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Thursday, April 30, 2009

what the science is?

"Ability of differentiation is the basic of Science"

........ankur

Saturday, April 25, 2009

Polygamy! Is it Logical?

I am touching a very sensitive and not to talked about issue today through my Blog.
I am sure you will find it interesting but please don't be shy in spreading the information that I am going to share with you on this forum.
We know that Polygamy is not allowed as per Hindu Marriage Act 1955 and as per Muslim Personal Law (Shariat) Act 1939 Muslims can have 4 wives at a time. In Muslim Religion Polygyny is allowed but not the Polyandry (one woman having more than one husband) and Group Marriages (husbands having many wives and those wives having many husbands).
Polygamy is often confused as One Husband having many Wives though its not true; it includes Polygyny,Polyandry and Group Marriages.
One data published at wikipedia surprised me!
Ironically, according to the 1961 census (the last census to record such data), polygamy was actually less prevalent among Indian Muslims (5.7%) than among several other religious groups. Incidence was highest among Adivasis (15.25%) and Buddhists (7.9%); Hindus, by comparison, had an incidence of 5.8%.[55]

So, the religions in which any kind of Polygamy is discouraged are actually not following the virtues taught by their Religion. This is a matter of shame for them.
According to Theravada Buddhism, polygamy is discouraged and extramarital affairs are considered sinful. It is said in the Parabhava Sutta that "a man who is not satisfied with one woman and seeks out other women is on the path to decline".

Though I am an ardent opposer of Polygamy but Muslims do earn a pat on their backs.
Further, I would request the Government of India to ban Polygamy in India.
It has been declared illegal in countries like UK,USA,Turkey, Uzbekistan to name a few. Even in Iran the permission has to be taken from the first wife in writing. So why in India we are bind to follow this orthodox and nonsense practice of the religion.
Especially in a country with a population of over a Billion, is this advisable to continue such practices in the name of a religion.
Forget Population! My Muslim Brothers will accept that Marriage is a right and responsibility of every individual. In the words of prophet:
Prophet said:-“When a man marries he has fulfilled half of his religion, so let him fear Allah regarding the remaining half.”This very wording of Prophet marks the importance of marriage, thus it could be well concluded that marriage in Islam is must.

Second it is also very clear that every religion discourages Divorce.

Now going with the current Male to Female Ratio for in India for every 1000 Men there are less than 900 Women. So, theoretically and practically there is not a single girl available for marriage for every individual Man. In this scenario if some religion encourages Polygamy will it not led to opposition by force to the saying of great Prophet?

What I understand Polygamy was put in practice when there Male to Female ratio was biased towards Female side. But biologically the bias has changed it direction over a period of time.
I hope the religions and the governments also understand this and scrap this law immediately.

Though this article may hurt someone's feeling but my pure intention was to discuss a social problem and not to hurt any community. I apologise in anticipation in case it has hurt someone even a bit.

.........Ankur

A Trap for Non-Muslim Girls?

Refer the Dissolution of Muslim Marriage Act, 1939 I found a very strange thing in it to which I would like to draw your attention.
If a Born Muslim Married Lady renounciates or is converted to some other religion and she looks for a Divorce then she can easily do that based on 9 grounds but in case of a Non-Muslim Girl converted to Muslim and later re-embraces her religion or renountiates Muslim Religion can't nullify her marriage or go for divorce based on the same 9 grounds.
So, it is a kind of trap for those Non Muslim Girls who marry to a Muslim Groom as it is very difficult for her to get the divorce and free herself from the mess that she may face in the future.
The 9 grounds on which the divorce can be sought.
i) that the whereabouts of the husband have not been known for a period of four years;(ii) that the husband has neglected or has filed to provide for her maintenance for a period of two years;(ii-A) that the husband has taken an additional wife in contravention of the provisions of the Muslim Family Laws Ordinance, 1961;(iii) that the husband has been sentenced to imprisonment for a period of seven years or upwards;
(iv) that the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years;
(v) that the husband was impotent at the time of the marriage and continues to be so;(vi) that the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease;(vii) that she, having been given in marriage by her father or other guardian before she attained the age of sixteen years, repudiated the marriage before attaining the age of eighteen years:
Provided that the marriage has not been consumated;
(viii)that the husband treats her with cruelty, that is to say, (a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or (b) associates with women of evil repute of leads an infamous life, or (c) attempts to force her to lead an immoral life, or (d) disposes of her property or prevents her exercising her legal rights over it, or (e) obstructs her in the observance of her religious profession or practice, or (f) if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Quran,
(ix) on any other ground which is recognized as valid for the dissolution of marriages under Muslim Law,Provided that:
(a) no decree passed on ground (i) shall take effect for a period of six months from the date of such decree, and if the husband appears either in person or through an authorised agent within that period and satisfies the Court he is prepared to perform his conjugal duties the Court shall set aside the said decree; and (b) before passing a decree on ground (v) the Court shall, on application by the husband, make an order requiring the husband to satisfy the Court within a period of one year from the date of such order that he has ceased to be impotent, and if the husband so satisfied the Court within such period, no decree shall be passed on the said ground.

I hope some may find it useful!

...............Ankur

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The Dissolution of Muslim Marriages Act, 1939
An Act to consolidate and clarify the provisions of Muslim Law relating to suits for dissolution of marriage by women married under Muslim Law and to remove doubts as to the effect of the renunciation of Islam by a married woman on her marriage tie.
Whereas it is expedient to consolidate and clarify the provisions of Muslim Law relating to suits for dissolution of marriage by women married under Muslim Law and to remove doubts as to the effect of the renunciation of Islam by a married Muslim woman on her marriage; it is hereby enacted as follows:
1. Short title and extent.(1) This Act may be called the Dissolution of Muslim Marriages Act, 1939.(2) It extends to all the provinces and the Capital of the Federation.
2. Grounds for decree for dissolution of marriage.A woman married under Muslim Law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely:
(i) that the whereabouts of the husband have not been known for a period of four years;(ii) that the husband has neglected or has filed to provide for her maintenance for a period of two years;(ii-A) that the husband has taken an additional wife in contravention of the provisions of the Muslim Family Laws Ordinance, 1961;(iii) that the husband has been sentenced to imprisonment for a period of seven years or upwards;
(iv) that the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years;
(v) that the husband was impotent at the time of the marriage and continues to be so;(vi) that the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease;(vii) that she, having been given in marriage by her father or other guardian before she attained the age of sixteen years, repudiated the marriage before attaining the age of eighteen years:
Provided that the marriage has not been consumated;
(viii)that the husband treats her with cruelty, that is to say, (a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or (b) associates with women of evil repute of leads an infamous life, or (c) attempts to force her to lead an immoral life, or (d) disposes of her property or prevents her exercising her legal rights over it, or (e) obstructs her in the observance of her religious profession or practice, or (f) if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Quran,
(ix) on any other ground which is recognized as valid for the dissolution of marriages under Muslim Law,Provided that:
(a) no decree passed on ground (i) shall take effect for a period of six months from the date of such decree, and if the husband appears either in person or through an authorised agent within that period and satisfies the Court he is prepared to perform his conjugal duties the Court shall set aside the said decree; and (b) before passing a decree on ground (v) the Court shall, on application by the husband, make an order requiring the husband to satisfy the Court within a period of one year from the date of such order that he has ceased to be impotent, and if the husband so satisfied the Court within such period, no decree shall be passed on the said ground.
3. Notice to be served on heirs of the husband when the husband’s whereabouts are not known.In a suit to which clause (i) of section 2 applies:(a) the names and addresses of the persons who would have been heirs of the husband under Muslim Law if he had died on the date of the filing of the plaint shall be stated in the plaint.(b) notice of the suit shall be served on such persons, and(c) such persons shall have the right to be heard in the suit:Provided that paternal-uncle and brother of the husband, if any, shall be cited as party even if he or they are not heirs.
4.
Effect of conversion to another faith.The renunciation of Islam by a married Muslim woman or her conversion to a faith other than Islam shall not by itself operate to dissolve her marriage:Provided that after such renunciation, or conversion, the woman shall be entitled to obtain a decree for the dissolution of her marriage on any of the grounds mentioned in section 2; Provided further that the provisions of this section shall not apply to a woman converted to Islam from some other faith who re-embraces her former faith.
5. Right to dower not be affected.Nothing contained in this Act shall affect any right which a married woman may have under Muslim law to her dower or any part thereof on the dissolution of her marriage
6. (Repeal of section 5 of Act, XXVI of 1937)Rep. by the Repealing and Amending Act, 1942 (XXV of 1942), section 2 and First Sch.

Source:-http://www.vakilno1.com/saarclaw/pakistan/dissolution_of_muslim_marriages_act.htm

Concept of Marriage in Muslim Law!

An Overview of Concept of Marriage in Muslim Law

Islam, unlike other religions is a strong advocate of marriage. There is no place of celibacy in Islam like the Roman Catholic priests & nuns. The Prophet has said “There is no Celibacy in Islam”.

Marriage acts as an outlet for sexual needs & regulates it so one doesn’t become slave to his/her desires. It is a social need because through marriage, families are established and the families are the fundamental entity of our society. Furthermore marriage is the only legitimate or halal way to indulge in intimacy between a man and woman.

Islamic marriage although permits polygamy but it completely prohibits polyandry. Polygamy though permitted was guarded by several conditions by Prophet but these conditions are not obeyed by the Muslims in toto.

Marriage:-Pre Islamic Position
Before the birth of Islam there were several traditions in Arab. These traditions were having several unethical processes like:-
(i) Buying of girl from parents by paying a sum of money.
(ii) Temporary marriages.
(iii) Marriage with two real sisters simultaneously.
(iv) Freeness of giving up and again accepting women.
These unethical traditions of the society needed to be abolished; Islam did it and brought a drastic change in the concept of marriage.

Marriage Defined
It is quiet relevant to know whether the Muslim marriage is a sacrament like the Hindu marriage, for this let us get acquainted with some of the definitions of Muslim marriage.

(a) Hedaya 1: - Marriage is a legal process by which the several process and procreation and legitimation of children between man and women is perfectly lawful and valid.

(b) Bailies Digest 2:- A Nikah in Arabic means “Union of the series” and carries a civil contract for the purposes of legalizing sexual intercourse and legitimate procreation of children.

(c) Ameer Ali 3:- Marriage is an organization for the protection of the society. This is made to protect the society from foulness and unchestity.

(d) Abdur Rahim 4:- The Mahomedan priests regard the institution of marriage as par taking both the nature of “Ibadat” or devotional arts and “Muamlat” or dealings among men.

(e) Mahmood J. 5:- Marriage according to the Mahomedan law is not a sacrament but a civil contract.

(f) Under Section 2 of Muslim Women (Protection of Rights on Divorce) Act, 1986 Marriage or Nikah among Muslims is a ‘Solemn Pact’ or ‘Mithaq-e-ghalid’ between a man & a woman ,soliciting each others life companionship, which in law takes the form of a contract or aqd.

It’s a matter of query still existing whether Muslim marriage is only a civil contract or an Ibadat & Muamlat. While unleashing the various definitions it’s quite a big problem to say which one is the most appropriate, in my opinion although the essentials of a contract is fulfilled yet marriage can never be said to be a contract because marriage always creates a bondage between the emotions and thinking of two person.
J Sarsah Sulaiman6 has said “In Islam , marriage is not only a civil contract but also a sacrament.”

Muslim marriage can also be differentiated from a civil contract on the basis of following points:-
(a) It cannot be done on the basis of future happenings unlike the contingent contracts.
(b) Unlike the civil contract it cannot be done for a fixed period of time. (Muta Marriage being an exception.)

Purpose of Marriage
The word “Zawj” is used in the Quran to mean a pair or a mate. The general purpose of marriage is that the sexes can provide company to one another, procreate legitimate children & live in peace & tranquility to the commandments of Allah. Marriage serves as a mean to emotional & sexual gratification and as a mean of tension reduction.

Marriage compulsory or not ?
According to Imams Abu Hanifa, Ahmad ibn Hanbal & Malik ibn Anas, marriage in Islam is recommendatory, however in certain individuals it becomes Wajib or obligatory. Imam Shafi considers it to Nafl or Mubah (preferable). The general opinion is that if a person , male or female fears that if he/she does not marry they will commit fornication, then marriage becomes “Wajib”. However, one should not marry if he does not possess the means to maintain a wife and future family or if he has no sex drive or if dislikes children, or if he feels marriage will seriously affect his religious obligations.

Prophet said:-
“When a man marries he has fulfilled half of his religion, so let him fear Allah regarding the remaining half.”
This very wording of Prophet marks the importance of marriage, thus it could be well concluded that marriage in Islam is must.

Capacity for Marriage
The general essentials for marriage under Islam are as follows:-
(i) Every Mahomedan of sound mind and having attained puberty can marry. Where there is no proof or evidence of puberty the age of puberty is fifteen years.
(ii) A minor and insane (lunatic) who have not attained puberty can be validly contracted in marriage by their respective guardians.
(iii) Consent of party is must. A marriage of a Mahomedan who is of sound mind and has attained puberty, is void, if there is no consent.

Essentials of Marriage
The essentials of a valid marriage are as follows:-
(i) There should be a proposal made by or on behalf of one of the parties to the marriage, and an acceptance of the proposal by or on behalf of the other party.
(ii) The proposal and acceptance must both be expressed at once meeting.
(iii) The parties must be competent.
(iv) There must be two male or one male & two female witnesses, who must be sane and adult Mahomedan present & hearing during the marriage proposal and acceptance. (Not needed in Shia Law)
(v) Neither writing nor any religious ceremony is needed.

Essentials Explored
(i) A Muslim marriage requires proposal ‘Ijab’ from one party and acceptance ‘Qubul’ from the other side. This must be done in one sitting.
(ii) The acceptance must be corresponding to what is being offered.
(iii) The marriage must be effectively immediate. If the Wali says “ I will marry her to you after two months”, there is no marriage.
(iv) The two parties must be legally competent; i.e. they must be sane and adult.
(v) The women must not be from the forbidden class.
(vi) The consent given must be free consent,. It must not be an outcome of compulsion, duess, coercion or undue influence.

Kinds of Marriage
Under Muslim generally two types of marriage is recognized
(i) Regular Marriage (essentials discussed earlier)
(ii) Muta marriage

Muta Marriage: -
Muta marriage is a temporary marriage. Muta marriage is recognized in Shia only. Sunni law doesn’t recognize it. (Baillie, 18). A Shia of the male sex may contract a Muta marriage with a woman professing the Mahomedan, Christian or Jewish religion, or even with a woman who is a fire worshipper but not with any woman following any other religion. But a Shia woman cannot contract a Muta marriage with a non muslim.
The essentials of Muta marriage are:-

(1) The period of cohabitation should be fixed.
(2) Dower should be fixed.
(3) If dower specified, term not specified, it could amount to permanent or regular marriage.
(4) If term fixed dower not specified, it amounts to void marriage.

Aspects of Marriage
(i) Valid or Sahih
(ii) Irregular or Fasid
(iii) Void or Batil

(i) Valid or Sahih Marriage: - Under the Muslim law, a valid marriage is that which has been constituted in accordance with the essential conditioned prescribed earlier. It confers upon the wife; the right of dower, maintenance and residence, imposes on her obligation to be faithful and obedient to her husband, admit sexual intercourse with him & observe Iddat.

(ii) Irregular or Fasid Marriage: - Those marriages which are outcome of failures on part of parties in non fulfillment of prerequisites but then also are marriages; to be terminated by one of the party is termed to be Irregular marriages. They are outcome of-
(a) A marriage without witness (Not under Shia Law)
(b) Marriage with fifth wife.
(c) Marriage with a women undergoing Iddat.
(d) Marriage with a fire-worshipper.
(e) Marriage outcome of bar of unlawful conjunction.
An irregular marriage has no legal effect before consummation but when consummated give rise to several rights & obligations.

(iii) Void or Batil Marriage:- A marriage which is unlawful from it’s beginning. It does not create any civil rights or obligations between the parties. The offspring of a void marriage is illegitimate. They are outcome of-
(a) Marriage through forced consent.
(b) Plurality of husband.
(c) Marriage prohibited on the ground of consanguinity.
(d) Marriage prohibited on the ground of affinity.
(e) Marriage prohibited on the ground of fosterage.

Effect of Marriage (Sahih)
The lawful obligations which arise after marriage are as follows-
(i) Mutual intercourse legalized and the children so born are legitimate.
(ii) The wife gets power to get ‘Mahr’
(iii) The wife entitles to get maintenance.
(iv) The husband gets right to guide and prohibit the wife’s movement(for valid reasons only)
(v) Right of succession develops.
(vi) Prohibition of marriage due to affinity.
(vii) Women bound to complete Iddat period & not to marry during Iddat period; after divorce or death of husband.
The obligations and rights set between the two parties during and after the marriage are to be enforced till legality. On the basis of a marriage husband and wife do not get the right on one another’s property.

Conclusion
Marriage is a religious duty of every Muslim and it is considered to be a moral safeguard and a social need. The Prophet has also said “Marriage is my tradition whosoever keeps away there from is not from amongst me.”

Unlike Hindu where the marriage is a sacrament, marriages in Muslims have a nature of civil contract. Marriage is necessary for the legitimization of a child. When the marriage is done in accordance to the prescribed norms it creates various rights and obligations on both the parties.

Foot Notes
1- Hedaya P. 25
2- Bailie P. 4
3- Ameer Ali, Mahomedan Law, Students 7th Ed., 97
4- Abdur Rahim,327
5- Abdul Kadir V Salima, (1886) 8 Allahabad, 144 at p 154
6- Anees Begum Vs. Mohammad Istafa (1933) 55 All 743


The author can be reached at: abhishekk@legalserviceindia.com

Source:http://www.legalserviceindia.com/article/l162-Concept-of-Marriage-in-Muslim-Law.html