Controversy has raged in some quarters over the issue of prospective couples' equality in lineage and the part played by the Saudi judiciary in characterizing this issue. Specialists feel that the issue has other dimensions not perceived fully by the media. Inequality should not be a ground for pronouncement of forced separation judgments, they feel. Foreign media has the tendency to pounce upon any chance to malign Saudi Arabia and browbeat the religion it practices. It leaves no stone unturned in castigating its culture, traditions and customs. A Shariah researcher and jurist has lamented the fact that the foreign media made a mole out of a mount hill by publicizing the recent news report on a couple forced to separate on grounds of inequality in lineage. It severely criticized the Saudi judiciary without probing the circumstances of the case, Al-Watan reported last week. The researcher, who asked not to be identified, said Saudi judges did not base their ruling on discriminatory norms and relied on the precepts of the Shariah which accommodates the interests of the parties involved. Furthermore, a judgment should not be seen in isolation without first identifying its rationale and justifications. The Supreme Judicial Council earlier this year quashed a verdict to abrogate a marriage contract when the woman expressed a strong desire to remain in wedlock. The woman also said she has support from her father and the marriage contract was valid from the Shariah point of view. The researcher told Al-Watan that the reluctance to marry off a female on reasons of lineage is a personal decision but that cancellation of religiously valid contracts made with the consent of a woman and her guardian is invalid. The researcher cited a verdict in the case of a Saudi girl who filed a lawsuit against her father for declining to marry her off to her cousin of a different Arab nationality. The judge ruled that the girl should be allowed to marry her cousin and that her guardianship should be transferred to the court. The marriage was sermonized last year. The researcher feels that the judges cited earlier cases decided as per Shariah, social and security aspects. He said the Supreme Judiciary Council's verdict has now become a religious rule that settled this issue prior to its being raised outside the Kingdom. Jurists and Shariah counselors ascribe the quashing of judgments by the Court of Cassation ordering forced separation of a couple on the basis of inequality in lineage to the fact that the condition of equality in lineage in matrimony is not an obligation or a desire but relates to tradition and customs. Additionally, jurists have unanimously reached a uniform definition of equality. Dr. Mohammad Al-Najimi, Professor of Comparative Jurisprudence at the Supreme Judiciary Institute, said jurists rely on the fact that when Prophet Muhammad, peace be upon him, began his preachings, marriage contracts were finalized on the basis of equality. The Prophet (pbuh) condoned the practice, he said. Moreover, there is no evidence to prove that Prophet Mohammad (pbuh) evoked this condition in marrying off some of his companions to affluent women or women of higher standing in society. Dr. Al-Najimi said the Prophet (pbuh) based his decision on the fact that consent of woman and her guardians was enough and condition of equality was secondary in nature. There was no evidence of marriages without the consent of woman and her guardians. Therefore, the issue of whether the marriage has become invalid due to inequality between the spouses cannot be raised, he said. Dr. Al-Najimi added that equality in lineage is not an obligation or a matter of personal preference but relates more to customs and habits of different people. He cited the example of Bilal, an Ethiopian slave, to a free woman belonging to supporters of the Prophet (pbuh). Dr. Al-Najimi quoted Imam Al-Shoukani as saying that a woman and her guardians are entitled to insist on the condition of equality in lineage. Therefore, if the guardians, including a woman's father, brothers, uncles and their male children, insist on the condition of equality, the judiciary is empowered with cancellation of the marriage. However, a number of scholars are of the view that marriage should not be cancelled if children were sired, which applies in the prevailing valid rule. Dr. Al-Najimi indicated however that if the marriage did not produce children, equality could be used as an argument to cancel it. Al-Najimi added that jurists have disagreed over defining equality as a majority believes that it refers to lineage while Ibn Al-Qayyem and followers of the Al-Maliki doctrine believe that it refers to devoutness and that all other matters are mundane and trivial. Al-Najimi asserted that judges should not hand down a judgment for forced separation of a couple based on the argument of inequality in lineage if the guardian had already endorsed the marriage, explaining that if the guardian has waived this right at the beginning of the marriage, he many not use this argument to threaten separation if the couple experiences problems. Sheikh Ibrahim Al-Khudairi, a judge at the Court of Cassation, said that Sharih could cancel the marriage contract if it does not satisfy all conditions or which entails harm to any member of the family or to the relatives or the husband or wife or even to a distant male cousin. He added that equality in lineage is one of the most disputed matters which gives rise to numerous problems, particularly if parties opposing the marriage appear after it is sermonized. Al-Khudairi asserted that the Ministry of Justice has instructed all marriage officials to obtain the consent of all parties before the marriage contract. Al-Khudairi said a marriage contract which fulfills all conditions and requirements may not be cancelled, adding however that a case of inequality in lineage renders the marriage contract incomplete by virtue of causing discontent or harm to a concerned party. Therefore, the Shariah permits cancellation of the marriage because such a move would be in the benefit of all. Al-Khudairi cited as an example the marriage of a man's son to a woman with AIDS, indicating that if the father or the brother or the cousin objected, the Shariah would consider the objection as valid and admissible. Attorney and legal counselor Khaled Al-Shahrani upheld the court ruling as it was based on Shariah rules. He defined prevention of marriage on the part of a woman's guardian as standing in the way of a woman marrying someone who is equal to her: “If the man and woman desire to be married, and both are equal in status, and the woman's guardian prevents her from marrying, she may approach a judge to marry her off,” he said. According to Hanbali and Hanafi schools of thought, equality is taken into consideration at the time of the marriage. “A woman should be married off to someone who is equal to her and it is proscribed for a woman's guardian to create hurdles in its way,” he said. He added that, principally, a man should be equal to a woman rather than a woman being equal to a man. “A woman with honor should shun marriage to a lowly man and a boy derives his pride and honor from that of his father, not that of his mother,” he said. Therefore, it is proscribed for a woman's guardian to marry her off to someone who is unequal to her, unless with her consent, as doing so would cause her harm. Furthermore, a guardian who would marry off a woman to someone who is not equal to her without her consent would be deemed as an immoral person. A number of jurists are of the view that equality is not a condition for validating a marriage contract as the marriage can be sermonized without the couple being equal in status. Equality is one of the rights of a woman and her guardian. If they are agreeable to waiving this condition no objection to this matter should be raised, they said. However, other jurists have different opinion. They hold that that validity of a marriage contract is conditional upon equality, citing as proof that caliph Omar vowed not to marry off women with honorable descent to men who are not their equals. Most jurists agree that equality must be established at the time of the marriage contract. Therefore, if the husband satisfies this condition, the marriage contract does not become void. In other words, equality should be given regard at the time of the marriage itself. Other jurists are of the view that if a man ceases to be equal to his wife, wife shall be the only party deciding whether to stay in marriage or walk out of wedlock. As for the woman's guardian, his right is restricted to the point when the marriage contract was sermonized and he shall have no say in future. Dr. Misfer Al-Qahtani, head of the Islamic Studies Department King Fahd University of Petroleum and Minerals, said most jurists regard equality in lineage as one of the conditions of matrimony while others believed that only equality in devoutness and piety should be the criteria. Prophet Muhammad (peace be upon him) regarded devoutness as the primary condition in matrimony and has forbidden Muslim women from marrying unfaithful men and honorable women from marrying non-honorable men, he said. He said the Noble Qur'an and the Sunnah have not made lineage, trade, wealth or freedom matrimonial conditions and have allowed free and wealthy women of noble descent to marry slaves but only if they are devout Muslims. Some jurists insist that equality is required to ensure that spouses and their offspring live in harmony in future and that any man is equal to any woman if their marriage does not stigmatize either of them. Therefore, a scholar is fit for a woman with noble descent even if his origins are unknown or modest based on the fact that knowledge is the most noble thing and carries no stigma. Guardians of a woman may object to and request annulment of a marriage contract to remove a stigma, unless they waive this right. Women have the right to request equality in matrimony if their guardians marry them off to men who are no equal to them, and may request annulment of the marriage contract. __
