According to the sharia, there are 3 integrals of marriage which must be fulfilled in order for the marriage to become valid. If any of these conditions are not fulfilled then marriage will be invalidated. One of the conditions is the spouses must make sure there are no potential barricades that will invalidate the marriage; such as;
1. Being married to close relative by blood,
2. A sister as a result of being breastfed by the same woman, or
3. Marrying a widow or divorcee in her waiting period.
Validity of marriage
There are 14 categories of women prohibited for a man to marry; 7 of them are due to blood relations and the other 7 due to special reasons.
The category prohibited by blood include;
1. Your mother, grandmother etc.
‘Prohibited for you [for marriage] are your mothers’ (An Nisa: 23)
2. Your daughter, grand daughters, the daughters of the grand daughters etc. ‘Prohibited for you [for marriage] are your daughters’ (An Nisa: 23)’
3. Your paternal or maternal sister is prohibited for marriage.
‘Prohibited for you [for marriage] are your sisters’ (An Nisa: 23)’
4. Sisters daughter, sons, or their daughters daughter
‘Prohibited for you [for marriage] are….and your sister’s daughters’ (An Nisa: 23)’
5. Your brother’s daughters, sons or daughters daughter.
‘Prohibited for you [for marriage] are….and your sister’s daughters’ (An Nisa: 23)
6. Paternal Aunts and seven Maternal aunts
‘Prohibited for you [for marriage] are….and your father’s sister or your mother’s sister’ (An Nisa: 23)
There are other categories of women prohibited for marriage due to special conditions. These include:
1. It is eternally forbidden to remarry your ex-wife whom he swore that he committed adultery and publicly divorced her.
2. If the couple in the example happened to have suckled from the same woman and later discovered after 20 years then the marriage is invalid depending on some conditions such as how many suckles the baby had. The women prohibited for marriage through blood relations are the same through suckling and they include: sisters through suckling or women by whom someone has been breastfed.
"Breast feeding make forbidden what is forbidden through blood relations." [Muslim]
3. The wives of our fathers or grandfathers are all prohibited
4. Prohibited to marry your sons wife or grandsons wife etc.
5. It is prohibited to marry the wives mother, her grandmother’s mother etc.
6. The daughters or granddaughters of a person’s wife are prohibited to marry.
The second category of women prohibited to marry are on a temporary basis;
a. It is forbidden for a man to marry 2 sisters at the same time and keep them as wives. However if one of them dies, he can marry the other sister.
b. It is prohibited to mary a woman with her aunt simultaneously but in the event of divorce he can marry the second person
c. It is also prohibited to have more than 4 wives at a time. This was only allowed in the case of the Prophet (pbuh).
There are women prohibited to marry as a result of some contingent reasons;
1. Prohibited to marry a divorced woman In her waiting period
2. Prohibited to remarry a woman who committed adultery before her repentance and expiration of waiting period.
3. Prohibited to remarry a woman divorced 3 times until she marries another person
4. Prohibited to marry someone in a state of ihram
5. Prohibited to marry a disbeliever
6. A free person is prohibited to marry a slave in captivity
Who custody goes to incase of divorce?
With the issue of custody, it depends on the scenario, it depends on the age of the children and also whether the woman is remarried again. According to Imam Malik, a mother has the right to her son’s custody till he is able to speak clearly and the daughter till her marriage while according to ABU Hanifa, a mother has a right to custody up to the point where the boy reaches the age of 7 years and the girl when she attains puberty.
When a couple legally separate the mother is more entitled to take care of the child (have custody) if she has fulfilled all the conditions necessary for her to get the custody. She has more tenderness towards the child than the father. This is the view of imam Malik. However if the woman is going to remarry another man, then she loses the custody automatically to the father. So in this case the mother will be more entitled to be the child’s guardian and the moment he gets married, his new wife takes care of the baby.
Suppose the woman isn’t remarrying she has the right of custody and when her right to the custody has resolved then the child’s maternal grandmother is more entitled to take care of the child because they are also regarded as the child’s mother. They gave birth to the child’s mother. If the maternal grandmother loses the custody then the father is now more entitled to get the custody in comparison to other relatives because the child’s existence is ascribed to him. After this, the paternal grandmother is given precedence over the paternal grandfather just like the mothers are preferred over the fathers. The right of custody now goes to the paternal grandfather being the ward’s father. After that, the mother of the grandfather takes the custody and then the mother of paternal grandfather is next. If it is dissolved it goes to the ward’s full sister which is preferred to the half maternal-sister because she is more entitled to his inheritance. After that, the half paternal sister takes over.
The right of custody goes to the maternal aunts and then to the paternal aunts. Although according to Ibn Taymiyyah, the paternal aunt is more entitled to the custody than the maternal aunt and so precedence is given to the paternal relatives than the maternal ones as a whole because the father have a upper hand and so his relatives will be treated same way.
‘All the principles of the sharia approve that the father’s relatives are to take precedence over those of the mother in having custody of the ward. Thus, whoever does the opposite breaches these principles and the sharia’ (Ibn Taymiyyah)
After the child’s paternal aunt, the right of custody goes to the child’s brother’s daughter, tosister’s daughters and then to paternal uncle’s daughters and to paternal aunts daughters and so on.
Ahmad Al-Hajj, Y. (1990). The book of Nikkah. Riyadh: Darussalam publishers.
Ali, K. (2008). Marriage in Classical Islamic Jurisprudence: A Survey of Doctrines", in the Islamic Marriage Contract: Case Studies in Islamic Family Law. Journal of Islamic Studies and culture. 11(19), 32-34.
Al-Fawzan, S. (2005). Summary of Islamic jurisprudence. Riyadh: Al-Maimaan Publishing house.
Mustadrakul W., Muhaddith N. (2005). A Gift for the Youth. Journal of Islamic Studies and culture, 2(4), p. 531.