Fatwa's Insights - Kinship
Marriage Where The Wife Waives Certain Of Her Rights
THE 61ST MEETING OF THE PERLIS STATE FATWA COMMITTEE / 2023
1 FEBRUARI 2023 / 10 REJAB 1444H
MARRIAGE WHERE THE WIFE WAIVES CERTAIN OF HER RIGHTS
The ideal marriage is one in which the husband fully fulfills his responsibilities of maintenance, provision of housing, or equitable rotation among wives. This is the marriage that fulfills the true objectives of marriage as stated in the Shariah texts.
However, if the wife willingly and without being deceived relinquishes her right to maintenance, accommodation, or justice in the division of turns among wives, then such relinquishment of rights (during the marriage contract or after) is valid according to Shariah, as was done by Umm al-Mu'minin Saudah bint Zam'ah who gave her turn to 'Aishah r.a.
If a man marries a woman who agrees to waive her rights—whether maintenance, accommodation, or rotation among wives—without any form of coercion or deception from the husband, then such marriage is valid provided that the prescribed pillars of marriage are fulfilled.
The agreement to waive such rights, concluded between husband and wife, constitutes a binding Shariah ruling applicable between them in this world and the Hereafter.
This is because a Muslim must adhere to mutual agreements based on the hadith of the Prophet SAW:
الْمُسْلِمُونَ عَلَى شُرُوطِهِمْ
Meaning: "Muslims are bound by their stipulations". (Narrated by Abu Dawud, Hasan Sahih)
Therefore, the wife who has waived her rights must adhere to her original promise, pursuant to the evidence enjoining the fulfillment of promises and sinfulness of breaching agreements.
يَٰٓأَيُّهَا ٱلَّذِينَ ءَامَنُوٓاْ أَوۡفُواْ بِٱلۡعُقُودِۚ
Meaning: O you who have believed, fulfill [all] contracts. (al-Maidah: 1)
وَٱلۡمُوفُونَ بِعَهۡدِهِمۡ إِذَا عَٰهَدُواْۖ
Meaning: And [of] those who fulfill their covenant when they promise. (al-Baqarah: 177)
However, if the wife suddenly changes her position and then demands the return of her rights after a certain period, then according to some jurists this is permissible, namely the rights after she changes her decision, not before.
As for when mutual understanding between husband and wife is lost in determining this matter, then both parties may determine the direction of the marriage, whether to continue or otherwise.
To prevent disputes between husband and wife, such agreement to waive rights should be made in writing or before witnesses that can be verified. The type of rights waived and the duration of the agreement, if there are any, should be recorded.
Attendance of Members of the Perlis State Fatwa Committee:
1. YBhg. S.S Professor Dato' Arif Perkasa Dr Mohd Asri Bin Zainul Abidin – Mufti of Perlis;
2. Sahibul Fadhilah Ustaz Tajul Urus bin Abdul Halim – Deputy Mufti of Perlis;
3. Sahibul Fadhilah Dato' Dr. Johari bin Mat;
4. Sahibul Fadhilah Professor Dr. Muhamad Rozaimi bin Ramle;
5. Sahibul Fadhilah Professor Dr. Basri bin Ibrahim;
6. Sahibul Fadhilah Dr. Hj Zaharuddin Bin Hj Abdul Rahman;
7. Sahibul Fadhilah Professor Dr. Azman Bin Mohd Noor;
8. Sahibul Fadhilah Associate Professor Dr. Mohd Akram Bin Dato' Dahaman @ Dahlan;
9. Sahibul Fadhilah Dr. Kamilin bin Jamilin;
10. Sahibul Fadhilah Associate Professor Dr Ahmad Wifaq Bin Mokhtar;
11. Sahibul Fadhilah Ustaz Syed Abu Bakar Bin Syed Kamal Bharin;
12. Sahibul Fadhilah Dr. Muhammad Lukman Bin Mat Sin;
13. Ustaz Muhammad Khidhir Bin Abdul Ghani – Secretary.
RESOLVED at the Meeting of the Majlis Agama Islam dan Adat Istiadat Melayu Perlis Bil. 2/2023 on 3 April 2023.