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NIGORA YUSUPOVA. SPECIFIC FEATURES OF FAMILY RELATIONS IN ISLAMIC LAW // The article was written for the bulletin "Russia and the Moslem World."
Keywords: Islamic law, the Koran, Sharia, marriage, family code, Uzbekistan, moral and ethical norms.
Nigora Yusupova,
PhD(Law), Assistant Professor, Tashkent Islamic University
Abstract: The author of the article analyzes the concept of Islamic marriage, the Islamic family, the modern family code in Uzbekistan, as well as the attitude of Uzbek society to marriage through the prism of customs and traditions.
According to the Constitution of the Republic of Uzbekistan, religion is separated from the state. But it is not separated from society. The role and place of religion in society are growing constantly, inasmuch as it should help it in its moral progress.
The norms of Islamic law determine the rules of human behavior in family and society and elaborate the religious, ethical and legal issues of society. According to Article 2 of the Family Code of the Republic of Uzbekistan, family relations are regulated on the basis of the principle of the voluntary alliance of man and woman, equality of personal and property rights of the wedded pair, settlement of family problems by mutual consent, priority of family upbringing of children, care of their welfare and development, protection of the rights and interests of minors and non-working or disabled family members.
All citizens have equal rights in family relations. There should be no direct or indirect restriction of rights, establishment of direct or indirect advantages in marriage, interference in family relations depending on sex, race, nationality, language, religion, social origin, convictions, personal or social position, and other circumstances. Citizens' rights in family relations can only be limited on the basis of law and to a degree necessary for the
protection of morality, honor, dignity, health, rights and interests of other family members or other citizens protected by law.
Equality of men and women in marriage is also based on Article 46 of the Constitution which guarantees equality of men and women.
It should be noted that the legislation of the Republic of Uzbekistan grants an opportunity to use local customs, habits and traditions in family life. Article 8 of the Family Code says that in the absence of corresponding norms in regulating family relations local habits, customs and traditions can be used, which do not contradict the legislative principles of the Republic of Uzbekistan.
Islamic law regards wedlock a sacred act, family is a must of joint life. Islamic law does not allow joint life of man and woman out of wedlock. This is a factor strengthening family relations.
Islamic law does not approve divorce, it is allowed only in case of impossibility to live together.
Mutual consent is the main condition for concluding marriage by Islamic religion, coercion in concluding marriage is banned. The Family Code of the Republic of Uzbekistan emphasizes the principle of voluntariness in concluding marriage. Woman's consent is especially important.
Islamic law demands participation of witnesses in the marriage ceremony: two men or one man and two women. Marriage concluded without the presence of witnesses is null and void.
According to Islamic law husband and wife should be equal and fit to each other in the following six positions: origin, religion, freedom, wealth, profession and belief. In our view these conditions are relative. Besides, they should refer mainly to the husband because they stem from the social stratification of society and are regulated by the community of people.
One of the specific aspects of Islamic law is the custom to make presents (mahr) to the wife. It serves as a guarantee from the speedy break-up of marriage either by husband or wife.
Mahr is a material value given to woman as a sign of recognition of her acceptance of man's proposal to conclude marriage.
In the family and marriage code of Islamic law there is detailed information about women who should not be married. The Koran also contains it. Article 16 of the Family Code of the Republic of Uzbekistan well describes reasons for which marriages should not be concluded.
Serene life after marriage depends on many conditions. Whoever wants to be happy in his family life and create a healthy and firm family should be very serious in choosing his life companion. This is specially emphasized in Islam. Prophet Mohammed said that wives should be chosen proceeding from four factors: wealth, beauty, social origin and religion and piety. Her religiousness determines her honesty, cleanliness, decency and humaneness.
Islam regards marriages as a union of two equal persons formed voluntarily and on the basis of the Sharia law. As a result of such marriage rights and duties of the newlyweds emerge, that is, property and non-property rights and duties of husband and wife.
It should be noted that far from all relations between husband and wife are regulated by legislation. Personal traits and qualities are also important.
Summing up what has been said one can conclude that Islam regards marriage as a union of two equal persons created freely, voluntarily, and on the basis of the Sharia law. As a result, the newlyweds are faced with new rights and duties, both property and non-property.
It should be noted that it is not all relations between husband and wife that are regulated by legislation. Their personal qualities also play a major role. Much is regulated on the basis of ethical standards and due to mutual love, respect and support.
Husband and wife have equal rights and duties in family, and they jointly decide problems of the upbringing and education of children, as well as other matters.
Breast-feeding is regarded very important by Islamic law, for mother's milk is the most nutritious food for the child. The Koran established that mothers should breast-feed their children for two years.
According to Islamic law, the following property rights exist and are used on the basis of the estate of matrimony: mahr (dowry, present), nafaka (pension, payment) and inheritance. Mahr and nafaka are within the jurisdiction of woman, and the right to inheritance belong to both husband and wife.
Nafaka is one of the property rights of woman. Islamic law means by this term providing the wife, children and parents with food products, clothes and place to live by man. Nafaka is the basis of life of husband and wife and guarantee of reliable and firm family life.
In Islam the basic and sacred condition of creating family is marriage approved by the Sharia law.
In Islam the family is based on the laws and principles ensuring natural biological and physiological requirements of human beings, their spiritual upbringing and material position. Islam calls for concluding marriage on the basis of the Sharia law. Such marriage ensures stability of mores and morals in society, social unity, accord and immutability, is a guarantee of a healthy society and entire humanity, it teaches people responsibility for themselves and preserves health of the present and future generations.
