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Relevance of ‘virginity’ as precondition for selection of fiancee under Islamic family law

By: Hameed Ajibola Jimoh Esq.

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The relevance of ‘virginity’ under the Islamic family law cannot be over emphasised. This ‘virginity’ is also an important aspect of Islamic family law because marriage is a basis of a lot of other material issues under the Islamic family law. Also, marriage is preceded by ‘virginity’ as it is after the valid contract of Islamic marriage that other affairs related to Islamic family law arise such as: responsibilities for maintenance, guardianship of a child under a valid Islamic marriage, inheritance, etc. However, in the modern circumstances, either due to the impact of western education or as a result of lack of religious trainings and discipline for some Muslims (both males and females), the issue of ‘virginity’ has become a mundane issue or an archaic issue or an old school thing that even some Muslims pay no much attention to it anymore and intending couples too as well as their families see it as ‘no-big- deal’ thing! However, before Almighty Allaah and as far as Islamic law is concerned, the issue of ‘virginity’ is not affected by any modern circumstance as it remains a valid precondition for the selection of any intending spouse for marriage under the Islamic family law. Even, under the Islamic criminal law, ‘virginity’ is a very fragile or delicate thing that it is not taken for granted as violation or unlawfully losing of same amounts to capital offence and could in some instances, attract penal sentence of death, for instance, in the case of adultery. As the word spouse indicates, it shows that the ‘virginity’ as considered by this paper relates to both male and female as a departure from the normal thought of some persons that whenever the issue of ‘virginity’ is raised, it is assumed as relating to the ‘females’ only and that ‘males’ are not affected! However, under the Islamic family law, both the male and the female are to remain in their virginity state at the time of marriage and are only permitted to be out of virginity only upon the contract of a valid Islamic marriage conducted according to the laid down rules and regulations by the Islamic family law. This paper also aims at calling all Muslim youths to always follow and to abide by the Islamic heritage and the legacy left to us by the Quran and the Sunnah of Prophet Muhammad (may Allaah’s blessings and peace be upon him) so that in all, we can rest in peace in this life and in the Hereafter!

 The word ‘Virginity’ has been defined by the Merriam Webster online dictionary as ‘the state of never having had sexual intercourse: the state of being a virgin’. It also defines ‘Spouse’: as ‘someone who is married: a husband or wife’. Definitely, the purpose of marriage under the Islamic family law is (for the contracted parties) for the male of the parties to become the husband while the other who is a female to become the wife and they from the time of the marriage become a solid family and are permitted to have sexual relationship with each other for both enjoyment and for reproduction of children.  Prior to this stage of valid marriage, it is no doubt that the Islamic family law lays emphasis that each of the two intending spouses must remain in his or her ‘virginity’ and failure to remain in such state and status, regardless of the age at which he or she is getting married, is not only criminal but also an immoral as well as sinful act against Allaah (God) Almighty! Unfortunately, today and especially in this modern time, how many Muslim ladies and men (even at the age of twenty (20) years old) are likely to be in their ‘virginity’ stage at the time of marriage?! It becomes very worrisome that even some Muslim parents find no fault in interrogating their wards as to why he or she lost his or her virginity without a valid Islamic marriage, including their wards studying in the boarding schools and out of their sight?! It is also a great surprise according to some of my personal observations, that some Muslims who are  intending couples immediately they both agree to enter into marriage contract, continue to live freely with each other and to also sleep the night over with one another and in fact, on the same bed and under the same bed shit which leads to unlawful sex (whether protected sex by the use of condom or other contraceptives or not ) and unwanted pregnancies (and in in fact, some cultures which are non-Islamic cultures encourage this unlawful act without frowning at same!). I must also state here that the use of protected sex by the use of condom or other contraceptives is only permissible under the Islamic family law (for those Islamic scholars who allow contraceptives) where there is a valid Islamic marriage and not permissible for those not legally marriage to themselves. It is further my humble view, that under the Islamic family law, both the ‘male’ and the ‘female’ can be ‘deflowered’. The word ‘deflowered’ has been defined by the Merriam Webster online dictionary to mean ‘to have sex with (someone who has not had sex before).’. Therefore in my humble view, there is no single reason why a Muslim male or female must not remain virgin at the time of marriage! This ‘virginity’ in my humble view, is a pride and integrity as well as a show of religious belief of both male and female and not just only the female as always being assumed by some persons. I must however state here that it remains a great sadness to my mind that despite how Almighty Allaah has honoured ‘virgin’ Muslim ladies and ‘virgin’ Muslim men by ensuring that none of the two is deflowered without the elements of a valid Islamic marriage being fulfilled, some of these intending couples have easily opened themselves for sexual relationship with their opposite sexes whereas the legal obligations under the Islamic law of marriage to have sexual intercourse with themselves have not been fulfilled thereby losing their virginity easily and committing fornication or adultery as the circumstance might be! ‘Virginity’ in Islam deserves celebration by ‘walimah (feast)’ which is always celebrated immediately after the day of the wedding or within three days thereafter! In my humble view, a Muslim lady has no reason not to be virgin at the time of her marriage contract no matter her age even if she is fifty (50) years of age at the time of the marriage contract except she can prove that: 

 

  • she was raped against her consent. 
  • ii. she was a divorcee under a legal marriage to a man before.
  •  iii. Her husband died.
  •  iv. Medical reasons.
  • v. any other reason acceptable by Islam, else, she is a fornicator by losing her virginity and having enjoyed sex from another man prior to her legal marriage, who has no legal right to have sex with her under the Islamic family law with a great consequence and wrath from Allaah and she is therefore prohibited for being married by a righteous (chaste) Muslim male! I pray to Allaah to touch and guide those of our Muslim ladies aright in this regard!

 

Also, in my humble view, a Muslim male has no reason not to be virgin at the time of his marriage contract no matter his age even if he is fifty (50) years of age at the time of the marriage contract except he can prove that: 

 

  • he was raped against his consent. 
  • ii. He is a divorcée under a legal marriage to a Muslim female previously (or a female under the permitted categories of women for a man to marry).
  • iii. He is a widower (his legal wife having been deceased).
  • iv. He is currently married to a Muslim lady (or woman) under a valid Islamic marriage.
  • medical reasons.

 

  1. Any other reason acceptable by Islam, else, he is a fornicator by losing his virginity and having enjoyed sex from another woman prior to his legal marriage, who has no legal right to have sex with him under the Islamic family law with a great consequence and wrath from Allaah and he is therefore prohibited for being married by a righteous (chaste) Muslim female! I pray to Allaah to touch and guide those of our Muslim men aright in this regard!

 It is therefore, my humble view that a (virgin) Muslim lady should not and shall not marry a Muslim man who is not a virgin and is not covered by any of the above exceptions proved to her and or her legal guardian. Also, a (virgin) Muslim man should not and shall not marry a Muslim lady who is not a virgin and is not covered by any of the above exceptions! This will be a sort of deterrent to others and to discourage such act of unlawful sexual relationship which is almost in the rise among some Muslim youths of today! This my submission is made pursuant to Allaah (the Almighty)’s statement in Quran 24:3 thus ‘The adulterer marries not but an adulteress or a Mushrikah and the adulteress none marries her except an adulterer or a Mushrik {and that means that the man who agrees to marry (have a sexual relation with) a Mushrikah (female polytheist, pagan or idolatress) or a prostitute, then surely he is either an adulterer, or a Mushrik (polytheist, pagan or idolater, etc.)}. Such a thing is forbidden to the believers (of Islamic Monotheism)’. On the interpretation of the above verse, the following explanation was made in Tafsir Ibn Kathir  (Abridged) Volume 3, translated by: Muhammad Aniis Gaad Khaliil , Dar Al-Manarah for Translation, Publishing & Distribution, 1428/2007, at page 1438, thus ‘Herein this verse, Allah tells us that the adulterer must only have sexual intercourse with an adulteress or a Mushrikah, i.e. none responds to him in committing adultery but an adulteress or a female polytheist, who finds no prohibition in her committing of adultery. Similarly, (And the woman who agrees to marry (have a sexual relation with) a Mushrik (polytheist, pagan or idolater) or an adulterer, then she is either a prostitute or a Mushrikah (female polytheist, pagan, or idolatress) i.e. a sinful man who is guilty of committing adultery, (a Mushrik) who does not believe that it is unlawful for him to commit adultery. (Such a thing is forbidden to the believers (of Islamic Monotheism). i.e. committing this, or marrying prostitutes, or making chaste women marry dissolute men is forbidden for the believers’. Imam Ahmad bin Hambali however, in his own view, make a condition for the prohibition (as an exemption from prohibition of marriage) on ‘sincere repentance’ of either of such female or the male before a chaste Muslim female or a chaste Muslim male can marry such person, else, such engagement for marriage is prohibited. See: Tafsiirul Quranil ‘Aziim by Imam Ibn Kathiir (Arabic Version), Daaarul Ibnul Haytham, Cairo,  First Edition, 1426 A.H./2005, Volume 3, page 2000, More so, virginity is in my humble view, a show of a Muslim’s faith or belief in Allaah and his willingness to submit totally to the Will of Allaah and the religion of Islam. Furthermore, Prophet Muhammad (may Allaah’s blessings and peace be upon him) says ‘A man guilty of fornication who has been flogged should not marry any but a woman similarly guilty’. (Reported by Ahmad and Abu Dawud, and Ibn Hajar said that its narrators are reliable). That is why it is very strange to Islamic family law for a Muslim male not to mind the kind of Muslim female that he is proposing to or a Muslim female not to mind the kind of Muslim male that she is accepting his proposal and engagement (notwithstanding any form of love or affection alleged to exist between them as the love of Allaah and His Messenger supersedes such individual Muslim male’s or Muslim female’s love)! It is no doubt that there are moral and religious consequences of turning a deaf ears at this prohibition legislated by the Islamic law. I reason that there are viral diseases that could destroy generations of such Muslims such as: gonorrhea, HIV, AID, etc. arising from such illegal sexual relationship even if such sexual relationship was done just for once! Furthermore, such a male will (notwithstanding his marriage to his wife under a legal Islamic marriage) not be resisted from cheating on his wife and shaming his Muslim family, his children and his generation (and such act is an adultery punishable with death under Islamic law of crimes and punishments). Also, such a Muslim female is likely to remain insatiable by her husband sexually and then, she sees nothing bad in seeking her sexual satisfaction elsewhere (i.e. from another man who is not her husband) which is also an adultery punishable with death under the Islamic law. Also, many times (if serious care is not taken), a man who had had sex with a Muslim lady and to whom the lady was not married, is likely to enjoy having extra marital relationship with her or to even blackmail or cajole her or her emotion into having extra marital or unlawful sexual intercourse with him (unknown to her husband)! This destroys family lineage and the peace of the society!

Furthermore, an illegitimate child born out of such illegal relationship is likely to be affected by being denied paternity. On the issue of paternity of such a child born out of wedluck (arising from an illegal sexual intercourse), Shaykh Muhammad Saalih Al-Munajjid answered a question asked (on question number 230367, published on 26/8/2015. See: IslamQ&A.com) as follows: 

‘Question

If a man commits zina with an unmarried woman, and this zina results in the birth of a child, is it permissible for him to call the child after himself?

Answer: 

Praise be to Allah

The scholars are unanimously agreed that the bed is the basic principle in establishing lineage. What is meant by the bed is marriage between the man and the woman. 

However the scholars differed with regard to the zaani if he wants to acknowledge his illegitimate child and call him after himself: does that prove the child’s lineage in shar‘i terms, or not? There are two well-known views: 

  1. That the illegitimate child is not to be attributed to the zaani even if he acknowledges him and names him after himself.

This is the view of most of the scholars of the four madhhabs, and of the Zaahiris (literalists) and others. 

Based on this view, the illegitimate child – whether male or female – is not to be attributed to the zaani and is not to be described as his child; rather he is to be attributed to his mother, and he is a mahram to her and inherits from her like her other children. 

Fatwas were issued on the basis of this view by Shaykh Ibn Ibraaheem, as in his Fataawa (11/146); Shaykh Ibn Baaz, as in Majmoo‘ al-Fataawa (18/124); and by the Standing Committee (al-Lajnah ad-Daa’imah, 20/387). 

That is because the Prophet (blessings and peace of Allah be upon him) said: “The child is to be attributed to the bed (i.e., to the husband) and the adulterer deserves nothing.” Agreed upon. The relevant point here is that the Prophet (blessings and peace of Allah be upon him) did not describe the child as belonging to anyone other than the bed (i.e., the husband), and he said that the adulterer did not deserve anything at all. Attributing the child to the adulterer is attributing the child to someone other than the husband. 

The words: “The child is to be attributed to the husband” imply that attribution of the child is to be to the marriage only. 

  1. That if the zaani acknowledges his illegitimate child, then he is to be attributed to him.

This is the view of ‘Urwah ibn az-Zubayr, Sulaymaan ibn Yasaar, al-Hasan al-Basri, Ibn Sireen, Ibraaheem an-Nakha‘i, and Ishaaq ibn Raahawayh, as was narrated from them by Ibn Qudaamah in al-Mughni (9/123) 

This view was favoured by Shaykh al-Islam Ibn Taymiyah (may Allah have mercy on him) and his student Ibn al-Qayyim. 

Among contemporary scholars it was also favoured by Shaykh Muhammad Rasheed Rida in Tafseer al-Manaar (4/382), and by Shaykh Ibn ‘Uthaymeen (may Allah have mercy on him), as in ash-Sharh al-Mumti‘ (12/127). 

That is because this child was born from his sperm, so he is his son in reality, and there is no clear, sound, shar‘i evidence to indicate that he should not be attributed to him. 

With regard to the hadith “The child is to be attributed to the bed (i.e., to the husband) and the adulterer deserves nothing”, it refers to the case where there is a marriage, and the issue under discussion here has to do with a case where there is no marriage. 

This is supported by what is mentioned in the story of the devoted worshipper Jurayj, when he spoke to the child whose mother had committed zina with the shepherd: “He said: ‘Who is your father, O child?’ The child said: ‘The shepherd.’” Agreed upon. 

The speech of this infant was by way of a miracle and extraordinary event bestowed by Allah, and he stated that the shepherd was his father, even though the relationship was one of zina. This proves that paternity may be attributed to the zaani. 

Moreover, the Lawgiver seeks to protect lineages and take care of children, and to give them the best upbringing and protect them from being lost. 

We have previously discussed the matter in detail and explained the different scholarly opinions concerning it, and the evidence for each view, in the answer to question no. 192131. 

Conclusion: 

The view that it is forbidden or permissible (to attribute an illegitimate child to his father) are two scholarly views that carry weight. This issue is one of the matters that are open to ijtihaad, so every case should be examined on its own merits. If the child will miss out on some religious or worldly interests (by not being attributed to his father), then we should adopt the view that it is permissible to attribute him to his father, in the interest of protecting him and ensuring that he will be taken care of, which is a legitimate shar‘i interest. 

And Allah knows best.’.

From the above ruling of the Islamic scholar, it is clear the reason why Islam frowns at such illicit relationship! In my humble view, the ‘boy-friend’- ‘girl-friend’ relationship which allows persons of opposite sexes to freely interact (illegal exposure) and bad peer’s influences are likely responsible for the sexual relationship that some of the Muslim youths of today find themselves in. That is why every parent and individual male and female must prevent this kind of sinful occasion! See: Quran 24: 30-31.  And Allaah says in Quran 24: 33 thus ‘And let those who find not the financial means for marriage keep themselves chaste, until Allaah enriches them of His Bounty…’.  Prophet Muhammad (may Allaah’s blessings and peace be upon him) also said thus ‘O group of young men! Whoever among you is able to afford it then let him get married. For verily it is better for lowering the gaze and it is safer for the private parts’. (Reported by AL-Bukahri and Muslim).

Finally, it is my humble submission that ‘virginity’ is a relevant factor in considering who a Muslim male or a Muslim female gets him or herself engaged to for the purpose of Islamic marriage. Illegal sexual relationship incurs the wrath of Allaah and destroys the tenets of a Muslim family! 

In conclusion, Allaah admonishes both Muslim males and females by His saying in Quran:70-71 thus ‘O you who believe! Keep your duty to Allaah and fear Him, and speak (always) the truth. He will direct you to do righteous good deeds and will forgive you your sins. And whosoever obeys Allaah and His Messenger, he has indeed achieved a great achievement’.

Praise be to Allaah!

Email: hameed_ajibola@yahoo.com

 

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