MUSLIM MARRIAGE

Meaning and Definition-

Meaning-

The Arabic word ‘Nikah’ (marriage) means “the union of sexes” and in law, this means
“marriage”. The term ‘Nikah’ has been used for marriage under Muslim law. ‘Nikah’ literally
means, “to tie up together”. It implies a particular contract for the purpose of legalizing
generation. Nikah in its primitive sense means carnal conjugation. It is a matrimonial contract as
well as an institution that gives the women a particular and high status in the society. Nikah was
to ensure stability in married life as it bound both the partners together for an indefinite period
and also required the woman to be honored with the mahr.

The Quran specifically refers to marriage as "mithaqun Ghalithun,". Which means "a strong
agreement".
The original meaning of the word nikah is the physical relationship between man and woman. It
is also used secondarily to refer to the contract of marriage which makes that relationship lawful.

Definition-
"A contract that results in the man and woman living with each other and supporting each other
within the limits of what has been laid down for them in terms of rights and obligations."

Under Section 2 of Muslim Women (Protection of Rights on Divorce) Act, 1986 Marriage or
Nikah among Muslims is a ‘Solemn Pact’ or ‘Mithaq-e-ghalid’ between a man & a woman
,soliciting each others life companionship, which in law takes the form of a contract.
Essentials of Marriage

The essentials of a valid marriage are as follows:-

(i) Civil Contract

- There should be a proposal made by or on behalf of one of the parties to the marriage,
and an acceptance of the proposal by or on behalf of the other party.
- A Muslim marriage requires proposal ‘Ijab’ from one party and acceptance ‘Qubul’ from
the other side. This must be done in one sitting.
- The proposal and acceptance must both be expressed at once meeting.
- The acceptance must be corresponding to what is being offered.

(ii) Capacity of Parties

- The parties must be competent.

- The two parties must be legally competent; i.e. they must be sane and adult.

(iii) Free Consent

- The consent given must be free consent.

- It must not be an outcome of compulsion, duess, coercion or undue influence.

(iv) Prohibited Degrees of Relationship

1. Absolute Incapacity or Prohibition arises from:

A. Prohibited Degrees of Relationship

(a) Consanguinity

(b) Affinity

(c) Fosterage
a) Consanguinity means blood relationship and bars a man from marrying:

1. His mother or grandmother how high so ever,

2. His daughter or grand-daughter how low so ever,

3. His sister whether full, consanguine or uterine,

4. His niece or great niece how low so ever,

5. His aunt (fathers sister, mothers sister) or great aunt, how high so ever, whether paternal
or maternal. A marriage with a woman prohibited by reason of consanguinity is void.
Issues from such marriage are illegitimate.

b) Affinity prohibits a man from marrying:

1. His wife's mother or grand-mother how high so ever

2. His wife's daughter or grand-daughter how low so ever

3. Wife of his father or paternal grand-father how high so ever

4. Wife of his son or son's son or daughter's son how low so ever. A marriage with a woman
prohibited by reason of affinity is void.

c) Fosterage means when a woman other than its own mother has suckled a child under the age
of two years, the woman becomes the foster-mother of the child. A man may not, for instance,
marry his foster-mother or her daughter, or his foster sister.

Exceptions

Under the Sunni law, there are a few exceptions to the general rule of prohibition on the ground
of fosterage and a valid marriage may be contracted with:

1. Sister's foster mother, or

2. Foster's sisters mother, or

3. Foster's sons sister, or

 4. Foster brother's sister.

The Shia jurists place fosterage and consanguinity on the same footing and refuse to recognize
the exception permitted by the Sunnis. The above mentioned prohibitions on account of
'consanguinity', 'affinity' or 'Fosterage' are absolute and the marriages contracted in contravention
of these rules are void.

B. Polyandry: means the fact of having more than one husband. Polyandry is forbidden in the
Muslim system and a married woman cannot marry second time so long as the first marriage
subsists.

2. Relative Incapacity or Prohibition:

Springs from cases which render the marriage invalid only so long as the cause which creates the
bar exist. The moment it is removed, the incapacity ends and the marriage become valid and
binding. The following are the cases:

a. Unlawful conjunction,

b. Polygamy, or marrying a fifth wife.

c. Absence of proper witnesses

d. Differences of religion

e. Woman undergoing Iddat

a. Unlawful conjunction: means contemporaneously marrying two women so related

to each other by consanguinity, affinity or fosterage, which they could not have
lawfully intermarried with each other if they had been of different sexes. Thus a
Muslim cannot marry two sisters, or an aunt and her niece.

Under the Shia Law, a Muslim may marry his wife's aunt, but he cannot marry his wife's niece
without her permission. Marriage prohibited by reason of unlawful conjunction is void under
Shia Law.
 b. Polygamy or marrying a fifth wife: means plurality of wives, i.e. marrying a fifth
wife. It is unlawful for a Mohammedan to have more wives than four.

A Muslim woman cannot marry more than one husband. If a woman marries a second husband,
she is liable for bigamy under Sec.494, Indian Penal Code and the issues of such a marriage are
illegitimate.

In India no Muslim marrying under or getting his marriage registered under The Special
Marriage Act, 1954, can marry a second wife during the lifetime of his spouse.

c. Absence of proper witnesses: It is essential amongst the Sunnis that at least two male
witnesses or one male or two female witnesses must be present to testify that the contract
was properly entered into between the parties. The witnesses must be of sound mind,
adult and Muslim.

In Shia Law, a marriage contracted by the spouses themselves or their guardians in private are
held valid. Presence of witnesses is not necessary.

d. Differences of religion: A Sunni male can marry a Muslim female (Of any sect) or a
Kitabia. Marriage with the Kitabia, i.e. a woman who believes in a revealed religion
possessing a Divine Book viz Islam, Christianity and Judaism is valid under the Sunni
Law. But he cannot marry an idolatress or a fire-worshiper. A marriage, however with a
idolatress or a fire worshiper is merely irregular in Sunni Law, but void in Shia Law. A
Muslim woman cannot marry any man who is not a Muslim, whether he is Kitabia (i.e.
man believing in a revealed religion possessing a divine book) or not.

According to Mulla , a marriage between a Muslim woman and Non-Muslim male is irregular.
But according to Fyzee , such a marriage is totally void

Under Shia Law, no Muslim, whether male or female can marry a non-Muslim in the Nikah
form.

Thus a marriage between a Muslim and a non-Muslim can only take place under The Special
Marriage Act, 1954.
 e. Woman undergoing Iddat : Iddat is a period during which it is incumbent upon a woman,
whose marriage has been dissolved by divorce or death of her husband to remain in
seclusion and to abstain from marrying another husband

Under Sunni Law marriage with a woman undergoing Iddat is irregular and not void. But under
Shia law marriage with a woman who is undergoing Iddat is void.
Object of Muslim Marriage-

The word Zawj is used in the Quran to mean a pair or a mate. The general purpose of marriage is
that the sexes can provide company to one another, procreate legitimate children & live in peace
& tranquility to the commandments of Allah.

In the words of M.A. Quareshi the main object of marriage is the promotion of day to day family
life and the legalization of children” Thus satisfaction of sex desire, mutual love, procreation and
legitimization of children are the main aims of the Muslim marriage. Since Muslim marriage is a
civil contract, it must fulfill certain essential conditions in order to be valid.

Nature of Muslim Marriage

There is divergence of opinion with regard to the nature of Muslim marriage. Some jurists are of
the opinion that Muslim marriage is purely a civil contract while others say it is a religious
sacrament in nature.

Marriage under Muslim law has similar characteristics as a contract. For instance:

 As marriage requires proposal (Ijab) from one party and acceptance (Qubul) from the
other so is the contract. Moreover, there can be no marriage without free consent and
such consent shouldn’t be obtained by means of fraud, coercion or undue influence.

 Just as in case of contract, entered into by a guardian, on attaining majority, so can a

marriage contract in Muslim law, be set aside by a minor on attaining the age of puberty.

 The parties to a Muslim marriage may enter into any ante-nuptial or post-nuptial
agreement which is enforceable by law provided it is reasonable and not opposed to the
policy of Islam. As is the case with a contract.

 Although discouraged both by the Holy Quran and Hadith, yet like any other contract,
there is also provision for the breach of marriage contract.
Justice Mahmood observed:

“ Marriage among Muhammedans is not a sacrament, but purely a civil contract; and though it
is solemnized generally with the recitation of certain verses from the Quran, yet the
Muhammedan law doesn’t positively prescribe any service peculiar to the occasion.”

He described that Muslim marriage was dependent upon declaration or proposal of the one and
the consent or the acceptance of the other of the contracting parties.

From the above observation, Justice Mahmood couldn’t be held to have taken the view that
marriage is nothing but purely a civil contract. As per him the dower in the Muslim marriage
shouldn’t be confused with consideration in the context of civil contract.

In a lucid and erudite judgment Pareed Pillay, J. of the Kerala High Court, in Adam v. Mammad,
has set out the salient feature of Islamic law of marriage. In the case before him, he held that
where the girl’s father had given his consent, and the daughter had withheld hers, no valid
marriage had taken place. Here the judge cited J. Mahmood’s classic dicta in Abdul
Qadir’s case, and upheld that for the validity of a marriage, consent is a must.

In Yusuf v. Sowramma, there is a popular misconception by J. V.R. Krishna Iyer that no

religious significance or social solemnity attach to Muslim marriage and it is merely a civil
contract. The learned judge doesn’t put forward any definite argument and hasn’t gone through
the principles of Shariah it is said.

Though sacramental nature of marriage is considered as an orthodox view it is also

supported by the Judiciary. Anis Begum v. Mohammad Istafa, is a leading case on the point
where C.J Sir Shah Sulaiman has tried to put a more balanced view of the Muslim marriage by
holding it both a civil contract and a religious sacrament.
Taking religious aspect into account Muslim marriage as a devotional act (ibadat). The Prophet
is reported to have said that marriage is essential for every physically fit Muslim who could
afford it.

Muslim marriage is not merely a contract because:

 unlike a civil contract, it cannot be made contingent on future event; and

 unlike civil contracts, it cannot be for a limited time (muta marriage is an exception).

 Unlike a civil contract, the analogy, of lien cannot be applied to a marriage contract.
Secondly, the contract of sale of goods may be canceled by unpaid seller. He may resell
the goods by rescinding such contract, whereas, in a contract of marriage, the wife is not
entitled to divorce her husband or to remain with a third person if a part of his dower
remains unpaid.

As per Dr.Jung:

“Marriage though essentially a contract is also a devotional act, its objects are rights of
enjoyment and procreation of children and regulation of social life in the interest of society.”

In the ultimate analysis it can be said that the marriage is Islam is neither purely a civil contract
nor as a sacrament. It is devoid of none but the blending of the two. The transition from the
sacramental indissolubility of marriage to the treatment of marriage, as a civil institution, is a
modern idea. It is a logical development of Anglo Muslim law. Marriage is nothing more or less
than the voluntary union of one man and one woman. The definitions that profound the idea of
marriage as a contract only represents one aspect of Muslim marriage. They ignore its ethical
importance and its religious value. They fail to realise the close and intimate relation between
religion and law in Muslim faith.
Classification of Marriage under Muslim Law

There are two sects of Muslims all over the world divided by their beliefs and traditions, viz.
Sunni Muslims and Shia Muslims. Marriages in both the sects are conducted in different ways
with different traditions and customs and because of which there are several forms of marriage
under Islamic law.

The classification of marriages under Muslim laws are:

1. Sahih Nikah (Valid Marriage)

2. Batil Nikah (Void Marriage)

3. Fasid Nikah (Irregular Marriage)

4. Muta Marriage

1. Sahih Nikah (Valid Marriage)

The term sahih is an Urdu term for the word ‘correct’ or ‘valid’ and as already
explained, nikah means marriage. When all the essential conditions of a Muslim marriage are
duly fulfilled, it is called a sahih nikah or valid marriage.

It means if two Muslim persons (one being the man and other a woman) enter into an agreement
by way of offer and acceptance and the groom has paid the mehr for the marriage to the bride, it
is a valid marriage.

There are certain social and legal implications of a valid marriage which can be enlisted
hereunder as follows:

- Due to the marriage, the parties acquire the rights of inheritance over the properties
which can be inherited.
- The kids, if any, who are born due to the consummation of a sahih marriage are
considered to be legitimate children.
- Although, the Muslim law does not allow maintenance to the file in case of a divorce
because it is believed that the dower paid at the time of marriage is sufficient for her
well-being. Nevertheless, the Supreme Court has made it clear that after a valid marriage,
the wife has to right to alimony and maintenance for her and the children.
- The right to maintenance is an independent right beside the right to receive the promised
dower.

2. Batil Nikah (Void Marriage)

According to the Indian Contract Act, 1872, an agreement which is not legally enforceable is
a void agreement.

Similarly, an agreement between a prospective bride and a groom which does not meet all the
essential conditions of a Muslim marriage is a void agreement and any marriage that takes
place in furtherance of a void agreement is called a void marriage or Batil nikah.

In Munshi v. Mst. Alam Bibi, the court observed that when there is a permanent or
perpetual prohibition from marriage due to non-adherence of a condition, it is void marriage.

When one or more of the pre-requisites to a valid marriage mentioned above are not fulfilled
by the spouses before marriage, the marriage is void and not binding. The following are
certain situations in which a Muslim marriage is void:

- When a marriage takes place between persons who are absolutely incapable.
- When a person marries to the wife of another man when the marriage of the lady was
subsisting.

In Tanjela Bibi v. Bajrul Sheikh, the court held that a marriage with a woman who is
pregnant from before the marriage is void.
The above-mentioned list is mere examples and not an exhaustive list of void marriages. The
essential social and legal implications of void marriage are:

- The marriage is void-ab-initio, i.e. void from the very first day of the marriage even if the
marriage is consummated.
- A void marriage does entitle the parties to any legal right or bestow any legal duties upon
them.
- If the marriage turns out to be void, the right to receive maintenance after divorce is lost.
- The kids, if any, born from the consummation of a void marriage are considered
illegitimate and have not right of succession or inheritance.

3. Fasid Nikah (Irregular Marriage)

In Ata Mohammed. v. Saiqul Bibi, it was observed that when a marriage is temporarily
prohibited and not certainly restricted it is merely irregular or fasid and not void. An irregular
marriage has several aspects involved and various points of view.

Irregular marriages exist only in case of Sunni Muslims whereas an irregular marriage, under
Shia law, is void marriage. When a marriage is conducted by violating certain or partial
conditions of a valid marriage, it is called an irregular marriage. The best instance of an irregular
marriage is the marriage between a Muslim and a Christian or a Jew.

In general, an irregular marriage is voidable marriage and not void-ab-initio. If the irregularity
can be removed from an irregular marriage, the marriage becomes valid when it is removed. So,
if a Muslim man of Sunni sect marries a Jewish woman but gets her converted to Islam, the
marriage is valid.

The social and legal implications of an irregular marriage depend upon the question of whether
the marriage was consummated or not. These implications are:

- Unless the marriage is consummated, the wife has no right to receive dower from the
husband in the case, he divorces her.
 - The wife is not bound to follow the rule of iddat, i.e. prohibition from remarriage within
3 months of divorce if the marriage is not consummated.
- The wife has no right to claim maintenance from the husband during the iddat period of
three months.
- If the irregular marriage is consummated and results in the birth of children, the children
will be considered legitimate and shall have all rights of inheritance of properties.
-
4. Muta Marriage

Muta marriage is the fourth kind of marriage that occurs only in Shia Muslims and not Sunni sect
of Muslims. To understand this marriage, it is essential to know the background of this marriage.
Most of the Arabian countries such as Abu Dhabi, Dubai, etc. have Shia sect of Muslims. The
people usually called the Sheikhs were involved in the business of oil-producing, refining and
exporting. Due to business agreements, they were required to travel far places and stay there for
several days or even months. During this period, the Sheikhs required to fulfil their sexual needs
and desires but, however, Islam does not allow cohabitation with any woman other than a
person’s own wife. Therefore, the Sheikhs used to marry the women for a temporary period till
they were in that town and at the time of leaving, they get divorced and the dower was paid as
the consideration for marrying. This concept of marriage was recognized in Muslim personal law
by the Shia sect and is called Muta marriage.

Muta marriage is a temporary marriage between a Shia Muslim man and a woman of Islam, Jew
or Christian religion for a fixed period of time and in return of the payment of a fixed amount of
dower at the time of divorce. The time period and the dower must be informed and accepted by
the bride as well. This marriage is not followed in Sunni Muslims which consider marriage to be
a permanent union and not a temporary affair.

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THROUGH THE CLASS NOTES AND BOOKS ALSO.