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Marriage and the Individual with Special Needs

By Abdullah Matar Al Muzianah, Member of the Board of Governors

It cannot be denied that individuals with special needs are equal members of society and have the same rights as all others. One of the most important and often overlooked inherent rights is the right to marry. With the special needs population constantly growing and maturing every year, the question arises about whether individuals with special needs, regardless of whether male or female, are entitled to marry or should be deprived of the right.

In Islam, "marriage" is defined as "a contract between a man and a woman, who are deemed by the Sharia to be eligible to be married to each other, in order to form a family and possibly produce offspring". Islam encourages marriage, as it is beneficial to the individual, family and community as a whole.

Marriage is the solid base upon which families are built, and the "perfect community" is said to be made up of families that have a solid foundation. As the bond between husband and wife becomes stronger, the individual partners become stronger, the family unit becomes stronger and in the end the community as a whole becomes stronger.

In Islam, the intimate relations between husband and wife are not considered to be wrong or taboo. Actually, it is quite opposite; these are considered to be a natural part of life that should be nurtured, not suppressed. Like other human beings, once they reach puberty, depending on their particular disabilities, individuals with special needs usually have the same innate sexual urges. It is commonly known that any individual who is deprived of a legitimate means to fulfill this need may seek out any other means of gratification, leading to moral decay. Thus, in order to avoid this, it is the religious and moral duty of a person to get married.

Having identified Islam's point of view on marriage and made clear that people with special needs have the same needs as all others, it is apparent that marriage of people with special needs should be encouraged. However, the challenges faced by the person must be taken into account when deciding what is best for each individual case.

First and foremost, the disability suffered by the person must be specifically identified, whether physical or mental and whether the disability might be passed along to any offspring resulting from the marriage. In the light of today's advanced medical technology, such predications may be ascertained quite effectively.

With relevance to the subject, it must be mentioned that the majority of jurists and juri-consults, whose opinions are based on legitimate grounds consistent with Islam and who may be quoted and cited, did not make it a necessary stipulation that the spouse(s) entering into marriage contract be of sound of mind. They decided that a person with mental deficiencies may get married.

According to the Al Shafi School of Thought, a girl with such mental deficiencies may get married when it transpires that she is in need of such of marriage or that her recovery is expected consequently. According to the Maliki School of Thought, which is the School of Thought followed by the State and is applicable in its courts of law, the farther may compel a person with such mental deficiencies to enter into marriage, if no damage will result as a consequence - regardless of age, virginity of the bride or whether the intended spouse was formerly married. Also according to the Late Maliki Jurists, the Ruler should compel the person with mental deficiencies to marry if it is proved that marriage will keep him aloof from adultery and going astray.

It is commendable that in the UAE, the Legislature has taken into account such principles, incorporating it into the draft law of Personal Matters, and has not made "mental competence" a prerequisite for marriage. Instead, puberty is a condition for marriage providing that the special needs individual in question may enter into a marriage (a rule in which the decision is made on a case-be-case basis) and if it is in the individual's best interest.

Article (19) of the draft law provides that:

Competence to marry is conditioned upon puberty. Marriage of a minor, before attaining puberty, shall be deemed to be null and void.
The court may permit the marriage of a person with mental deficiencies if it is evident to it that the interest behind that marriage surpasses the damage arising from the same, after perusing the report of a commission of specialized physicians appointed in this respect.

Consequently, the kind of disability must be identified and specified in order to know whether the targets of marriage according to the principles of Islam may be achieved - i.e., fruition and enjoyment in the legitimate manner and possibly seeking offspring. It must be taken into consideration that no set standards may be fixed to suit every case, as the personal situation differs in each case. Thus, each individual case must be evaluated by specialized physicians, whose opinions are based on medical and scientific grounds. By taking into account the abilities and capabilities of the person with special needs, such a physician may direct his / her guardian in making the best decision. All this must take place under the control and supervision of the governmental bodies that are empowered t issue rules and regulations, and to enact and implement laws - in coordination and cooperation with centers, institutes and societies that render services to individuals with special needs.

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