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Thursday, December 12, 2013

Islamic Marriage Articles, - Women's Rights in the Islamic Prenuptial Agreement:Use Them orLose Them








And among His Signs is this, that He created for you mates from among yourselves, that ye may dwell in tranquility with them, and He has put love and mercy between your (hearts): verily in that are Signs for those who reflect.[Qur'an 30:21 Yusuf Ali translation]
Agreat deal of heartache can be avoided by a woman in her marriage if she, as the bride-to-be, agrees to and signs acarefully consideredPrenuptial Agreement (also known as a Marriage Contract or Domestic Contract) that guards her rightsbeforeentering into wedlock. This is the crucial first step which will guarantee her rights throughout her marriage, because if problems should arise later on in the marriage, ignorance of the law will not be allowed as an excuse for the woman's failure to secure her rights. The Prenuptial Agreement can also guarantee a woman many of her Islamic rights, which can be enforceable by law (1)even if she lives in a western country. Arguably women's Islamic rights are more fair and equitable than the secular woman's rights in the west, so it makes sense to know just what her Islamic rights are and how they can be relinquished should she neglect to claim them before marriage. (2)A great deal of misinformation abounds concerning the Prenuptial Agreement and women's Islamic rights.Insha'Allah, this article will set the record straight, as much as possible, about what her Islamic rights are, and how to protect them with a carefully considered Prenuptial Agreement.
For the most part, we will address the western Muslim woman who is not only required to obey theShar'iah,but who must also comply with the secular laws of her own country. However, we will touch briefly upon a few major issues which affect women living in Eastern countries where polygyny (3)and other such Muslim laws are extant. Because of the diversity of laws from country to country, we can only discuss the Muslim woman's rights in a general as opposed to specific fashion.
To be enforceable by law, a Prenuptial Agreement must also comply with the laws of the country (as distinct from the Islamic Law of theShar'iah) in which it is drawn up and signed. This will guarantee that the agreement will be legally binding on both the husband and the wife, and should problems should later arise, the spouse will have protection under the law of his or her own country. It is therefore advisable for the couple to have at least a rudimentary understanding of the laws of their own respective countries in which they live.
Ideally it would be more advantageous for the couple to consult both a legal specialist in their own particular country and also a specialist in Islamic Law to help draw up their contract. We would suggest that the Prenuptial Agreement or Marriage Contract be drawn up by a religious leader in your community (i.e. theImamof your local mosque might be able to help) and then checked over by each of the bride and groom's respective lawyers. Muslim lawyers -- if available - would be preferable.
The Prenuptial Agreement - points to consider in your marriage contract
It is impossible in an article of this nature to cover all of the possible inclusions which could conceivably go into the Prenuptial Agreement, so we will focus mainly on those points which have a bearing on protecting a Muslim woman'sIslamicrights.
(a)Polygyny
If a woman does not feel that she could allow her husband to marry more than one woman at the same time, then Islam allows her the right to refuse him permission to do this at the outset of their marriage,however, she must indicate this preference in the Prenuptial Agreement or she will forfeit this right under the Islamic Law. If she is uncertain as to whether or not she will be opposed to her husband marrying a second wife later on, then she could include that in the agreement and thus make it binding upon her husband that he must consult her at that time and that he must then abide by her wishes. To say nothing, however, could possibly invite more pain than gain as far as her desires are concerned.
In the West, polygamy (4)is illegal. Even so, the woman may still request that her husband not marry a second wife, and put this in the contract. This sort of request would be considered spurious in the Prenuptial Contract because men in the west are already forbidden polygyny. Nonetheless it might still prove to be a useful addition to the contract at this time because later on the couple might possibly move to a country where polygyny is legal.
Although polygyny is illegal in Canada, if a person marries more than one wife anyway, then the second wife is cut off from access to her legal rights as a wifecompletely(i.e. inheritance,mahr,alimony, child custody, recognition as being a wife, etc.) because the second marriage is not legally recognized whatsoever by Canadian law authorities. Therefore she will not be treated equally under Canadian law to the first wife, who could easily go to a recognized legal authority to enforce her marital rights. The second wife will have no legal recourse whatsoever from Canadian law. So this is a strong argument against Muslims marrying a second wife in a country like Canada which will neither recognize nor enforce her Islamic legal rights when it comes to polygyny. Interestingly enough, it appears that the Canadian government is not entirely opposed to polygyny when it comes to immigrants. If the husband and his wives have already been married off of Canadian soil and should they immigrate to Canada, then the extra wives will be accorded equal protection under Canadian law as the first wife.
In any case, it would be a good idea to include a clause agreeing that the marriage will not be polygynous, if this is BOTH their preferences, for clarification between the two spouses and the Muslim community. It has already been mentioned that there is always the possibility that the couple could someday live in some other country that does recognize polygyny. So the couple may want to be clear on this point.
(b)Mahr
This is the dower, or gift from the groom to the bride, of either a fixed financial amount or even a property amount and it is usually given immediately at the time of the marriage. However, either some of it or all of it may be deferred until a later time where it would become payable to the wife either upon the death or divorce of her husband. This is her Islamic right. Therefore the details of its payment should be set outvery clearlyin the Prenuptial Agreement for this right to be accorded to the western Muslim woman. (i.e. that a certain portion of the dower will be paid at once or within a stated period, and the remainder upon the dissolution of the contract by either death or divorce.) For example, the bride could settle an appropriate amount of dower to cover the demands of life after either a divorce or the husband's death, or she could arrange for an annuity, or a fixed monthly amount payable to her upon the occurrence of either of those two events, so long as the Canadian rule against perpetuities is not contravened. There doesn't appear to be anything in Islamic law that prohibits a wife from looking after her own interests in this way in Canada.
In the U.S.A., however, Prenuptial agreements which "facilitate divorce or separation by providing for a settlement only in the event of such an occurrence are void as against public policy."This appears to mean that according U.S. law, a woman cannot claim her dower in the event of divorce,even thoughshe had agreed to this in her Prenuptial Agreement. So ladies, be forewarned about this issue if you happen to live in the U.S.A. [for more information click here].
(c)Divorce
In Islam, divorce is permitted when serious differences arise which cannot be resolved through reconciliation. However, it has to be thelast resort,for the Prophet p.b.u.h. has described divorce as the most detestable of all lawful things in the sight of God. Now divorce is probably the last thing in the world that a couple would want to consider when negotiating their Prenuptial Agreement, but since Islamic divorce law is far more reasonable and equitable than Western divorce law, it would be wise to commit to theShar'iahin your Prenuptial Agreement and in the early stages of marriage. Furthermore, this is the time when a woman may claim many of her Islamic rights.
There is a misguided notion both among western nations and even among Muslims themselves that under Muslim law a woman will get nothing from her husband towards her maintenance and living expenses beyond her probationary period ofIddat.This is a very simplistic notion and is clearly misleading.
In Islam the husband mayunilaterallydivorce his wife at any time, without specifying any reason, and a woman may do the sameas long asshe acquires this right when contracting her marriage. She can do this by negotiating and demanding that the prospective husband delegate to herself (or her nominated agent) the right to divorce herself at any time without assigning any reason. (5)It should be borne in mind that the procedure relating to the pronouncement of divorce can vary depending upon which school of law is followed by the husband and wife. (6)The prospective wife can also have the husband's right to divorce her curtailed in many other ways - all by demanding and having the required legal conditions included in the marriage contract - and these conditions would be just as enforceable in a court of law as any conditions of a civil contract.
In fact, themodus operandi, even in a so-called bilateral marital breakdown situation (i.e., where both the husband and the wife mutually agree to divorce) is always for one of the two spouses to take the initiative to call the marriage off. So, in reality, marriage breakdown situations almost always entail unilateral decisions and motivations. Therefore, given that there is often an unavoidable, unilateral dimension in initiating divorce proceedings, one could argue that to let either of the two spouses have the unilateral right to divorce the other will save both of them from endless argumentation and bickering that could ultimately lead them to very expensive and emotionally charged court litigation.
Currently, if you live in Canada, the couple must first legally separate for a period of one year before divorce will be granted. It is a very complicated process and each spouse is advised to retain his or her own lawyer. At the moment, a Canadian Muslim couple cannot obtain a divorce in Canada according to Muslim Law. However, there are things which can be done to minimize the trauma and legal expense as long asBOTHthe husband and wife are willing to compromise. Moreover, it would be very useful if they both had agreed to and signed a Prenuptial Agreement which had set out various prearranged issues such as child custody, maintenance, etc. and so if both the husband and the wife were willing to abide by this agreement, then the divorce could actually proceed quite smoothly.
(d)Financial Independence
According to Muslim Family Law, the responsibility for the wife's maintenance(nafqa)always remains with the husband. The wife has no corresponding obligation to support her husband. The Muslim law principle which has been jealously guarded and enforced by Muslim law courts is thata woman's property is hers alone. Period.Consequently, any property which a Muslim wife contributes towards the 'family's assets' (i.e. all the property accumulated during the marriage) remains hers alone and is not subject to division or sharing by the husband in the event of a marriage breakdown (unless otherwise agreed upon between the husband and wife). In other words, under the Muslim Law, her 'Net Family Property,' remains hers alone and with no corresponding obligation to share with her husband (unless both husband and wife have agreed to share). This is not the case in Ontario law. So to ensure that a woman's Islamic rights are protected in Canada, particularly with respect to the matrimonial home provision of the Ontario Law, it is suggested that both the husband and wife consult a specialist (i.e. lawyer who specializes in Ontario Family Law if they happen to live in Ontario) so as to explore with this lawyer the legal possibilities of accommodating the couple's wishes, as much as possible, by finding ways and means to legally circumvent the (Ontario) law with regards to the obligatory special equal sharing of the matrimonial home provision. (7)
It appears that in the U.S.A., the Prenuptial Agreement can successfully redefine each spouse's property as either separate property or community property, so the wife can specify her financial independence and ownership of property at this time. [For more details click here]
(e)Education and Employment
Muslim women may restate their God-given Islamic rights to education and independence to work (employment, business, professions, etc.) in the Prenuptial agreement at this time which could be used beneficially both in Muslim as well as non-Muslim countries. Women in the west have already been accorded these rights by law, although in practise the husband may or may not approve of a wife either working or getting a higher education. So it would be prudent for both the husband and the wife, either in the West or the East, to be clear on this issue so as to prevent discord and unhappiness in the marriage.
The Prenuptial Agreement may also provide for religious education and upbringing of the children in accordance with Islamic Law and traditions.
Conclusion
The Prenuptial Agreement can be likened to an 'insurance policy' for both Western and Eastern Muslim couples; and for the Muslim woman who wishes to adhere to the principles of Islam, she would be well advised to carefully consider her options. The couple may not necessarily consider themselves to be very religious in practice at the present time, but this could change many years down the road because one simply cannot know one's future. So it would be a good idea tocover all yourbasesas it were when considering your Prenuptial Agreement.
Whether you are a woman living in an Eastern Muslim country, or a woman living in a Western secular country, a carefully considered Prenuptial Agreement will prove to be an important asset to your marriage because (and most couples don't know this) the standard Marital Contracts that Mosques use, often do not claim those rights for women that are hers and these could be lost if not agreed upon in her Prenuptial Agreement. Particularly for women who live in Eastern Muslim countries, you cannot assume that because your country is governed for the most part by Muslim Law that your Islamic rights will be specified in this standard contract or that your rights will be protected if need be by your country's law. This may not be the case.
The reason why the importance and the practical need for a Prenuptial Contract seems to be ignored by such a large segment of the Muslim population is simply beyond comprehension. This lack of appreciation for the need for a Prenuptial Agreement seems to become even more appalling if one, as a Muslim, would recognize the fact that the Muslim marriage (Nikah/aqd)is itself a civil contract. It contains the basic ingredients of a regular everyday civil contract! The whole matrimonial relationship is based upon mutual agreement and consent of both the husband and the wife. From this point of view then, whoever said "a marriage contract is like is like a blank cheque on a joint account containing almost unlimited funds" really knew what he was talking about. Just as either the husband or the wife may decide to increase or decrease the funds held in their joint account, so too can they add any number of mutual rights and obligations into their Marriage/Prenuptial Contract. Nothing is carved in stone - everything can be changed, altered and amended. All that is required is a certain amount of good will and a sincere desire tolive happily ever after.
Among His signs is [the fact] that He has created spouses for you from among yourselves so that you may console yourselves with them. He has planted affection and mercy between you; in that are signs for people who think things over.[Qur'an 30:21









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Islamic Marriage Articles, - Sunnahs of the Waleemah








Importance of the Wedding Feast
The husband must sponsor a feast after the consummation of the marriage. This is based on the order of the Prophet (peace and blessings of Allaah be upon him) to one of his companions , Abur-Rahman ibn 'Auf (r) to do so, and on the hadith narrated by Buraida ibn At-Haseeb (r), who said: "When 'Ali (r) sought the hand of Faatimah (r) ,the Prophet's daughter, in marraige, he said that the Prophet (peace and blessings of Allaah be upon him) said:"A wedding (and in another version "a bridegroom") must have a feast."The narrator said: "Sa'ad (r) said: '(a feast) of a sheep.' Someone else said: 'Of such and such a quantity of corn." [Ahmad and at-Tabaraani: Its isnaad is acceptable as al-Haafiz Ibn Hajr says in Fathul-Baaree: 9/188]
The Sunnahs of the Wedding Feast
The following should be observed with regard to the wedding banquet:
First:It should be held ('aqb - Fathul Baaree: 9/242-244) three days after the first wedding night, since this is the tradition of the Prophet (peace and blessings of Allaah be upon him) which has reached us. On the authority of Anas (r) who said: "The Prophet (peace and blessings of Allaah be upon him) entered upon his wife and sent me to invite some men for food." [al-Bukhaaree and al-Baihaqi].
Also on the authority of Anas (r), he said: "The Prophet (peace and blessings of Allaah be upon him) married Safiya (r), and her freedom was her dowry. He gave the feast for three days." [Abu Ya'laa and others: Hasan].
Second:One should invite the righteous to his banquet whether they be rich or poor. The Prophet (peace and blessings of Allaah be upon him) said:"Do not be the friend of any except believers, and have only the pious eat your food."[Abu Dawood, at-Tirmidhee and others: Saheeh].
Third:If one is able, he should have a feast of one or more sheep. Based on the following hadith, Anas (r) said: "Abdur-Rahmaan (r) came to al-Madeenah, and the Prophet (peace and blessings of Allaah be upon him) assigned Sa'ad ibn Ar-Rabee' al-Ansaariy (r) as his brother. Sa'ad took him to his house, called for food, and they both ate. The Sa'ad said: "O my brother, I am the wealthiest of the people of al-Madeenah (in another version: "... of the Ansaar"), so look to half of my property and take it (in another version: "... and I will divide my garden in half"). Also, I have two wives (and you, my brother in Allaah, have no wife), so look to which of mine pleases you more, so I can divorce her for you. Then upon the completion of the prescribed waiting period, you may marry her." 'Abdur-Rahmaan said: "No, by Allaah, may Allah bless you in your family and your property. Show me the way to the market-place."And so they showed him the way to the market-place and he went there. He bought and he sold and he made a profit. In the evening , he came back to the people of his house with some dried milk for cooking and some ghee. After that some time elapsed, until he appeared one day with traces of saffron on his garments. The Prophet (peace and blessings of Allaah be upon him) said to him:"What is this?"He said: "O Messenger of Allaah (peace and blessings of Allaah be upon him), I have married a woman among the Ansaar." The Prophet (peace and blessings of Allaah be upon him) answered:"What did you give her for her dowry?"He answered: "The weight of five dirhams in gold." Then, the Prophet (peace and blessings of Allaah be upon him) said:"May Allaah bless you, give a feast if only with one sheep."'Abdur-Rahmaan said: "I have seen myself in such a state that if I were to lift a stone, I would expect to find some gold or silver under it." Anas said: "I saw after his death that each of his wives inherited one hundred thousand Dinars." [Al-Bukhaaree, an-Nasaa'ee and others].
Also on the authority of Anas (r) he said: "I never saw the Prophet (peace and blessings of Allaah be upon him) sponsor such a wedding feast as the one he gave for Zainab. He slaughtered a sheep and fed everyone meat and bread until they ate no more." [Al-Bukhaaree, Muslim and others].
It is allowed to give the wedding banquet with any food which is available and affordable, even if that does not include meat. This is based on the following hadith narrated by Anas (r): "The Prophet (peace and blessings of Allaah be upon him) stayed between Khaibar and al-Madeenah for three days during which he had entered with his wife Safiya (r). Then I invited the Muslims to his Wedding feast. There was neither meat nor bread at his feast. Rather, leather eating mats were brought out and on them were placed dates, dried milk, and clarified butter. The people ate their fill." [Al-Bukhaaree, Muslim and others].
It is commendable for the wealthy to help in the preparations for the wedding feast based on the hadith narrated by Anas (r) about the Prophet's (peace and blessings of Allaah be upon him) marriage to Safiya (r): "Then, when we were on the road, Umm Sulaim (r) prepared her (Safiya) for him (the Prophet and brought her to him at night, and so the the Prophet (peace and blessings of Allaah be upon him) awoke the next morning a new bridgegroom. Then he said:"Whoever has something, let him bring it."(In another version, he said"Whoever has an excess of provisions, let him bring it.") Anas continues: "And so the leather eating mats were spread out and one man would bring dried milk, another dates and another clarified butter and so they made Hais (hais is a mixture of the above three things). The people then ate of this hais and drank from pools of rainwater which were nearby, and that was the wedding feast of the Prophet (peace and blessings of Allaah be upon him)." [Al-Bukhaaree, Muslims and others].









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Women site, - Revealing Secrets, the Primary Adversary in Marital Life









Marital bliss is the dream of every engaged girl and the goal of every wife. It is a dream and goal which is worthy of us exerting our utmost effort to attain. To reap the fruits of these efforts, we should be aware of the mistakes and enemies which threaten them. The wise person is the one who learns from the experience of others. There are many homes that do not enjoy this marital happiness, even though the spouses have done their best to achieve it. This has happened because they made mistakes which rendered their efforts futile. To protect your happiness, beware of these mistakes and avoid the adversaries.
One of the gravest blunders is 'revealing secrets'. Family secrets are a trust which should be preserved. Being negligent in preserving this trust makes one lose her husband’s trust. Therefore, beware of making the secrets of your home the topic of your chat or a heart-to-heart talk as you might imagine. Do not think that your friend will keep your secret which you could not keep yourself.
First and foremost, keeping the secrets of your home in general, and especially your intimate relations with your husband, is required underSharee‘ahand is part of your worship of Allaah The Almighty. In aHadeethon the authority of Asmaa’ bint Yazeed, may Allaah be pleased with her, she said that she was once sitting with the Prophet,sallallaahu ‘alayhi wa sallam, while men and women were present and the Prophet,sallallaahu ‘alayhi wa sallam, said:“Perhaps a man says what he does with his wife ]to others[ and perhaps a woman says what she does with her husband.”The people remained silent.Asmaa’, may Allaah be pleased with her, then said, “Yes, O Messenger of Allaah, men and women do so.”Hesallallaahu ‘alayhi wa sallamsaid:“Do not do this. ]To do so[ is as if a male devil meets a female devil in the street and has sexual intercourse with her while people are watching them.”
Its Harm is Greater than its Benefit
Psychologists stress the fact that the wife’s heart-to-heart talk with her )female( friends and disclosing her home secrets mostly result in worry more than comfort. It is true that she may feel temporarily and immediately comfortable, but worry will dominate her when these secrets are spread and she reaps regret and loss. No man is ever pleased with having his marital life’s secrets disclosed. Umaamah bint Al-Haarith, may Allaah have mercy upon her, warned her daughter against this )before her wedding night( in her well-known advice when she said,“…If you reveal his secret, you will not be safe from his betrayal…”
Secrets are of Different Kinds and Degrees
The secrets of the home are not of the same degree of importance. There are secrets about the private relations between the spouses, which they should keep only to themselves. We previously mentioned the warning of the Prophet,sallallaahu ‘alayhi wa sallam, against revealing such secrets.
There are secrets that are relevant to the differences between the spouses. Revealing such secrets should be according to their gravity. The wise wife is the one who keeps these secrets and only reveals those which would help in solving the problem. However, she should not reveal them to her friends or relatives; rather, she should reveal them to those whom she believes to be wise and able to achieve the divine advice as conveyed in the verse where Allaah The Almighty Says )what means(:}And if you fear dissension between the two, send an arbitrator from his people and an arbitrator from her people. If they both desire reconciliation, Allaah will cause it between them. Indeed, Allaah Is ever Knowing and Acquainted ]with all things[.{]Quran 4:35[ However, the wife should not hasten to do so as soon as a problem occurs or when any tiny problem surfaces. There are many problems which do not need any interference from anyone; rather, they need some wisdom and patience on the wife’s part.
A mother says, “My daughter was married ten years ago, and she never complained to me or to the father of her husband. She only told me about a problem once it had been solved. Her only request, when she faces a problem, is to ask me to supplicate to Allaah The Almighty for her, and I therefore know that she is facing a problem when she asks me insistently to supplicate to Allaah The Almighty for her.”
There are secrets that are relevant to the private affairs of the house. Such secrets should also not be revealed so that the family does not become an open book before other people. Allaah The Almighty Says )what means(:}Allaah presents an example of those who disbelieved: the wife of Nooh ]Noah[ and the wife of Loote ]Lot[. They were under two of Our righteous servants but betrayed them.{]Quran 66:10[ Some of the scholars ofTafseer)Quranic exegesis( commented on this verse saying that betrayal here means that the wife of Nooh, may Allaah exalt his mention, used to reveal his secrets. If anyone believed in Nooh, may Allaah exalt his mention, she would reveal it to the tyrant disbelievers. When Loote, may Allaah exalt his mention, received any guests, his wife would tell the depraved people of the tribe who practiced evil deeds )sodomy( in order to go to these guests and practice their immoral acts with them.








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