MUSLIM MARRIAGE

By: RASHMI DUBEY

FACULTY OF LAW

INTRODUCTION Marriage is the ‘nucleus’ of the family. The very foundation of the family and

society is the marriage. It confers on parties, the status of husband and wife and

gives rise to certain rights and obligations and of legitimacy of their children.

Meaning and Definition:- In Mohammedan Law, marriage is regarded as ‘Civil

Contract’. ‘Nikah’ is an Arabic term, which literally means “the union of two

sexes”. In Baillie’s Digest, marriage has been defined to be ‘a contract for the

purpose of legalizing sexual intercourse, and procreation of children.’

Ashabah says :- ‘Marriage is a contract underlying a permanent relationship

based on mutual consent on the part of man and woman’.

Abdur Rahim says:- ‘The Mohemmadan jurist regard the institution of marriage

as partaking both of the nature of ibbadat or devotional acts and muamalat or

dealings among men.

INTRODUCTIONAccording to Ameer Ali:- ‘Marriage is an institution ordained for the

protection of the society, and in order that human beings may guard themselves from

foulness and unchastity.

Mulla defined Nikah as “a contract which has for its object, the procreation and

legalizing of children.”

As per Section 2 of Law of Marriage (Compendium of Islamic Laws

compiled by All India Muslim Personal Law Board), ‘Marriage is an agreement

between a man and a woman, based on the Shariat principles as a result of which

mutual sexual relation becomes legitimate, paternity of obligation becomes

enforceable.’

INTRODUCTION Section 4 of the Law of Marriage (Compendium of Islamic Laws compiled by

All India Muslim Personal Law Board), says, ‘Marriage is compliance with

injunctions of God’s Book and His Prophet’s Sunnat. In the eyes of Shariat,

therefore, marriage is not just a civil contract; it is also a worship.’

Justice Mahmood in Abdul Khadir v. Salima defines a Muslim Marriage as “a

civil contract” , upon the completion of which by proposal and acceptance, all the

rights and obligations, which it creates arise immediately and simultaneously.

Justice Mitter in Saburannissa v. Sabdu Sheikh(AIR 1934) observed, “ The

Marriage under Muslim Law is a civil contract and is like a contract of sale. In the

contract of marriage the wife is the property and dower is the price.

OBJECT OF MUSLIM MARRIAGE A glossary on Tarmizi sets out five objectives of marriage :

i) The restraint of sexual passion

ii) The ordering of domestic life

iii) The increase of the family

iv) The discipline of the same in the care and responsibility of wife and children, and

v) The upbringing of virtuous children.

The Prophet said – ‘Men marry women for their piety, or their property or their

beauty, but man should marry for piety.

The purpose of marriage are perpetuation of human race and attainment of chastity,

continence, mutual love, affection and peace.

NATURE OF MUSLIM MARRIAGE There has been a conflict of opinion as to the nature of Muslim Marriage. Some opine

that, Muslim Marriage is a mere civil contract and not a sacrament, while some other

opine that it is a religious sacrament in nature.

Muslim Marriage, by some text writers and jurists, is treated as a mere civil contract and

not a sacrament. This observation seems to be based on the fact that marriage, under

Muslim Law, has similar characteristics as a contract. For instance:

1. As marriage requires proposal (Ijab) from one party and acceptance (Qubul/ Qabool)

from the other so is the contract. Moreover, there can be no marriage without free

consent and such consent should not be obtained by means of coercion, fraud or undue

influence.

2. 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.

NATURE OF MUSLIM MARRIAGE3. The parties to a Muslim Marriage may enter into any post-nuptial agreement which

is enforceable by law provided it is reasonable and not opposed to policy of Islam.

Same is the case with contract.

4. The term of marriage contract may also be altered within legal limits to suit

individuals cases.

The analogy of marriage contract with contract of sale as pointed out by Justice

Mahmood in the leading case of Abdul Khadir v. Salima, and Justice Mitter in

Saburannissa v. Sabdu Sheikh(AIR 1934) also emphasizes the contractual

aspect of Muslim Marriage.

Another view is that marriage is not purely a civil contract but a religious

sacrament too. Anis Begum v/s. Mohammad Istafa (1993) 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.

NATURE OF MUSLIM MARRIAGE While reviewing the Abdul Kadir’s case, Justice Sulaiman in Anis Begum’s case

observed : ‘ It may not be out of place to mention that Maulvi Samiullah collected

some authorities showing that marriage is not regarded as a mere civil contract but

as a religious sacrament. Though the learned C.J. does not himself say that

marriage is a sacrament, but from the context in which he said, it is clear that he

supported the view of Maulvi Samiullah.

Justice Mahmood’s observation i.e., marriage is a civil contract cannot be

appreciated only because upto some extent marriage resembles with civil contract.

After observing minutely it will be found that besides some similarities there are so

many basic differences between the two. For instance.

Muslim marriage is not merely a civil contract, because:

i) Unlike civil contract, it cannot be made contingent on future event, and

NATURE OF MUSLIM MARRIAGEii) Unlike civil contract, it cannot be for a limited time (muta marriage is an

exception).

One may conclude the nature of Muslim Marriage by the observation of M.C.J

Jung – ‘Marriage is an institution of Ibadat clothed in the legal form of contract

regulating sexual intercourse, but its continuance is dependent upon the

maintenance of conjugal affection.’ In the ultimate analysis it can be said that the

marriage in Islam is neither purely a civil contract nor as a sacrament. It is devoid

of none but the blending of the two.

KINDS OF MUSLIM MARRIAGE In Muslim or Mohammedan Law, marriage have been categorized under the

following heads:-

i) Sahih or Valid Marriage – According to Law of Marriage (compendium of

Islamic Law compiled by All India Muslim Personal Law Board), ‘A valid

marriage is one in which all essential conditions of marriages are found.’(Section

20)

Essentials of a Valid (Sahih) Marriage – A Muslim marriage (Nikah) to be

valid, the following conditions are to be satisfied:

A) Civil Contract : A Muslim marriage is purely a civil contract. As in the case of a

contract, there are two parties. One party makes a proposal(Ijab) and the same is

accepted by the other at one meeting.

a) Proposal (Ijab) and Acceptance (Qabool) – The proposal is made by the

KINDS OF MUSLIM MARRIAGEby the bridegroom. The proposal is called ‘Ijab’. The proposal consists the amount of

dower. The bride sits behind the curtain (pardah) with the relatives accumulated for

this purpose.

b) At one meeting: The Ijab and Qabool must be done at one meeting. The Ijab at one

time, and Qabool at another time, make the marriage void.

c) Consent : The consent of both the parties must be with free will, not under undue

influence, misrepresentation or coercion. Marriage under compulsion is not valid

under Sunni and Shia Schools. But it is valid under Hanafi Sub School.

According to the Shias, witnesses are not necessary. But, according to the Sunnis, two

male witnesses, who are sane and adults should be present. Absence of witness

renders the marriage irregular, but not void.

KINDS OF MUSLIM MARRIAGEB) Capacity of Parties : The parties to the marriage must be competent to marry. In

Muslim Law, a person, who is sane (sound mind) and has attained puberty is

competent to marry. The person, who has not attained puberty is a minor. The age of

puberty for both a boy and girl is 15years.Under Shia Law, in the case of males,

puberty is presumed to be attained at the age of 15years but in case of females it is

9years.

Those persons, who are not of sound mind, i.e., are lunatics or who have not

attained puberty i.e., are minors, can be contracted in marriage by their respective

guardians. But after the children become Baligh or the insane become sane, they

can endorse or abrogate the marriage. Minority is of two kinds – (i) age of

discretion (Saghir) and (ii) Puberty (Bulugh).

KINDS OF MUSLIM MARRIAGE Doctrine of Puberty or Option of Puberty (Khyar-ul-bulugh) : In Muslim

Law, a person, who is sane and has attained the age of puberty is competent to

marry. The age of puberty is the age at which a person becomes capable of

performing sexual intercourse and procreation of children. In Muslim Law, a

person, who has not attained the age of puberty is a minor. The age of puberty for

both a boy and girl is 15years.

If a boy or girl, without attaining puberty is given in marriage, the boy or girl can

repudiate the marriage after attaining the age of puberty/majority. This right is

know as “the Option of Puberty” or “Khayr-ul-bulugh”. This right shall be

exercised within a reasonable time. In case of a boy(i.e., minor husband) it should

be exercised before the ratification of the marriage by payment of the Dower or

Mahr. (Mahr is an amount of cash or property paid by the bridegroom (husband)

to the parents of the bride (wife) at the time of marriage or later, in consideration

KINDS OF MUSLIM MARRIAGEfor the marriage) or by cohabitation.

When a minor has been contracted in marriage by the father or paternal

grandfather, such marriage cannot be repudiated unless such father or grandfather

acted fraudulently or negligently. All the restrictions with regard to the option of

puberty have been abolished by the Dissolution of Muslim Marriage Act, 1939.

According to Sec. 2 of the Act, a Muslim wife is entitled to the dissolution of her

marriage if she proves that the marriage has not been consummated or the

marriage took place before she attained the age of 15years or she has repudiated

the marriage before attaining the age of 18years. Mere repudiation does not render

dissolution of the marriage. The dissolution must be confirmed by a competent

court.

KINDS OF MUSLIM MARRIAGEC) Free Consent : The marriage to be valid, the parties must be freely consented to. If

the consent is obtained by force or fraud, it is no consent and the marriage is not valid.

It is a general law among all sects that in case of an adult woman consent must

come from her. Without her consent, consent of her father, grandfather etc., only is

not sufficient, though in some cases permission to marry may be obtained from

father or grandfather, wherever it was possible.

In order to validate the marriage of a boy or girl who has not attained the age of

puberty, the consent of the legal guardian is necessary. The marriage of a minor girl

without the consent of her guardian is void.

Under Hanafi law if the consent is obtained by fraud or compulsion, the marriage

would be valid but only irregular and not void. Suppression of certain facts by any

of the contracting parties have been held to amount to fraud.

KINDS OF MUSLIM MARRIAGE Under Shia and Shafi law, such marriages where consent was obtained through

fraud or compulsion are void. A Shia adult (attained majority) woman should

obtain permission of her father or grandfather to marry, although she may be

looking after her own affairs.

D) Prohibited Degrees of Relationship: The parties to the marriage should not be

within prohibited degrees of relationship. The prohibition may be:

1. Absolute Prohibition; and

2. Relative Prohibition.

The absolute prohibition renders the marriage void. While the relative prohibition

renders the marriage irregular.

KINDS OF MUSLIM MARRIAGE1. Absolute Prohibition : It is sub-divided into :

(A) Prohibited Degrees of Relationship :

(i) Consanguinity;

(ii) Affinity;

(iii) Fosterage

(B) Polyandry

(iv) Consanguinity : It means ‘blood relationship” . A marriage between the

following relations is prohibited and void –

a) Mother and Son

b) Grandmother (how high so ever) ; and

c) Brother and Sister;

KINDS OF MUSLIM MARRIAGE(d) Uncle and Niece

(e) Nephew and Aunt

(ii) Affinity : It means “relationship by marriage”. A man should not marry his

(a) Wife’s mother or grandmother how high so ever;

(b) Wife’s daughter or grand daughter how low so ever;

(c) Wife of father or paternal ancestor;

(d) Wife of son or son’s son or daughter’s son how low so ever.

(iii) Fosterage : It means foster relationship. If a woman suckles the child of another,

foster relationship is created. Thus, a marriage between two persons having foster

relationship is prohibited.

(B) Polyandry: If a woman has two husbands, it is called “bigamy”. If she has

several(more than one) husbands, it is called “Polyandry”.

KINDS OF MUSLIM MARRIAGE

A Muslim man can have four wives at a time. But a Muslim woman cannot have

more than one husband. If so, the marriage is void.

2. Relative Prohibition : Relative Prohibition viz. absence of witnesses,

polygamy(having several wives) i.e., more than four wives, marriage during “Iddat

Period” etc. renders the marriage irregular and not void.

MUTA MARRIAGE(TAMTAA TUM) The Shia law recognizes two kinds of marriage, namely, permanent and muta or

temporary. Muta is a kind of temporary marriage recognized only in the Shia School

of Muslim Law. A Shia male may contract a muta marriage with a woman professing

the Mohammedan, Christian or Jewish religion or even with a woman who is a fire-

worshipper (e.g.. – Zoroastrian) , but not with a woman following any other religion

and is into Idol worship.

The term ‘muta’ implies ‘enjoyment’ or ‘use’. Muta Marriage is a marriage for

temporary but a fixed period after specifying dower(amount to be paid).

Muta Marriage is a kind of temporary marriage for a fixed period i.e., for a day, few

days, few weeks, few months or years.

A Shia woman cannot contract Muta Marriage.

The period of marriage is fixed by entering into an agreement between the parties on

payment of some consideration.

MUTA MARRIAGE(TAMTAA TUM) Essentials of Muta Marriage : A muta marriage to be valid, the following

conditions are to be satisfied:

i) The period of cohabitation should be fixed.

ii) The amount of dower should be fixed. Half of the amount would be paid if the

marriage is not consummated.

The Muta marriage comes to an end on the expiry of the stipulated period. There

is no divorce in respect of a muta marriage. Even before the expiry of the term the

Husband may put an end to the marriage by making a gift of remaining term to

her and paying the full amount of dower. Children born during muta marriage are

legitimate and are entitled to inherit property from both the parents.

IDDAT OR IDDAT PERIOD When a Muslim marriage is dissolved by death or divorce, the woman is required

to remain in seclusion for a specified period. During this period, she is prohibited

to remarry. This period is called “Idda” or “Iddat”.

Iddat is the period during which it is incumbent upon a woman whose marriage

has been dissolved by divorce or death, to remain in seclusion and to abstain from

marrying another man.

In the words of Justice Mahmood, ‘Iddat is the term by the completion of which a

new marriage is rendered lawful.’ Iddat is a period during which a woman is

prohibited from marrying again after the dissolution of her first marriage i.e., the

period of waiting or the period during which the previous existing marriage is

considered to be undissolved for certain purpose notwithstanding that the husband

had died or if alive had pronounced a divorce.

Muslim Law lays down that one should not marry a woman, who is undergoing

idda.

IDDAT OR IDDAT PERIOD During the period of Idda, her husband also cannot remarry. After the completion

of idda, the women can lawfully remarry. This prohibition is imposed with a view

to ascertain the pregnancy of the woman so as to avoid confusion of paternity.

Ameer Ali defines, “Idda” is an interval, which the woman is bound to observe

between the termination, by death or divorce of one matrimonial alliance and

commencement of another.”

Duration or Period of Idda :- Different periods of ‘idda’ are provided depending

upon the manner in which the marriage is dissolved as detailed below:

i) Iddat of widowhood : When a person dies living a widow, she is prohibited

from marrying before the expiration of 4 months and 10 days.

ii) Iddat of pregnant woman: If the widow is pregnant at the death of her husband,

the Iddat will not terminate until delivery of miscarriage. If delivery or its

miscarriage comes before 4 months and 10 days the remaining period will have

to be observed.

IDDAT OR IDDAT PERIODiii) Iddat of Talaq : The period of Iddat in case of Talaq is three courses, if the

woman is subject to menstruation, otherwise three lunar months. If the woman is

pregnant at the time of divorce, the Iddat will not terminate till delivery.

iv) Iddat when marriage is irregular : If the marriage is irregular and parties have

separated before actual consummation, there is no Iddat. If the consummation has

taken place the wife is bound to observe Iddat.

v) If the marriage is not consummated, iddat has to be observed in the case of death,

but not in the case of divorce.

vi) The period of iddat begins from the date of the divorce or death of the husband

and not from the date on which the woman gets the information of the divorce or of

the death of the husband.

IDDAT OR IDDAT PERIOD The iddat due to the death of husband commences from the date of death. If the

information of death does not reach the wife until after the expiration of the

period of iddat she is not bound to observe iddat.

When a husband divorces his wife, the iddat period starts from the date of

divorce. When the husband dies in the period of iddat for a revocable divorce, the

wife must observe fresh iddat for death.

Effects of Iddat Period :

i) During the period of iddat, Muslim woman is not entitled to marry any other

person.

ii) During the Iddat period, the wife is entitled to maintenance.

iii) The wife is entitled to Deferred Dower

iv) During the Iddat period, if any one of the parties to the marriage, dies, the other

is

EFFECTS OF IDDAT PERIOD…… entitled to inherit from him or her in his or her capacity of wife or husband

respectively as the case may be.

v) If the husband has four wives including the divorced one, he cannot marry a fifth

one, until the completion of iddat of the divorced wife.

vi) Where the Husband pronounces talaq three times during death – illness and dies

before the completion of wife’s iddat, the wife is entitled to inherit from him even

if the divorce has become irrevocable prior to his death.

A marriage performed during the period of Idda is not void, but irregular. But,

under the Shia Law, it is void. During Idda, the woman is entitled to maintenance.

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