Same sex marriages – 3
In a discussion on Planet Bahai, one of the participants pointed to details of the ‘Questions and Answers’ section in the Aqdas which she felt could not be applied mutatis mutandis to same-sex marriage.
> OK, but what about the many questions and answers in the Aqdas,
> answers given by Baha’u'llah Himself, in which it is clear that
> marriage is only between a man and a woman? Like this one
> ANSWER: Marriage is conditional upon the consent
> of the parents of both parties to the marriage,
> and in this respect it maketh no difference whether
> the bride be a virgin or otherwise.
(Baha’u'llah, The Kitab-i-Aqdas, p. 111)
My response (August 23, 2009)
You probably know that in Islamic law, a woman but not a man is usually required to get the permission of her father/grandfather (but not the permission of her mother/grandmother). Instead of abolishing this obviously unequal law, Baha’u'llah required both men and women to get permission from both the mother and father.
One of the points on which the various schools of Islamic law differ, is whether a woman who has been previously married still requires the permission of her father, if she marries for a second time. The Shiah jurisprudents say no: it is only a “virgin” who requires permission. The word ‘virgin’ is used, but the issue is not whether she is virgo intacta, but whether she has been previously married. The Shia argue that the requirement of permission is because a young girl may not be fully rational/mature in mind, but a woman who has been previously married is able to know her own best interests and therefore does not require her father’s permission (or that of the father’s father if her father has died or is absent). Some Sunnis however argue that a woman is legally unable to make any contract, and therefore always needs a man to act on her behalf. Baha’u'however says that permission is required in every case, and this applies to both men and women, and this is logical because the requirement is not based on the inability of young people to know their own best interests, it is based in Bahai teachings on the importance of unity between the families. So logically, it makes no difference how old and mature and experienced they may be, they still need permission.
QUESTION: Concerning the betrothal of a girl before maturity.
ANSWER: This practice hath been pronounced unlawful by the Source of Authority, and it is unlawful to announce a marriage earlier than ninety-five days before the wedding. (Baha’u'llah, The Kitab-i-Aqdas, p. 120)
In Islamic law, parents acting on behalf of minors can marry them or engage them to be married. The children might then be “engaged” for years, or the marriage contract might actually be drawn up, but the bride then returns to her father’s home and lives there for years. Hence the reference to the length of engagement in answering this question. The marriage is not actually concluded until (a) the contract is drawn up, including stipulations about the dowry, and (b) it is physically consummated. A boy is counted as “adult” for legal purposes when he is capable of consummating a marriage, so the issue of a boy “marrying” while a minor doesn’t arise. The custom in any case was for husbands to be older than wives, sometimes by decades. So the question asked is naturally about the betrothal of young girls, not young boys. Nevertheless the principle applies to both: a Bahai marriage is not possible until both partners have attained the age of maturity.
47. QUESTION: Supposing that a man hath wed a certain woman believing her to be a virgin and he hath paid her the dowry, but at the time of consummation it becometh evident that she is not a virgin, are the expenses and the dowry to be repaid or not? And if the marriage had been made conditional upon virginity, doth the unfulfilled condition invalidate that which was condition
I’m not sure of your point here. If the reference is to physical female virginity rather than previous marriage, then two men marrying can hardly stipulate it, while two women marrying could both stipulate it. This Answer doesn’t prevent same-sex marriage, it is simply non-applicable to same-sex male marriage. But it is also non-applicable to mixed-sex marriage, except in the specific case discussed.
Your 3 examples shows the questioner was thinking in terms of mixed-sex marriage, and raising questions that arose in Shiah jurisprudence. That’s not strange: the questioner was Zayn al-Muqarrabin, and he was a Shiah mujtahid before becoming a Bahai.
Your question illustrates something that Shoghi Effendi remarked on somewhere: that it is very helpful for Bahais to get to know Islam and especially the Islamic institutions (such as the marriage of minors) that are background to our own institutions. I wrote a thin book on Iranian family law, which is intended for contemporary use but includes something on the traditional Shiah law on each question. You can download the book as a [pdf]document through my [web site] : scroll down to “family law in Iran” to find it.
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