Academic journal article Gender & Behaviour

Rights of the Wife under Islamic Law

Academic journal article Gender & Behaviour

Rights of the Wife under Islamic Law

Article excerpt

Marriage is a relationship that exists between two parties, it is considered to be a social institution, form of worship as well as religious duty. Marriage can only be valid if some certain essential elements are present. In every marriage there should always be the parties, offer and acceptance, guardian, dowry witness in the absence of either of the element the marriage will be considered to be void, voidable or irregulars; But where all the elements are satisfied then the marriage is valid ab ini cio.

Upon the completion of the marriage contract, certain rights and obligations are imposed, on the parties and certain rights are vested in them. The rights and duties arising out of a marriage are reciprocal, so that if either the husband or the wife fails to perform his or her part of the express or implied terms of the contract of marriage, he or she shall no longer be entitled to the enjoyment of the right vested in him or her. The exercise of such right is regarded as an act of Ibadat because it is going to be in accordance with the principles of Islamic law. These rights are divided in to three the mutual rights, the rights of the wife and the rights of the husband. Here we are going to discuss the right of the wife which is the responsibility of the husband. There are rights of the wife which Islam has guaranteed to the wife among these, the right to choose a husband, right to maintenance, right to Khul, right to custody of her children at the end of the marriage etc.

Mutual Rights

Before going on with the discussion on the right of the wife, mutual rights needs to be discussed because they are rights of both parties that are pure mutual rights for the spouses. Each of the spouses might relax or relinquish his right towards the other.

a. Sexual intercourse

The right to cohabitation and consortium is only permitted by virtue of a valid marriage contracts; and each spouse can, as of right, demand it from the other. Allah says:

"The believers must (eventually) win through who abstains from sex. Except which joined them in the marriage bond, or the captives, whom their hands possess-"1.

Allah also says:

Permitted to you on the right of the fast is the approach to your wife. They are your garment and their garments2.

Men and women are each others' garment i.e. they are for mutual comfort, mutual support and mutual protection, feting into each other as a garment fits the body. We all know what garments mean: They are intended cover a persons body thereby covering his nudity, so husband and wife, by entering into the contract of marriage they preserve - their chastity, secure comfort for each other which can only be obtained through a marriage.

b. Inheritance

"Men shall have a share in what parents and kinsfolk leave behind women shall have a share in what parents and kinsfolk leave behind whether it be little or much a determinate share"3.

The above Qur'anic verse speaks for itself. This is a direct command from Allah. It is therefore His sole right. Any attempt therefore to prevent the effect of His command shall attract Allah's wrath. However, each of the beneficiaries has to have the requests qualification for entitlement to the share.

So each of the spouses on becoming a spouse relict will have to take his or her due share from what the deceased has left behind, as he or she has became entitle to inherit the deceased through the marital tie. It is pertinent to look at the position of each of the spouse as follows:

i. Husband: The husband on his wives death has no power to exclude totally any of his deceased wife's relatives; he is neither excluded by any of such relatives. He must therefore take a portion of the net estate at any rate. He has two status while inheriting:

a. He enjoys a maximum of one half of the net estate left by his deceased wife where the latter has left no issue(s) either from the former or any other previous husband; or

b. …

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