Chapter on Compatibility and the Right of Option
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The reciter: Praise be to Allah, Lord of the worlds, and may peace and blessings be upon our Prophet Muhammad, and upon his family and all his Companions.
The author (may Allah have mercy on him) transmitted: "From Ibn 'Umar (may Allah be pleased with them both), who said: The Messenger of Allah (peace and blessings be upon him) said:Bulugh al-Maram 8:39 Al-Hakim narrated it, and there is an unnamed narrator in its chain, and Abu Hatim criticized it. It has a corroborating narration from al-Bazzar from Mu'adh ibn Jabal with a broken chain.
And from Fatimah bint Qays (may Allah be pleased with her), that the Prophet (peace and blessings be upon him) said to her: Muslim narrated it ".
The Shaykh : What did he say to her?
The reader: Marry.
The Shaykh : Marry.
The reader: The hamza...
The Shaykh : A mistake... Yes, or "inkahi" with a kasrah on the kaf, but the hamza is a hamzat al-wasl: "inkahi".
The reader: "That the Prophet (peace and blessings be upon him) said to her: Muslim narrated it.
And from Abu Hurayrah (may Allah be pleased with him), that the Prophet (peace and blessings be upon him) said:Bulugh al-Maram 8:42 And he was a cup-bearer. Abu Dawud and al-Hakim narrated it with a good chain "
The Shaykh : And marry to him.
The reader: ...
The Shaykh : And "inkahu" is a hamzat al-wasl.
The reader: "Bulugh al-Maram 8:42 And he was a cup-bearer. Abu Dawud and al-Hakim narrated it with a good chain ".
The Shaykh : In the name of Allah, the Most Gracious, the Most Merciful.
Praise be to Allah, Lord of the worlds, and may blessings and peace be upon our Prophet Muhammad, and upon his family and his Companions, and those who follow them with excellence until the Day of Judgment.
The author (may Allah have mercy on him) said: "Chapter on Compatibility and the Right of Option" .
Compatibility means the equivalence of one thing to another. It is well known that compatibility in religion, in terms of the foundation of religion, is necessary. A Muslim woman does not marry a disbeliever, by the consensus of Muslims and by explicit text:[Al-Mumtahanah 60:10] Compatibility in righteousness means: an open sinner marrying a committed woman. This is not a condition, as long as his open sinfulness does not take him out of Islam. However, it is not recommended to marry an open sinner if it is possible to marry a righteous person, due to the saying of the Prophet (peace and blessings be upon him): Jami` at-Tirmidhi 1085Da'if (Darussalam) But sometimes necessity or public benefit compels marrying an open sinner, such as if the woman is a widow and there are few suitors for her, or if the woman is old and a virgin and there are few suitors for her. In this case, marrying her to an open sinner is for necessity. However, an exception is made from open sinfulness for the sin of unlawful sexual intercourse, as mentioned previously. Marrying a fornicator is forbidden and the marriage is invalid, due to the saying of Allah the Exalted: [An-Nur 24:3] These are two things.
So compatibility in religion is necessary. Yes, and an exception is made from it: a Muslim marrying a woman from the People of the Book, because the husband here is higher in status than the wife. The Noble Qur'an has made it lawful for a believing man to marry a woman from the People of the Book, so Allah the Exalted said:[Al-Ma'idah 5:5] But despite this, many of the Salaf disliked a believer marrying a woman from the People of the Book if it is possible for him to marry a Muslim woman, even though this is lawful, but they disliked it. They gave two reasons for the dislike:
The first reason: that this may be a danger to the religion of the Muslim man, especially if he loves her intensely, for it is feared that she will influence him. It is mentioned that a man who was a caller to prayer climbed the minaret and found a beautiful Christian woman on one of the rooftops, and she captivated his mind. So he sent to her to propose to her, but she refused unless he became a Christian, we seek refuge in Allah. He tried, but she refused and said: It is not possible unless you become a Christian. So he became a Christian. When he became a Christian, she said to him: You sold your religion for something cheap, so you will sell me for something cheaper. I have no need for you. So he became an apostate from Islam, may Allah protect us, and he did not achieve his goal.
So, we have made an exception from compatibility in religion: a Muslim marrying a woman from the People of the Book. And yet we said: many of the Salaf disliked it out of fear that she will influence the person. This is one reason.
The second reason: if he marries a woman from the People of the Book, it will reduce the marriage of Muslim women, so Muslim women will remain unmarried without husbands. Do you understand? Instead of marrying a woman from the People of the Book, he marries a Muslim woman. Protecting the chastity of a Muslim woman is better for him than protecting the chastity of a woman from the People of the Book. Is that clear, everyone?
Compatibility in righteousness: we said it is not a condition. But it is not recommended to marry a righteous woman to an open sinner unless necessity calls for it. We gave two examples for this: you are a widow who is not desired, or you are a virgin who has reached an age that makes people disdain her. In that case, there is no harm in marrying her, and perhaps Allah will guide him. Allah is capable of all things.
The third: compatibility in lineage, meaning: that the woman has lineage, and the husband has no lineage. It does not mean by "no lineage" that he has no father; he has a father, but he is not from the Arab tribes, and the woman is from the Arab tribes. A tribal woman and he is what is known to us as a "Khudhari" and a "Qabali." Among the common people, the tribal one is called a "Sheikh," and the one who has no tribe is called a "slave" based on the original principle, because the original principle is that the non-tribal are from the Mawali, those who embraced Islam and whose Arab lineage was not known, from the Persians or the Romans or others.
In any case: compatibility in this matter is a point of disagreement among scholars. Some scholars say: it is a condition for validity, a condition for the validity of the marriage. So if a non-tribal man marries a tribal woman, the marriage is not valid due to the lack of the condition of compatibility. And some scholars said: it is a condition for bindingness and not a condition for validity, meaning: if the woman is married to a non-tribal man and she is tribal, her awliya (guardians) have the right to annul it. Her awliya are not the ones who married her off, because the ones who married her off have consented, but her awliya who are not the ones who married her off, such as the sons of uncles and the sons of brothers and the like, have the right to annul the marriage. But this second opinion and the one before it are both weak. As for the first opinion that preceded it, it is one of the strange views that this compatibility is a condition for validity. A man who is a scholar, rich, noble, of good character and religion, but is not tribal, takes a tribal woman who is rough, and we say: the marriage is not valid?! This is, Glory be to Allah the Great, we are amazed that a scholar among the scholars says this. But every person's statement is taken and left except the Messenger of Allah (peace and blessings be upon him).
Likewise, regarding it being a condition for bindingness, this also has issues. A woman consented, and her closest guardian consented to this scholar, righteous, noble, brave man, but he is not tribal. How do you say to the distant son of an uncle: annul it if you wish, when we fear that his intention with this annulment is envy and jealousy that such a man marries her. Yes, so the correct view is that no one has the right to annul it.
And how good was what happened in a case before one of the judges of this country previously. A tribal woman married a non-tribal man. Her father married her off and she consented to it. So her uncles came to the Shaykh judge to seek judgment. He said to them: There is no harm, I will annul the marriage, but on the condition that you commit to providing for her for the rest of her life. He was a smart judge who knew that they would not commit to that. So they deliberated among themselves, and if providing for her would be burdensome for them, they said: No, we will not commit to that. He said: Go back behind you. And this is undoubtedly intelligence from the judge due to his knowledge that they would not commit to it. But if we knew that they would commit to it, we would say: you have no right. The woman is satisfied and her closest awliya are satisfied, and what is the obstacle? How many compatibilities is this? Three, three compatibilities.
The author (may Allah have mercy on him) will mention what is related to this matter. And as for his saying: "al-Khiyar" (the right of option), he means by it: the right of option due to a defect. Know that the right of option in marriage has two reasons, or more than two reasons:
The first reason: a defect, meaning: that one of the spouses finds the other with a defect. This is one.
The second: the loss of a stipulated attribute, such as if the husband stipulates that the wife be a virgin, and it turns out she is a widow, or that she is beautiful, and it turns out she is not beautiful, or the like. The important thing: the loss of a stipulated attribute. These are two reasons.
The third reason: what the author will mention regarding the Islam of one of the spouses and the like. So these are the rights of option. We said its cause is either a defect in the woman or the loss of a stipulated attribute. The one who has the right has the option: if he wishes, he annuls the marriage, and if he wishes, he confirms it. Good.
Is there a conditional option (khiyar al-shart) regarding which the scholars (may Allah have mercy on them) disagreed, as to whether it is established in marriage or not? Some of them said: It is established, meaning that it is stipulated at the time of the contract that each of them has the option to annul the marriage for a period of three or four days. Yes, some scholars said: It is valid, and some said: It is not valid. He said: Because if it is an option for the husband, he is in no need of it, why? Because of divorce; he divorces without an option. And if the option is for the wife, the wife is deficient in her intellect and her religion; perhaps if the slightest word comes from her husband, she says: I have chosen annulment, and she has demolished the marriage, is that not so? Yes, this is the reality, as the Prophet (peace and blessings be upon him) informed us of that, saying: Therefore, the option is not valid.
And what we see in this issue is a detailed distinction, which is that if the option is for a specific intended purpose, there is no harm. For example, she might say: If I am pleased with living in this house, then that is fine, otherwise I have the option. Then she moves in with people who harm her, for instance, she moved in with people who have multiple brothers, each of whom has a wife, and each wife’s tongue is longer than her arm, and they tire out this woman. So she said to him: I stipulate for myself that if I am not pleased with the residence, I have the option. This is permissible, because it is for a specific intended purpose; it is not an absolute option, but rather an option for a specific intended purpose. So it is an option due to a defect, an option due to the loss of a stipulated attribute, an option by stipulation. Yes.
The author (may Allah have mercy on him) transmitted: "From Ibn 'Umar (may Allah be pleased with them both), who said: The Messenger of Allah (peace and blessings be upon him) said:
The Arabs are equal to one another and the Mawali (Non-Arabs, and originally former slaves) are equal to one another, except a weaver or a cupper.
العرب بعضهم أكفاء بعض، والموالي بعضهم أكفاء بعض، إلا حائكا أو حجاماAnd from Fatimah bint Qays (may Allah be pleased with her), that the Prophet (peace and blessings be upon him) said to her:
Marry Uthman.
أنكحي أسامةThe Shaykh : What did he say to her?
The reader: Marry.
The Shaykh : Marry.
The reader: The hamza...
The Shaykh : A mistake...
Marry Usamah
انكحي أسامةThe reader: "That the Prophet (peace and blessings be upon him) said to her:
Marry Uthman.
أنكحي أسامةAnd from Abu Hurayrah (may Allah be pleased with him), that the Prophet (peace and blessings be upon him) said:
O Sons of Bayada', marry to Abu Hind (someone of your women) and marry from his women
يا بني بياضة، أنكحوا أبا هند، وانكحوا إليهThe Shaykh : And marry to him.
The reader: ...
The Shaykh : And "inkahu" is a hamzat al-wasl.
The reader: "
O Sons of Bayada', marry to Abu Hind (someone of your women) and marry from his women
يا بني بياضة، أنكحوا أبا هند، وانكحوا إليهThe Shaykh : In the name of Allah, the Most Gracious, the Most Merciful.
Praise be to Allah, Lord of the worlds, and may blessings and peace be upon our Prophet Muhammad, and upon his family and his Companions, and those who follow them with excellence until the Day of Judgment.
The author (may Allah have mercy on him) said: "Chapter on Compatibility and the Right of Option" .
Compatibility means the equivalence of one thing to another. It is well known that compatibility in religion, in terms of the foundation of religion, is necessary. A Muslim woman does not marry a disbeliever, by the consensus of Muslims and by explicit text:
And if you know them to be believers, then do not return them to the disbelievers; they are not lawful [wives] for them, nor are they lawful [husbands] for them
فإن علمتموهن مؤمنات فلا ترجعوهن إلى الكفار لا هن حل لهم ولا هم يحلون لهنWhen someone whose religion and character you are pleased with comes to you then marry (her to) him
إذا أتاكم من ترضون دينه وخلقه فانكحوهThe fornicator does not marry except a [female] fornicator or polytheist, and none marries her except a fornicator or a polytheist
الزاني لا ينكح إلا زانية أو مشركة والزانية لا ينكحها إلا زان أو مشركSo compatibility in religion is necessary. Yes, and an exception is made from it: a Muslim marrying a woman from the People of the Book, because the husband here is higher in status than the wife. The Noble Qur'an has made it lawful for a believing man to marry a woman from the People of the Book, so Allah the Exalted said:
This day [all] good foods have been made lawful, and the food of those who were given the Scripture is lawful for you and your food is lawful for them. And [lawful in marriage are] chaste women from among the believers and chaste women from among those who were given the Scripture before you, when you have given them their due compensation, desiring chastity, not unlawful sexual intercourse or taking [secret] lovers
اليوم أحل لكم الطيبات وطعام الذين أوتوا الكتاب حلٌ لكم وطعامكم حلٌ لهم والمحصنات من المؤمنات والمحصنات من الذين أوتوا الكتاب من قبلكم إذا آتيتموهن أجورهن محصنيين غير مسافحين ولا متخذي أخذانThe first reason: that this may be a danger to the religion of the Muslim man, especially if he loves her intensely, for it is feared that she will influence him. It is mentioned that a man who was a caller to prayer climbed the minaret and found a beautiful Christian woman on one of the rooftops, and she captivated his mind. So he sent to her to propose to her, but she refused unless he became a Christian, we seek refuge in Allah. He tried, but she refused and said: It is not possible unless you become a Christian. So he became a Christian. When he became a Christian, she said to him: You sold your religion for something cheap, so you will sell me for something cheaper. I have no need for you. So he became an apostate from Islam, may Allah protect us, and he did not achieve his goal.
So, we have made an exception from compatibility in religion: a Muslim marrying a woman from the People of the Book. And yet we said: many of the Salaf disliked it out of fear that she will influence the person. This is one reason.
The second reason: if he marries a woman from the People of the Book, it will reduce the marriage of Muslim women, so Muslim women will remain unmarried without husbands. Do you understand? Instead of marrying a woman from the People of the Book, he marries a Muslim woman. Protecting the chastity of a Muslim woman is better for him than protecting the chastity of a woman from the People of the Book. Is that clear, everyone?
Compatibility in righteousness: we said it is not a condition. But it is not recommended to marry a righteous woman to an open sinner unless necessity calls for it. We gave two examples for this: you are a widow who is not desired, or you are a virgin who has reached an age that makes people disdain her. In that case, there is no harm in marrying her, and perhaps Allah will guide him. Allah is capable of all things.
The third: compatibility in lineage, meaning: that the woman has lineage, and the husband has no lineage. It does not mean by "no lineage" that he has no father; he has a father, but he is not from the Arab tribes, and the woman is from the Arab tribes. A tribal woman and he is what is known to us as a "Khudhari" and a "Qabali." Among the common people, the tribal one is called a "Sheikh," and the one who has no tribe is called a "slave" based on the original principle, because the original principle is that the non-tribal are from the Mawali, those who embraced Islam and whose Arab lineage was not known, from the Persians or the Romans or others.
In any case: compatibility in this matter is a point of disagreement among scholars. Some scholars say: it is a condition for validity, a condition for the validity of the marriage. So if a non-tribal man marries a tribal woman, the marriage is not valid due to the lack of the condition of compatibility. And some scholars said: it is a condition for bindingness and not a condition for validity, meaning: if the woman is married to a non-tribal man and she is tribal, her awliya (guardians) have the right to annul it. Her awliya are not the ones who married her off, because the ones who married her off have consented, but her awliya who are not the ones who married her off, such as the sons of uncles and the sons of brothers and the like, have the right to annul the marriage. But this second opinion and the one before it are both weak. As for the first opinion that preceded it, it is one of the strange views that this compatibility is a condition for validity. A man who is a scholar, rich, noble, of good character and religion, but is not tribal, takes a tribal woman who is rough, and we say: the marriage is not valid?! This is, Glory be to Allah the Great, we are amazed that a scholar among the scholars says this. But every person's statement is taken and left except the Messenger of Allah (peace and blessings be upon him).
Likewise, regarding it being a condition for bindingness, this also has issues. A woman consented, and her closest guardian consented to this scholar, righteous, noble, brave man, but he is not tribal. How do you say to the distant son of an uncle: annul it if you wish, when we fear that his intention with this annulment is envy and jealousy that such a man marries her. Yes, so the correct view is that no one has the right to annul it.
And how good was what happened in a case before one of the judges of this country previously. A tribal woman married a non-tribal man. Her father married her off and she consented to it. So her uncles came to the Shaykh judge to seek judgment. He said to them: There is no harm, I will annul the marriage, but on the condition that you commit to providing for her for the rest of her life. He was a smart judge who knew that they would not commit to that. So they deliberated among themselves, and if providing for her would be burdensome for them, they said: No, we will not commit to that. He said: Go back behind you. And this is undoubtedly intelligence from the judge due to his knowledge that they would not commit to it. But if we knew that they would commit to it, we would say: you have no right. The woman is satisfied and her closest awliya are satisfied, and what is the obstacle? How many compatibilities is this? Three, three compatibilities.
The author (may Allah have mercy on him) will mention what is related to this matter. And as for his saying: "al-Khiyar" (the right of option), he means by it: the right of option due to a defect. Know that the right of option in marriage has two reasons, or more than two reasons:
The first reason: a defect, meaning: that one of the spouses finds the other with a defect. This is one.
The second: the loss of a stipulated attribute, such as if the husband stipulates that the wife be a virgin, and it turns out she is a widow, or that she is beautiful, and it turns out she is not beautiful, or the like. The important thing: the loss of a stipulated attribute. These are two reasons.
The third reason: what the author will mention regarding the Islam of one of the spouses and the like. So these are the rights of option. We said its cause is either a defect in the woman or the loss of a stipulated attribute. The one who has the right has the option: if he wishes, he annuls the marriage, and if he wishes, he confirms it. Good.
Is there a conditional option (khiyar al-shart) regarding which the scholars (may Allah have mercy on them) disagreed, as to whether it is established in marriage or not? Some of them said: It is established, meaning that it is stipulated at the time of the contract that each of them has the option to annul the marriage for a period of three or four days. Yes, some scholars said: It is valid, and some said: It is not valid. He said: Because if it is an option for the husband, he is in no need of it, why? Because of divorce; he divorces without an option. And if the option is for the wife, the wife is deficient in her intellect and her religion; perhaps if the slightest word comes from her husband, she says: I have chosen annulment, and she has demolished the marriage, is that not so? Yes, this is the reality, as the Prophet (peace and blessings be upon him) informed us of that, saying:
Even if you were to do good to one of them for the entire duration of time, then she sees one bad thing from you, she would say: I have never seen any good from you.
إنك لو أحسنت إلى أحداهن الدهر كله ثم رأت منك سيئة واحدة قالت ما رأيت منك خيراً قطAnd what we see in this issue is a detailed distinction, which is that if the option is for a specific intended purpose, there is no harm. For example, she might say: If I am pleased with living in this house, then that is fine, otherwise I have the option. Then she moves in with people who harm her, for instance, she moved in with people who have multiple brothers, each of whom has a wife, and each wife’s tongue is longer than her arm, and they tire out this woman. So she said to him: I stipulate for myself that if I am not pleased with the residence, I have the option. This is permissible, because it is for a specific intended purpose; it is not an absolute option, but rather an option for a specific intended purpose. So it is an option due to a defect, an option due to the loss of a stipulated attribute, an option by stipulation. Yes.