Nikah Misyar

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Nikah Misyar (Arabic: المسيار) is the Sunni Muslim Nikah (Marriage) carried out via the normal contractual procedure, with the specificity that the husband and wife give up several rights by their own free will, such as living together, equal division of nights between wives in cases of polygamy, the wife's rights to housing, and maintenance money ("nafaqa"), and the husband's right of homekeeping, and access etc [1]

Essentially the couple continue to live separately from each other, as before their contract, and see each other to fulfil their needs in a permissible (halaal) manner when they please.

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[edit] Background and causes

Some people consider that the misyar marriage can meet the needs of young people whose resources are too limited to settle down in a separate home; of divorcees, widows or widowers, who have their own residence and their own financial resources but cannot, or do not want to marry again according to the usual formula; and of slightly elder people who have not tasted the joys of marriage.

Islamic lawyers add that this type of marriage fits the needs of a conservative society which punishes “zina” (fornication) and other sexual relationships which are established outside a marriage contract. Thus, some Muslim foreigners working in the Persian Gulf countries prefer to engage in the misyar marriage rather than live alone for years. Many of them are actually already married with wives and children in their home country, but they cannot bring them to the region.

[edit] Misyar Marriage in practice

In addition to the preceding cases, one can note that wealthy Arab men sometimes enter into a Misyar marriage while on vacation, in order to have sexual relations with another woman without committing the sin of zina. They usually divorce the women once their holiday is over. One should note, however, that if this is understood by both parties at the time of conclusion of the marriage contract (and this is usually the case) this would constitute a fixed time period, effectively making such a marriage invalid in Sunni law, and more akin to the Nikah Mut'ah.

The Sheikh of al-Azhar Mosque Muhammad Sayyid Tantawi and theologian Yusuf Al-Qaradawi note, in their writings and in their lectures, that a major proportion of the men who take a spouse in the framework of the misyar marriage are already married men.[2]

Many of the men involved would not marry a second wife within the regime of normal Islamic polygamy, because of the heavy financial burdens, moral obligations & responsibilities it places on the husband. But, they opt for the option of misyar marriage when the theologians declare it licit.[3]

[edit] Legality of misyar marriage

Contrary to widely held beliefs, misyar marriage fits within the general rules of marriage in Sunni Islamic law, on condition merely that it fulfil all the requirements of the Shariah marriage contract i.e:

  • The agreement of both parties;
  • Two legal witnesses (Shahidain)
  • The payment by the husband to his wife of Mahr in the amount that is agreed[4]
  • The absence of a fixed time period for the contract
  • Shuroot, Any particular stipulations which the two parties agree to include in the contract and which are in conformity with Muslim marriage law.

Moreover, as explained by the Saudi Islamic lawyer Abdullah bin Sulaiman bin Menie, a member of the Higher Council of Ulema of Saudi Arabia, the wife can denounce at any time, as she sees fit, her renunciation of her financial rights, and require of her husband that he give her all her rights, including that he live with her and provide for her financial needs ("nafaqa"). The husband can then either do so, or grant her a divorce.[5]

But, if the renunciation provision is the only feature which distinguishes misyar from a standard marriage, and if it has no legal standing, does misyar represent a separate category of marriage in Muslim law?

Further, is it legitimate for Muslim notaries to include in a contract provisions which have no legal standing, although the contracting parties mistakenly believe that they are the foundations and the necessary conditions to be met for the conclusion of the contract? For that matter, if the spouses are told by the notaries, at the time of conclusion of the contract, that the renunciation clauses have no legal value, what effect would that have on the spouses' willingness to get married?

For these reasons, Professor Yusuf Al-Qaradawi observes that he does not promote this type of marriage, although he has to recognise that it is legal, since it fulfils all the requirements of the usual marriage contract.[6] He states his preference that the clause of renunciation be not included within the marriage contract, but be the subject of a simple verbal agreement between the parties.[7] He underlines the fact that Muslims are held by their commitments, whether they are written or verbal.

[edit] Criticism of misyar

Islamic scholars like Ibn Uthaimeen or Al-Albani claim, for their part, that misyar marriage may be legal, but not moral. They agree that the wife can at any time, reclaim the rights which she gave up at the time of contract.[8] But, they are opposed to this type of marriage on the grounds that it contradicts the spirit of the Islamic law of marriage and that it has perverse effects on the woman, the family and the community in general.

For Al-Albani, misyar marriage may even be considered as illicit, because it runs counter to the objectives and the spirit of marriage in Islam, as described in this verse from the Quran :

“And among His Signs is this, that He created for you mates from among yourselves, that ye may dwell in tranquillity with them, and He has put love and mercy between your (hearts)…”[9]

Al-Albani also underlines the social problems which result from the “misyar” marriage, particularly in the event that children are born from this union. The children raised by their mother in a home from which the father is always absent, without reason, may suffer difficulties.[10] The situation becomes even worse if the wife is abandoned or repudiated by her husband "misyar", with no means of subsistence, as usually happens.

As for Ibn Uthaymeen, he recognizes the legality of “misyar” marriage from the Shariah standpoint, but considers that it should be opposed because it has been turned into a real merchandise that is being marketed on a large scale by “marriage agencies”, with no relation to the nature of Islamic marriage.

Critics of this marriage observe, more generally, that this type of marriage usually ends up in divorce, eventually. As a result the wife finds herself abandoned, to lead a solitary life as before the marriage, but traumatised by the experience, while her social status and reputation degraded.

The proponents of the misyar marriage, though they recognise that it can result in problems, observe that it doesn’t have a monopoly on them. The problems result, more generally, from the way in which people apply the rules of the Shariah.

Today, in a large number of Muslim countries, there are official family and marriage law codes whose provisions wouldn't allow the conclusion of a marriage of the misyar type. However, in a number of Gulf States essentially, misyar marriage is accepted by the community, and is usually arranged privately, through a notary and with no publicity.

[edit] A comparison with Nikah Mut’ah

According to a Shī‘as, Mut'ah is permitted, but Misyar is considered to be prohibited by Shias, though it is not forbidden in Sunnis.[11] The similarity between Mut'ah and Misyar is that both of them are the kinds of Nikah and both require all the conditions applicable to Nikah, Nonetheless, In Misyar the couple voluntarily give up some of their rights. i.e. Living Together. Mut'ah, unlike ordinary Nikah has a fixed date of expiry.

Every nikkah in Sunnis whether ordinary or not requires two adult male witnesses, Whereas in Shī‘as Witnesses are not required in nikkah. On the contrary, Shī‘a divorce requires two witnesses, however, Sunni divorce can be executed by mere pronouncement of the words.

[edit] Notes and references

  1. ^ Al-Qaradawi, Yusuf : Misyar marriage
  2. ^ Jobarti, Somayya : Misyar marriage – a marvel or misery?
  3. ^ Marriage of convenience is allowed, says Grand Imam Tantawi
  4. ^ Al-Qaradawi, Yusuf : Misyar marriage et Zawaj al misyar, p 11
  5. ^ quoted by Al-Hakeem, Mariam : Misyar marriage gaining prominence among Saudis
  6. ^ Al-Qaradawi, Yusuf : Zawaj al misyar p.8
  7. ^ Al-Qaradawi, Yusuf : Zawaj al misyar , pp.13-14
  8. ^ name="BinMenie">Bin Menie, Abdullah bin Sulaïman : fatwa concerning the misyar marriage (and opinions by Ibn Uthaymeen, [[Al-albany) (in Arabic)] Yet another marriage with no strings - fatwa committee of al azhar against misyar
  9. ^ Quran, 30 : 21
  10. ^ Wassel quoted in Hassouna addimashqi, Arfane : Nikah al misyar (2000), (in Arabic), p 16)
  11. ^ Al-Qaradawi, Yusuf : Mut’ah marriage

[edit] See also

[edit] External links

[edit] English

[edit] Arabic

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