid.

Permanent Prohibitions

Prohibited Marriage by reasons of Consanguinity:-

Consanguinity is the relation subsisting between some persons having the same or common
ancestor which may either be linel consanguinity as between two person in a direct ascending

line or collateral consanguinity which is the relation subsisting between persons who descend

from the same common ancestor, but not from each other.

The prohibited marriages by reason of consanguinity may either be in the direct line or in the

collateral line.

In the direct line, a man is prohibited to marry:

1. Mother (includes ascendants).

2. Daughter((including her descendents).

In the collateral line he is prohibited to marry:

1. Sister (including sister's daughter and her descendants).

2. Brother's daughter (including brother's daughter's descendants).

3. Paternal Aunt.

4. Maternal Aunt.

In this regard the Quran says:

"Prohibited to you for marriage are your mothers, daughters, sisters, father's sisters, mother's

sisters, mother's brother's daughters, sister's daughters". (4:23).

Prohibited Marriage by Reason of Affinity:-

Affinity is the connection existing in consequence of marriage between each of the maternal

persons and the kindred of the other. On grounds of affinity a man is prohibited to marry:

1. Wife's mother or wife's grandmother i.e mother in law.

2. Wife's step daughter's daughter.

3. Wife of father i.e stepmother.

4. Wife of son and wife of son's son.

The Quran says:

"Prohibited to you (for marriage) are......your wife's mother, your stepdaughters under your

guardianship born of your wives to whom you have gone in, no prohibition if you have not gone

in; (those who have been) wives of your sons proceeding from your lions:. (4:23)

Juristic point of View:-

Out of these four categories, the Muslim Jurists agreed upon the prohibition of two by virtue of
contract itself, namely, the prohibition of the wives of fathers and sons, and upon a third

category because of consummation, namely the wife's daughter.

Prohibited Marriages by Reason of Fosterage:-

For Fosterage to constitute an impediment in marriage, it is necessary that the age of the child

at the time of its sukling milk of foster mother should be upon two years. Suckling milk five

times establishes the relationship of fosterage according to Shafi'i and according to Abu Hanifa

one time.

Quran says:

Prohibited to you (for marriage) are fosterage mothers, fosterage sisters....(4:23)

There are eight categories of women forbidden on grounds of suckling as

follows:

1. Women from whom the man is descended by suckling.

 2. Women descended from the man by suckling. This comprises the daughters by suckling

and his son's daughters.

3. Women descended from the parents of the man by suckling. This comprises his sisters

by suckling and the daughters of his sisters and brothers by suckling.

4. Woman of the generation immediately descended from the grandparents that is

maternal and paternal aunts by suckling. It is however, permitted to marry the

daughters of maternal and paternal aunts and uncles by suckling.

5. The mother of a man's wife and her grandmothers by suckling to whatever degree

removed and whether or not the marriage to the wife has been consummated.

6. The daughter of a man's wife by suckling, to whatever degree removed but on condition

that the marriage to the mother has been consummated.

7. The wife of the father by sucking and of the grandfather, whatever or not the marriage

to the stepmother has been consummated.

8. The wife of a son by suckling and of a son's or daughter's son by suckling.

The prohibition, however, does not apply to:

The sister of a son by suckling.

The mother of a sister or brother by suckling.

 The grandmother of a son or daughter by suckling.

The sister of a brother by suckling.

Illicit Sexual Contract:-

The illicit sexual association between a man and woman creates a bar to a marriage between a

man and those relatives of the girl with whom he is prohibited by bar of affinity, in the opinion

of Hanafi and Hanbali Jurists. Thus if a man establishes illicit sexual relationship with a woman,

he cannot marry her mother or daughter afterwards. The Hanafi and Hanbali Jurists treat sexual

act as equivalent to a nikkah to create a prohibition on ground of affinity. The Hanafi Jurists

argue that the Quran has used the word nikkah in the emaning of intercourse in the verse:

And marry not woman whom your fathers married.... (4:22)

Imam Shafi'i on the other hand holds the opinion that an unlawful act does not render a lawful

thing unlawful. So they allow the adulterer to marry the daughter and mother of adulterer

woman.

Re-marriage with a woman separated by Li'an :-

The couple that performs li'an (imprecation) can never be united. This is predominant view in

Islamic law. However, Hanafi Jurists maintain that if the accuser admits the falsity of his
accusation, than after undergoing the punishment of eighty stripes, may marry again.

POLYANDRY/MARRIED WOMAN :

A married woman cannot contract a second marriage during the life time of the husband. If she

does so, the marriage would be void and she can be punished under section 494 of the Penal

Code.

TEMPORARY IMPEDIMENTS :

These are temporary in nature and as per Hanafi jurists; these make the marriage irregular not

void and can be cured. These include following :

1. Unlawful Conjunction

2. Polygamy

3. Iddah

4. Difference 0f Religion

5. Absence of Witnesses

6. Mushrik/Idolatoress Woman
 1. UNLAWFUL CONJUNCTION :

As opposed to the practice of the period of jahiliyyah, Islam forbade taking two sisters as co-

wives at the same time, because the feeling of love and sisterliness which islam wants to

maintain between sisters would be destroyed if one sister became the co-wife of the same

husband.

The PROPHET(peace be upon him) Said ;

A man may not be married to a woman and her paternal aunt(at the same time), nor to a

woman and her maternal aunt.

(Reported By Al-Bukhari And Muslim)

And He Said ;

If you do this, you will severe your ties of kinship.

(Reported By Ibn-e-Hibban)

A marriage by unlawful conjunction is irregular but not void.

 2. POLYGAMY :

The maximum number of wives that a muslim can have at a time is four. If he marries a

fifth wife when he has already four, the marriage is not void, but merely irregular. The

impediment can be overcome by divorcing one of the previous four wives.

3. IDDAT :

A marriage with a woman undergoing iddat of her previous marriage is irregular but not

void.

4. DIFFERENCE OF RELIGION :

For muslim woman; It is haram for a muslim woman to marry a non-muslim man,

regardless of whether he of the people of the book or not.

ALLAH Says In His Book ;

It is not permissible for muslim women to marry non-muslim men. (2:221)

And He Siad Concerning The Immigrant Muslim Women ;

Then if you know them to be believers, do not send them back to the unbelievers. They are

not halal for them(as wives), nor are they halal for them(as husbands). (60:10)

For muslim man; It is however lawful for muslim men to marry chaste women(that is women of

virtue and character) from among the Jews and the Christians.

ALLAH Says In His Book ;

(And lawful to you in marriage) are chaste women from those who were given the scripture

before you. (5:5)

5. ABSENCE OF WITNESSES :

The Sunnis insist that at least two witnesses must be present. While Presence of

witnesses not necessary according to Shia Law.

If witnesses are not present, the marriage is irregular but not void.

6. MUSHRIK/IDOLATORESS WOMAN :

It is also prohibited to marry a woman who is a mushrik that is who worships idols or

associates other deities with Allah.

ALLAH Says In His Book, The Quran ;

 And do not marry mushrik women until they believe. (2:221)

A marriage, however, with an idolatoress or a fire worshipper is not void but irregular.

EFFECTS OF IMPEDIMENTS :

Permanent impediments are those which can never be avoided.

On the other hand, temporary impediments can be cured.

EFFECT OF CHILDS LIGITIMACY :

IN PERMANENT IMPEDIMENT, the off-spring of marriage can not be acknowledged as

legitimate.

IN TEMPORARY IMPEDIMENT, the off-spring of marriage can acknowledged as legitimate.

CRITICAL APPRECIATION;

The Quran Says ;

Allah wishes easiness for you, He does not desire for you hardship. (2:185)
Islamic law regarding marriage is easy, practical, rational and in keeping with human nature.

Humanity can only benefit by following these regulations in true spirit.

Temporary Prohibitions

Marriage with married woman:-

It is not lawful to marry a married woman---such is permissible only when she is divorced and

completes waiting period or her husband has died and she has completed waiting period, The

Quran says:

"And also prohibited are woman already married.... (4:24)

Marriage during Iddah:-

It is not allowed to marry a woman during iddah.

Woman repudiated thrice:-

A woman repudiated thrice is not lawful for former husband unless she contracts an

intervening marriage, which is consummated, and then she is divorced and completes her

waiting period, provided that the subsequent intervening marriage is not a result of collusion

between divorced wife and former husband. (Quran 2:230)

Marriage to Idolatress:-

The marriage to an idolatress is also prohibited in Islam. This prohibited is established by the

following texts.

Do not marry unbelieving woman (idolatress) until they believe. (2:221)

According to Shiah jurists marriage with non-Muslim woman is not lawful. However, such

marriage is generally held to be lawful in Islamic jurisprudence but the Islamic state has the

right to impose ban on such marriages if the interest of Muslim community of the religion

require that. Unlike the marriage between a Muslim man and Non-Muslim woman of revealed

religious, a Muslim woman cannot marry a Non-Muslim, whether ahl-e-kitab or idolater

because such marriage would result in the effective denial of the Muslim wife's right to the free

exercise of her religion. To protect the Muslim woman and children from being denied such

right, the Islamic barred her from marrying a Non-Muslim altogether.

To combine two sisters or Aunt and niece in marriage:-

It is lawful for a man to combine two sisters in marriage, or aunt and niece.

To Shia'h Imamiyaah aunt and niece can be combined in marriage with their consent. If he

married two sisters at the same time, both marriages are invalid. Combination includes

marriage with them in one time, or marriage with one of them while the other is

undergoing iddah after revocable divorce (talaq raj'i) or irrevocable divorce (talaq ba'in). In the

opinion of Maliki, Shafi'i jurists and Shi'ah Imamiyyah, if woman has been repudiated thrice, her

sister can be married.

Marriage to a woman during Ihram:-

A woman in state of Ihram for Hajj or 'Umrah cannot be contracted in marriage according to

majority of Jurists. This applies to man in Ihram as well. Hanafi Jurists allows the contract but

disallow sexual intercourse with her.

Fifth wife in presence of four wives:-

In this case the marriage with fifth would be irregular. But if he divorced one of them

irrevocably, then after expiry of 'Iddah', he can marry this woman. This is according to Hanafis.

According to Shafi'i Maliki and Shi'ah scholars he can marry her immediately after he has

pronouncedtalaq.
Fasid Marriages:-

The marriages mentioned under the title of temporary marriages are mostly the fasid

marriages. This, a marriage is treated fasid in the following circumstances:

1. Marriage contracted during Iddah.

2. Marriage after irrevocable divorce to the divorce woman.

3. Marriage wherein consent of either party is vitiated coercion, fraud, misrepresentation.

4. Marriage contracted in state of ihram.

5. Marriage contracted in the absence of witnesses.

6. Marriage with aunt and niece simultaneously.

7. Marriage with a fifth wife by a person having four wives.

8. Marriage contracted by adult virgin girl without the consent of guardian (Majority view

point).

Validation of Irregular Marriage:-

Irregular Marriage may be made regular by a new contract in the following cases:

1. That which is irregular because of iddah, after the impediment has been removed.
2. The marriage with a woman repudiated thrice, can be validated after she enters an

intervening, marriage, which is consummated, then divorced.

3. Where the consent is vitiated by coercion, fraud, after the cause vitiating consent has ceased.

4. In case they are in state of ihram, when they are no longer in ihram.

Difference between Valid, Void and Irregular Marriages:-

I. Valid Marriage:-

A marriage which in accordance with the requirement of Shariah, is a valid marriage, and it will

give rise to all legal effects i.e. legitimacy of children, their paternity and filiation, maintenance

of wife, mutual inheritance

etc.

II. Void Marriage (batil):-

Void marriage is that which is prohibited under Islamic Law. It is a marriage which does not exit

from its beginning. It is called a marriage because two persons have undergone the rituals of

marriage. No legal results accrue from this marriage.

III. Irregular Marriage (fasid):-

Irregular marriage is a defective marriage for failing to comply to certain conditions prescribed

under Islamic Law. The compliance of those conditions renders them valid. The irregularity in

a fasid marriage arises from some impediment or accidental circumstance, and when the

impediment is removed, it becomes a valid marriage i.e marriage during 'iddah, when 'iddah is

over, marriage is allowed.