The Family in Islam

Part One : the Law of Matrimony

In Creation, In Civilisations and In Religions God8 has said in his masterful book: 'And of everything we have created pairs so that you might take notice'.9 The law of pairs is so deeply intrinsic to created objects that one does not find any atom or galaxy or anything smaller or larger than these that is not subject to this law.

If one looks to creation in all its vastness and what it holds, from stars and planets, air and water, trees and rocks, to animals and humans, one cannot but concede as to the integrated perfection of this system in so far as each one complements and perfects the other. Each proceeds according to a precise and balanced system which is only violated and traversed by humankind who were given by God the responsibility of administering themselves after having been sent messengers and having had the limits of behaviour laid out and the laws made clear.

Mankind then took up this responsibility but did not carry it out, as it should be - excepting God’s faithful servants - at times falling into oppressiveness, at other times into ignorance. In the Qur’an Allah states:

'We did indeed offer trusteeship to the heavens and the earth and the mountains but they refused to take it being afraid thereof. But man undertook it, though he is unjust and ignorant'.10 If one leafs through the pages of human history, over and above the instructions of religion, one realises that the family system, procreation, the avoidance of inbreeding, the avoidance of marital infidelity, instability and abuse are matters of human nature and psyche ('The fitra (intrinsic nature) of Allah upon which He has created the people.'11). Even amongst primitives and pagans and those who did not observe any law, from time to time their inherent nature would shudder and would manifest itself in some form of law or in the form of customs and traditions. It is no delusion that we turn to custom and tradition to prove this, nor indeed to divine law which corresponds to inherent human nature, for all that the divine law rules necessary so does the intellect, and vice versa.

The concordance and mutual agreement of humanity over a certain matter, despite their diverse nations, civilisations and religions, points to the deep-rootedness of that matter in the human psyche. In this section, we will review in brief the findings of naturalists and anthropologists as well as the religious view in this field.

The Law of Matrimony in Creation

This vast creation from the smallest atom to the largest galaxy comprises of tribes and peoples based upon the system of pairs.

Every element is formed from atoms, and every atom is composed of negative electron and positive proton. The occurrence of any imbalance in the ratios and equilibrium of these charges will result in the instability of the atom, and the atom will then try to return to a stable state by discharging a formidable energy known as atomic energy. Likewise in creation there are two complementing forces - magnetism and electricity - neither of which can exist without the other. Then magnetism is composed of two polarities - north and south - and electricity of two charges - positive and negative - according to scientists.

In the Vegetable World

Allah has said in the Qur'an: 'All praise to He who has created all the pairs, of which grow in the earth, and of yourselves, and of that which you have no knowledge.'12 Every plant contains a masculine and feminine member, which upon their maturity pollination occurs and then fruition. Granted there are types of plants and trees which do not need this depth and complexity but they are like humans who have two independent members, which co-operate mutually in order to produce fruition, as is the case with the palm tree and papaya tree and others.

In the Animal World

Animals whether quadrupeds, bipeds or reptiles, amphibians, fish or birds, are subject to the law of pairs. He (Allah) has said: 'Originator of the heavens and the earth has made out of yourselves pairs and of the beasts pairs . . . '13 So they strive, because of the forces placed within them, to procreate and multiply and to preserve their species. Mothers extend affection to their offspring after birth or hatching and prepare the appropriate environment for their growth and development and defend them with their lives against the dangers, which surround them.

The Law of Pairs in Human Civilisations

There is no doubt that there are differences between humans and other creatures. Humans have a certain freedom of choice and will whereas animals are driven and determined. There is also no doubt that there is a difference among peoples with regards to systems and laws to an extent, which at times is contradictory and incompatible. However it is not right that we take this difference as being the most fitting expression of the matrimonial system.

Indeed, this synopsis does not hold true for all areas of the nature of the family, so we will concern ourselves to the areas upon which peoples have been in agreement from the earliest times as civilisations and peoples. This will no doubt fulfil our purpose. Particularly regarding marriage and childbearing, libertinism, and the system of rights.

In the following pages, we will deal with matrimonial laws from the earliest times until the present day.

1. The Civilisation of the Mesopotamia

Matrimony was deemed to be greatly important in the Sumerian civilisation where they promoted marriage and repudiated celibacy. Marital infidelity was regarded by them as a crime punishable in detailed laws by death. The two adulterers if there were witnesses to the crime would be bound and thrown into water to drown, and if there were no witnesses then the woman could exonerate herself by an oath.

Amongst the Assyrians, the matter was much the same where marital fidelity was compulsory and infidelity was punishable either by death to both parties by drowning, or by them being whipped, or by their hair being torn out, or by the amputation of the ears.

The Assyrians also called for a high birth rate in moral laws in which they considered abortion a serious crime punishable by execution. They considered a beating, which led to abortion as a crime punishable by fifty lashes, forced labour and in some cases execution.

The Babylonians specified more than sixty rules regarding the preservation of the family and stressed the seriousness of adultery and the implementation of punishment by drowning for the perpetrator.14

2. Ancient Egyptian Civilisation

Ancient Egyptian texts afforded marriage a high importance. Adultery was forbidden and its perpetrator was threatened with the most violent punishments, according to historians. The unfaithful husband would be subjected to flogging and the unfaithful wife would be subjected to the amputation of the nose. Adultery was one of the pretexts for divorce among them without distinction between the man and the woman.

In the civilisation of Osiris, dead persons used to bear with them to their graves a document testifying to their probity and fidelity in order to obtain mercy in the afterlife.

3. European Civilisations

In Sparta, celibacy was a crime in which the bachelor forfeited the right to vote and to watch public spectacles and so on.

In Rome, celibacy was forbidden and considered a state in contravention of their religion punishable by beating or flogging with regard to the age of the individual 15, and by increasing taxes and forbidding them from inheritance unless they married within 100 days of the death of the legator.16 They regarded adultery as a grave offence punishable by death or by banishment from the country for life.

The punishment for one who caused the abortion of a pregnant woman was banishment or the confiscation of his property.

They laid down the so called Julian17 law specifically for marriage aimed at making marriage common and calling for a high birth rate and a reduction in taxes in relation to the number of offspring up to the number of three children, when taxes would be lifted completely just as bonds would be lifted from any woman who had given birth to three children.

Constantine made adultery punishable by death, and any such dishonour during the age of Augustinian was punishable by execution or confiscation of possessions.