Qur'an 9:129 "...Allah is sufficient for me. There is none worthy of worship but Him. I have placed my trust in Him, and He is the Lord of the Majestic Throne."
Psalms 62:1 "My soul waits silently for God; from Him comes my salvation."
But overriding the opinion of the Mad'dhabs, is that of the Sahaba. There was Ijma (Consensus) amongst the Sahaba themselves that making such stipulations is both permissible and valid under Shariah. All Muslims would recognise the opinion of the Sahaba as superior to that of the later jurists and Mad'dhabs.
Here is a list of Sahaba who recognise such stipulations:
Umar bin al-Khattab
Sa‘d bin Abi Waqas
‘Amr bin al- ‘Aas
Umar ibn Khattab (RA) himself said that the man's right is overruled by his agreement to the wife's stipulation. (Reported by Ibn Abi Shaybah in his Musaanaf (Vol. 4 pages 199). As well it is found in the Sunnan of Sa‘eed bin Mansour (Vo1. 1, Pg. 185)).
The Hanafi scholars and Shafi'i scholars use the Hadith "Every stipulation which is not in the book of Allah is void even if it be one hundred stipulations." [Muslim & Bukhari]
They also cite the following extension to the hadith mentioned earlier about stipulations:
"Muslims are bound by their stipulations except for a stipulation which makes the unlawful lawful or makes the lawful unlawful."
However, this version of the hadith with the added sentence is weak and cannot be used as evidence. As for the hadith mentioned earlier that "The conditions which you have the most duty to fulfill are those by which you have made marital relations lawful.", they claim that this only applies to the conditions which are essential parts of the nature of the contract itself.
The scholars who permit such stipulations in the marriage contract have responded to the above. As for the hadith "Every stipulations which is not in the book of Allah...", they say that for a woman's wali to make some conditions to her advantage is something permissible and does not go against the Book of Allah.
Actually, such conditions do not violate the Book of Allah and do not make anything forbidden permissible, etc. They simply give the woman the right to annul the marriage if the condition is not satisfied.
Also, there remains no real meaning to the hadith "The conditions which you have the most duty to fulfill..." if one says that it only applies to conditions that are already in force due to the nature of the contract anyway.
We also have in Malik Muwatta a mention of the validity of stipulating that there will be no second wives or concubines as long as there is an attached oath of divorce:
Hadith no: 16
Narrated / Authority of:
Malik said, "The custom among us is that when a man marries a woman, and he makes a condition in the marriage contract that he will not marry after her or take a concubine, it means nothing unless there is an oath of divorce or setting-free attached to it. Then it is obliged and required of him."
The preponderent opinion of the jurists is that it is obligatory for the man to fulfill all the conditions of the marriage. Because the Prophet said that the "Conditions most worth fulfilling are those which make your wife legal for you".
Unfortunately some people like to twist the whole scenario around and say "Oh, the stipulation only gives the woman the right of divorce". When in fact it is obligatory for the husband to fulfill the conditions. He will be sinning for breaching any condition in the marriage contract.
In Islam marriage is a contract. You can put in any halal stipulation in there and it is obligatory for the husband to fulfill them. And if he fails to fulfill them he sins and a woman gets the right to annul the marriage. Same with stipulating no polygamy clauses in the marriage contract (and "no concubine" clauses as well). The man has to fulfill the stipulation or else he will sin for breaking his promise and the woman will be entitled to leave him if he does.
Last edited by Configurator; 11-04-2013 at 01:42 AM.