Tuesday, 24 September 2013

MARRIAGE WITH A KITABIYAH



A Muslim male may contract a valid marriage with a Kitabiyah, i.e., with one who is a believer in a Revealed Book (Al‑Nasafi, Abdullah b. Ahmad b. Mahmood (d. 710 A. H.), Kanz‑ud‑Daqaiq (Delhi), Kitab‑al‑Nikah, p. 99.).

Who is Kitabiya?

The term "Ahl‑al‑Kitab" applies, in general, to the followers of Christianity and Judaism. If one of the parents is `ahl‑al‑Kitab' and the other is a 'mushrik' according to Abu Hanifah, the woman shall be deemed to be Kitabiyah (Fatawa‑i‑Alamgiri'yah (Cawnpore), Vol. II. Kitab‑al‑Nikah, p. 8.). According to Shafi'i and Ahmad‑ibn‑i‑Hanbal such a woman shall not be deemed to be Kitabiyah and a Muslim male cannot marry her 3 Marriage with Kitabiyah and Quran (Ibn‑i‑Qudamah Maqdisi (d. 620 A. H.) AI‑Mughni (Cario, 1367 A. H.) Vol, VI. p. 593.):

The Holy Quran permits the Muslims to contract marriage, with Kitabiyah. It is thus laid down in Sura Maidah:

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; (Sura : Maidah 6. Trans. by A. Yousaf Ali)"

View of Abdullah Ibn‑i‑Umar:

There is no difference of opinion on the point in question amongst the four Imams viz. Abu Hanifah, Malik, Shafi'i and Ibn‑i‑Hanbal. It is, however, reported that Ibn‑i‑Umar, one of the Companions of the Holy Prophet, considered the contract of marriage of a Muslim male with a Kitabiyah as invalid.

There are, on this point, three statements of Ibn‑i‑Umar:‑

(i) There is no harm in taking the food of ahl‑al‑Kitab, but entering into marriage contract with their women is undesirable (MAKROH).

(ii) "God, the Almighty, has prohibited Mushrik woman upon the Muslim male, and I do not know whether there can be any greater `shirk' than considering Isa Ibn‑i‑Maryam, or for the matter of that any person as God". This, Ibn‑i‑Umar said, when questioned about contracting marriage with Christian and Jew women.

(iii) In reply to the question of one Maimun b. Mehran to the effect that they lived in a part of land where they were so interlinked with ahl‑al‑Kitab that they had to marry their women and partake their food, Ibn‑i‑Umar read out the ayat from Holy Quran permitting the marriage with Kitabiyah and then read out the ayat from the Holy Quran prohibiting the marriage with mushrikat.  Maimun responded back by saying that they too had read what Umar had read out to him, in spite of that, they married the ahl‑al‑Kitab women and partook their food. Ibn‑i‑Umar, in reply, simply read out the said two verses again.

Abu Bakr Ahmed b. Ali al‑Razi al‑Jassass in his famous book "Al‑Ahkam‑al‑ Quran" Abi‑Bakr Ahmad b. Ali Al‑Razi al‑Jassass (d. 370 A. H.) Al‑Ahkam al‑Qur'an (Cario) Chapter on Nikah‑al‑Mushrikat, Vol. 1, pp. 332‑33 points out that Ibn‑i‑Umar's avoidance of a clear reply over the question of marriage with Kitabiyah and the recitation of the two verses by him repeatedly was a proof of the fact that he could not make up his mind and form a conclusive opinion on the point.

Ibn‑i‑Umar's view that the marriage with a Kitabiyah was undesirable was not based on prohibition or forbiddance (TEHREEM), but, in fact, relates to the Kitabiyah of "Dar‑ul‑Harb" i.e., those ahl‑al‑Kitab who live outside the territories of Muslim State where the laws of Shari'at are not in force.

Historical Study of the Question:

Historical study of this question reveals that the Companions of the Holy Prophet (SAHABA) and Tabi'un, in general, regarded the contracting of marriage with a Kitabiyah as legal. Nailah, the wife of Uthman, the third Caliph, was a Christian at the time of marriage. Talha ibn‑i‑Abdullah also married a Jew woman of Syria. Huzaifah b. al-­Yaman, as well, married a Jew woman.

Jassass made a pointed reference to the above‑said marriages in his book, Ahkam at‑Qur'an. He argued, if marriage with a Kitabiyah was illegal the Companions of the Holy Prophet would never have entered into such marriage contracts. Jassass, further, maintained that among the Tabi`un, Hasan b. Ziyad, Ibrahim Nakh'i and Sha'bi were of the view that marriage with a Kitabiyah was quite legal, that there was no instance of a single Companion or Tabi`i who was against such marriage. Therefore, it could not be inferred from the statements of Ibn‑i‑Umar that he considered a Muslim's marriage with a Kitabiyah as illegal. As a matter of fact, he held the view that such a marriage was undesirable (MUKROH) and that the undesir­ability (KARAHIYA) was not owing to prohibition (TEHREEM). It was due to apprehension lest the corrupt Kitabiyah women might pollute the faith and character of Muslims.

View of Ibn‑i‑Abbas:

According to Ibn‑i‑Abbas, one of the Companions of the Holy Prophet, Muslims are permitted to marry only those Kitabiyas who are chaste and are the subjects of Muslim State. Marriage with Kitabiyah of Dar‑al‑Harb and Dar‑al‑kufr, according to him, is not permitted. He contended that God's command to marry relates to those Kitabiyah women who lived in Dur‑al­-Islam. He maintained that to love those who were the enemies of God and of the Holy Prophet could not be the conduct of ahl‑al‑Iman and so the marriage with them was not permitted (Al-Qurtabi, abu Abdullah Mohammad b. Ahmad Tafsir Jame' al Ahkam al‑Quran (Cairo, 1936 A. D ) Vol. III, p.  68-69).

Al‑Jassass, in his aforementioned book, rebutting the arguments of Ibn‑i‑Abbas stated that the distinction which Ibn‑i‑Abbas made between Kitabiyah zimmiyah and Kitabiya Harbiya was without foundation. The verse made no distinc­tion between them. Ibn‑i‑Abbas was, therefore, wrong in particular­rising a general provision of law laid down in the Holy Qur'an. Said b. Musayyib and Hasan Basri, too, were of the view that the verse was of a general nature, indicating a general command. There could, therefore, be no justification for making distinction between zimmiyah and non‑zimmiyah, so far as marriage with Kitabiyah was concerned. The correctness of this view has been upheld and followed by the Ulama in general.

Besides, the correct answer to the contention of Ibn‑i‑Abbas can be that the obligation to kill or fight someone does not make the marriage with that person illegal. It has, in fact, no bearing on the validity of marriage. If obligation of killing some‑one could be the basis of prohibition, the marriage with Khawarij and Baghi (outlaws) must have been held to be illegal, according to the following verse of the Holy Qur'an:

If two parties among
The Believers fall into
A quarrel make ye peace
Between them: but if
One of them transgresses
Beyond the bounds against the other
Then fight ye (all against
The one that transgresses)
Until it complies with     
The Command of God;           
But if it complies, then
Make peace between them
With justice, and be fair
For God loves those
Who are fair (and just)
God has commanded to fight with them. (Sura : Hujrat 9. Trana. by A. Yousaf Ali.)

Correct position:

The correct position, as it appears to me, is that a Muslim's marriage with Kitabiyah non‑zimmiyah or harbiyah, though legal, is undesirable as it puts in jeopardy the upbringing of children as Muslims. The children, under the influence of their mother may adopt un‑Islamic ways abhorrent to Islamic society and culture. This view also finds support from Al‑Mabsut of Sarakhsi. (Shamsuddin Al‑Sarakhsi (d. 482 A. H.) AI‑Mabsut (Egypt, 1324 A. H.), Vol. V, p.50) Hozaifah married a Jew lady. Information of this reached Umar, the second Caliph. He asked Hozaifah to terminate the marriage. On Hozaifah's inquiry whether the marriage with Kitabiyah was prohibited, Umar in answer said, "No it is not prohibited, but I fear that you people may fall prey to shameless and infidel women of ahl‑al‑Kitab".

Marriage with Kitabiyah and Shia View:

There is a consensus of opinion, among the Sunni School of fiqh that marriage with Kitabiyah is undesirable though valid. There is, however, difference of opinion among Shia School of thought. The Usuliyyah and Motazitah go with Hanafis and consider marriage with Kitabiyah as valid while Akhbari Shias hold that permanent marriage with a non‑Muslim (woman) is not valid. They say that only Mut'a is permitted with Kitabiyah (Al-Hilb, Najamuddin Jaffer (d. 474 A. H.) Sharai"al‑Islam (Iran), Pt. II, p. 181.) In Kafi, Tafsir Majma` al‑Bayan and Tafsir Ayashi, it is stated that, according to Imam Baqar the command of God in the verse has been abrogated by another command in verse. This view of Imam Baqar is incorrect for three reasons:‑

(i) The second verse as relied upon by Imam Baqar, was revealed concerning those men and women who migrated to `Dar‑al‑Islam' from Dar‑al‑Harb, and those wives (or husbands) who remained in Dar‑al‑Harb in the state of Kujr. The marriage stood dissolved by conversion to Islam or by migration to Dar‑al‑Islam from Dar‑al‑Harb, of either of the spouses. Qur'an, therefore, has enjoined upon those males who were converted to Islam, not to take custody of their Kafir women, i.e., not to have conjugal relations with them.

(ii) The term al‑kawafir is for mushrikin (MUSHRIKEEN) and Kufar (KUFFAAR) and not for ahl‑al‑Kitab. They stand on different footing from ahl‑al‑Kitab.

(iii) If the command in the second verse, in accordance with Imam Baqar's view is taken to be correct, it will, then, be just a general direction and Kitabiyahs will, thus, come under exception.

The view of Akhbari Shias that the marriage of a Muslim male with Kitabiyah is not legal, is, therefore, contrary to the text of the Holy Quran.

Our Supreme Court in Ali Nawaz Gardezi v. Lt.‑Col. S. M. Yousuf reported in P L D 1963 S C 51 also appears to have the same view. Mr. Justice S. A. Rahman, who wrote the judgment, observed as follows:--

"In the High Court the validity of the complainant's marriage to Renate in England was also challenged on the ground that the complainant was a Shia, and under his personal law, his marriage to a non‑Muslim lady was invalid. Reliance was placed in this connection on the rule of private international law that the formal validity of a marriage had to be judged by the lex loci contractus, but that the capacity of the parties to enter into the marriage bond had to be determined according to the law of the domicile of the party concerned. (See inter alia, Brook v. Brook Halsbury's Laws of England, Vol. 7, p. 91, para. 165, III Edition). The learned Single Judge as well as the Appellate Bench held, however, that the marriage of the complainant and Renate, at Hull, was a perfectly valid one. Syed Amir Ali, in his well­known text‑book on Muhammadan Law, 4th Edition, at p. 327 et seq, has discussed the question of validity of a Shia Muslim's marriage to a non‑Muslim woman of one of the scriptural sects. He has pointed out that such a marriage would be valid among Usuli Shias, and a large section of the Akhbari Shias, though one school of thought represented by the author of the treatise "Sharia‑ul‑Islam" (on which Bailie's Digest, Vol. Il is mainly based) has condemned such a marriage as invalid. The complain­ant in the present case declared on oath that he followed the Shia faith, but in case of a conflict between a clear. Quranic injunction and a doctrine of the Fiqh he would follow the Qur'an. He appears, therefore, to be a member of the Usuli persuasion. The Qur'an clearly permits a marriage of a Muslim with a woman professing one of the scriptural religions. In the circumstances, Mr. Mahmood Ali on behalf of the respondent, did not seriously contest the concurrent findings of the trial Judge and the Appellate Bench, that the marriage of the complainant with Christa Renate Sonntag, solemnized in England, was valid. This view we consider to be plainly right on the facts of this case."

Marriage of a Muslim male with a Kitabiyah in Pakistan.

According to section 4, Christian Marriages Act of 1872, as adapted by Adaptation of Central Acts and Ordinances Order, 1949 (G. G. O. 4 of 1949) every marriage between persons one or both of whom is or are a Christian or Christians shall be solemnized in accordance with the provisions of the Christian Marriages Act, 1872, and any such marriage solemnized otherwise than in accordance with the provisions of the said Act shall be void. Section 5 of the said Act lays down that such marriage may be solemnized in Pakistan:‑

(1) by any person who .has received episcopal ordination, provided that the marriage be solemnized according to the rules, rites, ceremonies and customs of the Church of which he is a Minister;

(2) by any Clergyman of the Church of Scotland, provided that the marriage be solemnized according to the rules, rites, ceremonies and customs of the Church of Scotland;

(3) by any Minister of Religion licensed under this Act to solemnize marriages;

(4) by, or in the presence of a Marriage Registrar appointed under this Act;

(5) by any person licensed under this Act to grant certificates of marriages between Native Christians.

It is apparent from the above provisions of law that if a Muslim in Pakistan marries a Christian woman it is obligatory that his marriage be solemnized under the provisions of the Christian Marriages Act of 1872, and if such marriage is not performed according to the Christian Marriages Act of 1872, the marriages shall be void. Further, according to section 68 of the said Act whoever, not being authorized by section 5 of this Act to solemnize marriage, professes to solemnize the marriage between such persons, one or both of whom are Christian or Christians, shall be punished with imprisonment which may extend to 10 years or in lieu of sentence an imprisonment of 7 years or punishment with transportation of a term of not less than seven years and not exceeding 10 years and shall also be liable to fine. In the case of Zarina Tassadaq Hussain v. Qazi Tassadaq Hussain P L D 1953 Lah. 112 the question arose as to the validity of the marriage of a Muslim with a Christian woman not solemnized in accordance with the provisions of section 5 of the Christian Marriages Act, 1872. In this case Mst. Zarina was a Christian at the time of marriage. She later on accepted Islam. The marriage between the parties took place on 16th October 1934 in Badshahi Mosque, Lahore, according to Muslim rites and the Nikah was performed by the Imam of Badshahi Mosque. According to Islamic Law a Muslim man could marry a Christian woman and there was nothing in the Islamic Law to prevent such marriages from being solemnized according to Muslim rites but section 5 of the Christian Marriages Act of 1872 has altered or abolished the pure Islamic Law and the marriage according to the provisions of the above Act would be void, if it is not solemnized in accordance with the provisions of the said Act.

It is a pity that, after a constitutional guarantee that the law of Pakistan would be in conformity with Qur'an and Sunnah, such a law as the Christian Marriages Act and other like laws still stand on the statute book of the Islamic Republic of Pakistan. The law making machinery of Pakistan, in spite of a decision of our High Court (Zarina Tassadaq Hussain v. Qazi Tassadaq Hussain P L D Lah. 1953, 112) has made no move so far in this direction.

Should we hope that the Christian Marriages Act, 1872, and such other like Acts would be reviewed, in the light of the Principles of Law Making as laid down in the Constitution of Pakistan and that the provision of Islamic Law would be restored to its proper form and spirit.

By TANZIL‑UR‑RAHMAN

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