2434. A marriage contract must fulfill the following conditions:
1. Obligatory precaution dictates that it should be pronounced in correct Arabic. If the man himself or the woman herself is unable to pronounce the formal expression in Arabic, they may also pronounce it in a language other than Arabic. The must select the expressions that will convey the meaning of زَوَّجْتُ and قَبِلْتُ. The recommended precaution however is that they deputize—if possible—a person who is able to pronounce it in correct Arabic.
2. The man, woman or their deputy should have a formative intention, meaning that if the man and the woman pronounce the formal expressions themselves, then the woman should have the intention of becoming his wife by pronouncing زَوَّجْتُكَ نَفْسِي, and the man should have the intention of accepting her as his wife by pronouncingقَبِلْتُ التَزْوِيْجَ. If their deputy pronounces the formal expressions, he should have the intention of making them husband and wife by pronouncing زَوَّجْتُ and قَبِلْتُ.
3. The person pronouncing the formal expression must be sane. As for one who is not b¡ligh, but able to form the contract, in the event that he pronounces the formal expression for himself without the permission or consent of his guardian, it will not be valid. However, if he does so with the permission and consent of his guardian, there will be no objection to it. In the event that he pronounces the formal expression as the deputy of a third party, the (marriage) contract will be valid.
4. If the deputy of the man and woman, or their guardians, pronounce the formal expressions, they should specify the husband and wife whilst pronouncing the contract. For example, they may pronounce their names or point towards them.
Therefore, if a person who has many daughters says to a man, زَوَّجْتُكَ اِحْدى بَناتِي meaning I wed to thee one of my daughters, and he responds by saying قَبِلْتُ, meaning I have accepted, the (marriage) contract will be void because they failed to specify a particular daughter while pronouncing the contract.
5. The man and the woman should both consent to the marriage. However, if the woman consents with apparent aversion, but it is known that she has consented to it in her heart, the (marriage) contract will be valid.
2435. If even a word is wrongly pronounced in the (marriage) contract, in a manner that changes its meaning, the contract will be void.
2436. If a person is not familiar with Arabic grammar, recites the formal expressions correctly, and knows the meaning of each word in the formal expression, and intends the meaning of each word when pronouncing it, he may pronounce the (marriage) contract.
2437. If a woman is wedded to a man without their consent, and thereafter the man and the woman consent to the marriage contract, it will be valid.
2438. If the man and the woman, or one of them, is compelled to the marriage, then in the event that they themselves had pronounced the marriage contract, and after pronouncing it they consent to it, it will be valid.
In the event that someone else had pronounced it, then if they consent to it, it will be valid. For example, they may state, “we consent to that marriage contract.”
2439. The father or paternal grandfather may solemnize the marriage of their child (grandchild) who is not b¡ligh, or who is insane and turned b¡ligh in the state of insanity. Once the child becomes b¡ligh or the insane individual regains sanity, then if the marriage that was solemnized for them was not to their detriment, they cannot cancel it. However if it was (to their detriment), they may ratify it or reject it. However, in the case that a non-b¡ligh girl and boy are married to each other by their respective parents, and upon turning b¡ligh they do not consent to it, the precaution with respect to carrying out a divorce or a new marriage contract should not be abandoned.
2440. If a girl who has reached the age of bulugh and is mature, in that she is able to determine her best interest, wishes to get married, and she is a virgin, obligatory precaution dictates that she acquire the consent of her father or grandfather. The permission of her mother or brother is not necessary.
2441. If a girl is not a virgin, or if she is a virgin but seeking the consent of her father or paternal grandfather is not possible, or entails a lot of hardship and she needs to get married, then the consent of her father or paternal grandfather will not be mandatory.
2442. If a father or paternal grandfather marries his non-b¡ligh son (grandson) to a girl, the son will have to pay for the expenses of his wife once he becomes b¡ligh. As for the expenses before he turns b¡ligh, in the event that the wife avails herself, and the son is able to derive pleasure, obligatory precaution dictates that he ascertain that he is free of any financial obligation to her by reaching a compromise settlement or otherwise.
2443. If a father or paternal grandfather marries his son (grandson) to a girl, then in the event that the son owned some property at the time of the marriage contract, he will be responsible to pay for the mahr of his wife. However if he did not own any property at the time of the marriage contract, then his father or grandfather will have to pay for the mahr of the wife.
2444. If a man realizes after the solemnization of the marriage contract that his wife has one of the following seven defects, he may annul the marriage contract:
1. Insanity
2. Leprosy
3. Leucoderma
4. Blindness
5. She is crippled or has a lax body, unless her laxity is in a manner that it is not deemed to be a defect in the common sense.
6. Ifdh¡’, meaning that her urinary passage and her uterus have become one, or her uterus and anal passageway have become one.
7. Presence of flesh or bone in her uterus that obstructs sexual intercourse.
2445. If a woman realizes that her husband had been insane prior to the marriage contract, or did not possess the male organ, or it gets severed after the marriage contract but before consummation, she may annul the marriage contract. The same will apply if she realizes that he has a dysfunction whereby he is unable to engage in sexual relations, even if the dysfunction develops after the marriage contract and prior to consummation.
However if the husband is unable to engage in sexual relations, the wife must refer him to the ¦¡kim al-shar’yy who will grant him one year’s respite. Thereafter, if the husband is unable to have sexual relations with that woman or any other woman, the woman may annul the marriage contract.
In the event that the man turns insane after the marriage contract, be it prior to the consummation or after it, the woman—based on obligatory precaution—may not separate from her husband without a divorce. If the male organ gets severed after consummation, or a dysfunction incapacitates him from engaging in sexual intercourse after consummation, the wife cannot annul the marriage contract.
2446. If a woman realizes after the marriage contract that the testicles of her husband have been removed, then in the event that he has embellished himself and cheated her, she may annul the marriage contract. In the event that he has not embellished himself, if she wishes to annul the marriage contract, she should not abandon the precaution of getting a divorce.
2447. If a woman annuls the marriage contract owing to the man’s inability to engage in sexual intercourse, the man will have to pay half of the mahr to her. However, if owing to any of the other aforementioned defects, the man or the woman annul the contract, then in the event that they have not consumed the marriage, he will be under no obligation to pay her anything. If however they have consummated the marriage, he must pay her the entire mahr, unless the woman had embellished herself, in which case he will be under no obligation to pay her anything.
2448. It is forbidden for a man to marry women who are ma¦ram to him, such as his mother, sister, daughter, paternal aunt, maternal aunt, his nieces and his mother in-law.
2449. If a person marries a woman, then even though they may not have consummated the marriage, her mother, her maternal grandmother, her paternal grandmother, and every generation upwards, will become ma¦ram to him.
2450. If a person marries a woman and consummates the marriage with her, then her daughters, granddaughters, and every generation downwards will become ma¦ram to him, regardless of whether they are present at the time of the marriage contract or are born thereafter.
2451. If a person has not consummated his marriage with a woman, he may not marry her daughter as long as the woman is married to him.
2452. The paternal and maternal aunts of a person, and the paternal and maternal aunts of his father, and the aunts of his paternal grandfather or paternal grandmother are ma¦ram to him. Similarly, the paternal and maternal aunt of one’s mother, and the paternal and maternal aunt of his maternal grandmother or maternal grandfather are ma¦ram to him.
2453. The father and grandfather of one’s husband, and every generation upwards, and her son, grandsons—through the son or daughter—and every generation downwards are all ma¦ram to her, regardless of whether they are present at the time of the marriage contract or are born thereafter.
2454. If a person marries a woman in a temporary or permanent marriage, he may not marry her sister as long as she is married to him.
2455. If a person grants his wife—in the manner that will be explained in the section on divorce—a revocable divorce, he may not marry her sister during the ‘iddah period. Obligatory precaution dictates that the same should apply to him whilst she is undergoing the ‘iddah of a temporary wife. However, he can marry her sister whilst she is undergoing the ‘iddah of an irrevocable divorce.
2456. A person may not marry his wife’s niece without her consent. However, if he forms a marriage contract with his wife’s niece without her consent, but thereafter his wife consents to it, there will be no objection to it.
2457. If a woman realizes that her husband has married her niece, and she maintains silence, then in the event that her silence does not convey her consent, and she does not grant her consent thereafter, their marriage will be annulled.
2458. If a person who wishes to marry the daughter of his maternal aunt, commits adultery with her mother before marrying the daughter, he cannot marry the daughter anymore. Based on obligatory precaution, the daughter of a paternal aunt will also be subject to the same precept.
2459. If a person marries the daughter of his paternal or maternal aunt, and after consummating his marriage, he commits adultery with her mother, it will not annul their marriage. However if he commits adultery with her mother prior to the consummation of their marriage, the obligatory precaution is that he separate from his wife by divorcing her.
2460. If a person commits adultery with a woman other than his maternal or paternal aunt, the recommended precaution is that he avoids marrying her daughter.
If he marries a woman, and prior to consummating their marriage, he commits adultery with her mother, the obligatory precaution is that he separates from her by divorcing her. However, if he first consummates their marriage, and then commits adultery with her mother, he does not have to separate from her.
2461. A Muslim woman cannot marry a k¡fir man, nor may a Muslim man marry a k¡fir woman other than a woman from the Ahl al-Kit¡b. There is no objection in contracting a temporary marriage with a woman from the Ahl al-Kit¡b, and recommended precaution dictates that he avoids contracting a permanent marriage with her. He cannot however marry a woman from the Ahl al-Kit¡b in a temporary or permanent marriage without the consent of his Muslim wife.
As for some of the sects, such as the khaw¡rij, the ghul¡t and the naw¡sib, that consider themselves to be Muslims, but are subject to the rulings of k¡firs, a Muslim man or woman cannot marry them in a temporary or permanent marriage.
2462. If a person commits adultery with a woman who is undergoing the ‘iddah of a revocable divorce, based on obligatory precaution she becomes forbidden to him . However, if a person commits adultery with a woman who is undergoing the ‘iddah of a temporary divorce or an irrevocable divorce, or the ‘iddah of her husband’s death, he may later marry her.
The definitions for revocable and irrevocable divorces, the ‘iddah of a temporary divorce or the ‘iddah of a husband’s death will be elaborated in the section on divorce.
2463. If a person commits adultery with an unmarried woman who is not undergoing an ‘iddah, he may later marry her. The obligatory precaution is that he avoids marrying a woman who publicly offers to commit adultery, unless it is known that she has repented. The obligatory precaution in this case is that he waits until she observes ¦ai¤, and then he should marry her. If another man wishes to marry her, observing this precaution is recommended.
