Valid Consent The consent of a woman is given through her guardian while a man directly gives his consent by himself. So the contract of marriage is made between the guardian and the future husband. The guardian could be a particular or general guardian. The general guardian is a court judge where the woman has no guardian who is a blood relative. Particular guardians are either the father, in leau of him a brother who attained majority or an uncle from the side of her father. Abu Hanafi has not accepted a representation of a woman by a guardian unless the woman is a young, an insane i.e. disabled for whatever reasons. Whether the consent is given directly by the woman or through her guardian it should not be defective. Any factor that has the power to influence and affect the normal functioning of the human mind can become a cause for defective consent. Jurists divide the causes into two kinds: natural causes [samawiyah] and acquired causes [mukeasabah]. Now we will, briefly, discuss both and their further classification A. Natural causes These are causes that are beyond the control of the subject. Under this heading, the jurists list ten causes. These are: I. Sighar [Minority] II. Junun [Insanity] III. Atah [Idiocy} IV. nisyan [Forgetfulness] V. Nawm [Sleep] VI. Ighma [unconsciousness, fainting, epilepsy] VII. Riqq [slavery] VIII. Marad [Illness] IX. Hayd [Menstruations] X. nifas [{post-natal state of woman] I. Minority [Sighar] It is the state or condition of a human being after birth and before puberty. Since according to shera marriage age coincides with puberty a consent given before a man or woman attained puberty shall be regarded as defective. II. Insanity [Junun] A person who is insane lacks aql. His transactions are void. Hence consent given for marriage by an insane person is defective. III. Idiocy [atah] It is a state in which a person at times speaks like a sane and normal person, while at others he is like a madman. It is also described as a state in which grown up has a mind of a child and act like a child. So where an idiot gives his/her consent while he/she is normal shall have effect. But when he or she acts like a madman his consent is defective IV. Sleep and epilepsy or fainting [Nawm, ighma] The capacity of persons, in such a condition to understand things is temporarily affected and prevented from normal functioning. Hence a consent given in such condition is defective. B. Acquired causes These causes are those that are created by man or in which human will and choice are the basic factors. Muslim jurists list seven such causes. 1. Ignorance [jahl] 2. Intoxication [sukr] 3. Jest [hazl] 4. Indiscretion [safah] 5. Journey [safar] 6. Mistake [khata] 7. Coercion [ikrah] The relevant ones for our purpose are intoxication, jest, mistake and coercion. So we will discuss one at a time. I. Intoxication [sukr] Drunkenness is a state caused in a human being due to the use of an intoxicant, which temporarily suspends the proper functioning of the mental faculty. We have already said that the basis for the capacity for execution is aql [reason] and rushd [discretion]. These will be negated in the case of the drunken person by the state of drunkenness. So a consent given, while a person is under such kind of condition, is defective. II. Jest [hazl] When a person uses words without intending to convey either their primary or their secondary meanings, that is their denotations or their connotations, he is said to speak in jest [hazl]. Such a person may for instance use words employed for the contract of marriage, but do not intend the hukm [effect] of such a contract. Hence his/her consent is defective. III. Mistake [khata] This is a doubt in the mind of the subject at the time of commission or omission of an act. They are classified into. 1. Shubbbahfi al dalil [mistake of law] 2. Shubhah fi al-milk [Mistake as to ownership] 3. Shubha fi alfil [Mistake in the commission of an act] and 4. Shubhah fi al-aqd[mistake in the governing law in the contract] For example assuming that in the early days there was a person who was under the impression that temporary marriage is permitted, that is he may not be aware of the abrogating evidence. If he entered into a temporary marriage, the marriage contract would be declared void for his consent is defective. If for example, a person concludes marriage with his brother’s daughter thinking he is doing it with his cousin his mistake is both mistake of fact and law. His marriage shall be void for his consent is defective. IV. Coercion and duress [ikrah] Coercion or ikrah is a situation in which one is forced to do something without his willingness. It negates free consent and willingness. Jurists are divided on the classification of ikrah. According to Shafi ikrah arises under a threat of death, hurt, perpetual confinement and the like. It does not arise for causes of a lesser gravity like a threat to property. So if a person is threatened with his life or person and as a result he/she gives his/her consent to marriage that marriage is void for his consent is defective. If, however, a person is threatened with his/her property that threat is not serious. It cannot be a ground for invalidation of a marriage. Capacity or Marriage Age
The third requirement is legal capacity. Legal capacity or Ahliyyah is the ability or fitness to acquire rights and exercise them to accept duties and perform them. Capacity for execution is defined as the capability of a human being to issue statements and perform acts to which the Law Giver has assigned certain legal effects. The question we certainly could raise is at what stage we say a person has acquired legal capacity. Jurists differ on this point. Most, except Hanafi, do not indicate any specific age. For them the basis of the capacity for execution is aql /intellect/ and rushed discretion. What do we mean by aql? When do we say a person is aql? Aql implies the full development of the mental faculty. As there is no definitive method for checking when this faculty is fully developed, the Law Giver has associated it with bulugh or puberty. Thus, the presumption is that a pubescent person is assumed to possess “aql” necessary for the existence of the capacity for execution. For the Hanafi jurists there is no way to determine whether the minor /sabi/ has attained discretion or not. The Hanafi jurists have, therefore, fixed the minimum age of seven years for assigning such capacity. Hence according to the Hanafi jurists any one over seven years of age, but who has not yet attained puberty may be assigned such a capacity, but the law makes this dependent on the guardian’s will and discretion. Classification of Capacity Muslim jurists divide legal capacity into three types. Complete, deficient and imperfect. We are not going to discuss all. For our purpose we will discuss complete capacity only which is found in a human being after his birth. This makes him eligible for the acquisition of all kinds of rights and obligations. Complete capacity for execution is established for human being when he or she attains full mental development, and acquires the ability to discriminate. This stage is associated with the external standard of puberty. The physical signs indicating the attainment of puberty are the commencement of ejaculation in a male and menstruation in a female. These biological signs may not appear early for some individuals. In the absence of these signs, therefore, puberty is presumed at the age of fifteen in both males and females according to the majority of the jurists. Hanafi jurists differ on this as well. For them it is eighteen for males and seventeen for females. Attaining bulugh /puberty/ alone is not sufficient to say there is a complete capacity. Besides that the possession of rushd /discrimination; maturity of action/ is requirement. This is what we understand from the following verse of the Quran; Make trial of orphans until they reach the age of marriage; then if ye find sound judgment in them, release their property to them; but consume it not wastefully, nor in haste against their growing up /4:6/ The marriage age is, therefore, attaining the puberty which may vary from person to person. Where, however, an individual attains fifteen, according to the majority of jurists, before puberty that fifteen is the marriage age. For Hanafi either puberty or eighteen for males and seventeen for female is the marriage age. 4.2.4. Witnesses and publicity There must be at least two competent witnesses so that the progeny’s of legitimacy will be safe guarded. The witnesses should be with legal capacity. Related to the condition of witnesses is the question of publicity. Not only is marriage to be intended as a lifelong bond, it must be publicized widely. Hence an agreement to keep the marriage secret invalidates the marriage contract in the opinion of some jurists. Other jurists maintain that the contract is valid but the secrecy is non religious and thus reprehensible. (Taken from Islamic Law, JLSRI Teaching material, Abdulmalik Abubaker (LL.B, MA)
1 Comment
shegaw Alebel
2/18/2011 09:56:20 pm
Dear, sir,Abrham, I really appretiate your effort for posting your views and share your knowledge via this page. Your posts are as interesting and educative as learing in a law school. Still you post and share the reaer only your own opinion only. I found you that you read a lot what is expected and ought to be from a good lawyer.
Reply
Your comment will be posted after it is approved.
Leave a Reply. |
AuthorAbrham Yohannes Archives
February 2012
Categories
All
|