Ijbar –Marital Consent: The WRAPA Approach

By Al-Amin Ciroma
(Pubished in my Islamic Perspective column in LEADERSHIP, Sept. 25, 2009)

The holy Qur’an (4:21) refers to marriage as a Mithaq (i.e. a solemn covenant or agreement between husband and wife), and enjoins that it be put down in writing. Since no agreement can be reached between the parties unless they give their consent to it, marriage can be contracted only with the free consent of the two parties. The Prophet of Islam (SAW) also said, “The widow and the divorced woman shall not be married until their order is obtained, and the virgin shall not be married until her consent is obtained.” (Al-Bukhari).
Being one of the sacred institutes in Islam, the holy Prophet (SAW) encourages his followers to marry and regenerate (good offsprings) so that he will be proud of them in the day of judgement. There are virtually many Ahadiths in support of marriage in Islam. He (SAW) said, "Marriage is my Sunnah (way of life), whoever reject my Sunnah is not of me." However, the format of contracting this sacred tradition varies in our society, while some subscribes to full consent of the spouse before marriage, others reject it and practice Ijbar.
Ijbar as an Arabic word means the act of forceful order (especially in the case of marriage). But in Islam, the consent of both the man and the women is an essential element of marriage, such that the girl's consent is immaterial, while her subsequent complaints are ignored and she is compelled to remain in the marriage. The Qur'an gives women a substantial role in choosing their own life partners. It lays down, “Do not prevent them from marrying their husbands when they agree between themselves in a lawful manner.” (Q:2, V:232).
However, Imam Malik, one of the great leading scholars of the Sunni schools of Islamic jurisprudence, gives a slightly restrictive interpretation to this verse and makes the choice of partner by a Muslim girl subject to the over-ruling power or 'Ijbar' of her father or guardian in the interests of the girl herself. It may sometimes happen that in her immaturity or over-zealousness, a girl may want to marry a man about whom she has distorted information or who does not possess good character or who lacks proper means of livelihood. In such a case, it is better, or rather incumbent upon the girl's father or guardian, that, in the wider interests of the girl, he restrains her from marrying such a worthless man and finds a suitable person to be her husband. Generally speaking, such marriages arranged by fathers and guardians work better than a marriage brought about through western courtship.
The case of Abu Juham bin Hudhaifah and Mu'awiyah ibn Abu Sufyan is relevant here. They proposed marriage to Fatimah bint Ghaith. The holy Prophet Muhammad (SAW) advised Fatimah not to marry either of them on the grounds that Mu'awiyah was then a pauper and Abu Juham was cruel and harsh. So she married Usamah.
In its approach, Women's Right Advancement and Protection Alternative (WRAPA), which is a non governmental organisation, aims at giving legal aid and counselling service for women, mobilisation and sensitisation, skill acquisition and advocacy for legal terms, engaged in actualizing the rights of women under Islamic Law. The Project, which is funded by the MacArthur foundation, covers all the seven north-western States i.e. Sokoto, Zamfara, Kebbi, Katsina, Kano, Jigawa and Kaduna State and has conducted series of activities to this effect under the Islamic Family Law (IFL) unit. The main objective of the forum was to engage in serious scholarship and research in the area of Islamic family law with a view to using the known rules of interpretation to analyse the law, enhance its application within the background of contemporary needs, excise harmful cultural practices which had over the years become embedded in the law and extend the frontiers of the law by advocating reliance on Fatwas (legal verdict) or the other schools of law where it appears beneficial and proper to do so.
In view of the above objectives, three levels of research were conducted in the project states whereby the researches conducted interviews with the women, Court officials and records of proceedings, eminent Ulama, N.G.O's, leaders of thought, the traditional rulers, the various Project State Government; Executive, Legislative and Judiciary and other stakeholders.
The researches revealed the ever widening gap between the true position of the Law and what is erroneously perceived by the public and often times the Court as to what the Law is. Incidences of shallow knowledge by the public and the Courts, harmful cultural practices, refusal to open wide the legal space, patriarchy were cited as the reasons which account for the hash treatment of women both in and outside the matrimony and the Courts. The findings made it necessary to engage experts in Islamic Law to research and present the true position of Islamic Law. It was anticipated that the experts would critically examine the Law as provided in the classical texts and excise there from all the harmful cultural practices embedded therein; re-examine the classical positions reached by the early Jurists and using the known tools of Jurisprudence, support or otherwise a shift in view of changing cultural moves and times, review the position of Maliki against other juristic positions, and suggest whether there is a need to import other juristic views to guide our Family Law positions and generally to examine the juristic milestones recorded by other Muslim nations in their practice of IFL. This was with a view to achieving a rich result and a hybrid of contemporary and classical positions. Two (2) researchers were commissioned from each of the seven (7) project states - one from the contemporary setting and the other from the orthodox. All research reports have been received but one.
Ijbar in its entirety, according to the research reveals that findings could not lend credence to any authority to show that the Holy Prophet (SAW) gave his blessings to its practice during his lifetime, secondly, its therefore shows that Ijbar as a product of Islamic jurisprudential thought, has no basis either in the Holy Qur'an or Sunnah of the Holy Prophet (SAW). Most importantly, it has revealed that the practice of Ijbar is mainly practiced by the Malikis (followers of the Maliki school of thought), while other schools of thoughts do not apply it as the latter do.
Majority of the Ulama interviewed agreed that the practice of Ijbar has caused a lot of problems for the girl victims and the society. They opined that the practice of Ijbar has been mainly exercised to serve the economic or material interests of the girl's parents and the prevalent alternative to seeking legal redress is the tendency for the girls preferring the option to run away from their husbands and parents' homes to places where they cannot be traced.
The Ulama also agreed that there is evident of a faulty understanding and application of the power of Ijbar even among the judges. According to them, the practice of Ijbar can be curtailed to address its dire consequences especially the high prevalence of drop outs from school, the health hazards it poses and the social and psychological perspectives of the departure of its victims into easy life styles.
At the end of the forum, some recommendations were resolved by the Islamic scholars and jurists present at the Jigawa state research validation meeting, the resolved the case of Ijbar such that marriage should be conducted with the consent of all parties going into it. They pointed out some negative consequences Ijbar bring on parties involved and therefore should be checked.
The aspect of marriage is greatly emphasized by Imam Bukhari. He, in fact, gave one of the chapters in his Sahih the significant title: "When a man gives his daughter in marriage and she dislikes it, the marriage shall be annulled." Once a virgin girl came to the Prophet (SAW) and said that her father had married her to a man against her wishes. The Prophet (SAW) gave her the right to repudiate the marriage. (Abu Dawud).
The problem today lies that many girls are forced to marry men they do not like. Their respect for their parents forces them to engage in wed lock. If it were up to them, then they would not have married that man. We have to care for the right of our daughters before giving their hands out for marriage.