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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
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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.
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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.
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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.
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