Recently the issue of marriage by misyar has become the hot topic among the Muslim Malaysian community who were blissfully unaware of the practice by some societies for aeons. The issue was brought up after being suggested by Prof. Dr. Mahmood Zuhdi, an Islamic Studies professor at the University of Malaya, as a solution to the numerous unwed professional single women whose high social standing is beginning to make it impossible for men to marry them. His statement was widely quoted by the media and thus the issue was brought to the fore.
Due to the recent exposition on the issue of marriage by misyar by a few major Malay newspapers including Berita Harian and Utusan Malaysia, some people have confused the term between what is socially acceptable and what is Islamically acceptable. It has even reached the corridors of power, where the Minister for Women Affairs commented on the issue and said in a statement that it is "unacceptable". Others with more Islamic knowledge, such as the Menteri Besar of Kelantan, say that they find that there are no problems with this type of marriage.
A brief research on the issue reveals that Google answers many of questions and objections that were raised regarding the issue. I suggest that the dilligent reader should attempt to research the issue for themselves and not blindly oppose it just because certain ignorant feminist groups oppose it, or blindly agree with it just because some leaders do.
A contract
We now come to the question, what is actually misyar? Misyar is defined as a marriage whereby a pre-nuptial agreement states that the wife disavows all rights to the marriage except for conjugal rights. This practice is known in Egypt as well as some Gulf countries, where the husbands have no choice but to take long business trips and leave the wife virtually abandoned at home. The confusion regarding misyar has arisen because people generally tend to compare it to the Shi'ite marriage of muta'ah, when in actuality misyar is just a social term, and the rights of both husband and wife continues just as it does in a normal marriage. Some have claimed that old Arab men indulged in misyar to wed young girls to satisfy their lusts. We demand that these claimants should show us evidence that such incidents do happen and that it is widespread. I would like to take this opportunity to quote from Sheikh Yusuf al-Qaradawi, no doubt the most influential ulama of our times, regarding this issue and which was posted on IslamOnline website.
Regarding the legal viewpoint of misyar, he says that the marriage "... should be viewed as a form of legal relationship between man and woman regardless of any description attached to it. This is pursuant to the juristic rule: "What matters most in contracts are motives and meaning, not the wording or structure." Therefore, in determining the legal nature of this marriage, we should not judge things according to names, for as we know, people feel free in naming or describing something."
His position is quite clear, that there is nothing particularly new about the marriage, or that none of the rights of the wife or husband are affected if they agree to the type of marriage. Further, Qaradawi also clearly stated that "... misyar marriage, or something in similar form, has been in practice from time immemorial. It also serves the purpose of some women, who, for instance, may be rich but happen to be unable to marry at the proper time. So, such women can opt for this kind of marriage." Hence what Prof. Dr. Mahmood Zuhdi recommended is consistent with the problems currently facing Muslim women in this country. It should be remembered that misyar is only suggested as ONE of the solutions but not the only solution. Those who object to misyar should be clear that the marriage contract is not objectionable in Islamic law, and therefore on what basis do they wish to object to misyar just because they find it socially unacceptable?
By saying this however, it does not mean that we wish for all Muslims in Malaysia to resort to misyar, or that misyar is made compulsory by the country. On the contrary, what we desire is a solution to the prevalent social problems of unwed single women, and misyar might possibly be a clear solution to these same problems. If misyar is properly conducted by the people in question and if all the Islamic legal requirements are met, then the marriage is valid. Those requirements are basically: an offer and acceptance from both parties; a specified dowry according to the Qur'anic verse: "And give unto the women, (whom ye marry) free gift of their marriage portions" (An-Nisa', verse 4); and that the contract wins the consent of the guardian. Therefore, if all these criteria are met, no one has the right to brandish it as an unlawful act.
Our poison
This issue, therefore, needs a cautious approach. One should not feel free to condemn an act as absolutely forbidden, merely on social repugnance. Rather, one needs to have convincing evidence to determine the legal nature of each particular act. Hence if one is uncomfortable with the terms of the contract, they need not practice it. What is one man's meat is after all one man's poison.
So finally, is a misyar contract acceptable in Islam? If the wife agrees to this arrangement for the marriage, I say, "Why not?" This is of course provided that the situation warrants it and that there is no compulsion on either side to accept the contract. This arrangement is generally only suitable if the husband is a travelling person and goes on business trips for months and the wife is left all alone. There should be no controversy regarding misyar and if Islam says that it is not wrong (as misyar is basically a pre-nuptial agreement), then the answer from the believer is "I hear and obey", period. And I will hear and obey. If one starts to question it based on his or her subjective values which has no basis in Islamic fiqh (jurisprudence), then it means that there is something wrong with his or her fundamentals of Islam, or that he or she is a disbeliever.
And only Allah knows best.
MOHD ELFIE NIESHAEM JUFERI is an independent social commenter and student of comparative religion. He is more interested in Misha Omar's music rather than a misyar marriage. His website is at http://www.menj.org .
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