MUSLIM MARRIAGE: CONCEPT, NATURE ESSENTIALS AND KINDS

NATURE OF MUSLIM MARRIAGE

The institution of marriage is recognised by all civilized societies. Marriage

regulates the conduct and behavior of men and women when they start living as

husband and wife. The marriage confers a legal and social status, with rights and

responsibilities, on the parties who enter into it.

Islam also recognises the institution of marriage usually termed as ‘Nikah’. Islam

condemns unchastity in emphatic terms and strictly prohibits the illicit relations.

This institution of marriage has been ordained for the protection of society and in

order that human beings may guard themselves from foulness and unchastity.

There is a popular misconception that no religious significance or social solemnity

is attached to Muslim Marriage and that it is a mere civil contract. Even Justice

Mehmood says that Marriage among Mohammedans is not a sacrament but purely

a civil contract. Of course, Islam does not consider marriage as a sacrament in the

religious sense of the term. However the Prophet (SAW) did describe ‘Nikah’

(Marriage) as his Sunnah; and those who know the socio religious significance of

Sunnah as recognised by Muslims can well understand what marriage means to a

follower of Islam. The Quran too does not consider marriage as ordinary contract.

Marriage itself, as a concept is not merely a contract. The presence of the

following elements determines its contractual character.

1. Proposal and Acceptance

2. Consideration (dower, under misconception so treated)
3. Ante and post-nuptial agreements as in other contracts
4. Alteration, modification or revocation of these ante and post-nuptial
5. agreements
6. Breach of contract (divorce)
7. Option of puberty (Minor’s contract).

On the basis of these facts Justice Mahmood in the case of Abdul Kadir v. Salima,

(1866) AII 149, had concluded that contract of marriage is similar to a contract of

sale. But, in the famous case of Anis Begam v. Muhammad Istefa, (1933) 55 AII

743, Chief Justice Sir Shah Sulaiman observed:

“Marriage (in Islam) is not regarded as a mere civil contract, but a religious

sacrament”.
Further the Muslim Marriage is not merely a civil contract because:

1. While a civil contract, it cannot be made contingent on a future event, and

2. Unlike civil contract it cannot be for a limited time (Mutta marriage is an
exception and not a rule)
3. Maher (Dower) is not the same as consideration in a contract of sale.

Though being contractual in form the true nature of marriage is not confined to this

aspect alone. It is a devotional act (Ibadat) as well. Some of the sayings of the

Prophet (SAW) may be considered in this connection:

‘He who marries completes half his religion; it now rests with him to

complete other half by leading a virtuous life in constant fear of God’.

‘There are three persons whom the Almighty himself has undertaken to

help-

a. He who seeks to buy his freedom;

b. He who marries with the view to secure his charity; and

c. He who gifts in the cause of Allah.’

‘There is no “mockery” in Islam’.

In this context Muslim marriage ceases to look as purely a civil contract or only a

means to procreate children. Marriage is for the solace of life.

Thus in the words of Abdul Rahim “The Muhammadan jurists regard the

institution of marriage as partaking both of the nature of Ibadat or devotional act

and ‘Mauamlat’ or dealings among men”.

In order to have a clear understanding of the institution of marriage in Islam three

aspects, which are also evident from the above discussion, must be considered.

These are:

a. Legal aspects,

b. Social aspects, and

c. Religious aspects.

1. Legal aspect:

Juristically, marriage is a contract and as such has three characteristics:

a) There can be no marriage without consent.

b) Provision is made for its breach.

c) The terms of marriage contract are within legal limits capable of being
altered to suit individual cases.

2.Social aspect:

In its social aspect, Islamic law gives a high status to women after marriage.

Restrictions are placed upon unlimited polygamy as an instrument to maintain

order in society.

3.Religious aspect:

Quranic injuctions recognise in Islam, marriage as the basis of society. It is a

sacred covenant. It is the Sunnah of the Prophet (SAW) specially enjoined. Prophet

taught that nobility of character is the best reason for marrying a woman.

Hence we can say that Muslim marriage partakes of the nature both of Ibadat

(devotional act) and Mauamlat (worldly affairs). Therefore, a Muslim marriage is

both a civil contract and sacrament.

ESSENTIAL CONDITIONS OF A VALID MARRIAGE

The following are main essentials for a valid marriage:

1.Proposal (Ijab) & 2. Acceptance (Qubul)

It is necessary that there should be declaration of proposal on the part of one.

Such proposal of marriage should be accepted by her or by her guardians or by

other party on her behalf as the case may be. It was observed in Ghulam Kubra v.

Mohammad Shafi, AIR 1941 Pesh 23, by Mahmood J. that a man or someone on

his behalf or a woman or someone on her behalf should agree to marriage at one

meeting and the agreement should be witnessed by two adult witnesses.

The proposal and acceptance must be made in unequivocal terms. These should

ambiguous and must denote a permanent and immediate rather than a temporary

and differed relation.

2. CONSENT

Under all the schools of Muslim law a boy who is of sound mind and has attained

puberty can freely marry personally and without anybody’s consent. Shafi or Shia

major girl cannot marry without a guardian. Under Hanafi and Ithna Ashari law a

girl of sound mind and having attained puberty can also freely marry personally

and without the consent of her guardian. A boy or a girl who can freely marry

personally can lawfully act through others. However, the consent of such boy or
girl for his or her marriage must be obtained. Without it the marriage will be void,

unless he or she satisfies it.

Category of persons who are incompetent to marry freely and need the consent of

a ‘marriage guardian’ for that purpose.

i) Insane person

An insane person cannot marry without a guardian. Under none of the schools of

Muslim law can an insane person (male or female, major or minor) contract

marriage without the consent and intervention of his or her marriage guardian.

Again, under none of the schools of Muslim law can the marriage of a minor

person take place without the consent of his or her marriage guardian.

Furthermore it may be pointed out that the marriage guardian of an insane person

can contract such person’s marriage with or without his or her consent. The

marriage guardian of a minor can also contract a marriage on his or her behalf with

or without his or her consent.

II) MINORS MARRIAGE

A minor Muslim can marry with the help of a guardian.

A minor contracted in marriage by the guardian for marriage has the right of

repudiating or ratifying the marriage contract on attaining puberty. This right of the

minor is known as option of puberty (Khyar-ul-bulugh).

OPTION OF PUBERTY is available in all cases where the ‘marriage guardian’ other than

father and grandfather contracted the marriage of the minor. Where the marriage

was contracted by the father or grandfather option of puberty is not available. But

in exceptional cases the option of puberty is available even where marriage was

contracted by father or grandfather. Such exceptional circumstances are:

a. Where the conduct of the marriage guardian was fraudulent or negligent.

b. Where an improper ‘Maher’ was agreed upon.

c. Where the marriage is to the manifest disadvantage of the minor.

However, by the dissolution of Muslim marriages Act, 1939, the disability of the

minor to exercise option of puberty, in case his marriage guardian was father or

grandfather, has been removed.

The option can be exercised immediately after attaining puberty.

3.Witnesses

• According to Sunni Hanafi Law, at least two adult witnesses are required at the time of
solemnisation of marriage.
• As per Shia Law, the witnesses are not essential.

4.CAPACITY TO MARRY

In Islamic law there are two basic attributes of legal competence to contract a

marriage:

a. Sound mind, and

b. Puberty (Majority).

Every Muslim who is of sound mind and has attained the age of puberty may enter

into a valid marriage contract. The word puberty requires some explanation.

In Muslim law puberty and majority are one and the same. Puberty means age

when a boy or a girl becomes capable of begetting or bearing children. It is

generally presumed that a person who has completed the fifteenth year of his age

has attained puberty. However, the law has recognised the possibility of attaining

puberty by a boy or a girl before the age of fifteen years. The earliest age of

puberty for a boy is generally twelve years and for a girl it is nine years.

LIMITATIONS TO A VALID MARRIAGE

There are following main limitations to the unfettered capacity of a Muslim to

marry any person of the opposite sex. The prohibition may be on the grounds of:

i. Number

ii. Religion

iii. Relationship

iv. Fosterage

v. Unlawful conjunction

vi. Iddat

1.Number

As to the plurality of husbands or wives, the rule in Islamic law is that a Muslim

man may marry any number of wives, not exceeding four, but a Muslim woman

can marry only one husband. If a Muslim marries a fifth wife, such marriage is not

void, but irregular; whereas if a Muslim woman marries a second husband she is

liable for bigamy.

2.Religion

A man in Hanafi law may marry a Muslim woman or Kitabiyya but a Muslim

woman cannot marry anyone except a Muslim. Kitabiyya means a woman

believing in a revealed religion possessing a Divine Book. Hanafia law prohibits a

man from marrying a fire worshipper or an Idolatress.

3. Relationship

Consanguinity (blood relations): If a person contracts marriage with anyone of the

following, such marriage will be void (Batil) on the ground of Consanguinity.

i. His mother or grandmother how high so-ever.

ii. His daughter or granddaughter how low so-ever.

iii. His sister, whether full, consanguine

iv. His niece or great niece how low so-ever.

v. His aunt or great aunt how high so-ever, paternal or maternal.

Affinity: A Muslim is prohibited to marry with the following, with whom he has

relationship of affinity. Such marriage is void.

i. Ascendants or descendents of his wife, and

ii. The wife of any ascendant or descendent.

4. Fosterage

A Muslim man cannot marry his foster mother, her daughter or his foster sister. A

marriage forbidden by reason of fosterage is void.

5. Unlawful conjunction

A man is forbidden to have two wives at the same time so related to each other by

consanguinity, affinity or fosterage that they could not have lawfully inter-married

with each other if they had been of different sexes. The bar of two marriages

renders a marriage irregular, not void.

6. Iddat

In case of divorce Iddat period is three courses, or if the woman is pregnant, it is

till delivery. If the marriage is dissolved by death, the period of Iddat is four

months and ten days or in case the woman is pregnant, it is till delivery, which ever

is longer. In Muslim law when a marriage is dissolved by death or divorce, the

woman is prohibited from marrying within a specified time. This period is called
Iddat

If the marriage is not consummated, Iddat has to be observed in case of death, but

not in case of divorce. Marriage with a woman undergoing Iddat is irregular but not

void.

LEGAL EFFECTS OF VALID MARRIAGE

The legal effects of a valid marriage are as:

1. The wife becomes entitled to get maintenance from her husband.

2. The husband becomes entitled to exercise marital authority over his wife. He can

also put restraints on the movement of his wife in a reasonable manner.

3. The sexual intercourse between the spouses becomes lawful. The children born

out of the wedlock becomes legitimate.

4. The wife gets or becomes entitled to dower.

5. The prohibition regarding marriage due to the rules of affinity comes into

operation.

6. Such marriage creates the right of inheritance.

7. If any agreement is entered into or by the parties of marriage at the time of the

marriage or afterwards, its stipulations comes into operation provided they are not

contrary to law.

8. The status of a woman is not changed. She remains subject to her own premarital school of law.

CLASSIFICATION OF MARRIAGE AND LEGAL EFFECTS OF VALID, VOID AND IRREGULAR MARRIAGE

On the basis of the fulfillment of certain essentials/requirements of a valid

marriage, under Muslim law marriage have been classified into three classes:

1. Valid (Sahih)

2. Void (Batil)

3. Irregular (Fasid)

1. Valid marriage:

A marriage, which conforms in all with the law, is termed as Sahih, that is, correct.

For a marriage to be valid it is necessary that there should be no prohibitions

affecting the parties. Now, prohibitions may be perpetual, or temporary. If the

prohibition is perpetual, the marriage is void. If it is temporary, the marriage is irregular.

2. Void marriages:

A marriage, which has no legal results, is termed Batil or Void. A marriage

forbidden by the rules of blood relationship, affinity or fosterage and some other

prohibited marriages are void. The issue of a void marriage is illegitimate. A void

marriage being unlawful produces no mutual rights and obligations between

parties, the illegality of such Unions commences from the date when the contracts

are entered into and the marriage is considered as totally non-existing in fact as

well as in law.

3. Irregular marriages:

A Union between a man and a woman may be either lawful or unlawful.

Unlawfulness may be either absolute or relative. If the unlawfulness is absolute,

the marriage is void. If it is relative, we have an irregular marriage. The following

marriages have been considered irregular:

• A marriage without witness;

• A marriage with a woman undergoing Iddat;

• A marriage prohibited by reason of difference of religion;

• A marriage contrary to the rules of unlawful conjunction;

• A marriage with a fifth wife.

The Ithna Ansari and the Ismaili schools of law do not recognise this distinction

between void and irregular marriages. They treat a marriage either valid or void.

The above-mentioned marriages before them will be void.