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Islamique Magazine Online | October 21, 2017

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Law vs Common Sense in Marriage

Law vs Common Sense in Marriage

As I was driving down Mile End Road one evening I received a call from a young man.

(I was using a hands free kit I promise) who asked me about a young husband who wanted to know whether Islam gave him the right to stop his wife from travelling abroad with her family. For a moment, I thought the young man must have a good reason to want to prevent his wife from travelling with her family. Why else would he ask such a question? So I almost said yes as a straight answer just to get him off the phone and my concentration on the road.

But then, my inquisitive nature took over and my usual tendency to rarely have a yes or no answer for anything took hold. So I asked, ‘why does he want to stop her from travelling?’ The answer was, he just doesn’t want her to go and he wants to know if that is okay Islamically. After further questions, it turned out that the couple had no children, that the last time she had travelled with her family to Bangladesh was two years ago and that the husband had no particular reasons for forbidding her except that he wanted her around. Hence, he wanted to know if that was within his rights. It also turned out that his wife lived with his parents and served them dutifully.

My answer was as follows: “the answer to the legal question as to whether he can forbid his wife from travelling is, yes he can.” My advice however is that he should freely and happily let her go and he should not exercise his right in this scenario nor think of it in terms of rights and duties.

Now, many people might wonder about this answer. If he has the right then it is his decision, why can’t he forbid her? After all, he is the husband and it is his right. Well here is the issue and the reason why I chose to advise as I did.

Islam is a complete way of life and thus Muslims who take their faith seriously always seek to know what the boundaries are of the permissible and impermissible. This is a good thing which demonstrates our commitment to our faith and its ability to guide us in all walks of life.

However, one thing that people need to understand is that while everything that is prohibited in Islam must be avoided, everything that is permitted need not be done. Similarly, in the realm of rights and responsibilities, Islam lays out what we have a right to and what our duties are but it does not oblige us to claim or exercise every right. These things guide us to understand certain boundaries and priorities. Often Haram and Halal, rights and duties pertain to the legal boundaries but do not spell out how we should live our lives within them.

In Islam, the legal boundaries are articulated by the science of Jurisprudence, or ‘fiqh’. When we have a legal question, we go to a scholar who gives us legal answers. But here lies the problem. Having received a legal answer, we try to live our lives using the black and white of legal boundaries when the reality of life throws up variables and grey areas within these boundaries. This is where common sense, decency, wisdom, kindness, fairness and other such qualities show us the way and ‘fiqh’ takes a back seat.

Let us use the above marriage example to understand this further. The average mufti will respond to the legal question of whether a husband may forbid his wife from travelling without him with a resounding yes, because this is his right. Yet, in most cases this issue should never make it to a mufti as such things should be worked out between the husband and wife. When something is your right legally, it does not mean you have to exercise it. That’s just not how marriages work. So, a husband must consider whether he has a ‘reasonable’ reason to say no to such a situation as well as the impact that an unreasonable imposition of authority would have on one’s wife and on their relationship.

In the case of marriage, sometimes we should flip the coin and look at it like this: most husbands (particularly Asian ones) expect, as the norm, concessions in rights from their wives that wives are not obliged to grant. For example, most Asian Muslim brides live with their in-laws often with limited privacy and freedom to even engage in a proper marital relationship with their husbands. This concession is taken from them without hesitation. In matters of finance, it is very easy for the husband to seek help from the wife and expect her to contribute to the family in some way when she is under no obligation to do so, yet she mostly does so willingly and out of grace.

Despite this, men often do not extend the same courtesy and generosity when it comes to accepting concessions with regards to their rights. This is the point I made to the aforementioned young man. I explained to him that his wife can tolerate living with his family, caring for his parents, brothers and sisters. Out of love, kindness and generosity, should he not reciprocate by letting her have her wishes even though he has the right not to?

In my view, many marriages go wrong in the long term because couples, especially husbands but not always, try to live their married life out of a fiqh book. This does not work for obvious reasons. Generally, the Qur’an deals with social issues on the basis of principles and qualities that have no black and white application. The more a relationship functions on the basis of these qualities, the more it thrives. Take for example, the verses below:

“And of His signs is that He created for you, of yourselves, spouses, that you might repose in them, and He has set between you love and mercy. Surely in that are signs for a people who consider.”
[Surat ar-Rum, 30:21]

How do you place legal boundaries around the implication of this verse? Should we now use legal boundaries to determine how much ‘love’ and ‘mercy’ should exist between a couple or should these qualities be allowed to flourish uninhibited?

“Permitted to you, on the night of the fasts, is the approach to your wives. They are your garments and ye are their garments.”

[Surat al-Baqarah, 2:187]

This verse is a good example of my point in this article. The verse seamlessly combines Fiqhi rules with universal guidelines. While the verse deals with the timings of the fasting day, it lays out the mutuality of married life by describing the husband and wife as each other’s garments. There is no limit to how one can apply this notion. It’s a universal guideline. The more husbands and wives treat each other based on the spirit of this statement, the more beautiful their relationships and lives will be.

There are many other such examples. I will conclude by saying this. On any matter that we face in life, Fiqh or laws are useful as boundary markers which we must study and be aware of. They are like the borders of a country that most people know about yet never encounter. Daily life is lived on the basis of qualities that are undeniably universal values enshrined in the Qur’an and the Sunnah and endlessly rewarded by Allah (SWT). Knowing the rules will make you knowledgeable and better able to avoid certain pitfalls, but applying the universal characteristics will make you a better person, better husband, better father, better neighbour, friend and so on. And chances are, you would have avoided the pitfalls altogether.

As a rule of thumb, we should live our lives according to the living example of Muhammad (SAW), and based on a study of his life and that of his companions. Let us leave his legal teachings for the classrooms and the courtroom. The classrooms we should all attend to seek knowledge, the courtrooms we will avoid if we don’t live our lives like lawyers.

Comments

  1. kauthar

    Jazakallah khair, I think muslims should be more enlightened on issues like this.

  2. shahesn

    I liked the way you explained about the mutual understanding of the couple
    Every problem should be dealt in this way

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