Bars to Muslim Marriage
Author: Prabhuti Mandhyan. LCD
To understand the bars of Muslim marriage we must first understand the essentials for valid Muslim marriage which includes Proposal and Acceptance where the proposal is referred to as ‘ijab’ and acceptance of same is ‘qubool’, proposal to be made by on or behalf of one party and should be accepted by other party and this should take place, both should take place at the same meeting. For the purpose of marriage both have attained the age of 15 so as the age of male and female is 15 and both have reached the age of puberty, in case of minor i.e one who has not attained the age of puberty consent of the guardian is required to make a lawful marriage, Guardian under Muslim law includes Father, Paternal Grandfather, Brother or any other male member of father’s family, Mother, members of maternal relation and in absence of these guardians marriage may be contracted by Qazi or any other Government Authority. Parties that enter into marriage must be Muslim irrespective of their sect or sub-sect.Marriage is inter –sect when parties belonging to different sect and marriage is valid. At the time of marriage both parties should be of sound mind i.e they must not be in an abnormal state of mind, must not be lunatic, a person belonging to this state of mind is incompetent to contract. Parties must have entered into marriage without fraud, coercion, or mistake of fact otherwise it would be considered invalid and marriage will be considered void. Mahr which refers to the amount of money also plays important role in Muslim marriage as it refers to the amount of money or other money which the groom gives wife as consideration of marriage, it’s like the sense of financial security within and after the termination of the marriage. Bars on Muslim marriage includes
Consanguinity which refers to blood relation which man is barred from marrying his mother or Grandmother(how high or ever), his daughter or Grand-daughter(how low so ever), his sister(irrespective of full blood/half-blood/uterine blood), his niece or Great niece(how low so ever), his aunt or great aunt, whether paternal or maternal( how high so ever), marriage with these women is prohibited under consanguinity is void, children born out of this wedlock is considered as illegitimate.
Fosterage which refers to a milk relationship it is a condition when a lady other than the mother of wife, breastfed/ suckled child under the age of two years, that lady is called the foster-mother of the child. Therefore man is restricted from marrying a person who comes under foster relationship, these restrictions are for his mother or foster grandmother(how high so ever), Daughter of the foster mother(Foster sister). Under Sunni law, prohibition includes for that of Sister’s foster mother, or Foster’s-sister’s mother, or Foster-son’s sister, or Foster-brother’s sister.
Affinity which refers to marriage within close relatives which is prohibited as of his wife’s mother or Grand-mother(how high so ever), his wife’s daughter or Granddaughter(how low so ever), his wife’s daughter or Grand-daughter(how low so ever), his father’s wife or paternal Grand-father’s wife (how high so ever), his son’s wife or son’s son’s wife or daughter son’s wife(how low so ever), marriage with women prohibited under affinity is void. It also includes certain prohibitions which are irregular and not a void marriage under becomes valid as soon as irregularity is cured and they include
Unlawful Conjunction where men are prohibited to marry different women if they are related to each other by means of consanguinity, affinity, or fosterage, their marriage would be considered void. Under Sunni law, Marriage in violation of unlawful conjunction is irregular and not void but under Shia law, marriage violation rule of unlawful conjunction is void.
The difference of religion refers to circumstance when Muslim male is only allowed to marry Muslim women who worship the same scriptures alike him. Under Shia law when Non –Muslim marries a Muslim it is considered void.
Polygamy is allowed but restricted to four wives, in Shia law if Muslim men marry with the fifth wife then this marriage is considered void but in Sunni law, if Muslim men marry the fifth time then it is considered irregular, marriage can take place after termination of marriage with one of the four wives.
Proper witness- In Shia law presence of a witness is not essential and marriage without witness is also considered valid, marriage is contracted by parties themselves or by guardians in case of a minor. Under Sunni law presence of a witness is essential otherwise the marriage will be declared irregular where two males and two female witnesses should be present and the witness should be a major, sound mind and Muslim.
Marriage during Iddat
It is referred as a period of waiting after the death of her husband or after the termination of marriage during which she cannot remarry, the purpose of this period is to check whether women are pregnant or not where divorced women observe for a period of three months whereas widow observes for four months and ten days after the death of husband If she is pregnant then it extends to her delivery, where under Sunni law, marriage during iddat is irregular and under Shia law, it is considered void.
Other prohibition includes remarriage between a divorced couple where the certain procedure is followed in which Muslim lady has to perform valid marriage with another man then her husband needs to divorce her then lady perform iddat now she can marry the previous husband if this procedure not followed then marriage is considered irregular other prohibition includes Polyandry where the wife cannot have more than one husband. Marriage during the pilgrimage is considered void in Shia law.