Open Marriage and Objectives of Shari`ah

ByDr. Wael Shihab.. Islamic shari`ah (law) pays greatattention to marriage as it is the straight path towards establishingstrong and healthy human communities. Shari`ah, therefore, lays downthe basic foundations that guarantee the stability and wellbeing ofmarried couples. For instance, the consent of both parties—theprospective wife and husband-is a condition per se for the validityof “Islamic” marriage. Prospective spouses are Islamicallyrecommended to consider important factors-such as social,educational, cultural, and religious compatibility-so as to lead ahappy marital life.

Moreover,preserving one’s lineage and offspring is one of the main essentialobjectives of Islamic shari`ah that almost all Muslim scholars agreeon. Imam al-Ghazali (d. 505 AH), for instance, specifies fiveobjectives of shari`ah, saying,

Maslahah(considerable benefit), which we are concerned about here, means theprotection of the objectives of shar` (Islamic law), namely thepreservation of religion, life, offspring, reason, and property.Anything that furthers theses five objectives is maslahah, andanything that runs contrary to them is mafsadah (harm).[1].

Themaliki jurist, Shihab ad-Din al-Qarafi (d. 684 AH) has added a sixthto the above list of five objectives of shari`ah, namely theprotection of `ird (honor). Ibn `Ashur (d. 1973), who has been knownfor his deep study and profound knowledge of the objectives ofshari`ah, has opened the scope of the maqasid (objectives ofshari`ah) to include the preservation of the social order, promotionof the wellbeing and righteousness (salah) of the community,preservation of the family, etc.[2].

Giventhe above, Islamic marriage aims, among others, at securinghappiness, wellbeing, and prosperity of married couples, families,children, and the whole society at large. Happy, stable marriageslead, of course, to sound, strong families and communities.Therefore, preservation of the family, the offspring, and the socialorder is greatly emphasized and promoted by Islamic shari`ah.

Open,Closed, and Islamic Marriages

Openmarriage refers to a marriage in which the partners agree that eachmay engage in extramarital sexual relationships, without this beingregarded as infidelity. There are many different styles of openmarriage, with the partners having varying levels of input on theirspouse's activities.

Theorigins of the term ‘open marriage’ remain obscure. Researchersin the 1960s used the term open marriage to describe individualfreedom in choosing marriage partners. Closed marriage meantindividuals had to marry someone based on social prohibitions andsocial prescriptions. Open marriage meant individuals could choose tomarry someone based on personal preferences.

However,Nena O'Neill and George O'Neill changed the meaning of the term withthe 1972 publication of their book “Open Marriage”. The O'Neillsconceived open marriage as one in which each partner has room forpersonal growth and can develop outside friendships. These concepts,and others, entered the cultural consciousness and the term "openmarriage" became a synonym for sexually non-monogamous marriage.In the 1977 publication of “The Marriage Premise”, Nena O'Neilladvocated sexual fidelity in the chapter of that name. By thenhowever, the concept of open marriage as sexually non-monogamousmarriage had gained a life of its own.

Couplesin open marriages may prefer different kinds of extramaritalrelationships. Couples who prefer extramarital relationshipsemphasizing love and emotional involvement have a polyamorous styleof open marriage. Couples who prefer extramarital relationshipsemphasizing sexual gratification and recreational friendships have aswinging style of open marriage.[3].

Apparently,the Islamic concept of marriage is totally different from the above“open” styles of marital relationships. Though Islam givesprospective spouses freedom of choice when choosing husbands orwives, it considers “marriage contract” as a sacred, solemn bondthat entails specific mutual rights, duties, values, andresponsibilities that should not be violated. The Qur’an describesmarriage contract as a sacred bond and calls on married couples toobserves kindness, true love, and marital rights and duties. TheQur’an says,

{Omankind! Be careful of your duty to your Lord Who created you from asingle soul and from it created its mate and from them twain hasspread abroad a multitude of men and women. Be careful of your dutytoward Allah in Whom you claim (your rights) of one another, andtoward the wombs (that bare you). Lo! Allah has been a Watcher overyou.}[4].

{Oyou who believe! It is not lawful for you forcibly to inherit thewomen (of your deceased kinsmen), nor (that) you should putconstraint upon them that you may take away a part of that which youhave given them, unless they be guilty of flagrant lewdness. Butconsort with them in kindness, for if you hate them it may happenthat you hate a thing wherein Allah has placed much good. And if youwish to exchange one wife for another (for valid acceptable reasons)and you have given unto one of them a sum of money (however great),take nothing from it. Would you take it by the way of calumny andopen wrong? How can you take it (back) after one of you has gone inunto the other, and they have taken a strong pledge (a sacred bond)from you?}[5].

Islamicmarriage is, in fact, one of the great favors, gifts, and signs ofAllah Almighty. The noble Qur’an says,

{Andof His signs is this: He created for you helpmeets (spouses) fromyourselves that you might find rest in them, and He ordained betweenyou love and mercy. Lo, herein indeed are portents for folk whoreflect.}[6].

Islamicmarriage, as far as shari`ah is concerned, is meant to build happy,stable, and prosperous family, to raise healthy committed children,to preserve offspring and social order, to satisfy human physical andpsychological needs, and to create sound faithful communities andsocieties.

InIslamic marriage, there is no place for extramarital relations inwhatever way or form. Concepts of “girlfriends”, “boyfriends”,“open marriages”, and “polyagmory” are alien to Islam and itsshari`ah. Though the concept of “close marriage” may seem closeto “Islamic marriage”, the latter has its distinctive features,values, and laws that could guarantee happiness and prosperity ofmarried couples, offspring, and social communities.

IslamicMarriage: Mutual Rights and Duties

Inorder to secure the happiness and prosperity in the marital life,Islam prescribes specific morals, values, and mutual rights andobligations for both the husband and wife. Blew is a briefclarification of the rights and duties of married couples in Islamicmarriage:

A-TheWife's Rights; The Husband's Obligations:

Becausethe Qur'an and the sunnah of the Prophet (peace and blessings ofAllah be upon him) have commanded kindness to women, it is thehusband's duty to:

1-Consort with his wife in an equitable and kind manner. Allah Almightysays, {… consort with them in kindness.}[7].

2-Have responsibility for the full maintenance of the wife, a dutywhich he must discharge cheerfully, without reproach, injury, orcondescendence. Allah Almighty says: {Let him who has abundance spendof his abundance, and he whose provision is measured, let him spendof that which Allah has given him. Allah asks naught of any soul savethat which He has given it. Allah will vouchsafe, after hardship,ease.?}[8].

Componentsof Maintenance:

Maintenanceentails the wife's incontestable right to lodging, clothing,nourishing, and general care and well-being.

1-Thewife's residence must be adequate so as to provide her with thereasonable level of privacy, comfort, and independence. The welfareof the wife and the stability of the marriage should be the ultimategoal.

2-Whatis true of the residence is true of clothing, food, and general care.The wife has the right to be clothed, fed, and cared for by thehusband, in accordance with his means and her style of life. Theserights are to be exercised without extravagance or miserliness.

Non-MaterialRights:

Ahusband is commanded by the law of God to:

1-Treat his wife with equity.

2-Respect her feelings, and to show her kindness and consideration.

3-Not to show his wife any aversion or to subject her to suspense oruncertainty.

4-Not to keep his wife with the intention of inflicting harm on her orhindering her freedom.

5-Let her demand freedom from the marital bond, if he has no love orsympathy for her.

B.The Wife's Obligations; The Husband's Rights:

Themain obligation of the wife as a partner in a marital relationship isto contribute to the success and blissfulness of the marriage as muchas possible. She must be attentive to the comfort and well-being ofher mate. She may neither offend him nor hurt his feelings. Perhapsnothing can illustrate the point better than the Qur'anic statementwhich describes the righteous people as those who pray saying: {OurLord! Grant unto us wives and offspring who will be the joy and thecomfort of our eyes, and guide us to be models of righteousness.}[9].

Thisis the basis on which all the wife's obligations rest and from whichthey flow. To fulfill this basic obligation:

1-The wife must be faithful, trustworthy, and honest.

2-She must not deceive her mate by deliberately avoiding conceptionlest it deprive him of legitimate progeny.

3-She must not allow any other person to have access to that which isexclusively the husband's right, i.e. sexual intimacy.

4-Shemust not receive anyone in his home whom the husband does not like.

5-Shemay not accept their gifts without his approval. This is probablymeant to avoid jealousy, suspicion, gossip, etc., and also tomaintain the integrity of all parties concerned.

6-The husband's possessions are her trust. If she has access to anyportion thereof, or if she is entrusted with any fund, she mustdischarge her duty wisely and thriftily. She may not lend or disposeof any of his belongings without his permission.

7-With respect to intimacy, the wife is to make herself desirable; tobe attractive, responsive, and cooperative.

8-A wife may not deny herself to her husband, for the Qur'an speaks ofthem as a comfort to each other. Due consideration is, of course,given to health and decency.

9-Moreover, the wife is not permitted to do anything that may renderher companionship less desirable or less gratifying. If she neglectsherself, the husband has the right to interfere with her freedom torectify the situation and insure maximum self-fulfillment for bothpartners. She is not permitted to do anything on his part that mayimpede her gratification. [10].

Polyagmoryvs. Polygamy

Polyagmory,which is a style of open marriage, shouldn’t be confused with“polygamy” which is sanctioned by Islam in some specific casesand circumstances to offer practical solutions to serious socialproblems. Polyagmory, in fact, poses series social repercussions thatcould destroy the family life and endanger the whole community.

Inpolygamous marriage, the husband could marry more than onewife—maximum four—and have them as his legal wives at the sametime. Polygamy doesn’t lead to mixture of lineages and in specificcases solve dangerous social problems. Though it is not the basicnorm in Islam, polygamy could be resorted to as a workable solutionto some problems that could endanger families and social communities.In all situations, a Muslim wife, could not have more than onehusband at the same time. Even in case of divorce, which isIslamically the most hated permissible thing in the sight ofAllah[11], the divorcee has to wait for a specific period of timebefore going to a second marriage in order to avoid mixture oflineages and to physically and psychologically prepare the woman forre-marriage.

Exploringwhy Islam allows polygamy, I would cite the following fatwa issued bythe European Council for Fatwa and Research (ECFR):

Priorto Islam, men used to marry as many women as they wished without anylimits nor conditions. When Islam was revealed, it prescribed a limitto the number of women one may marry and also placed conditions forthis to take place. As for the limit, Islam prescribed that themaximum number of women a man can marry is four, as stated in theQur’an: {Marry women of your choice, two or three or four…}[12].

Asfor the condition, it is the confidence of the man that he canactually be totally just and fair between his wives, otherwise he isnot allowed to re-marry. The Qur’an stated: {…but if you fearthat you will not be able to deal justly (with them), then onlyone…}[13].

Inaddition, the other conditions of any marriage must also be present,such as the ability to provide for the family and the ability tosatisfy the sexual needs of the woman. The reason for the allowancefor a man to marry more than one woman is because Islam is arealistic religion and one which is not based upon idealistic notionswhich would cause real problems of everyday life without solution ortreatment. It is very probable that a man marrying a second wifecould be solving a problem, in that his first wife is incapable ofbearing children or has extended menstruation cycles which result inhis sexual needs being unsatisfied. The first wife could be ill andthus, instead of divorcing her and leaving her alone, could marry asecond wife and remain next to his first wife, and so on. Thisallowance also solves the problem of a widow who needs a husband tocare for her but does not wish for an unmarried young man, similar toa divorced woman with children.

Indeedthis allowance may solve a social problem which arises from the highproportion of good women who want to marry in comparison to able men.This is a common problem which increases particularly in theaftermath of wars and the like. The fact, in this case, is that theextra women do one of three following options:

1)That they remain unmarried for the rest of their lives, and are thusdeprived from being a wife and a mother, which is a great injustice.

2)That they fulfill their sexual needs regardless of decrees ofreligion and acceptable behavior, which will result in a tragic lossin this life and the hereafter.

3)That they agree to marry an already married man who is capable ofmeeting their living and sexual needs and who is confident in hisability to deal fairly and justly between his wives. As for those whosay that this allowance is often abused by some men, it is anunfortunate fact that many rights are abused or are used ininappropriate manners. This does not mean that we must cancel theserights. Indeed, there are many men who abuse their first and onlywives, so does this lead us to cancel marriage in its entirety?.

Freedomsare often abused. Should we cancel freedoms? We see that states andgovernments abuse elections; would it be right to cancel theseprocesses? In fact we find that authority and government isfrequently abused, so would it be acceptable to cancel authority andlet society decline into a state of chaos? It would be better,instead of calling for the cancellation of these rights, to set upboundaries and regulations which would limit the possibility of suchrights being abused.”[14].

OpenMarriage and Social Repercussions

Surveysshow large majorities of people disapprove of extramarital sexualactivity. A few studies show people specifically disapprove of openmarriages. Critics have put forward moral, medical, and psychologicalobjections to open marriages. The lack of social acceptance placespressure on couples to hide their open marriages from family,friends, and colleagues. This may limit their social support network.

Moreover,the practice of extramarital sex is often illegal in jurisdictionswhere adultery is illegal, regardless of whether the partner(s) hasgiven their consent. Open marriage is not the same thing as polygamy,where sexual relationships are not necessarily contemplated, butrather one can have more than one simultaneous spouse, which is saidto protect individual and marital property rights.[15].

Openmarriage endangers true faithful family atmosphere where childrenshould be soundly and morally raised. Though there are variousstyles of open marriage, as elaborated above, they all share commonconcerns such the lack of social acceptance and imposing seriousdangers to the family institution.

ConcludingRemarks

InIslam, marriage of a man and a woman is not just a financial andphysical arrangement of living together but a sacred contract, a giftof Allah, to lead a happy, enjoyable life and continue the lineage.The main goal of marriage in Islam is the realization of tranquilityand compassion between the spouses.

InIslamic marriage the relationship between the spouses is based ontranquility, love, and mercy. These three summarize the ideals ofIslamic marriage. It is the duty of the husband and wife to see thatthey are a source of comfort and tranquility for each other. Toguarantee the stability and success of marriage, Islam defines therights and obligations of both the husband and the wife.

Openmarriage, on the other hand, imposes serious dangers to the familyinstitution, lacks social support, endangers the real lovely maritallife, and breaks the social order of the community.

[1]Abu Hamid al-Ghazali, al-Mustasfa min `Im al-Usul, 2 vols. (n.p., Daral-Fikr lit-Tiba`ah wa an-Nashr wa at-Tawzi`, n.d.), 1: pp. 286-287.

[2]See Mohammad Hashim Kamali, An Introduction to Shari`ah (KualaLumpur: Ilmiah Publishers, 2006 AC), p. 118; Muhammad at-Tahir ibn`Ashur, Treatise on Maqasid al-Shari`ah, annotated and trans. Mohamedel-Tahir el-Mesawi (Herndon: The International Institute of IslamicThought, 1427 AH – 2006 AC), pp. 87 & 241ff; Jasir `Uddah, Fiqhal-Maqasid, Inatat al-Ahkam ash-Shar`iyyah bi Maqasidiha (Herndon:The International Institute of Islamic Thought, 1427 AH – 2006 AC),pp. 26-28.

[3]See http://en.wikipedia.org/wiki/Open_marriage, January 23, 2012.

[4]Qur’an, surat an-Nisa’, verse No. 1.

[5]Qur’an, surat an-Nisa’, verses No. 19-21.

[6]Qur’an, surat an-Nisa’, verse No. 21.

[7]Qur’an, surat an-Nisa’, verse No. 19.

[8]Qur’an, surat at-Talaq, verse No. 7.

[9]Qur’an, surat al-Furqan, verse No. 74.

[10]Based on Hammudah `Abd al-`Ati’s Islam in Focus, with somemodifications.

[11]A prophetic hadith, reported by abu Dawud, hadith No. 1863, ibnMajah, hadith No. 2008.

[12]Qur’an, surat an-Nisa’, verse No. 3.

[13]Qur’an, surat an-Nisa’, verse No. 3.

[14]Fatwas of the European Council for Fatwa and Research, translated byAnas Osama Altikriti and Shakir Nasif Al-Ubaydi (Cairo, Islamic Inc.Publishing and Distribution, 2002), pp. 132-135

[15]See http://en.wikipedia.org/wiki/Open_marriage, January 23, 2012.

Dr.Wael Shihab has a PhD in Islamic Studies from Al-Azhar University andis the Ex-Head of the Fatwa Unit at the English web site ofIslamOnline.net. He is currently the Shari`ah Consultant of theShari`ah Dept. of Onislam.net website.

Source:onislam.net

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