Date of Award

2010

Thesis Type

Masters

Document Type

Dissertation

Divisions

Academy of Islamic Studies

Department

Department of Fiqh-Usul and Applied Sciences (formally known as Dept of Fiqh & Usul)

Institution

Universiti Malaya

Abstract

This study entitled “Condition and its juristic effects on marriage contract: An analytical study” relied on texts from the Shari’ah, and sayings of the principles of jurisprudence scholars and jurists, in relation to the two main types of conditions (Shari’ah conditions and additional conditions), and their juristic effects on marriage contract, with the aim of analyzing the methodology of scholars in dealing with the effects of conditions on marriage contracts, in order to discover the principle governing such issues. The study will also state the Shari’ah ruling concerning several types of marriages in light of the same methodology, and within the limits of the discovered principle. Furthermore, the study will discuss the definition of condition and its types among the principles of jurisprudence scholars and jurists. The study used a descriptive, inductive, and analytical methodology in order to solve the problem of the research, which is “Identifying the Shari’ah rule in dealing with conditions stipulated in the marriage contract”. The study reached several conclusions among which is that the most appropriate definition of the concept of condition is the one given by the Maliki scholar Al-Qarafi, and that Shari’ah conditions have their own detailed evidences, contrary to additional conditions which have general evidences. The study also concluded that the main point of disagreement over the issue of additional conditions can be traced to the disagreement in explaining a Hadith in which prophet Muhammad peace be upon him said: “any condition which is not mentioned in the Quran is void”. Moreover, the study concluded that the definition of marriage by contemporary scholars is more acceptable than the definition of marriage by those who preceded them. The study also noted that compatibility is a condition for enforcing the marriage and not for its validity. Moreover, additional conditions in marriage must be fulfilled as long as they do not contradict the nature of the marriage contract. Furthermore, the effect of conditions in judging the validity of contemporary marriages such as marriage with the intention of divorce, customary marriage, travellers’ marriage, tourist marriage, and summer marriage, would become very clear, when we link such judgement with the availability of Shari’ah conditions in such marriages, and the absence of additional conditions that run contrary to the purpose of the contract. Finally, the study noted that the lack of Shari’ah knowledge, and the over confidence of those who are not qualified to issue religious edicts, resulted in the emergence of new types of marriages, whose only relation with the legitimate marriage contract is the name only.

Initial

khm

Additional Information

Dissertation (M.A.) – Academy of Islamic Studies, Universiti Malaya, 2010.

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