Fatwa: # 17926
Category: Misc. Fiqh
Country: South Africa
Date: 14th May 2009

Title

Why does it seem like in todays time, the Gham you come from holds holds more importance, as in certain castes believe they better ? hence they would not allow a nikah ? ( Kufu or Kafa'at)

Question

Dear Mufti
 
Peace be upon you.  Please help me understand...
 
In pursuit of marriage, today we find that many barriers have been created...
 
my questions are :
Is Lineage (in respect of which gham you come from) more important than performing Fardh & Sunnat, as we see parents not allowing nikah due to not being from the same location yet ignoring the fact that the person chosen is a muslim ...
 
Which should take precedence ? being a muslim or the Gham you from ? Perfecting or working towards being a better muslim rather than perfecting our culture ? (the acts of a certain Gham vs another)
 
How is that  CULTURE (Gham) is SO important, yet as muslims we are not practising islam fully yet we hold CULTURE (Gham) as so important that it takes precedence over a nikah that is suited by the male and female yet disagreed by some because of where you great great great great grandparents were born ?
 
If we as muslims, in todays time have lost so much in respect of behaving like the sahaba, how much also has been forgotten about tradition ? (from the looks more is forgotten about culture than deen) ... yet so much importance is given to it ?
 
Prophet Muhammad (Peace be upon him said)
A woman gets married for four reasons: for her wealth, her lineage, her beauty and her religion. So be successful by marring for religion.
 
In respect of this hadith, does it mean we should choose lineage (gham) over a muslim person to be our partner ?
 
Why does it seem like in todays time, the Gham you come from holds holds more importance, as in certain castes believe they better ? hence they would not allow a nikah ?
 
Is this fair to the muslim Ummah, when as muslims we should try and unite rather than working towards separating the muslims further ?
 
In respect of the above situation, if a male & female wish to make nikah, who should be present from the females side if her parents are not told of the nikah, due to them not wanting the boy because he is not wealthy enough and not from the same Gham.
Please bear in mind, not wealthy enough meaning the guy wont be able to give the girl a BMW to drive, but with the blessing of nikah and good budgeting life will NOT come to a stop. They will sustain and manage and not by harsh conditions.

Answer

In the name of Allah, Most Gracious, Most Merciful

Assalaamu `alaykum waRahmatullahi Wabarakatuh

What you said is correct that in Islam everyone is equal in the sight of Allah; only a person with taqwa (the consciousness and fear of Allah; piety) is superior to another. Islam does not consider one to be better than another because of his skin color, lineage, intelligence, appearance or wealth.

However, also ponder over the fact that marriage is such a delicate yet powerful relationship that does not only bind the husband and the wife with numerous rights and responsibilities, it also binds those related to the husband and wife with responsibilities. The fulfilling of these rights and responsibilities is not only dependant upon the cooperation of the spouses, but also upon the mutual respect, understanding, cooperation and consideration of the relatives of the spouses.

Unfortunately, the condition of the people in general is such that there are a very few people who would choose their spouse or the spouse of their child based upon the person’s righteousness and taqwa, without looking at his or her intelligence, appearance, education, skin color, lineage, social standing and wealth. The relationship of marriage is not only the mere pronouncement of ijaab and qabool; it is, rather, a lifelong commitment that faces constant tests and tribulations. There is no other relationship that is more fragile, deeper, more complex, more satisfying, and more laden with responsibilities than the relationship of marriage.

That is why Islam -- which is the religion of fitrah, i.e. the innate nature of people -- does not ignore the disposition of people even in regards to their abovementioned weaknesses; and neither can it ignore such things. Therefore, Islam has, according to its principle of equality-of-all, given the verdict that a Muslim woman’s marriage may be done with any Muslim man regardless of his skin color, lineage, intelligence, appearance, wealth, and social standing. At the same time, considering the disposition of people and their innate nature, Islam has also commanded that without the agreement of those who will be most affected by such a bond of marriage, it is not permissible for a girl to marry someone incompatible. The reason for this precept or command of the Shariah is to avoid sorrow, grief, fighting, arguments etc. This is the gist of the importance of the issue of compatibility or equality in marriage in the Shariah.

After this brief clarification, one should know that if a honorable and respected family gives their angelic daughter in marriage to an African, new Muslim man, then not only is this permissible (that is if the mature daughter herself agrees to it) but it is praiseworthy. This is the principal of equality-of-all according to Islam.

On the other hand, if a girl from an honorable and respected family, out of her naivety and emotions, gets herself married to such a person who is incompatible and inferior to her in lineage, taqwa, wealth and respect, and she does this in spite of knowing about the disagreement of her family regarding the matter, then Islam considers such a marriage to be void and null. The reason is that marriage is not like tying two goats together, rather, marriage is a lifelong commitment that comes with many responsibilities attached; and since, in such a case, such subtle and important responsibilities cannot be fulfilled, the Shariah commands that such a marriage is invalid. If one ponders over this, he will understand how Islam is the religion of fitrah i.e. the innate nature of people. (Aap ke Masail: vol. 5 pg. 56 Maktaba Ludhyanawi)

Some Injunctions pertaining to compatibility in marriage

After this, one ought to know some injunctions pertaining to compatibility in marriage.

In the Shariah, the compatibility and equality in marriage is considered from the man’s side, for the woman. It is not considered the other way around. In other words, in the Shariah, compatibility in marriage does not mean that the woman should necessarily be equal to the man; instead it means that the man should be equal and compatible with the woman. The reason is that by nature a man does not consider it a dishonor or shame to have as a wife someone lesser than him in social standing. On the other hand, a woman does consider it a shame to be under a man who is of lower social standing than her; and the woman’s family also regard such a relationship to be a source of shame and dishonor. And since Islam is the religion of the innate nature of people, it has considered equality or compatibility in marriage exactly according to the innate nature of people.

قال في تنوير الأبصار: الكفاءة معتبرة من جانبه لا من جانبها ؛ وقال في الدر المختار: ( من جانبه ) أي الرجل لأن الشريفة تأبى أن تكون فراشا للدنيء ولذا ( لا ) تعتبر ( من جانبها ) لأن الزوج مستفرش فلا تغيظه دناءة الفراش وهذا عند الكل في الصحيح ؛ وقال ابن عابدين في حاشيته: أي يعتبر أن يكون الرجل مكافئا لها في الأوصاف الآتية بأن لا يكون دونها فيها ، ولا تعتبر من جانبها بأن تكون مكافئة له فيها بل يجوز أن تكون دونه فيها ( قوله ولذا لا تعتبر ) تعليل للمفهوم ، وهو أن الشريف لا يأبى أن يكون مستفرشا للدنيئة كالأمة والكتابية لأن ذلك لا يعد عارا في حقه بل في حقها لأن النكاح رق للمرأة والزوج مالك ( رد المحتار: ج 4 ص 194 دار المعرفة )

If a girl or woman gets herself married to someone who is not compatible or equal to her in the factors mentioned below without the explicit permission and agreement of her wali (Shar’i responsible person such as her father) BEFORE the nikah, then the nikah will NOT be valid. Silence of the wali is not counted as permission. Permission after the nikah is not valid.

قال في الدر المختار: ( ويفتى ) في غير الكفء ( بعدم جوازه أصلا ) وهو المختار للفتوى ( لفساد الزمان ) ؛ و قال ابن عابدين رحمه الله: وهذا إذا كان لها ولي لم يرض به قبل العقد ، فلا يفيد الرضا بعده بحر وأما إذا لم يكن لها ولي فهو صحيح نافذ مطلقا اتفاقا كما يأتي الخ ... وقول البحر : لم يرض به يشمل ما إذا لم يعلم أصلا فلا يلزم التصريح بعدم الرضا بل السكوت منه لا يكون رضا كما ذكرناه فلا بد حينئذ لصحة العقد من رضاه صريحا ، وعليه فلو سكت قبله ثم رضي بعده لا يفيد فليتأمل ( قوله وهو المختار للفتوى ) وقال شمس الأئمة وهذا أقرب إلى الاحتياط كذا في تصحيح العلامة قاسم لأنه ليس كل ولي يحسن المرافعة والخصومة ولا كل قاض يعدل ، ولو أحسن الولي وعدل القاضي فقد يترك أنفة للتردد على أبواب الحكام ، واستثقالا لنفس الخصومات فيتقرر الضرر فكان منعه دفعا له فتح ( رد المحتار: ج 4 ص 152 دار المعرفة )

In the Shariah, compatibility or equality in marriage is considered in several factors: (1) lineage, (2) Islam, (3) piety, (4) wealth, (5) profession or occupation

Each of the five factors will be briefly described below.

Equality in Lineage

1. Those who come from the lineage of the Quraish are considered equal to one another. The Shaykh, Sayyid, Ansaari, and Alawi are all equal to each other. In other words, although the status of a Sayyid is more than the other, if the daughter of a Sayyid married a Shaykh boy; it will not be said that she did not marry someone who is of her social standing. Instead, it will be regarded as if she has married one of her social standing.

2. The rest of the Arabs are considered equal to one another even if they may be from different tribes. A non-Quraishi, however, is not equal to a Quraishi in lineage.

3. Those that are not from the lineage of one of the tribes of the Arab are called ‘Ajm (non-Arabs). The non-Arabs are not equal to the Arabs in lineage. The non-Arabs, amongst themselves, are equal even if they come from different cultures and countries (as lineage is not considered in non-Arabs). Most of the people these days are considered non-Arabs (even if they speak the Arabic language), except for those who are from the lineage of one of the four Khulafa Rashideen, the Ansaar etc.

( قوله وهذا في العرب ) أي اعتبار النسب إنما يكون في العرب ( رد المحتار: ج 4 ص 198 دار المعرفة )

( قوله وأما في العجم ) المراد بهم من لم ينتسب إلى إحدى قبائل العرب ، ويسمون الموالي والعتقاء كما مر وعامة أهل الأمصار والقرى في زماننا منهم ، سواء تكلموا بالعربية أو غيرها إلا من كان له منهم نسب معروف كالمنتسبين إلى أحد الخلفاء الأربعة أو إلى الأنصار ونحوهم ( رد المحتار: ج 4 ص 198 دار المعرفة )

3. In matters of lineage, the lineage of the father is considered and not the mother. If the father is a Sayyid, the son is also a Sayyid; and if the father is a Shaykh, the son is also a Shaykh – irrespective of what the mother may be. If a Sayyid married a woman who is not a Sayyid, their son will be regarded as a Sayyid. This son will be equal in status to all other Sayyids. Although the son whose father and mother are both from a noble family is respected more, according to the Shariah they will all be regarded as relatives or of the same social standing.

Equality in being a Muslim

1. Equality in being a Musim in only considered among the non-Arab nations. There is no consideration of this among the Arabs such as the Shaykhs, Alawis, Ansaaris etc. A man who accepts Islam and his father was a kaafir cannot be on par or equal to a woman who is a Muslim and her father was also a Muslim. The man who is a Muslim, his father is also a Muslim, but his grandfather was a kaafir, cannot be equal to a woman whose grandfather was also a Muslim.

2. A man whose father and grandfather were Muslims, but his great grandfather was a kaafir will be regarded as equal to a woman whose several forefathers were Muslims. In short, this equality is only considered till the grandfather. Equality beyond the grandfather, such the great grandfather and beyond him is not considered.

Equality in Piety

Equality in piety means that a man who does not follow the dictates of the Shariah – who is a wicked person, a scoundrel, an alcoholic, a shameless person – will not be considered to be equal to a pious, chaste and religious woman.

Equality in Wealth

Equality in wealth means that a person who is an absolute pauper cannot be compatible to a rich woman. If the man is not an absolute pauper, but is capable of giving that amount of mahr (dowry) that is normally given on the first night and is also capable of giving her maintenance, then he will be regarded to be equal to her in status even if he is unable to give the entire amount of mahr. In other words, having some future financial stability is not a prerequisite. However, it is a prerequisite for the man to be able to maintain his wife. It is not necessary for the man to be in exactly the same financial position as that of the woman. Nor is it necessary for him to be close to that financial position.

Equality in Occupation

1. Equality in occupation is that a janitor, for example, is not regarded as equal to the daughter of a businessman, i.e. according to the custom and tradition (‘urf) of the people there should not be a big gap between the two occupations.

2. A mad, lunatic person cannot be equal to an intelligent, understanding woman. (Bahishti Zewar 1/441)

Note: Only equality in being a Muslim is not considered among the Arabs; all the other factors are considered. Lineage is not considered among the non-Arabs.

( قوله فتعتبر حرية وإسلاما ) أفاد أن الإسلام لا يكون معتبرا في حق العرب كما اتفق عليه أبو حنيفة وصاحباه لأنهم لا يتفاخرون به ، وإنما يتفاخرون بالنسب فعربي له أب كافر يكون كفؤا لعربية لها آباء في الإسلام ( رد المحتار: ج 4 ص 198 دار المعرفة )

 

( قوله وتعتبر في العرب والعجم إلخ ) قال في البحر وظاهر كلامهم أن التقوى معتبرة في حق العرب والعجم ، فلا يكون العربي الفاسق كفؤا لصالحة عربية كانت أو عجمية هـ قال في النهر : وصرح بهذا في إيضاح الإصلاح على أنه المذهب ا هـ وذكر في البحر أيضا أن ظاهر كلامهم اعتبار الكفاءة مالا فيهما أيضا قلت وكذا حرفة كما يظهر مما نذكره عن البدائع ( رد المحتار: ج 4 ص 200 دار المعرفة )

 

( قوله وهذا في العرب ) أي اعتبار النسب إنما يكون في العرب ( رد المحتار: ج 4 ص 198 دار المعرفة )

**************************************

After presenting the abovementioned injunctions of the Shariah, we come to your specific queries.

1. The hadith that you mentioned does not negate the validity of compatibility in marriage because, as mentioned above, the compatibility in marriage is considered in the man for the woman, not in the woman for the man. The hadith in question addresses the man not the woman.

Also, note that the hadith does not imply that it is impermissible for a man to marry a good looking woman or a woman who is of noble descent, etc. What it implies is that if one had to choose between a woman of beauty, noble lineage and wealth, and a woman of piety, then he should give preference to the one with piety. If, on the other hand, one had to choose between two women who are equal in piety; however, one has beauty while the other does not, then it is preferable to choose the one who has both piety and beauty. (Fathul Bari: vol. 11 pg. 163-170 Ilmiyyah)

قال الحافظ ابن حجر العسقلاني رحمه الله تحت قوله عليه الصلاة والسلام ( لمالها ولحسبها ): ويؤخذ منه أن الشريف النسيب يستحب له أن يتزوج نسيبة إلا إن تعارض نسيبة غير دينة وغير نسيبة دينة فتقدم ذات الدين ، وهكذا في كل الصفات ( وبعد صفحة ) وقوله: ( وجمالها ) يؤخذ منه استحباب تزوج الجميلة إلا إن تعارض الجميلة الغير دينة والغير جميلة الدينة ، نعم لو تساوتا في الدين فالجميلة أولى ، ويلتحق بالحسنة الذات الحسنة الصفات ( فتح الباري: ج 11 ص 167-168 العلمية )

There are many ahadith of Rasulullah (Sallallaahu Alaihi Wa Sallam) and narrations of the Sahabah (Radiyallaahu Anhum) that furnish proof for compatibility in marriage. We will suffice with one hadith of Rasulullah (Sallallaahu Alaihi Wa Sallam):

حديث علي أن النبي صلّى الله عليه وسلم قال له: «ثلاث لا تؤخر: الصلاة إذا أتت، والجنازة إذا حضرت، والأيم إذا وجدت لها كفئاً» رواه الترمذي والحاكم عن علي (نيل الأوطار: 128/6) كذا في الفقه الإسلامي وأدلته: ج 9 ص 6738 دار الفكر

Ali (Radiyallaahu Anhu) narrates that Rasulullah (Sallallaahu Alaihi Wa Sallam) said to him, “Three things should not be delayed: The salat when its time arrives; funeral procession when it is ready; and the marriage of a girl when her compatible match is found.”

(For more proofs see: Al-Fiqh al-Islaami wa adillatuhu vol. 9 pg. 6738-40)

2. As explained above, for the nikah to be valid the explicit permission of the wali (Shar’i responsible person such as father) of the girl is necessary BEFORE the nikah if the boy she intends to marry is not equal to her in the abovementioned factors. Silence of the father is not counted as permission. Permission after the nikah is not valid.

(Raddul Muhtaar  4/152 Darul Ma’rifa)
(Ahsanul Fatawa 5/96 Saeed)

3. If he is capable of giving the amount of mahr (dowry) that is normally given on the first night and is also capable of giving her maintenance, then he will be regarded to be equal to her in wealth even if he is unable to give the entire amount of mahr. It is a prerequisite for the man to be able to maintain his wife. It is not necessary for the man to be in exactly the same financial position as that of the woman. (Bahishti Zewar 1/441; Raddul Muhtaar 4/202) Therefore, not being able to provide a BMW is irrelevant.

4. For nikah to be valid two male, or, one male and two female witnesses are required. The witnesses must be sane, mature (baaligh), and Muslims. The witnesses need not be from the female’s side.

( ومنها ) الشهادة قال عامة العلماء : إنها شرط جواز النكاح هكذا في البدائع وشرط في الشاهد أربعة أمور : الحرية والعقل والبلوغ والإسلام الخ ( وبعد أسطر ) ويشترط العدد فلا ينعقد النكاح بشاهد واحد هكذا في البدائع ولا يشترط وصف الذكورة حتى ينعقد بحضور رجل وامرأتين ، كذا في الهداية ( الفتاوى الهندية: ج 1 ص 295 العلمية )

And Allah Ta'ala Knows Best

Wassalamu Alaykum

Ml. Faizal Riza

Correspondence Iftaa Student, Australia

 

Checked and Approved with the following comments:

 

The answer by my friend Maulana Faizal Riza provides the rationale of compatability and its broad concepts. It is by no means an exhaustive exercise on the issue.

 

Furthermore, there is no basis of Gham (one place, area) in compatability (Kafa’at). People with the above mentioned common criterion could marry across the globe. The concept of Gham is really a cultural issue. However, if that affects the spirit of marriage, then practically it would be foolish not to consider it.

 

Mufti Ebrahim Desai
Darul Iftaa

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