Saturday, 13 August 2016

Responding to Miqiyas al-Nur (Part 3)

The Barelwi blog “Miqiyas al-Nur” in its blind following of so called “ala Hazrat” Ahmad Reza Barelwi sahib, has boldly attempted to defender one of the latter’s Fatawa which any reasonable person can discern is nothing but justification for camouflaged Mut’ah (temporary marriage). Here is his full response:
Before we analyze the response of “Miqiyas al-Nur”, let us carefully analyze the wording of the Fatwa itself:

اور اگر نکاح بے قید مدت کیا اور دل میں یہ ہے کہ اتنے دنوں کیلیۓ کرتا ہوں پھر چھوڑ دوں گا یا عقد نکاح میں ایک مدت کے بعد طلاق دینے کی شرط لگا‏ئی مثلتجھ سے نکاح کیا اس شرط پر کہ اتنے دنوں بعد طلاق دیدوں گا یا پہلے باہم گفتگو ہو‏ئی تھی کہ اتنے دنوں کے لئے نکاح کر لیں پھر نکاح مطلق بلا قید کیا تو ان سب صورتوں میں وہ نکاح صحیح ہوا
Pay attention to this sentence: Ya Aqd-e-Nikah main aik mudat key ba’d Talaaq deney ki Shart Lagaa’i maslan TUJH SEY NIKAH KIYA ES SHART PER KEH ITNAY DINON BA’D TALAAQ DEY DON GAA

It means that if in the actual Nikah contract (verbal or written) an additional condition has been added which stipulates that after a fixed period of time Talaaq (divorce) will occur…and an example is given that ‘I perform Nikah with you on this condition that after ‘such-and-such’ number of days I shall divorce you.’
Now anyone sensible and reasonable person can see that this is just a technical and clever way of contracting a temporary marriage. The definition of temporary marriage is quite obvious, that it is agreed upon and known at the beginning of a marriage that the marriage will not last permanently, but it is already expected and known that it will be terminated or end in divorce after a fixed period of time.
This is none other than Mut’ah no matter how you try to twist it and play your game of semantics. Even if the actual procedure and method differs slightly than how Mut’ah is practiced by the Ithna Ashari sect of Shi’ites…the result is still the same, both are allowing for temporary marriage. The Shi’a temporary marriage will automatically be terminated after a fixed period of time, while the Barelwi temporary marriage will have to end in divorce after a fixed period of time based on condition stipulated in the Marriage Contract (Aqd-e-Nikah).
My objection is that it is impossible for any Marriage Contract to have such a condition according to the Islamic definition of Nikah.
Only such conditions can be placed in the Aqd-e-Nikah which are permissible according to the Shari’ah. Thus the Shari’ah does not recognize any Nikah which is based on the condition of fixed timeframe after which divorce will occur.
Technically, the Fatwa of Ala Hazrat is giving permission for something called Nikaah Mu’aqqat (time-limited marriage), which in essence is no different from the Shi’ite Mut’ah. See this explanation from a Hanafi fatwa site: http://islamqa.org/hanafi/daruliftaa/8376
d) The absence of a fixed time-period. It is a basic requirement of a valid marriage contract that it does not entail any agreement of it being limited to a specified time such as two moths or five days, since it is essentially the Mut’a marriage that has been explicitly prohibited by the Messenger of Allah (Allah bless him and give him peace).

Classical jurists (fuqaha) have clearly stated the impermissibility and invalidity of time-limited (mu’aqqat) marriages. Imam al-Haskafi, the renowned Hanafi jurist, states:

“A Mut’a and time-limited marriage (nikah mu’aqqat) is invalid, even if the period [of marriage] is unknown to the wife or is prolonged…” (Radd al-Muhtar ala ‘l-Durr al-Mukhtar 3/51. Also see for the Shafi’i School: Mughni al-Muhtaj Sharh al-Minhaj 4/231, for the Hanbali School: Kashshaf al-Qina’ 5/96-97, and the Maliki School: Hashiyat al-Dasuqi ala ‘l-Sharh al-Kabir 2/238-239)

As for when there is no explicit mention of the marriage being limited to a specified time, but both or one of the spouses intend to terminate the marriage some time in the future, the position of the majority of classical scholars is that such a marriage is valid, and the couple will not be guilty of involving themselves in an unlawful relationship.

It is stated in al-Fatawa al-Hindiyya, a renowned Hanafi reference work:

If a man marries a woman unconditionally [i.e. without it being limited to a specified time], and it is in his intention to remain with her for a time that he intends [and then divorce her], then the marriage is valid…” (al-Fatawa al-Hindiyya 1/283)

Likewise, Imam Ibn al-Humam (Allah have mercy on him) states in his Fath al-Qadir:

As for when the husband marries and it is in his intention to divorce her after a period that he intends, then the marriage is valid.” (Fath al-Qadir, 3/152)

The Shafi’is also state that if one marries, and it is in his intention to divorce the wife after a period of time he has in mind, the marriage is considered valid. As for the Hanbalis, they have explicitly stated that if a person marries with the intention of divorcing the woman, even without stating it explicitly in the marriage contract itself, then the marriage is invalid, because it is a temporary marriage, which is invalid by explicit primary texts. (See: al-Mawsu’a al-Fiqhiyya, Kuwait)

Since Islam emphasises upholding marriages, the couple will not be obligated to terminate their marriage according to their intention, rather they must not resort to divorce without a genuine reason. Marrying with the intention of ending the marriage after a given period is disliked according to Shari’a, and as such, a marriage contracted with such an intention in mind is also disliked, although valid per se. (Mufti Taqi Usmani, Fiqhi Maqalat 1/258)

My Comments: According to the Hanafi and Shafi’i schools, a marriage contracted when the husband intends in his heart to divorce after certain period is valid. However, the Hambali position seems to be stronger that even such a Nikah is invalid, because all actions depend on intention, and intention for a temporary and not permanent marriage opposes the spirit and philosophy of Islamic Nikah.
Nevertheless, it is not stated anywhere here that a Nikah is valid if such a condition of divorce after fixed period is clearly written in the Aqd-e-Nikah. In the present time, this seems only to be acted upon and accepted by Barelwis.
However, in a previous entry of my blog, I showed a reference from Fatawa Alamgiri which supports the later fatwa of Ala Hazrat sahib in Fatawa Africa
Thus it is stated in Fatawa Alamgiri (v.1 p.283):

وَلَوْ تَزَوُّجُهَا عَلَى يُطْلِقُ بَعْدَ الشَّهْرِ فَأَنَّهُ جَائِزٌ

اگر عورت سے نکاح کیا اس شرط پر کہ وہ ایک مہینہ بعد طلاق دے دے گا تو یہ جائز ہے

Translation: If he married her upon the condition of divorce after a month, then this is permissible.

In conclusion, both Ala Hazrat and Fatawa Alamgiri have allowed for Nikah Mu’aqqat (time-limited marriage) using the loophole of stipulating Talaaq within the marriage contract itself, either written or verbal, after a fixed period of time (for example a month). Miqiyas al-Nur argues that this is different from Mut’ah on some technical grounds of procedure…but I ask him, what is the difference in essence since result is the same?

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