Book of Marriage
Section One: Preliminary Matters
The subject matter of this Book is confined to five sections:
- Section One: Preliminary matters pertaining to marriage.
- Section Two: The conditions required for a valid marriage contract.
- Section Three: Causes that give rise to an option of annulment.
- Section Four: The mutual rights of husband and wife.
- Section Five: Marriages that are prohibited or invalid.
Section One – Preliminary matters
This section comprises four issues: (1) the legal ruling on marriage itself; (2) the ruling on the marriage sermon (khutbat al-nikāḥ); (3) proposing after someone else has already proposed; and (4) looking at the prospective bride before the contract is concluded.
- The legal ruling on marriage
One group—the majority—holds that marriage is recommended. The Ẓāhirī school maintains that it is obligatory. Later Mālikī jurists say that for some people it is obligatory, for others recommended, and for yet others merely permissible; the ruling varies according to the individual’s fear of falling into hardship.
The point at issue is whether the imperative form in the Almighty’s words,
“So marry those women who are lawful to you” (4:3),
and in the Prophet’s—peace and blessings be upon him—saying, “Marry, for I will boast of your numbers before the nations,” and other similar reports, is to be understood as imposing an obligation, recommending an act, or merely permitting it.
Those who differentiate—declaring it obligatory for some, recommended for others, and permissible for others—base their view on considerations of welfare (maṣlaḥah). This mode of reasoning is called “unrestricted analogy” (qiyās mursal): an analogy that lacks a specific, identified textual foundation. Many scholars have rejected it, though the apparent view of Mālik is to accept it.