Marriage is classified in accordance with the circum- stances under which the person entering into it is situ- ated

and it is of five kinds as follows:

1. Obligatory (Fardh) marriage;

2. Compulsory (Wajib) marriage;
3. Prohibited (Haram) marriage;
4. Disliked but not forbidden (Makruh) marriage;
5. Order without obligation (Mubah) marriage.

It is said to be obligatory (Fardh) when the person entering into it is financially capable of putting up the
necessary expenses of marriage by paying the dower and such other rights of the wife. In addition, the man
desiring to marry has no intention to fool the woman he desires to contract a marriage with and that he is certain
to fall into fornication if he will not get mar- ried

what are the requirements of an ob- ligatory (Fardh) marriage?

1. A man desiring to marry has the finance to put up all the expenses incidental to the marriage;
2. He has no apprehension at all to deceive the woman he desires to marry during the existence of con- jugal
relation;
3. He is certain to fall into fornication if he will not get married.

— When is marriage said to be compulsory (Wajib)?

A — It is said to be compulsory when all the above-men- tioned requirements are present except that the man’s
apprehension to fall into fornication does not reach the stage of certainty (yaqin).

— Is there a difference between wajib and fardh?

Majority of the ‘Ulama’ are not distinguishing one from the other considering that both urge strict compliance.
However, the school of thought (Math-hab) of Imam Abi Hanifa differentiates the two terms, viz: Wajib is one
of the compliance of which is enjoined and its non- compliance will not make a believer a nonbeliever;10
whereas, fardh is one of the compliance of which is urged and its noncompliance will make a believer a
nonbeliever.

It is said to be forbidden or prohibited (Haram) when the person contracting it is certain that by doing so he will
be fooling the woman whom he will marry and it will therefore be a destruction to her if he marries her. What
makes it prohibited is the expected destruction to be inflicted upon the woman. Very surely, anything that will
destroy another unjustifiably will conse- quently be prohibited (Haram) or outlawed. In this instance, marriage
is a cause of the destruction and so it is forbidden or outlawed.

It is said to be detested or disliked but not forbidden (Makruh) when the person entering into it fears that by
doing so he will be fooling and beating the woman he desires to marry although his apprehension does not reach
the stage of certainty (yaqin).

It is said to be allowed or ordered without obligation (Mubah) when the person entering into it has all the
necessary qualities to contract and finance it and he is certain that by doing so he will not be fooling his wife
and he further strongly believes that he will not fall into fornication even if he will not get married

The essential requisites of marriage are numerous. Some are called arkan, plural of rukn and some are named
shurut, plural of shart.

The essential requisites (arkan) of marriage are the offer (ijab) and the acceptance (qabul) only.

Is the presence of two competent witnesses re- quired for the validity of the marriage or just for its
announcement?
The schools of Hanafi, Shafi’i, Hanbali and Zahiria require it as an essential requisite for the validity of
the marriage separate and distinct from the prophetic requirement of announcement. They based their argument
on the prophetic tradition quoted here:

1
 We notice that the stipulation of dower is not required by the arkan and the shurut of the mar- riage we
have just discussed; is it not a require- ment for the validity of the marriage?
Yes. It is not a requirement for the validity of the marriage. It is an obligation of the husband to his wife
required of him by Allah as an after effect of the per- fection of the contract of marriage

The difference between the two terms is that rukn is an ingredient of a marriage. Its compliance perfects
the validity of the marriage. Its absence therefore invalidates it. Whereas shart is one the presence of which may
or may not affect the validity of the mar- riage.

If the dower is not stipulated before the celebra- tion of marriage, will it invalidate the marriage? Why?
Explain.

No, because the stipulation of the dower before the cel- ebration of the marriage is not a requirement for the
validity of the marriage. The contract of marriage can be valid even without specification of a dower before its
celebration because the dower is not a shart sihha. It is just an offshoot of a valid contract of marriage. It would
therefore be a sufficient compliance with the requirement that dower is specified or given either before, during
or even after the celebration of the marriage.

A cursory glance of the just quoted provision of the Code will readily make the reader understand that the
marriage can be valid even if the dower is not so stipulated or fixed before or during the celebration of the
marriage. It would be sufficient compliance with the requirement of the Shari’a if it is fixed even after the
celebration of the marriage. Therefore, the stipu- lation of the dower is not an essential requisite for the validity
of the marriage because it can be valid even without it. However, if ever it is not at all fixed or the fixation is
not valid then proper dower (mahr-mithl) is by the natural course of the event shall be due to the wife. I

The marriage contracted by a father or a paternal grandfather for a minor below the prescribed ages for marriage
is valid and cannot be nullified by the minor upon reaching the age of puberty.45

In what instance the state may solemnize the marriage and what is the basis of its authority?

The state may solemnize the marriage in the absence of a proper wali or should the proper wali refuse to
solemnize or to authorize the solemnization without justifiable reason and the basis of its authority is the
prophetic tradition herein below quoted:
which means: No marriage except in the presence of a guardian (wali) and two competent witnesses. If they
quarrel with one another, the duly constituted author- ity of the state is the guardian (wali) of those who have no
guardian

When is prohibited marriage said to be permanent?

It is said to be permanent when the prohibition is caused by consanguinity, affinity or fosterage.

When is it said to be temporary?

It is said to be temporary when the cause of the prohi- bition is transitory

Mut’a is a temporary marriage contracted by a man and a woman for a day, a week a month or for any other
specified period. This kind of marriage is unani- mously prohibited by the Orthodox (Sunni) Muslim Schools of
Law (Mathahib).

The following persons are prohibited temporarily to contract marriage:

1. The wife;
2. The woman while observing an ‘idda;
3. The pregnant during her pregnancy;
4. The three time divorcee cannot be rejoined by her husband until she got married with another hus- band in a
consummated valid marriage and the latter divorces her and her ‘idda expires;
5. A woman who is a pagan (a person who has no religion);
6. The woman who will be in excess of four wives of a husband at a time;
7. A person in a state of ihram
8.The woman who will be the wife at the same time of the husband of her sister, aunt or niece; a
9.The husband of four wives at a time

2
Suppose a husband repudiates his wife for the first time or the second time and fails to reconcile with her
within the prescribed ‘idda, can he rejoin her rightaway?
He cannot rejoin her rightaway. He has to remarry her in a new contract of marriage because his failure to take
her back within the prescribed ‘idda amounts to an irrevocable divorce (talaq ba‘in sugra).72

The explanations of each kind of marriage mentioned in the immediately preceding number are:

1. Marriage is batil when it is entered into without complying with one or more of the essential requisites
(arkan) and shurut inqad of marriage, supra.
2. Marriage is fasid when it is entered into without complying with one or more of the shurut sihha after having
complied with the essential requisites (arkan and shurut inqad) of marriage, supra.
3. Marriage is mauquf when it is entered into and has complied with the arkan, shurut inqad and shurut sihha
but failed to meet one or more of shurut nafad.
4. Marriage is nafid (valid) but not lazim when all the requirements of inqad, sihha and nafad are com- plied
with and the person who has the parental authority (wali) over the said marriage has still the right to rescind it.
This is the kind of marriage con- tracted into by a woman herself who has the legal capacity to do so but the
dower thereof is below the proper dower (mahr-mithl) of her family. The guard- ian (wali) of this woman has
therefore the right to rescind the marriage if the husband will not put up the proper dower.
5. Marriage is lazim when all its essential requi- sites (arkan and all kinds of shurut) are complied with.73

The effects of the above-mentioned marriages are:

1. Batil marriage is void from the very beginning and so it has no effect at all. This is the example of a marriage
contracted between a brother and his sister
2. Fasid marriage is one which does not permit consummation and it has no effect of a matrimonial contract. If,
however, consummation of marriage takes place, it is a grave violation of Islamic precept and so it has to be
prevented and the spouses should be sepa- rated.
It shall have the following effects, if consumma- tion has taken place:
a. The prohibited marriages by affinity are consequently established between and among the close affinal
relatives of the man and the woman involved in this kind of marriage.
b. ‘idda becomes obligatory to the wife to be counted from the time the man and the woman involved thereof
have separated themselves from each other or from the time that the Judge sepa- rated them.
c. The punishment for fornication (zina) shall not be imposed upon them because of the existence of doubt.
d. The relations of child, if there is any, to parents and relatives are established thereby to prevent his loss and to
protect his interest.
e. If dower is specified, the woman shall be entitled to the minimum of the minimum of the dower. If, however,
dower is not specified, the proper dower (mahr-mithl) shall instead be due.
f. The man and the woman involved thereof shall not inherit from each other

Mauquf marriage arises when a minor contracted marriage by herself without the consent of her par- ents. This
kind of marriage shall not have the effect of a valid marriage unless authorized by her parents or guardian.
However, if consummation of marriage has taken place prior to the giving of parental or guard- ian consent, the
said marriage shall have the same effects of a fasid marriage.

Lazim marriage is a valid marriage and no one has the authority to rescind it. It has the following effects:
a. The spouses can live together, observe mutual respect and fidelity and render mutual help.
b. One half of the specified dower shall be given before consummation and its entirety after consummation.
c. The support to wife shall become obligatory upon the husband.
d. Prohibited marriages by affinity between the spouses and their respective affinal relatives are established.
e. The spouses shall inherit from each other.
f. The relations of children to the parents are accordingly established.

No. The giving of a dower to the bride is not an essen- tial requisite for the validity of the contract of mar- riage.
Even if the dower is not yet given to the bride, the marriage can be valid. The giving of a dower is an obligation
of the husband to his wife required of him after the perfection of the marriage as an after effect of the marriage.
It may be given before, during or even after the celebration of the marriage depending upon the agreement on
that respect.

The dower is one of the effects or an after effect of the marriage strictly required of the husband to give. It is a
right of a wife and an obligation of a husband to his wife

3
What are the causes that will forfeit the dower?

The causes that will forfeit the dower are:

1. Separation initiated by the wife before the consummation of marriage (dukhul) or khulu sahiha.
2. The wife condones the entire dower to her husband.
3. When the wife renounces her dower as a con- sideration for her release (khul’) from the marriage bond.
4. When the judge, acting on the petition of the guardian (wali) of the woman, nullified the marriage on the
ground that her dower is short of a proper dower and the nullification takes place before the consummation of
marriage or before the khulu. The nullification is construed to have been initiated by the wife because the
petitioner-guardian is on her side.
5. When the marriage is fasid in the sense that it is contracted without witnesses and the separation takes place
before the consummation.92

Ordinarily, if a marriage is contracted with a fixed dower (mahr-musamma) for the wife and a divorce takes
place before the consummation of marriage, one half of the fixed dower shall be due for the wife. In the given
problem, the dower is not fixed and the divorce overtakes the marriage before its consummation. The proper
dower (mahr-mithl) would have been due if con- summation of marriage had taken place before the divorce.
Therefore, premises considered, the divorcee her- eon shall only be entitled with mut’a on the strength of the
verse of the Glorious Qur’an hereto quoted:

which means: There is no blame on you if ye divorce women before consummation or the fixation of their
dower but bestow on them (a suitable gift), the wealthy according to his means, and the poor according to his
means, a gift of a reasonable amount is due from those who wish to do the right thing. (S. II. 236, Qur’an).
This mut’a is not the temporary marriage dis- cussed above. It is a form of a gift of a divorcer to a divorcee
substituting the half of the dower which would have been due were it not for the explicit verse of the Glorious
Qur’an to the effect that only the fixed dower can be due by its half. On account of its being a substitute of an
obligation then it is respectfully sub- mitted that the same is obligatory on the part of the husband. Its value is
dependent upon the financial resources of the giver.

The requirements of the increase of the dower are the following:

1. The husband has the legal capacity to offer voluntary contribution;
2.The increase is accepted by the wife;
3.The marriage bond is not severed at the the increase
4.The value of the increase is known;
5.The increase is at the assent of the husband;
6.The increase is while the husband is not at the condition of death-illness (maradh al maut).100

In the case of decrease, what are the requirements?

The requirements for the decrease of the dower are the following:
1. The wife has the legal capacity to offer vol- untary contribution;
2. The decrease is not rescinded by the hus- band;
3. The dower is susceptible of division, like when the dower is two hundred Dinar. If it is indivis- ible, like a
house, it cannot be decreased. The wife may just give a part or a portion of it as a gift;
4. The decrease is at the assent of the wife;
5. The value of the decrease is known;
6. The decrease is done while the wife is not
at the condition of death-illness (maradh al maut).

The husband has a better right over his wife than her parents. She is obliged to obey her husband over and
above the wishes of her parents. The Prophet (Peace be on him) said: The world is full of treasures and the best
among them is the faithful wife: when you look at her you are rendered happy, when you ordered her to do
something, she obeyed you and when you leave her, she takes care of herself for you and protects your property
left with her.

A” a man under the guardianship of his father contracted marriage with “B” without the consent of his father.
The witnesses manifested that the father died but the truth he is still living, will the marriage contract be valid?
Yes, it is valid. However, if “A’’ is insane under the guardianship, the contract is invalid without the consent of
his father and so “A” and “B” will be separated. On the other hand, if “A’’ is sane and of legal age, the contract
is valid even without the consent of his father

4
A respected and responsible man wants to marry an orphan girl whose mother consents that her uncle or her
brother will act as a representative of her deceased father. Can it be legally allowed to give her in marriage by
her uncle or her brother without her consent?
No. A lady of the age of puberty, orphan or not, cannot be given into marriage by anyone other than the father
or father’s father without her consent. There is even an opinion of Abu Hanifa and Ahmad that even the father
cannot give her into marriage without her consent. The Jurists are unanimous that the uncle and the brother
cannot give her into marriage without her consent.

“A’’ married “B” secretly with a dower payable by yearly installment. “A” has consummated the marriage with
“B’’ Would the marriage be valid? If they begot a child, can he inherit? Would they be punished?

If “A’’ married “B’’ secretly, meaning, without a guardian and the witnesses, the marriage is not valid. It is a
consensus of the Jurists that “no marriage can be valid without a guardian.’’ “Any woman who marries without
the consent of her guardian, her marriage is not valid,’’ on the basis of Prophetic tradition, it has been stated
several times by the Jurists that “no marriage can be valid without witnesses.”

Secret marriage is not valid. It is a kind of prostitute marriage. No secret marriage in Islam Muslim woman
cannot give herself into marriage secretly by herself while her guardian is available. It is only the prostitute who
secretly gives herself into marriage. If this kind of marriage is considered valid to them, consummation thereof
is the uncertain consummation and the child begotten out of it can inherit his father. Punishment in this kind of
marriage is due to the clandestine spouses

Regarding the marriage of a Muslim woman by a Christian man or Jew man, it is absolutely prohibited by
Islam. The reason behind is that a Muslim woman believes Moses and Jesus (peace be on them) and their
religions are both revelations from God. Whereas, the Jew man and the Christian man do not believe in Islam
and Prophet Muhammad (peace be on him).
It is a fearful danger to the religion of a Muslim woman to be married by a non Muslim who will not respect
and submit to the Islamic percepts. The husband is the administrator of the family and he can forcefully convert
her and the children to a non Islam religion

“A” marries “B”. When “A” enters the room, “B” saw him suffering leprosy. Can ‘‘B” petition for faskh?
If insanity, mutilated hand or suffering leprosy appears in one of the spouses, the other has the right to
nullify the marriage. If “A’’ continues despite of the defect of “B’’ he cannot initiate separation. If “B”
separates she cannot recover her preparation. If she separates before the consummation of the marriage, her
dower is forfeited. If she separates after the consummation, the dower will not be forfeited.161

“A” marries “B” as virgin, but it was discovered she was not virgin, can “A” nullify the marriage?
Yes “A” can nullify the marriage, he can demand the difference between the dower of a virgin and the
dower of a non virgin if he continues the marriage. If he nullifies it before the consummation of the marriage,
the dower will be returned.

What are the basic principles laid down by the Glorious Qur’an regarding divorce? Can you explain them?
The basic principles laid down by the Glorious Qur’an regarding divorce and their explanations are the
following:
1. Divorce should be pronounced in the period of purity (tuhr) in compliance with the verse of the Glorious
Qur’an hereto quoted: which means: O’ Prophet! when ye do divorce women, divorce them at their prescribed
period.

2. The pronouncement of divorce should be spread over three periods (three monthly courses) to give the
spouses ample time to reflect calmly over the pros and cons of the matter. The verse of the Glorious Qur’an
expressly states:
which means: A divorce is only permissible twice: af- ter that, the spouses should either hold together on
equitable terms or separate with kindness. (S. II. 229, Qur ’an

Why is divorce allowed by the Shari’a? Explain.

Actually, the Shari’a does not look upon divorce with favor, but despite of that it recognizes its necessity and
value in cases when the marital relations of the spouses are poisoned to a degree which makes a peace- ful home
life impossible. The French legists Planiol and Riper have explicitly emphasized the Shari’a’s point of view
regarding divorce in these words: “Divorce is a mischief. However, it is a measure that cannot be avoided for
the welfare of the community, because it is the only remedy for another harm which may be more dangerous.”
The Shari’a therefore per- mits it as a last resort, i.e., when all efforts of peaceful living between the spouses

5
miserably fail. The Shari’a exhorts both spouses to think hundred and one times before making the final
decision of separation and it has, therefore, afforded all possible opportunities for reconciliation and provided
ample time to reflect calmly over the pros and cons of the matter.

Suppose the husband made the repudiation of his wife while she is menstruating, will it be con- sidered
valid repudiation? Why?
No. It will not be considered valid because it is expressly prohibited to make repudiation during the
menstrual period of the wife. The repudiations should have been made during the period of purity (tuhr).

Why is it revocable divorce (talaq raj’i)? What does talaq raj’i connote?
A — It is a revocable divorce (talaq raj’i) because the hus- band has still the right to take his wife back
into con- jugal relation within the prescribed ‘idda even against her will by just resumption of cohabitation with
her and without need of a new contract of marriage. Talaq raj’i connotes a revocable divorce wherein the
husband has the right to rejoin his wife during the prescribed ‘idda.183

The difference between talaq ba‘in sugra and talaq ba’in kubra is that talaq ba’in sugra arises when the husband
repudiates his wife either for the first or the second time and fails to reconcile with her during the prescribed
‘idda and so he cannot rejoin her without the benefit of a new contract of marriage, whereas talaq ba’in kubra
arises when the husband repudiates his wife thrice and so he can not remarry her un less she will be married
with another husband and the lat- ter dies or divorces her and the prescribed ‘idda for death or for divorce, as
the case may be, has expired i.e., tahlil. In other words, talaq ba’in sugra though severs the marriage bond but
the husband has still the chance to remarry her by a new contract of mar- riage, whereas talaq ba’in kubra severs
the marriage bond and the husband cannot anymore remarry her unless she will be married with another
husband and the latter dies or divorces her and the ‘idda prescribed for death or for divorce, as the case may be,
has expired.

Suppose the husband made a vow to abstain from any carnal relation with his wife for a pe- riod of not less than
four months and during this period he had had carnal relation with her, what is the effect?
The effect is that it becomes obligatory upon the hus- band to expiate his vow by feeding ten poor
individu- als or dress them or to free one slave and if he is inca- pacitated to do any of the above-mentioned
require- ments, he should fast for three days.191

Suppose the husband, who does zihar to his wife, had carnal relation with her or had a romance with her before
he performed the prescribed expiation, what is the effect?

Such carnal relation or romance with her before the performance of the prescribed expiation by the
husband, who does zihar to his wife, is strictly prohibited because it is a patent violation of the verse of the Glo-
rious Qur’an hereto quoted:

Suppose the husband who does zihar to his wife instead of performing the prescribed expiation divorces her and
he did not reconcile with her during the ‘idda purposely to make the divorce ripen into its irrevocability (talaq
ba’in sugra) and thereafter he remarried her by a new con- tract of marriage, can he now lawfully have car- nal
relation with her? Why?

No. He cannot lawfully have carnal relation with her because he is expressly prohibited to resume
marital relation, or to have even a romance or any enjoyment with her before the performance of the prescribed
ex- piation by him.197 The expiation cannot be substituted with divorce and then remarriage

No. The requirement for expiation cannot be negated or avoided by a divorce, tahlil and remarriage. It can- not
be replaced by anything else or complied with by performing any remedy other than the prescribed expiation
mentioned above and so the husband is still prohibited to have carnal relation or enjoyment with her.

Zihar shall extinguish by either of the following:

1. By death of either spouse; or
2. By expiation.

No. The husband cannot initiate khul’ by demanding the dower or a part of it from the wife because it will be a
violation of the verses of the Glorious Qur’an herein below quoted:

Is khul allowed during the menstrual period of the wife?

Yes, as an exception to the general rule.

6
What are the similarities as well as the differ- ences between khul’ and talaq ‘ala mal?

1. The similarities between khul’ and talaq ‘ala mal are:

a. Both are divorces by change or considera- tion;
b. Both will divest the right of marriage from the husband;

Can a husband delegate his right to divorce his wife to a third person?
Yes, by taukil or tafwid

Can a husband delegate his right to divorce to his wife by taukil?

No, he cannot. Ordinarily, he delegated it to her by tafwidh.2

What is the difference between taukil and tafwidh?

A — The difference between taukil and tafwidh are:
1. In taukil, the husband may terminate the egate (wakil) at his pleasure and at any time he desires, whereas in
tafwidh, he cannot
2. The delegate (wakil) is working at the pleas- ure the person who delegated him, whereas in tafwidh, delegate
(Al mufawwadh) is working at his discretion.

Suppose the right to divorce is delegated (fawwadha) to the wife and she pronounces three divorces on one
occasion, can it be con- strued as three divorces to make it irrevocable divorce (talaq ba’in kubra)? Explain.

No. She cannot do that and even if she does it, it can- not be construed as talaq ba’in kubra because she
is just a delegate (al mufawwadh) and so she cannot act more than what the husband, who delegated her, can
act. The husband cannot validly pronounce three di- vorces in one period of purity (tuhr) because it will be
bid’a, and so the wife cannot.

You just mention talaq bid’a, what is it? What makes it a bid’a? What is its relation to talaq sunni?
The talaq bid’a is one of the kinds of divorce which is prohibited for its being pronounced in violation of
the prophetic injunction on divorce.
The Prophet (p.b.u.h.) prohibited divorce to take place on either of the two occassions herein below stated:

1. During the menstrual period of the wife; and

2. During the purity (tuhr) period of the wife
if the husband has had carnal relation with her dur- ing the said period of purity.

If divorce is pronounced during any of the aforestated periods, then such divorce is bid’a because it is a
violation of the prophetic tradition. If, on the other hand, it is pronounced with the compliance of the prophetic
injunction thereof, then, it is sunni. Talaq Sunni is further divided into Talaq Al Sunni Al Ahsan (most laudable
divorce) and Talaq al Sunni Al Hasan. The former is one where the husband repudiates his wife by making one
pronouncement within the term of tuhr (period of purity) during which he has not had carnal relation with her
and she is left to observed her ‘idda. The latter is one where a husband repudiates the wife by three consecutive
pronouncements during the three periods of purity (tuhr) and enjoyed the wife.

The differences between talaq and faskh are:

1. Talaq, when raj’i, does not sever the mar- riage bond and, when ba’in, it extinguishes the rights created by a
valid contract of marriage, whereas faskh nullifies the contract of marriage and extinguishes the rights created
thereby.
2. Talaq, when pronounced, is to be deducted from the number of talaq that the husband is entitled to
pronounce, whereas faskh is not.
3. Talaq is a right endowed by Allah to the hus- band upon a valid contract of marriage, whereas faskh is only
due when there exists a cause to nullify the marriage.

Suppose the spouses have been granted with three faskh, can they still remarry one another without tahlil?
Why?
Yes. They can remarry one another without tahlil be- cause faskh is, unlike talaq, limitless.
Yes, regardless of the number of faskh that has been granted to the spouses, the husband is still entitled with his
right to divorce and thereafter rejoin her within the prescribed ‘idda, if the divorce is still revo- cable (talaq
raj’i). In other words, the right of the hus- band to divorce is not avoided by the number of faskh granted to
them

7
There are two kinds of faskh. One is a faskh that will nullify the contract of marriage from the very begin- ning
and the other is one to nullify the marriage not from the very beginning.
Faskh will nullify marriage from the very beginning when its grounds are directly connected with the very
beginning of marriage, like when a contracting party is not of legal capacity to contract marriage.

Faskh will nullify marriage not from the very begin- ning when its grounds do not exist at the time of the
celebration of the marriage, like, when the husband abandons Islam after the marriage and so the wife who is a
Muslim may petition for faskh.

1. If the marriage is nullified from the very be- ginning at the instance of either of the spouses, noth- ing of the
dower shall be due unless one of the causes mentioned in question and answer No. 113 arises to render the
entire dower due. If, however, the marriage is nullified not from the very beginning and at the in- stance of the
wife, the entire dower shall be forfeited unless one of the causes mentioned in question and answer No. 113
arises to render entire dower entirely due. However, if none of the causes mentioned in ques- tion and answer
No. 113 arises when the nullification is not at the very beginning of the marriage and at the instance of the
husband one half of the dower shall be due.
2. If the faskh nullified the marriage from the very beginning, the divorce pronounced during the ‘idda shall not
be counted as divorce in time the spouses rejoin one another, whereas, if it nullifies the marriage not from the
very beginning, the divorce pro- nounced during the ‘idda shall be counted as divorce in case they rejoin one
another.

Does it need a decree of a Court to grant faskh?

It depends upon the ground or grounds for which faskh is petitioned. If it is technical, it will need therefore
resolution of the court.230 If on the other hand, it is an established fact that the spouses are within the pro-
hibited degree to marry each other, then it will not need court action. They should instead separate them- selves
upon knowing the prohibition.

The effects of faskh are:

1. The contract of marriage is rendered void ab initio if the ground for faskh was existing at the time of the
celebration of the marriage;
2. The contract of marriage is just nullified if the ground for faskh is not existing at the time of the celebration
of the marriage;
3. The faskh shall not be counted as talaq to be deducted from the number of divorce that the husband is entitled
to;

Yes. It is obligatory by the injunction of the Glorious Qur’an, the Hadith and the Ijma’. The Glorious Qur’an
states in the herein below quoted verses regarding ‘idda:

1. Pregnant widow, whose ‘idda is extending up to the time of the delivery of her burden or four months and ten
days to be counted from the date of the death of her husband whichever is farther.
2. Not pregnant widow, whose ‘idda is four months and ten days to be counted from the date of the death of her
husband.
3. Pregnant divorcee, whose ‘idda is until the delivery of her burden.
4. Not pregnant divorcee, who is menstruat- ing regularly, whose ‘idda is three menstrual periods.
5. Not pregnant divorcee, who is not at all menstruating, whose ‘idda is three months to be counted from the
date of divorce.236

Your mother has the right to petition for faskh. She has no power to divorce. On the other hand, your father is
enjoined to respect his wife and it is the right of your mother to be fairly treated by her husband. Since your
father violated such right, your mother may now petition the court to grant her a decree of faskh.251

Among lawful things, divorce is most hated by Allah.’’ (Reported by Abu Daoud)
That a thing is lawful yet detested by Allah means that it is permissible under unavoidable circumstances, when
living together becomes a torture, mutual hatred is deep-seated, and it becomes difficult for the two parties to
observe the limits of Allah and to fulfil their marital responsibilities. In such a situation, separation is better, and
Allah says.
But if they separate, Allah will provide for each of them out of His abundance . . . (4:130).

Why taking an Oath of divorce prohibited?

It is not permissible for the Muslim to take an oath of divorce, vowing that if a particular event does not occur
his wife will be divorced, or to threaten her by saying that if she does this or that particular thing she will be

8
divorced. In Islam an oath may be expressed only in one specific manner. That is, in the name of Allah alone;
apart from this, no other form of oath-taking is permitted. The Prophet (peace be on him) said,
“Anyone who swear by (anything) other than Allah has committed shirk,’’
and, “Whoever wants to take an oath should take it in the name of Allah or keep silent.

Why are paternity and filiation significant?

Paternity and filiation are significant because both the parents and the children are enjoined by Allah to rec-
ognize one another. Allah prohibits simulation of birth and relationship. The child is prohibited to adopt an-
other man as his father in lieu of his real father. The father or the mother is likewise prohibited to adopt a child
as his or her child when he or she knows that the child does not belong to him or her. Adoption is completely
prohibited in Islam.
The legitimacy of a child is his right. It will give rise to his right to custody and guardianship, fosterage, support
and education, et cetera.

Please note that females shall not be under the care and custody of a male relative who is not related to them
within the prohibited degrees in marriage. Males shall not likewise be under the care and cus- tody of female
relatives who are not related to them within the prohibited degrees in marriage.300

The qualifications of a female guardian are:

1. She must be free, of legal age and of sound mind;
2. She can be trusted with the minor in the sense that she is not always going out of her house;
3. She must not be an apostate;
4. She should not keep the ward in a place
where he or she shall be staying with a person who is not related to him or her within the prohibited degrees in
marriage;
5. She can tackle the affairs of the guardian- ship;
6. She must not be married to a husband who is not related to the ward within the prohibited degrees in
marriage.

No. It is not necessary that the female guardian must have the same religion with the ward unless the difference
in religion is detrimental to the faith of the ward.304
The unity in religion is not a requirement for guardianship when the guardian is a female relative because the
bases of the guardianship thereof is the guardian’s compassion, kindness and great concern over the ward’s
welfare and this cannot be affected by the difference in religion. This is similar to the case of a christian wife
who is divorced by her Muslim hus- band and so she can remain and serve as a guardian of their child who is a
Muslim following his father’s religion unless the difference in religion is prejudicial to the faith of the ward.
It will be different if the guardian is a male, as you will see it in the next immediately succeeding number,
because the unity in religion is a requirement for guardianship. The reason behind it is that the rights of males to
the guardianship are based on the right to inheritance

The qualifications of a male guardian are:

1. He must be free, of sound mind, of legal age and capable of nursing and educating the ward;
2. He must be related to the ward within the prohibited degrees in marriage if the latter is a female
3. He can be trusted with the ward;
4. He must have the same religion with the ward.

How long will a care, custody or guardianship (Al hadhana) last?

The Al Hadhana will last until the ward will reach the age of seven years for the boys and nine years for the
girls.

The venue of Al Hadhana is the family home of spouses. If, however, the spouses are divorced from each other
and the wife, who is the guardian, is observing her ‘idda, the venue is still the family resi- dence. If, on the other
hand, the marriage is severed and she is no longer observing her ‘idda, the venue of al hadhana may only be
changed at her own volition even without the consent of the ward’s father by trans- ferring with the ward to
another place provided that following conditions are present:
1. That the place where she transferred with ward is one where her contract of marriage with father of the ward
has been celebrated; and
2. That said place is her native place.
It would be otherwise if the change of the venue with the permission of the father of the ward because; she may
do so by just transferring with the ward to other place she desires.

9
Suppose the guardian is the mother of the ward, will she be entitled to compensation?
It depends. If the marriage is still subsisting or she is still observing her ‘idda for the revocable divorce (talaq
raj’i), she will not be entitled to a compensation because she is entitled to support and she will be double paid.
If, however, she is observing her ‘idda pre- scribed for an irrevocable divorce (talaq ba’in), there are two
opinions posed. One said that she will be enti- tled to it and another argued to the contrary. How- ever, after the
expiration of her prescribed ‘idda, she will be entitled to it.311
Personally, I will go with the view that she will not be paid compensation while still observing ‘idda because
she is still entitled to support. It is a rule that for as long as she is observing ‘idda of any of its kind, she is under
the support of the husband.

The requisites that make support of relatives obliga- tory are the following:
1. That the supporter and the needy are within the prohibited degrees in marriage. This is in accord- ance with
the opinion of the Hanafi school. Imam Ahmad does not require this. The opinions of the other schools are
explicit in the immediately preceding number.
2. That the relative demanding support is really in need.
3. That the needy relative is disabled or inca- pacitated to support himself.
4. That the giver has resources to give. This requisite does not apply to support between parents and children.
5. That the giver and the recipient have the same religion. This requisite does not apply to the sup- port between
ascendants and descendants

The relative whose relation to the needy is the near- est in degree shall give the support. However, if there are
many relatives whose degrees or strengths of relation the needy are the same, they shall divide the support
equally

A — The eminent jurists are unanimous that the child is obliged to support his parents if he is of age and even if
he is a minor if he has wealth of his own when his father or his mother is hard-up provided that, in the case of
the mother, she is not married with another husband other than the child’s father.346 With regard to other
ascendants, please refer to the next immedi- ately following number

The daughter of the daughter shall be required to give the support because she is nearer in the degree of re-
lationship to him even though the son of the son of his son has a better right to his (grandfather’s) inheritance.

The son is entitled to support until he reaches the age of majority and becomes capable of supporting himself.
The daughter is enti- tled to support regardless of her age and capability to support herself. However, it is an
elementary rule on the support that, regardless of sex, when a child has wealth of his own, he or she shall be
supported with his or her wealth.354

The governing rules on the support of children are as follows:

1. The support of children is a sole responsi- bility of the child’s father.
2. Even if he is hard-up, he shall exert effort to put up enough subsistence of his children.
3. If he has the means and he refuses to give the support, he shall be compelled to give it to the extent of
imprisoning him.
4. If his earning is not adequate for the sup- port of his children and although he is obliged to sup- port them, the
court may order the mother to give the support for and in behalf of the father, if she has the means. If, on the
other hand, she has nothing, the grandfather shall be ordered by the court to give it. The father is under
obligation to reimburse the sup- port advanced by the mother, grandfather or the others, who may follow the
order of preference, when he improves his finances.
5. Upon the death of the father or his incapac- ity to look for his livelihood, the responsibility to sup- port his
children shall devolve upon the ascendants of the said children, males or females accordingly.
6. If there are many relatives to whom respon- sibility of support to decendants devolves, they shall give the
support proportionate to their shares in the inheritance if they can all be heirs to the needy descendant in case of
his death and regardless of their degrees of relationship to him. However, if they can- not all be heirs to him in
case of his death, the sup- port shall devolve upon the ascendant whose degree of relationship is nearer to the
needy even if he or she is not an heir. If none of them can be an heir and they have the same degrees of
relationship to him, support shall be borne by them all equally. If under the same circumstance but they have
different degrees of rela- tionship to him, he whose degree of relationship is more proximate shall bear the
support.357

The abovequoted provisions of the Code are with- out prejudice to the amount of support which was advanced
by a third person on the strength of the court order and reimbursable by the person who is directly obliged to
give it. In other words, when it becomes a debt of the giver at the sanction of the court order, it cannot be

10
extinguished by the death of the giver or the recipient. This is like the expenses incurred by the wife when the
husband fails to give her the support on time or the support of children which was advanced by the wife in
compliance with court order because of the inability of the husband to give it at the time. These amounts of
support advanced by the wife become debt of the husband and so it cannot be extinguished by the death of one
or both of the spouses. The aforequoted provisions of the Code are applicable only to the sup- port to be given
yet and not to those long time due and became debt of the giver.

Apparently, the aforesaid provisions of the Code are applicable to all kinds of support. With regard to the
obligation of the husband to support the wife, it shall be extinguished by:
1. Condonation of support by the wife; or
2. Death of one of the spouses unless there has
been a prior court order allowing the wife to incur debt for the purpose in which case it cannot be extinguished
by the death of anyone or both of them because it has ripen into the debt of the husband.

What do you understand by Waqf, its classification and legal incidents, under Muslim Law?
Waqf is a legal process by which a Muslim (waqif) creates and endowment of his property for any
purpose recognized by Islam as religious, pious and charitable.
It may be classified according to:
1.) Purpose
a. Waqf Khairi- endowment of a definitely religious or public nature
b. Waqf alal-awlad – a family endowment for the benefit of waqif children,
grandchildren or other relations or for other persons 2.) Time of its effectivity in relation to Waqif
a. Waqf inter vivos –that which become effective during the lifetime of the waqif
b. Waqif mortis causa – that which becomes effective after the death of the waqif
3.) Nature of the waqf property
a. Waqf constituted on immovable property
b. Waqf constituted on personal or movable property
4.) Extent of Waqf
a. Permanent and absolute. The owner relinquish his ownership of his property
to the Waqf foundation
b. Relative and temporary, in which only the use or enjoyment of the property
and its fruits are waqf, the ownership of which remains with the owner.

Under the Code of Muslim of Personal Laws which substantially provides that, in the absence of any
stipulation, the property relation of the spouses shall be governed by regime of complete separation
of property. [Art 38, CMPL] Whereas, under the Civil Code of the Philippines, the system of relative
community or conjugal partnership of gains, shall govern the property relations between husband and
wife [Art. 119. NCC] Under the Family Code, in absence of marriage settlements, the system of
absolute community of property as established shall govern [Art. 75, FC

Prohibited marriages is said to be permanent (hurmut) when the bases of prohibition is by

consanguinity, affinity, or fosterage, as enumerated under Article 23 of the Muslim Code, and it is said
to be temporary (muwakkat) when due to some cause a man and a woman is forbidden to marry one
another, but upon the cessation of the cause giving rise to the prohibition in marriage between them,
they are thereafter lawful in marriage to one another under the Muslim law

There is no adoption in Islam, although a person may take care of a child, but such does not give rise
to a valid relation of parentage. According to the PD 1083, no adoption in any form shall confer upon
any person the status and rights of a legitimate child except that said person may receive a gift. [Art
64, CMPL]
The only effect that adoption may occur is that a said person (adopted) may receive a gift (hiba

Fosterage is that status created by fiction of law when a woman breastfeeds a strange child for at
least five times within two years from birth of the child, thereby establishing a relation between the
child and the woman as though the former is the natural child of the woman and consequently
establishing a prohibition in marriage between the foster child and the foster mother and the latter’s
relation within the degrees of prohibition in marriage by reason of consanguinity. In other words,
fosterage or kafalah is where a child is taken cared of as a ward, ensuring his support, upbringing,
education and protection, while adoption is an act whereby a person takes the child of another as his
own creating by operation of law a relationship that exists in a legitimate paternity and filiation. In

11
fosterage, the child does not cut his ties with his biological parents and continue to recognize them as
his legal parents. In adoption the legal parents are the adopting parents

Yes, contracting subsequent marriage by the husband with existence of a former marriage is
permitted subject to certain conditions. Under the Code, the following are conditions or pre-requisites
before a man may be allowed to contract a subsequent marriage, namely: First, that he can deal with
them with equal companionship and just treatment as enjoined by Islamic law; that he is seeking it
“only in exceptional cases” or on exceptional grounds; and, the order of the proper Shari’ah Circuit
Court authorizing him to contract a subsequent marriage, upon the written consent of the former wife,
or if the latter refuses to give her consent to the proposed marriage, upon the court’s order. [Art. 27,
CMPL]
b) Supposing Al-rashid insists on the second marriage despite objection of the first wife Amina. May
Amina demand a divorce? If so, under what ground? Explain.
Yes, on the ground of unusual cruelty if the husband does not treat her justly and equitably as
enjoined by Islamic law, or on his failure to perform his marital obligations to her.

If I were the judge of the Shari’ah Court where the conflicting claims of the wives are filed, I will
decide in favor of the Christian wife Nene Corpuz because the law in force at the time of the marriage
celebration of Peter and Nene was the Civil Code of the Philippines wherein plural marriages is not
recognized. Since, the marriage of Peter and Nene are still subsisting when Peter married Amina
Karim, even though he converted to Islam, their marriage is still void under the Civil Code. The PD
1083 also provides that, the Code applies only to Muslims and nothing herein shall be construed to
operate to the prejudice of a non-Muslim. Hence, I submit that if there is a valid marriage contract
between a Non-Muslim male with Non- Muslim female solemnized in accordance with the Civil Code
of the Philippines, the Non- Muslim male even though he converted to Islam, cannot prejudice his
Non-Muslim wife. The PD 1083 can not be applied to their marriage

Prior to the effectivity of the P.D. 1083, the law that governs divorces among Muslims is Republic Act
No. 394, an act authorizing for a period of twenty years divorce among Muslims residing in non-
Christian provinces in accordance with Moslem customs and practices. It was enacted on June 18,
1949 and was extended by the P.D. 793, with a retroactive effect on June 19, 1969.

A. What is the duration of support of the wife by her husband?

Under the Muslim law, the husband’s obligation to support his wife commences from the moment the
wife surrenders herself to her husband as an incidence of a valid marriage contract and continues
while the marriage subsist, and is extinguished upon the dissolution of the marriage by death of either
of them or by divorce, but in case of divorce he shall continue to support her till after her period of
probation is over, and if she is pregnant till after her delivery and if she breastfed the child until after
the period of weaning which is fixed at two years.

No, under Muslim law the obligation of the husband to provide maintenance to the wife during
marriage is not absolute and unconditional. It hinges upon the condition that the wife lives with her
husband in the same dwelling place and afford him the right of consortium. His obligation therefore to
provide maintenance may be excused If the wife without any valid reason or just cause commits any
of the following;
1. When she refuse to live with her in the same dwelling place;
2. When she leave their conjugal dwelling and live elsewhere;
3. When she denies the husband entry to the house to live with her
4. When their marriage is proved to be irregular, except in the marriage without
witnesses.
5. When she turn apostate.
6. When she is guilty of infidelity
7. If inspite of her husband’s valid objection, she engages herself out for the purpose
of earning and the husband losses control over her.
In the case at bar, I opined that the husband will be excused to give support because the acts of the
wife fall under the conditions no. 7 mentioned.

If I were the judge of the Shari’ah Court I will resort first to the property relations governing their
marriage as indicated in their marriage settlements, however, if there is none, I will award the
ownership to the spouse whose name the property is registered in the case of real property involved,

12
as to personal property or household property that which is customarily pertains to or is used by
either spouse shall be prima facie presumed to be the property of said spouse (car).
It should be noted that although the income of Karim is his exclusive property under the Muslim Code,
the amount he remits to his wife constitutes support, which he is obliged to give and the recipient, his
wife is not obliged to return what she has received in advance. [Art. 69, CMPL]
Thus, in the light of the evidences of both parties, the real property is awarded to the spouse whose
name the property is registered and the personal property or household property is awarded to the
spouse to whom is due in accordance with provisions of Article 41 and 43 of the Muslim Code

B. Suppose the marriage was contracted on February 3, 1977 and the child was conceived or born on
August 7, 1977. What law governs the status of the child? Explain.
If the marriage was contracted on February 3, 1977 a day before the effectivity of the PD1083 and the
child was conceived or born on August 7, 1977, the law that governs the status of a child is the
Muslim Code. According to the PD1083, birth determines personality, a conceived child is considered
born for all purposes favorable to it, provided it be born alive however briefly at the time it is
completely delivered from mother’s womb. [Art.10, CMPL] Since personality begins at birth, the law in
force at the time of his birth governs the status of a person. Hence, Muslim code governs the status of
the child born on August 7, 1977

Legal personality of a person begins at the time of his conception . He is already considered a person
in contemplation of law and is therefore possessed of inherent legal capacity, which however is
regarded as defective, but becomes manifest on birth.
Under the Code, birth determines personality; but the conceived child shall be considered born for all
purposes that are favorable to it, provided it is born alive, however briefly, at the time it is completely
delivered from the mother’s womb. [Art. 10, CMPL]
Therefore, personality is acquired by birth and extinguished by death as provided for in Art. 11 of the
Code, which states, Civil Personality is extinguished by death.

Prior to the effectivity of Muslim Code (P.D. 1083) the laws governing marriages among Muslims or
mix marriages between Muslim male and non-Muslim female in the Philippines are Articles 78 and 79
of the Civil Code which took effect on August 30, 1950. This was extended for 10 years through
amendment by virtue of R.A. 6268 until the PD 1083 was passed into law on February 4, 1977.
Article 78 of the Civil Code, substantially provides that, marriage among Mohammedans or pagans in
non-Christian provinces may be solemnized in accordance with their customs, rite and practices. No
marriage license is required and the solemnizing officer is not obliged to follow Article 92 of the Code.

On December 12, 1976, Sali a Muslim and Rita, a Christian were married in a civil wedding
solemnized by a municipal judge and their marriage was registered with the office of local registrar.
Four years later , Rita embraced Islam , and thereafter they registered with the Shariah Court their
mutual desire to have their marriage considered as one contracted under the Muslim law . Aside from
being blessed with five children, they acquire several properties.
A. What law governs the family and property relations of Sali? Explain your answer.
Their property relationship shall be governed by the Muslim code from the time of their marriage as a
consequence of the ratification of their marriage by a reason of their conversion. The conversion of
non Muslim spouses to Islam shall have legal effect of ratifying their marriage as if the same been
performed in accordance with the provision of this code or Muslim law; provide there is no legal
impediment to the marriage under the Muslim law

A marriage contracted by a woman while observing idda is Irregular (Fasid). The code provides under
Article 32 of the PD1083 that women observing idda is among the irregular marriages. Which may be
validated by contracting a new marriage after the expiration of idda. In this case the effectivity of the
new marriage shall retroact to the date of the celebration of the irregular marriage.
VIII. A.Alma, a widow has a Muslim suitor who desires to contract marriage with her She comes to
you for advice and asks you, if still necessary for her to secure the consent of her guardian,
considering that she has been emancipated by her previous marriage. Give your answer and explain.
In the case a Muslim female who reach the age puberty with a marriage experience, Muslim jurists
have the same view regarding the thayyibah or a female by herself enter into a contract of marriage
without the intervention of her proper guardian. But, the Hanafi’s differs from that view and hold that
such a Muslim female can contract her own marriage without the intervention of a proper guardian.

13
B. Who are entitled to support, and who are obliged to give it?
The Sharia mandates the man to provide support to his wife or wives equitably, his children and
between him and his nearest ascendant and descendants in the order in which they are called to
succeed by intestacy the person who has the right to claim support, in an amount which shall be in
proportion to the resources of the giver and the needs of the recipient

B. Who are entitled to support, and who are obliged to give it?
The Sharia mandates the man to provide support to his wife or wives equitably, his children and
between him and his nearest ascendant and descendants in the order in which they are called to
succeed by intestacy the person who has the right to claim support, in an amount which shall be in
proportion to the resources of the giver and the needs of the recipient

In a divorce case, the Shari’ah Judge failed to constitute the Agama Arbitration Council, and
proceeded to try the case and render a decision.
a) What is the status of the decision of the Shari’ah Judge? Please explain.
I humbly submitted that although the Shari’ah Judge has the full authority to give the verdict, his
decision shall become void for he fails to constitute the Agama Arbitration Council before the Pre-Trial
Hearing which is mandatory, the said council is very important in every court proceedings for it will
give the possibility of an amicable settlement between the two parties.

Yes, I submit that although Islamic Laws does not recognize equality as understood in the West
which means “the same” but it enjoins justice and fairness among men and women. Allah Almighty
says in the glorious Qur’an “Verily, Allaah enjoins Al-‘Adl (i.e. justice)”[Noble Qur’an 16:90],
Oftentimes the believers are address by Allah Almighty

as “believing men and women emphasizing equality of men and women in regard to their respective
duties, rights, virtues and merits. Hence the equality before the Shari’a of women and men is more
practical and comprehensive than a mere equality, which mean the same because in Islam equity,
fairness and justice is paramount.

No, it is not an inequality rather equity and justice. The man having twice the share of a woman is an
exemplar of justice and equity because
the man has more responsibility compared to woman.
The man is required to give mahr while the woman is entitled to receive one.
The man is responsible to support his family while the women is entitled for support by her husband.
Allah is the Most Just. Allah knows best.

V. A. Distinguish custody from Guardianship?

Custody is the right to have the child under the care of the person entitled to his custody which
generally involves the rearing or upbringing of the child, while guardianship is the right to have charge
of the ward or his property or both which involves supervision and control of all matters to be
undertaken concerning the child or his property. Under the muslim law, the right of the guardianship is
recognized in the father, while the mother has natural right of custody of her minor children up to a
certain age , or during the age of nurture

Adoption is an act whereby a person takes the child of another as his own creating by operation of
law a relationship that exists in a legitimate paternity and filiation.
The code provides that, no adoption in any form shall confer upon any person the status and rights of
a legitimate child under Muslim law, except that said person may receive a gift. [Art. 64, CMPL]
. The wisdom behind the prohibition of Adoption in Islamic laws is to protect the rights of the
legitimate heirs of the inheritance from being deprived of their successional rights. This deprivation
usually results in quarrels and breaking up of relationship among relatives because of an intruder who
encroaches upon them and usurps the rights of legitimate heirs.

No, under article 96 of the PD1083 which states that the husband who divorces his wife shall have
mutual right of inheritance with her while she is still observing idda, After the expiration of idda, there
shall be no mutual right of succession between them. Since Saphia did not observed her idda it is
humbly submitted that she has lost her right to inherit. It is a ground for disqualification to succession
under Article 93 (b) Those who have committed any other act which constitute a ground for
disqualification to inherit under Islamic law, because to let her share with the legitimate furu of the

14
decedent is an insult to the family and relatives of the decedent. It is also an act of injustice which the
principles of Shariah cannot countenance.

What is the essence of Divorce under Muslim law?

Islam does not encourage divorce, according to the hadith the prophet said of all things permissible,
the most detestable in the sight of Allah is divorce. Divorce is strictly tolerated in Islam only after the
all possible attempt for reconciliation failed and the dissolution of marriage bond is inevitable. The
Code provides that Divorce is the formal dissolution of Marriage bond in accordance with the PD1083
to be granted only after the exhaustion of all possible means of reconciliation between the spouses. If
the marriage union becomes irrecocialiable and brings more sufferings than happiness divorce is
becomes a remedy

Why are paternity and filiation significant?

Paternity and filiation are significant because both the parents and the children are enjoined by Allah
to rec- ognize one another. Allah prohibits simulation of birth and relationship. The child is prohibited
to adopt an- other man as his father in lieu of his real father. The father or the mother is likewise
prohibited to adopt a child as his or her child when he or she knows that the child does not belong to
him or her. Adoption is completely prohibited in Islam.
The legitimacy of a child is his right. It will give rise to his right to custody and guardianship, fosterage,
support and education, et cetera.

Please note that females shall not be under the care and custody of a male relative who is not related
to them within the prohibited degrees in marriage. Males shall not likewise be under the care and cus-
tody of female relatives who are not related to them within the prohibited degrees in marriage.300
The qualifications of a female guardian are:
1. She must be free, of legal age and of sound mind;
2. She can be trusted with the minor in the sense that she is not always going out of her house;
3. She must not be an apostate;
4. She should not keep the ward in a place
where he or she shall be staying with a person who is not related to him or her within the prohibited
degrees in marriage;
5. She can tackle the affairs of the guardian- ship;
6. She must not be married to a husband who is not related to the ward within the prohibited degrees
in marriage.303

No. It is not necessary that the female guardian must have the same religion with the ward unless the
difference in religion is detrimental to the faith of the ward.304
The unity in religion is not a requirement for guardianship when the guardian is a female relative
because the bases of the guardianship thereof is the guardian’s compassion, kindness and great
concern over the ward’s welfare and this cannot be affected by the difference in religion. This is
similar to the case of a christian wife who is divorced by her Muslim hus- band and so she can remain
and serve as a guardian of their child who is a Muslim following his father’s religion unless the
difference in religion is prejudicial to the faith of the ward.
It will be different if the guardian is a male, as you will see it in the next immediately succeeding
number, because the unity in religion is a requirement for guardianship. The reason behind it is that
the rights of males to the guardianship are based on the right to inheritance

The qualifications of a male guardian are:

1. He must be free, of sound mind, of legal age and capable of nursing and educating the ward;
2. He must be related to the ward within the prohibited degrees in marriage if the latter is a female;
3. He can be trusted with the ward;
4. He must have the same religion with the ward.

How long will a care, custody or guardianship (Al hadhana) last?

The Al Hadhana will last until the ward will reach the age of seven years for the boys and nine years
for the girls.

The venue of Al Hadhana is the family home of spouses. If, however, the spouses are divorced from
each other and the wife, who is the guardian, is observing her ‘idda, the venue is still the family resi-
dence. If, on the other hand, the marriage is severed and she is no longer observing her ‘idda, the
venue of al hadhana may only be changed at her own volition even without the consent of the ward’s

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father by trans- ferring with the ward to another place provided that following conditions are present:
1. That the place where she transferred with ward is one where her contract of marriage with father of
the ward has been celebrated; and
2. That said place is her native place.
It would be otherwise if the change of the venue with the permission of the father of the ward
because; she may do so by just transferring with the ward to other place she desires.

Suppose the guardian is the mother of the ward, will she be entitled to compensation?
It depends. If the marriage is still subsisting or she is still observing her ‘idda for the revocable divorce
(talaq raj’i), she will not be entitled to a compensation because she is entitled to support and she will
be double paid. If, however, she is observing her ‘idda pre- scribed for an irrevocable divorce (talaq
ba’in), there are two opinions posed. One said that she will be enti- tled to it and another argued to
the contrary. How- ever, after the expiration of her prescribed ‘idda, she will be entitled to it.311
Personally, I will go with the view that she will not be paid compensation while still observing ‘idda
because she is still entitled to support. It is a rule that for as long as she is observing ‘idda of any of
its kind, she is under the support of the husband.

The requisites that make support of relatives obliga- tory are the following:
1. That the supporter and the needy are within the prohibited degrees in marriage. This is in accord-
ance with the opinion of the Hanafi school. Imam Ahmad does not require this. The opinions of the
other schools are explicit in the immediately preceding number.
2. That the relative demanding support is really in need.
3. That the needy relative is disabled or inca- pacitated to support himself.
4. That the giver has resources to give. This requisite does not apply to support between parents and
children.
5. That the giver and the recipient have the same religion. This requisite does not apply to the sup-
port between ascendants and descendants

The relative whose relation to the needy is the near- est in degree shall give the support. However, if
there are many relatives whose degrees or strengths of relation the needy are the same, they shall
divide the support equally

A — The eminent jurists are unanimous that the child is obliged to support his parents if he is of age
and even if he is a minor if he has wealth of his own when his father or his mother is hard-up provided
that, in the case of the mother, she is not married with another husband other than the child’s
father.346 With regard to other ascendants, please refer to the next immedi- ately following number

The daughter of the daughter shall be required to give the support because she is nearer in the
degree of re- lationship to him even though the son of the son of his son has a better right to his
(grandfather’s) inherit- ance.351

The son is entitled to support until he reaches the age of majority and becomes capable of supporting
himself. The daughter is enti- tled to support regardless of her age and capability to support herself.
However, it is an elementary rule on the support that, regardless of sex, when a child has wealth of
his own, he or she shall be supported with his or her wealth.354

The governing rules on the support of children are as follows:

1. The support of children is a sole responsi- bility of the child’s father.
2. Even if he is hard-up, he shall exert effort to put up enough subsistence of his children.
3. If he has the means and he refuses to give the support, he shall be compelled to give it to the
extent of imprisoning him.
4. If his earning is not adequate for the sup- port of his children and although he is obliged to sup-
port them, the court may order the mother to give the support for and in behalf of the father, if she has
the means. If, on the other hand, she has nothing, the grandfather shall be ordered by the court to
give it. The father is under obligation to reimburse the sup- port advanced by the mother, grandfather
or the others, who may follow the order of preference, when he improves his finances.
5. Upon the death of the father or his incapac- ity to look for his livelihood, the responsibility to sup-
port his children shall devolve upon the ascendants of the said children, males or females
accordingly.
6. If there are many relatives to whom respon- sibility of support to decendants devolves, they shall
give the support proportionate to their shares in the inheritance if they can all be heirs to the needy

16
descendant in case of his death and regardless of their degrees of relationship to him. However, if
they can- not all be heirs to him in case of his death, the sup- port shall devolve upon the ascendant
whose degree of relationship is nearer to the needy even if he or she is not an heir. If none of them
can be an heir and they have the same degrees of relationship to him, support shall be borne by them
all equally. If under the same circumstance but they have different degrees of rela- tionship to him, he
whose degree of relationship is more proximate shall bear the support.357

The abovequoted provisions of the Code are with- out prejudice to the amount of support which was
advanced by a third person on the strength of the court order and reimbursable by the person who is
directly obliged to give it. In other words, when it becomes a debt of the giver at the sanction of the
court order, it cannot be extinguished by the death of the giver or the recipient. This is like the
expenses incurred by the wife when the husband fails to give her the support on time or the support
of children which was advanced by the wife in compliance with court order because of the inability of
the husband to give it at the time. These amounts of support advanced by the wife become debt of
the husband and so it cannot be extinguished by the death of one or both of the spouses. The
aforequoted provisions of the Code are applicable only to the sup- port to be given yet and not to
those long time due and became debt of the giver.
Apparently, the aforesaid provisions of the Code are applicable to all kinds of support. With regard to
the obligation of the husband to support the wife, it shall be extinguished by:
1. Condonation of support by the wife; or
2. Death of one of the spouses unless there has
been a prior court order allowing the wife to incur debt for the purpose in which case it cannot be
extinguished by the death of anyone or both of them because it has ripen into the debt of the
husband.

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