#459: The Ruling of Al-Misyār

QUESTION

” Sallamu alaikum pls what is the ruling on misyaar in Islam”

ANSWER

Wa alaykum Salām Warahmatullāh Wabarakātuh

Alhamdulillāh.

What is meant by Al-Misyār is a recent form of Nikāh whereby the wife gives up a part of her Marital Rights as a condition before the Marriage Contract is concluded.

There could be two possibilities.

One: the wife agrees that she will remain in her own house, or in her family house and the man is free go visit her anytime he wills. This means that she forgo her right to housing and equal sharing of bedtime with his wives.

Two: the wife agrees to forgo her right to feeding or clothing and the man does not have to carry the burden of feeding his wife. She agrees to feed herself

What did the Ulamā say to this?

Majority of the Ulamā considered this form of Nikāh permissible but Makrūh, as long as the conditions of Nikāh which are Walī, the Offer and Acceptance, the Sadāq, the Presence of two witnesses, are complete and confirmed.

The evidence for this is that the forfeiture of rights of either husband or wife is permissible and the other party does not need to fulfil those rights as long as an open agreement on such forfeiture was made during the ‘Aqd.

Imām Ibn Abī Shaybah recorded from Āmir Ash-Sha’abī – rahimahullāh – that he was asked concerning a man that marries a second wife and then takes as a condition from her that he will spend one night with her, and two with the other. He replied that it were permissible. A similar narration has been recorded from Hasan Al-Basrī – rahimahullāh.

In like is the permissibility of a Marriage if the wife takes from her husband a condition that he must not take a second wife on her. If he agrees, then he must fulfil that condition.

However, some of the Ulamā have ruled on the impermissibility of this form of Nikāh based on the fact that some men use it as a cheap means to achieve their sinful and desirous aims and leave the family they make thereby a deficient one.

What is stronger of both positions, and Allāh knows best, is the position held by the majority, that it is permissibile though Makrūh especially putting in mind the circumstances of a lot of men in this time of ours that lack the means to feed and cloth their wives. This is conditioned on the fulfilment of all the conditions ( Shurūt) of Nikāh, and this been agreed by both parties – husband and wife.

And Allāh knows best
Bārakallāhu fīkum
Jazākumullāhu Khayran

8th Ramadān 1438

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