Muslim Marriage

Meaning of Marriage
Marriage literally means living together or union of the sexes. The Arabic term of marriage is 'Nikah'.

Definition of Marriage
The Holly Quran describes, in Chapter 4, verse 21- "Marriage is a sacred covenant
between a man and woman."
According to Baillee, "Marriage is a contract for the purpose of legalizing sexual intercourse, the procreation and legitimation of children and the regulation of social life in the interest of the society

Nature of Muslim Marriage

marriage is purely a civil contract while others say that it's a religious sacrament in nature According to Asaf A. A. Fyzee, the institution of marriage has got three aspects- legal, social and religious :1. In its legal aspect it has legalized sexual intercourse and procreation of children. In its legal sense marriage is a contract. 2. In the social aspect it has given woman higher status. 3. In the religious aspect it is a mean for the continuation of the human race

Purely a civil contract

Case law
Abdul Kadir vs Salima Bibi (1886),
Marriage among Mohammedan is not a sacrament but purely a civil contract, and thoroughly solemnized generally with recitation of ' certain verses from the Quran Justice S.A. Rahman says- "Marriage among Muslims isn't a sacrament but in the nature of a civil contract. Such a contract undoubtedly has spiritual and moral overtones and undertones but legally, in essence, it remains a contract between the parties which can be subject of dissolution for good cause."

Khurshid Bibi vs Muhammad Amin, PLD (1967)

Marriage is a religious sacrament in nature

On the other hand 'Nikah' is a religious institution and denominated by the prophet as his Sunnah. The Prophet said- "Man marries for their piety or their property, or their beauty but you should marry for piety." Thus marriage partex-the nature of ibadat and muamalat - in substance Muslim marriage is a contract but as a sanctioned,a religious contract. The main aim of marriage under Islam, is to protect the society from foulness and unchastity and to continue the human race moreover it confess full status to wife and children.'

Essential Requisites of a Marriage

1.

2. 3. 4. 4. 5. 6.

Offer/ Ijab/ Declaration / Proposal on the part of one. (either oral or written) Acceptance or Kabul on the part of other The acceptance or the proposal also should be made by or on behalf of other The words conveying proposal and acceptance must be uttered in each other's presence or in the presence of their agents. ( Mst. Zainaba VS Abdul Rahman, Air 1945 ) Marriage must be solemnized before sufficient witness, that is two male or two female and one male (in Hanafi Law but not in Shia Law) The words with which the marriage is contracted must be clear and unambiguous. No promise to marry at some future time. Where there is marriage there is dower, it may be implied or expressed but dower should be there The parties should be competent to marry. A Muslim who is of sound mind, capable to give free consent and who has attained the age of puberty may enter in to a contract of marriage

What is puberty
Puberty means the age at which a person becomes capable of performing sexual intercourse and procreating children. Puberty and majority are in the Muslim Law one and the same. Majority is presumed among the Hanafis on the completion of the fifteen years, in the case of both male and female unless there is any evidence to show that puberty was attained earlier But under MFLO, 1961 age of puberty was declared to be sixteen. Of course it's a question of fact in each case, and girl may attain the age of puberty even earlier Under the Child Marriage Restraint Act, 1929 , marriage of males under 2 1 and females less than 18 years is is a child marriage and punishable offence

Option of puberty
If a Muslim minor has been married during minority by a guardian, the minor has the right on attaining puberty/majority to repudiate such marriage. This is called Khiyar-al-bulugh, the option of puberty. Such a minor may be given marriage either(1) by the father or grandfather (2) or by any other guardian. In old law if the marriage of a minor had been contracted by his or her guardian he/she had no right to repudiate the marriage after attaining the age of puberty. This disability has been removed by the dissolution of Muslim Marriages Act, 1939.

The proposal and acceptance must be expressed at one meeting 8. In order to be a valid marriage it must be registered. According to section 3 of the Marriage and Divorce registration) Act, 1974, registration of marriage is compulsory and non-registration has been made punishable. But non-registration doesn't render a validly solemnized marriage invalid. 9. It's necessary that parties should be Muslim. 10.There must not be any legal disability or bar to the union on the ground of consanguinity, affmity and fosterage. 11.Three- is no need of rituals in Muslim Marriage 12. Presence of Qazi
7.

Forms of Marriage
1. Sahi (valid) 2. Fasid (irregular) 3. Batil (void) Sahi or valid marriage: A valid marriage is one which conforms in all respects with the legal requirements and there should be no restriction affecting the parties. Effect of a sahi /valid marriage 1. It legalizes the sexual intercourse and procreation and legitimation of children. 2. . Wife is entitled to dower and maintenance 3. The wife is not entitled to remarry without observing iddat when the marriage is dissolved either by death of the husband or divorce 4. Mutual rights of inheritance are established.

What is iddat
Iddat is a period during which a woman is prohibited from marrying again after the dissolution of her earlier marriage by divorce or death of the husband. The restriction is imposed to ascertain whether she is pregnant by the husband, so as to avoid confusion of the parentage. If the marriage is dissolved by divorce, the duration of iddat is three months and if she is pregnant till delivery. If the marriage is dissolved by death of the husband the duration of iddat is four months and ten days and if the widow is pregnant till delivery.

Fasid or irregular marriage

Restrictions or prohibitions as to marriage may be either permanent or temporary. If they are temporary the marriage is irregular. However such a marriage can be made valid by removing the prohibitions for which the marriage is unlawful. The following marriages are regarded as irregular marriages 1. A marriage without witness 2. A marriage with a fifth wife of a person haviiig four wives 3. A marriage with a women undergoing iddat 4. A marriage prohibited by difference of religion 5. A marriage contrary to the rules of unlawful conjunction, i.e., a marriage of unlawful conjunction is that in which a man may not have two wives at the same who are related to each other by consanguinity, affinity or fosterage, for example, two sisters, auny niece etc.

Legal effects of a irregular marriage

If the marriage hasn't been consummated has no legal effect and the wife isn't entitled to dower. Neither divorce nor the intervention of the court is necessary in an irregular marriage. One of them may say' I have relinquished you'. If the marriage has been consummated wife is entitled to dower specified or unspecified which ever is less. Such a marriage may be terminated by a single declaration on either side. The wife has to observe iddat for three months after divorce or death of the husband. She is not entitled to maintenance during iddat. The children of such a marriage are legitimate and entitled to share of their paternal property. But an irregular marriage though consummated doesn't create mutual rights of inheritance between the husband and wife.

Void (Batil) Marriage

Restrictions or prohibitions as to marriage may be either permanent or temporary. If they are permanent the marriage is void and such a marriage has no legal result. A marriage forbidden by the rules of blood relationship, affmity or fosterage is void.
Legal effect of void marriage
A Void marriage is of no legal effect either before or after consummation. It doesn't create any rights and obligations between the parties. The wife is not entitled to maintenance. One cannot inherit from other. The offspring of a void marriage are illegitimate. The parties may separate from each other at any time without divorce and may contract another marriage lawfully. .

Prohibitions to marry in certain cases

The prohibitions may be classified as follows
1. Absolute incapacity or prohibition 2. Relative incapacity or prohibition

Absolute (permanent) incapacity or prohibition to marry arises from

a. consanguinity b. affinity c. fosterage

Consanguinity
Consanguinity: Consanguinity means blood relationship and bars a man from marrying
his mother or grandmother how high so ever his daughter or grand daughter how low so ever his sister whether full, consanguine or uterine his niece or great niece how low so ever his aunt (mother's sister, father's sister) how high so ever A marriage with a woman prohibited by reason of consanguinity is void. The children from such marriage are illegitimate.

Affinity
Affinity: A man is prohibited from marrying certain relations by affmity, such as his wife's mother or grand-mother how high so ever his wife's daughter or grand-daughter how low so ever wife of his father or paternal grand-father how high so ever 4 wife of his son or son's or daughter's son how low so ever A marriage with a woman prohibited by reason of affmity is void.

Fosterage
Fosterage: When a child under the age of two years has been suckled by a woman other than its own mother, the woman becomes the foster mother of the child. A man may not, for instance, marry his foster mother;t IP her daughter. or his foster sister.

Relative (temporary) incapacity or prohibition:

Relative incapacity may arise from 1. Unlawful conjunction 2. Polygamy or marrying with a fifth; Polyandry 3. Absence of proper witnesses 4. Differences of religion 5. Woman undergoing iddat
Unlawful Conjunction marrying two women so related to each other by consanguinity, affmity or fosterage.Thus a Muslim can't marry two sisters, or an aunt or her niece. This bar may however be removed by divorcing his first wife or when she is dead. Polygamy or marrying with a fifth wife; Polyandry -more than one husband Absence of proper witnesses Woman undergoing iddat

 Differences of religion- A Sunni male can marry a Muslim female of any School. Thus Muslims belonging "to different Schools e.g. Shiite or Sunnite, Hanafi or Shafli may intermarry freely with one another. A Sunni male can marry a Kitabia, i.e., a woman who believes in a revealed religion possessing a Divine Book e.g., Christianity, Judaism etc. But he can't marry a fireworshipper and if does so the marriage will be irregular in Sunnj Law. Again a Muslim female can't marry a man who is nonMuslim whether he is a Kitabia (Christian, or a Jew) or an Idolater or a fire- worshipper and such a marriage is irregularar under Sunni Law. Thus a marriage between a Muslim female and a non-Muslim male is irregular.

The above irregular marriages don't affect the legitimacy of the offspring because the husband or wife may at any time change his\her religion and thus validates the marriage.

Presumption of marriage
When question arises about the existence of a marriage, it has to be proved by direct evidence. Sometimes direct evidence isn't available as a Muslim marriage doesn't require any formality or ceremony. In the case of absence of direct evidence, the marriage may be inferred from the circumstances. This is called presumption of marriage.

A marriage may be presumed from the following circumstances and conductsA prolonged and continuous cohabitation as husband and wife. Mere cohabitation will not be sufficient. It must fulfill the following conditions: a. The cohabitation must be a prolonged one. b. The parties must have been cohabiting as husband and wife. c. they shouldn't come within prohibited degree. d. The woman shouldn't be a prostitute or a concubine 2. From the recognition of the relation of the husband and wife, by friends and neighbors etc. 3. From the acknowledgement by the husband of the wife 4. From the acknowledgement by the man of the children resulting from such union with woman as legitimate husband of the wife 1.

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Polygamy (Sec-6, MFLO,1961)

(1) No man, during the subsistence of an existing marriage, shall except with the previous permission in writing of the Arbitration Council, contract another marriage, nor shall any such marriage contracted without such permission be registered under this Ordinance. (2) An application for permission under Sub-section (1) shall be submitted to the Chairman in the prescribed manner together with the prescribed fee, and shall state reasons for the proposed marriage, and whether the consent of existing wife or wives has been obtained thereto. (3) On receipt of the application under Sub-section (3), Chairman shall ask the applicant and his existing wife or wives each to nominate a representative, and the Arbitration Council so constituted may, if satisfied that the proposed marriage is necessary and just, grant, subject to such condition if any, as may be deemed fit, the permission applied for.

(4) In deciding the application the Arbitration Council shall record its reasons for the decision and any party may, in the prescribed manner, within the prescribed period, and on payment of the prescribed fee, prefer an application for revision, to the Collector concerned and his decision shall be final and shall not be called in question in any Court. (5) Any man who contracts another marriage without the permission of the Arbitration Council shall, (a) pay immediately the entire amount of the dower whether prompt or deferred, due to the existing wife or wives, which amount, if not so paid, shall be recoverable as arrears of land revenue; and (b) on conviction upon complaint be punishable with the simple imprisonment which may extend to one year, or with fine which may extend to five thousand rupees, or with both.