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Subject : Refraining from Procreation Contradicts the Objectives of Marriage Contract

Fatwa Number : 3295

Date : 03-05-2017

Classified : Medicine & seeking treatment

Fatwa Type : Search Fatawaa

Question :

What is the ruling when the husband refrains from procreating because he doesn`t want to although his wife wants to have children, knowing that before getting married both spouses agreed not to have children for fear of some diseases?

The Answer :

Praise be to Allah, The Lord of The Worlds ;and may His peace and blessings be upon Prophet Muhammad and upon all His Family and companions.

Marriage is a blessed contract legislated by Allah for its great objectives upon which people`s interests rest. In fact, giving birth to many children is essential to the continuity of mankind, and this can`t be achieved save by marriage. In addition, a person is rewarded for getting married because by doing so he pleases Allah and wins the love of His Prophet(PBUH) who urged Muslims to have children as he said: " Marry the one who is fertile and loving, for I will boast of your great numbers.''{an-Nassai`}.

Article (5) of the Jordanian Civil Status Law defined marriage as: "A contract between a man and a woman intending to be unified in marriage to make a family and procreate." This article clearly indicates that having children is a key objective of marriage.

It isn`t permissible for the man to make not having children a condition in the marriage contract because it contradicts the objectives for which the contract was legislated. Moreover, although any similar condition is considered void, the contract is valid. On their part, Muslim jurists have stipulated that it is forbidden for the husband to threaten his wife with divorce if she wanted to get pregnant and insiste on that. This is because she has the right to have children. Al-Imam al-Mawardi stated: "A wife has the right to have children"{Al-Hawee al-Kabeer, 11/159}.

In addition, it is unjustified for both spouses to agree on not having children and it also contradicts the objectives of the marriage contract. In principle, both should solve this matter through mutual understanding in line with Sharia`s objective behind making a family, and that is having mercy and love between them. However, if they were afraid of diseases, we tell them, thanks to Allah, medicine is so advanced that it can overcome such diseases. And Allah knows best.



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