MUSLIM MARRIAGE

Overview
◦ Sources of Islamic Law
◦ Various schools (Shia+ Sunni)
◦ Who is a ‘muslim’?
◦ Muslim Marriage
◦ Nature
◦ Form
◦ Categories
◦ Conditions of marriage
◦ Capacity
◦ Religion
◦ Number
◦ Prohibited degrees
◦ Marriage during Iddat
 Sources of Islamic Law
◦ Religious

◦ Shariat
◦ Fiqh

◦ Secular Legislation

◦ Shariat Application Act, 1937

◦ Dissolution of Muslim Marriages Act, 1939
◦ Muslim Women (Protection of Rights on Divorce) Act, 1986
◦ Muslim Women (Protection of Rights on Marriage) Act, 2019
 Shariat
◦ Koran
◦ Sunnah (Hadith)
◦ Story of particular occurrence- Hadith
◦ Rule derived from it- Sunnah
◦ Ijma
◦ Qiyas

Sources are hierarchical in nature. Different acts in Islam have different degrees of approval:-
◦ Fard (strictly enjoined) eg- daily prayers
◦ Haram (strictly forbidden) eg- wine
◦ Mandub (advised to do)- eg- additional prayers during Id
◦ Makruh (advised to refrain) eg- certain kinds of food
◦ Jaiz (religion is indifferent to) eg- travelling by air.
Fiqh (Islamic Jurisprudence)

◦ Body of legal rulings that emerge from the interpretation of Sharia. Involves human endeavour and
intellectual activity and is therefore, fallible and changeable. Different schools of legal interpretation
emerge from the work of different jurists.
Schools of Islamic Law
◦ Sunni
◦ Hanafi (followed mainly in India and Pakistan, believe in the validity of all 4 sources)
◦ Maliki (followed in different parts of Africa. Only partially believe in Ijmas and Qiyas)
◦ Shaifi ( followed in Egypt, Southern Arabia, Indonesia. Believe in the validity of Ijmas and Qiyas)
◦ Hanbali ( followed in Syria, Saudi Arabia. Relies mostly on the Sunnah)

◦ Shia (believe in the Imam as god’s representative on earth)

◦ Ithna Asharis (most Shias in India follow this school)
◦ Ismailis
◦ Zaidis

◦ Both believe in the authority of the Koran and the Sunnah, but Shias do not follow Qiyas as a source of law and do not
regard Ijmas as a good source.
 Muslim Personal Law (Shariat)
Application Act, 1937
◦ 2. Application of Personal law to Muslims.—

Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to
agricultural land) regarding intestate succession, special property of females, including personal
property inherited or obtained under contract or gift or any other provision of Personal Law, marriage,
dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower,
guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions
and charitable and religious endowments) the rule of decision in cases where the parties are Muslims
shall be the Muslim Personal Law (Shariat).
 Who is a Muslim?- Subjective and
Objective Tests
◦ No definition of a ‘Muslim’ person in the Muslim Personal Law (Shariat) Application Act, 1937
◦ How do you determine religion in case of conversions? What test do you employ?

◦ Subjective Test
◦ Objective Test

 
Resham Bibi v. Khuda Baksh (subjective
test)
The sincerity or insincerity of the conversion nor the nobility of the motive is important.

◦ “To my mind, a person’s belief is not a tangible thing that can be seen or touched. It is the mental
condition of one’s believing in certain articles of faith that constitutes one’s religion and if one ceases to
believe in them, which again is a mere mental condition, one automatically ceases to profess that religion
which is made of those articles of faith.”
Rakeya Bibi v. Anil Kumar Mukherji

◦ But then how do you distinguish between genuine and fake conversions? Some objective criteria needed.

◦ Fact of conversion (some ceremony/authentication procedure)

◦ Bona-fide intention

◦ While the court cannot test or gauge the sincerity of the faith, it can gauge whether the conversion was
bonafide. That is, it can determine the true intention of men lying behind their acts and can certainly find
from the circumstances of a case whether a pretended conversion was really a means to some further
end.
-(Chakravarty J)
 Current Position of Law
Refer to 235th Law Commission Report on this

◦ Courts not concerned with the peculiarity of belief or the levels of orthodoxy. Person must simply
profess to be Muslim (belief in one God, Allah and his prophet, Muhammed).
◦ No particular ceremony or ritual is essential for conversion. But some ceremony is generally taken as
factum of conversion.
◦ What is necessary is proof of bona-fide intention.
◦ Conversion must not be colourable. For this, conduct that unequivocally proves intention to convert is
needed.
Form of Marriage
◦ Muslim Marriage is a contract. Not a sacrament. Therefore, no special ceremonies. Needs only

◦ Ijab (offer)
◦ Qubul (acceptance)
◦ Witnesses (2 in Sunni law; none under Shia law)

Signing of the Nikahnama

Registration of Marriage under state laws.
The words must indicate with reasonable certainty that a marriage has been contracted. There must be no
ambiguity. In other words, verbally, the contract must be completed at one and the same time and
place.
A mere betrothal does not create any rights in Muhammaden law.
Types of Marriage
Sunni Shia
Valid Valid
(sahih) (sahih)
Void Void
(batil) (batil)
Irregula
Muta’h
r (fasid)
◦ Examples of Void marriage:
◦ Marrying an already married woman
◦ Marriage within prohibited degrees prescribed by Muslim Personal Law

◦ Examples of Irregular Marriage (for Sunnis)

◦ Marrying without witnesses
◦ Marriage with a fifth wife
◦ Marriage with a woman of a different religion
Rights in Sunni Marriage
Mut’ah Marriage
◦ Temporary marriage contract

◦ Widely practiced earlier when men would be away on businesses for an extended period of time

◦ Period of time could be days, months or years. If time period not specified, life long Mut’ah marriage. Cannot be
treated as a valid Nikah simply because no time period specified.

◦ How does one exit a Mut’ah marriage?

◦ When the specified time period ends
◦ Husband can terminate at his wish.
◦ Wife can exit the contract by remitting some portion of her dower

◦ Not an approved form of marriage.

Rights in Shia Marriages
 Dower

◦ Sum of money given in consideration of marriage, as a mark of respect to the wife, not as a bride price.
◦ Provision of security for wife
◦ Means to check the capriciousness of divorce among men as well.
◦ Minimum amount payable
◦ Sunni Law
◦ 10 dirhams (Hanafi)
◦ 3 dirhams (Maliki)

◦ Shia Law
◦ No lower minimum specified.
◦ Though, as per the Ithna Ashiri school, dower cannot exceed 500 dirhams.
 Dower

Dower

Specified Unspecified

Prompt Deferred
Unspecified Dower
◦ In case where dower remains unspecified, what factors are used to determine the dower?

◦ Social position of the father of the bride and his family

◦ How much dower other female members of the family received
◦ Age of the girl, qualifications etc
Other features of dower

◦ Husband can increase the dower anytime after marriage. Not decrease it.

◦ Wife can remit her dower- wholly or partially. Can only do so after attaining age of puberty, provided
there is no undue influence or coercion.

◦ It is a form of unsecured debt. Can be claimed against legal heirs or representatives of the husband.

◦ Widow has a right to retention (i.e right to retain possession of the property of her husband till her dower
debt is satisfied. Not a title right.)
Abdul Kadir v. Salima, 1886 Allahabad

◦ Issues:

◦ Is non-payment of prompt dower a bar on a decree of restitution of conjugal rights (RCR)?

◦ What is the general rule in grant of decrees of RCR in case prompt dower has remained
unpaid?
◦ 17. The texts cited by the learned pleader for the respondents undoubtedly show, what is a well-recognised rule of
the Muhammadan law of marriage, that the marriage contract having been completed and its legal effects having
been established, the right of claiming prompt dower comes into existence in favour of the wife, and that she can use
such a claim as a means of obtaining payment of the dower and as a defence for resisting a claim for cohabitation on
the part of the husband against her consent.
◦ …..
◦ 22. But to return to the passages which I have quoted from the Fatawa Qazi Khan and the Fatawa Alamgiri, it is
apparent that the sole object of the rule which entitles the wife to resist cohabitation is to enable her to secure
payment of her prompt dower. And it is equally apparent from those passages that the opinion of Imam Abu Hanifa
is contradicted, not only by his two eminent disciples, Qazi Abu Yusaf and Imam Muhammad, but also by Shaikh
Assaffar so far as the question of cohabitation is concerned. Imam Abu Hanifa and his two disciples are known in the
Hanifa school of Muhammadan law as the three Masters," and I take it as a general rule of interpreting that law, that
whenever there is a difference of opinion, the opinion of the two will prevail against the opinion of the third. Now,
bearing this in mind, it is clear that the two disciples of Imam Abu Hanifa, regarding the surrender of the wife to her
husband as bearing analogy to delivery of goods in sale, held that the lien of the wife for her dower, as a plea for
resisting cohabitation, ceased to exist after consummation. According to the ordinary rule of interpreting
Muhammadan law, I adopt the opinion of the two disciples as representing the majority of "the three Masters," and
hold that, after consummation of marriage, non-payment of dower, even though exigible, cannot be pleaded in
defence of an action for restitution of conjugal rights; the rule so laid down having, of course, no effect upon the
right of the wife to claim her dower "in a separate action.
◦ 27………The payment of dower not being a condition precedent to the vesting of the right of
cohabitation, a suit for restitution of conjugal rights, whether by the husband or by the wife, would be
maintainable upon refusal by the other to cohabit with him or her; and in the case of a suit by the
husband, the defence of payment of dower could, at its best, operate in modification of the decree for
restitution of conjugal rights by rendering the enforcement of it conditional upon payment of so much of
the dower as may be regarded to be prompt. …….. , the right of a Muhammadan wife to her dower is at
best a lien upon his right to claim cohabitation, and I am unaware of any rule of Muhammadan law
which would render such lien capable of being pleaded so as to defeat altogether the suit for restitution of
conjugal rights.
◦ Held:

◦ Right of cohabitation comes into existence at the same time for both parties. That is, it arises
out of the legal instance of marriage.
◦ Resisting cohabitation is a mode of securing payment of dower, not a condition precedent
for the vestiture of the right to cohabitation
◦ Non-payment of dower, where marriage has not been consummated, operates as a lien
against resumption of cohabitation.
◦ Non-payment of prompt dower, where marriage has not been consummated is a valid defence
to an RCR suit. The enforcement of the decree is conditional upon payment of dower.
Thus, remedies available to the wife on
non-payment of dower

◦ Refuse cohabitation (where prompt dower has remain unpaid and marriage has not been consummated)
◦ Dower as actionable debt against husband and legal heirs and guardian if marriage contracted during
minority.
◦ Right to retention
 Conditions of Marriage
◦ Capacity
◦ Number
◦ Religion
◦ Unlawful Conjunction
◦ Iddat
 Capacity
◦ Classical Law: Age of marriageability= age of puberty (Hedeya says 12 yrs for boys; 9 yrs for girls)
◦ Marrying Minors ((Option of Puberty)
◦ Boys:- Anytime after attaining majority. However, loses the right after paying dower or cohabiting.
◦ Girl:
◦ Sunni- Right to repudiate
◦ Shia- Right to ratify
◦ Where guardian giving the minor in marriage is someone other than the father/grand-father, a blanket right
to repudiate exists.
◦ In Sunni law, where father/grand-father is the guardian who has given the minor in marriage, the girl can
only repudiate the marriage where it can be shown that the father acted fraudulently, negligently or to
the manifest disadvantage of the minor.
◦ In Shia law, the right to ratification only comes into existence if the guardian concerned is someone other
than father/grand-father.
 Option of Puberty- Statutory Right
◦ Statutory Law: Section 2(vii), Dissolution of Muslim Marriages Act, 1939

◦ 2. Grounds for decree for dissolution of marriage. A woman married under Muslim law shall be entitled to
obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely:
◦ ----

◦ (vii)that she, having been given in marriage by her father or other guardian before she attained the age of fifteen
years, repudiated the marriage before attaining the age of eighteen years:

◦ Provided that the marriage has not been consummated;

◦ Requirements to exercise right to repudiation:

◦ A) Marriage must have been contracted during minority (i.e below 15yrs)
◦ B) A valid guardian should have contracted the marriage. (See, Mohd Nihal v. State of
Delhi)
◦ C) Minor girl should repudiate the marriage before turning 18.
◦ D) The marriage has not been consummated post puberty (15 yrs). If consummation
happens before 15 yrs, it is immaterial. However, her right is not determined by mere
consummation, if she was ignorant of her right.

◦ Marriage is valid if not repudiated. Therefore, spouses can inherit from each other.
Mohd. Nihal v. State of Delhi, 2008
◦ Facts: Nihal (22yrs) married Afsana (? Yrs); Brother in law gives consent. Habeus Corpus by Nihal; S.
363, IPC application filed by Afsana’s mother.

◦ Issues
◦ Who is a valid guardian (wali?)
◦ Which law will prevail? (PCMA or Muslim personal law?)

◦ Reasoning
◦ Guardian- F>GF>GGF>brother>uncle>grand-uncle>mother> paternal/maternal GM>paternal/maternal GF>sister
(blood, uterine)>paternal aunt or uncle>maternal aunt or uncle.
◦ Muslim personal law prevails over PCMA (corroborated by the Guardians and Wards Act; Indian Contract Act).
◦ Section 6 of the Guardians and Wards Act, 1890 (for short G&W Act)- nothing contained in the Act
shall be construed to take away or derogate from any power to appoint a guardian of his person or
property or both, which is valid by the law to which the minor is subject

◦ Section 2 of the Indian Majority Act, 1875

◦ Saving.—Nothing herein contained shall affect: —
(a) the capacity of any persons to act in the following matters (namely), —marriage, dower, divorce and
adoption;
◦ (b) the religion or religious rites and usages of any class of 7[citizens of India]; or
◦ (c) the capacity of any person who before this Act comes into force has attained majority under the law
applicable to him.
◦ Section 11, Indian Contract Act, 1872- Who are competent to contract.—Every person is competent to
contract who is of the age of majority according to the law to which he is subject, and who is of sound
mind and is not disqualified from contracting by any law to which he is subject.
 Number
◦ Sunni Muslim Male
◦ 4 women at one time
◦ 5th woman- irregular marriage

◦ Shia Muslim Male

◦ 4 women at one time
◦ 5th woman- Can be Mut’ah marriage but not a Nikah

◦ Shia/Sunni Muslim Female

◦ One husband at a time, otherwise liable u/s 494, IPC.
 Religion
Limited right to marry non-muslim.

◦ Nikah of Sunni man+ Kitabiya woman (Christian/Jew)= Valid

◦ Nikah of Sunni man+ Non- Kitabiya woman/ Fire worshipper/ Idolatress (Parsi/ Hindu) = Irregular marriage
◦ Nikah of Sunni female+ non-muslim man = Void

◦ Nikah of Shia Man+ Kitabiya woman – Void

◦ Nikah of Shia Man+ Non-Kitabiya woman = Void
◦ Nikah of Shia Female+ non-muslim= Void
◦ Muta’h of Shia Male+ non-muslim= Valid
◦ Muta’h of Shia Female+ Kitabi/Kitabiya= Valid
◦ Muta’h of Shia Female+ non-kitabiya = Void
Khursheed Ahmed Khan v. State of UP
2015, SC
◦ Facts: UP Muslim govt employee got married second time without seeking permission as required under
service rules. Removed from service for misconduct.

◦ Issue: Whether service rules contradict Art 25?

◦ Held:
◦ Difference between religious belief and practice (Javed v. State of Haryana)
◦ 4 wives is not an integral belief of Islam. It is only a practice. And if a practice runs counter to public order or
morality, it can be reformed by the state. (Ram Prasad v. State of UP)
 Iddat
◦ Period of abstinence and waiting a woman needs to observe after death of husband or divorce. The period
within which marriage is prohibited and after the completion of which marriage becomes lawful.

◦ Divorce
◦ 3 months (3 courses)- if consummated.
◦ If marriage not consummated, no need for iddat
◦ Death
◦ 4 months and 10 days (consummation or lack thereof has no effect on iddat)
◦ Pregnancy- till delivery

◦ Marriage during Iddat is irregular, not void.

 Prohibited Degrees of Relationship
Consanguinity • Mother, grandmother, how highsoever
• Daughter, grand-daughter, how lowsoever
(blood • Sister (full, half or uterine)
• Aunt & Great Aunts (paternal or maternal)

relatives) • Niece

• Ascendants+ descendants of wife (eg- wife’s mother, wife’s daughter)

Affinity • Wife of an ascendant+ descendant (eg-father’s wife, grandfather’s
wife, son’s wife)

• Foster-mother
Fosterage • Foster mother’s sister
• Foster mother’s daughter
 Unlawful Conjunction
◦ A Muslim man cannot marry two women who are related to each other by consanguinity, affinity or
fosterage. Such that if either had been male, they would not be permitted to get married.

◦ Eg- two sisters; Aunt and niece

◦ Such a marriage would be irregular under Sunni law and void under shia law.
◦ However, the man may marry his wife’s sister after her death or divorce. Only, cannot marry at
the same time.