Q&A (Fatwa)
#27. RESPONSE TO THE QUESTION ON THE MARITAL NAME FOR WOMEN
“what is the Islamic rules of a woman changing her dad name to her husband’s?”
ANSWER
Alhamdulillaah!
The question which is asked require a proper analysis for us to understand it.
This was the tradition of the English and French Clans in the past that was rooted in the legal Doctrine of COVERTURE.
COVERTURE was a legal doctrine whereby, upon marriagae, a woman’s legal rights and obligations were subsumed by those of her husband in accordance with the wife’s legal status of ‘feme covert’ (married woman). Whereas, an unmarried woman, a ‘feme sole’ had the right to own property and make contracts in her own name. This doctrine was enshrined in the British Common Law for several centuries and throughout most of the 19th Century.
And because Britain colonized many of the Muslim world today, they tried to establish their laws and customs in the places they left behind.
Some historians have said that the Coverture Law was similar to the Roman-Dutch Law (Roman Law) and the Napoleonic Code (the French Law promulgated by Napoleon Bonapetre)
All of this was for reasons. One explanation is that in their early days, the English were wanders and pastorals who moved about in the high and lowlands with members of their clans so it was expected that when a man married a woman from another clan and she comes into her husband’s clan, she adopts her husband’s clan name for identity. This is one explanation made by some historians but it seems unreasonable for the fact that in the days of the Coverture Doctrine, the British were not wanderers
The second explanation which is attested to by historical facts and ration is that the tradition of the Romans passed to Europe and the England particularly was to the effect that a woman when she gets married is completely under the direction, control and discretion of the husband’s and was not allowed to do anything of her own. Anything legal of hers was to be done by the husband. And in France it was to the extent that some tribes considered marriage a form of possession. This is the truth of the Common Law of Coverture and that was why in the late 19th centuries the Feminist Movements and later the Frugalists particularly made emphatic references to this doctrine and explained the possessive manner in which men took women in the Western societies.
Much later, it simply became a tradition that people found difficult to throw off and it became a symbol of the wife’s love for her husband much after the abolishment of the Coverture Law.
And because most name changes after marriage in the modern time require long court proceedings that cost much, most women today in the west do not abide by that tradition – due to the cost.
———————–***———————
As for us in Islam, we say:
Firstly, it is true that Allaah – ta’ala – in the Qur’an forbade us from calling anybody by other than his father’s name by attribution.
((ادعوهم لآبائهم هو أقسط عند الله فإن لم تعلموا آبائهم فإخوانكم في الدين ومواليكم وليس عليكم جناح فيما أخطأتم به ولكن ما تعمدت قلوبكم وكان الله غفورا رحيما)) الأحزاب ٥
“Call them by the name of their fathers, that is more just with Allah. But if you know not their father’s (names, call them) your brothers in faith and your freed slaves. And there is no sin on you concerning that in which you made mistake except for that which your hearts deliberately intend. And Allah is Ever Oft-Forgiving, Most Merciful.” Suratu Al-Ahzaab: 5
Of course the verse is particularly referring to the surnames of adopted sons, some of the scholars use it generally to refer to any forms of false attributions due to the Hadith found in Sahih Bukhaari:
From Sa’d bn Abi Waqqaas and Abi Baqrah that:
“I heard with my ears and my heart grasped Muhammad – salallahu alayhi wasallam – saying:
“Whosoever attributes himself to other than his father’s name with his knowledge that he is not his father, then Jannah is Haraam for him.”
This was the tradition of the English and French Clans in the past that was rooted in the legal Doctrine of COVERTURE.
COVERTURE was a legal doctrine whereby, upon marriagae, a woman’s legal rights and obligations were subsumed by those of her husband in accordance with the wife’s legal status of ‘feme covert’ (married woman). Whereas, an unmarried woman, a ‘feme sole’ had the right to own property and make contracts in her own name. This doctrine was enshrined in the British Common Law for several centuries and throughout most of the 19th Century.
And because Britain colonized many of the Muslim world today, they tried to establish their laws and customs in the places they left behind.
Some historians have said that the Coverture Law was similar to the Roman-Dutch Law (Roman Law) and the Napoleonic Code (the French Law promulgated by Napoleon Bonapetre)
All of this was for reasons. One explanation is that in their early days, the English were wanders and pastorals who moved about in the high and lowlands with members of their clans so it was expected that when a man married a woman from another clan and she comes into her husband’s clan, she adopts her husband’s clan name for identity. This is one explanation made by some historians but it seems unreasonable for the fact that in the days of the Coverture Doctrine, the British were not wanderers
The second explanation which is attested to by historical facts and ration is that the tradition of the Romans passed to Europe and the England particularly was to the effect that a woman when she gets married is completely under the direction, control and discretion of the husband’s and was not allowed to do anything of her own. Anything legal of hers was to be done by the husband. And in France it was to the extent that some tribes considered marriage a form of possession. This is the truth of the Common Law of Coverture and that was why in the late 19th centuries the Feminist Movements and later the Frugalists particularly made emphatic references to this doctrine and explained the possessive manner in which men took women in the Western societies.
Much later, it simply became a tradition that people found difficult to throw off and it became a symbol of the wife’s love for her husband much after the abolishment of the Coverture Law.
And because most name changes after marriage in the modern time require long court proceedings that cost much, most women today in the west do not abide by that tradition – due to the cost.
———————–***———————
As for us in Islam, we say:
Firstly, it is true that Allaah – ta’ala – in the Qur’an forbade us from calling anybody by other than his father’s name by attribution.
((ادعوهم لآبائهم هو أقسط عند الله فإن لم تعلموا آبائهم فإخوانكم في الدين ومواليكم وليس عليكم جناح فيما أخطأتم به ولكن ما تعمدت قلوبكم وكان الله غفورا رحيما)) الأحزاب ٥
“Call them by the name of their fathers, that is more just with Allah. But if you know not their father’s (names, call them) your brothers in faith and your freed slaves. And there is no sin on you concerning that in which you made mistake except for that which your hearts deliberately intend. And Allah is Ever Oft-Forgiving, Most Merciful.” Suratu Al-Ahzaab: 5
Of course the verse is particularly referring to the surnames of adopted sons, some of the scholars use it generally to refer to any forms of false attributions due to the Hadith found in Sahih Bukhaari:
From Sa’d bn Abi Waqqaas and Abi Baqrah that:
“I heard with my ears and my heart grasped Muhammad – salallahu alayhi wasallam – saying:
“Whosoever attributes himself to other than his father’s name with his knowledge that he is not his father, then Jannah is Haraam for him.”
It is for this reason that most of the Ulama prohibit such a tradition since attributing to the husband’s father’s name or family name is a form of what is narrated in the hadith above.
Some other Ulama permit it by saying that this practice – been a tradition – is not a form of being called by the name of someone who is not her father. Rather it is a mere indication of the home to which she got married. And to prevent mix-ups, there is always a reference to the ‘Maiden Name’ of a woman (i.e. Her name before marriage). They argue that the ‘illa’ (causative factor) for which the Shari’a prohibited that was in order to preserve the lineage and pedigree and prevent a mix-up of names and clans, and as a way of preventing deceptions and cheating. And since everybody in the society knows that this is a tradition that is followed, mix-ups and deception by so doing is not a near possibility.
This argument, as coherent as it seems cannot hold grounds when confronted with the Hadith in which the Rasul – salallaahu alayhi wasallam – said:
(ومن تشبه بقوم فإنه منهم)
“And whosoever emulates a people, then he is one of them”
The Hadith was recorded by Imaam Ahmad in his Musnad and Abu Daawud in his Sunan both from Abdullah bn Umar – radiyallaahu anhuma. And graded Sahih by Al-Haafidh Ibn Hajar and Shaykh Al-Albaani
Whosoever adopts this tradition is evidently not adopting the Sunnah of the Rasul – salallaahu alayhi wasallam – but the tradition of the French and English west. This is something which we are prohibited from doing.
Some other Ulama permit it by saying that this practice – been a tradition – is not a form of being called by the name of someone who is not her father. Rather it is a mere indication of the home to which she got married. And to prevent mix-ups, there is always a reference to the ‘Maiden Name’ of a woman (i.e. Her name before marriage). They argue that the ‘illa’ (causative factor) for which the Shari’a prohibited that was in order to preserve the lineage and pedigree and prevent a mix-up of names and clans, and as a way of preventing deceptions and cheating. And since everybody in the society knows that this is a tradition that is followed, mix-ups and deception by so doing is not a near possibility.
This argument, as coherent as it seems cannot hold grounds when confronted with the Hadith in which the Rasul – salallaahu alayhi wasallam – said:
(ومن تشبه بقوم فإنه منهم)
“And whosoever emulates a people, then he is one of them”
The Hadith was recorded by Imaam Ahmad in his Musnad and Abu Daawud in his Sunan both from Abdullah bn Umar – radiyallaahu anhuma. And graded Sahih by Al-Haafidh Ibn Hajar and Shaykh Al-Albaani
Whosoever adopts this tradition is evidently not adopting the Sunnah of the Rasul – salallaahu alayhi wasallam – but the tradition of the French and English west. This is something which we are prohibited from doing.
Allaahu A’alam
Baarakallaahu Feekum
Jazaakumullaahu khayran
Baarakallaahu Feekum
Jazaakumullaahu khayran
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