Marriage under Muslim Law

Author: Divya Vishal

Marriages under Muslim Law:

Nature and Essentials of Muslim marriage

Marriage under Muslim law is a marital connection and an organization that legitimizes the sexual relationship between a male and female for the object of reproduction of children, advancement of support, love, and formation of families which are viewed as a fundamental unit in public. Islam also the same as Hinduism is a tough supporter of marriage. Nikah is an Arabic word that means the unification of two genders.

As noted by Justice Mahmood, “Marriage according to the Mahomedan law is not a sacrament but a civil contract. All rights and obligations it creates arise immediately and, are not dependent on any condition precedent such as the payment of dower by the husband to a wife.”[1] The requirements of marriage under Muslim law are very much the same as the civil contract like offer and acceptance, competency of parties to the marriage, consent of the parties.

But as per Dr. Jung, “Marriage though essentially a contract is also a devotional act; its object is right of enjoyment and procreation of children and regulation of social life in the interest of society.”[2] In the case of Anis Begum v. Mohammad Istafa,[3] the court observed a stable viewpoint regarding Muslim marriage considering it to be both a religious sacrament and a civil contract. The court has observed on other occasions that, “Muslim marriage is a religious ceremony.”[4] It is a civil contract yet in addition to a holy pact. There are different aspects of marriages under Muslim law.

I- Nature of marriages under Muslim law

1. Legal Aspect-From the legal viewpoint, the marriage under Muslim law is a contract and not a sacrament. The same has been observed by the court in the case of Abdul Kadir v. Salima. Asaf Ali Asghar Fyzee, an educator and jurist has observed marriages under Muslim law as a contract and not a sacrament. It has features similar to a contract. But the only point of the argument is whether it is solely a civil contract or a sacrament also.

2. Religious Aspect- Sacrament means “holy order”, ‘sacred obligation’ ‘matrimony and extreme action’ and ‘solemn oaths’.[5] Marriages under Muslim law are a devotional act. Quran, which is a set of expressions of God, guides each Muslim to wed a reasonable woman of his decision. It is along these lines, a strict obligation of each Muslim to contract marriage as indicated by the standards of Islam. An individual who remains lone with no sensible reason defies the expressions of God. Also, marriage is also the tradition (Sunnat) of the Prophet.[6] As indicated by Islam, it is accepted that marriage is a “Sunnat Muwakkidah” i.e. a demonstration of such a nature, that, if an individual does it, he gets religious advantages. On the off chance that he avoids doing it, at that point, he commits a crime.

In this way, as per Muslim law, marriage is an agreement for legitimizing intercourse and the reproduction of children and in light of a legitimate concern for society by making the rights and obligations between the parties and kids conceived from their union.

3. Social Aspect- The Prophet tried to bring a change in society. No social change was conceivable without giving equivalent status to the women. Along these lines, an unequivocal organization or a built-up law was required to give correspondence and opportunity to the women. In that object at the top of the priority list, the Prophet presented Nikah through which, the ladies could be set on an equivalent balance with men.

The important features of social aspect of muslim marriages are –

• To give a high position and dignified life to the women in society.
• There are constraints on polygamy practiced among muslims in earlier times .
• There is ban on marriage between close siblings or .relatives
• The husband has to pay dower to the wife as a token of respect towards the wife even if the sum of dower is not predetermined, unlike civil contracts where no payment needs to be done when it specifically not mentioned in the contract.

“Marriage in Islam is not merely a civil contract devoid of all religious and spiritual values. Along with its secular aspects (muamulat) it also partakes of the elements of a sacred union of two souls meant for spiritual ends (Ibadat).”[7]

II- Essentials of marriage under Muslim Law

1. Offer and Acceptance- One of the requirements of a Muslim marriage offer (ijab) by one party and acceptance (qubul) by the other. An offer ought to be made by one party and the equivalent ought to be acknowledged or accepted by the other party. For a substantial Muslim marriage, offer and acceptance ought to be done on a similar occasion. On the off chance that an offer is made at one time and the acknowledgment of the offer is done in at another time, it isn’t considered as legitimate.

2. Competency of both the parties-The main requisites of marriage is that the parties to it have attained the puberty age and are of sound mind. According to the Indian Majority Act, 1875 every person residing in India attains the majority at 18 years of age. But for the purpose of acting in respect of marriage under Muslim law and also in case of dower, divorce, and adoption, this age of majority as fixed by Indian Majority Act, 1875 does not apply and thus, in respect of a Muslim girl she attains majority under the Muslim law on attaining puberty or on attaining the age of 15 years -whichever is earlier.[8] The same is for Muslim boys.

Therefore, the age of marriage is when an individual has attained the age of puberty. A Muslim is considered to have achieved the time of puberty at 15 years. Subsequent to achieving the age of 15, parties can give their own assent and there is no requirement of assent of the guardian.

On the off chance that an individual is a minor, i.e, not accomplished the time of puberty, the assent of the guardian is required to make the marriage legitimate. The people perceived as guardian under Muslim law seem to be:  Father, Mother, Paternal Grandfather, Brother, Relations from mother’s side. This right goes from one guardian to other as per the order of priority. In the case of none of them, some other Government Authority will be appointed as guardian.

3. Consent of the parties-The consent of the parties to the marriage should be free and not influenced by any sort of force, coercion, or undue influence. The free consent of both parties will lead to a valid and lawful marriage.

4. The settlement of Dower-Dower is also known as ‘Mehar.’ Another fundamental requirement of Muslim marriage relates the settlement of dower or Mehar, upon the arrival of marriage. Dower or Mehar alludes to a specific amount of money or particularly which the bride is qualified to get from the spouse with regards to marriage. Without Mehar, a Muslim marriage can’t be called legitimate.

Also Read, Guardianship under Muslim Law

5. No legal hindrance- Marriages under Muslim law cannot be allowed in certain situations:

1) Absolute Prohibition- A Muslim marriage can’t happen if the parties to it are in blood relationship or restricted level of relationship of one another and the Marriage goes to be void. The absolute precluded degrees of relationship are as per the following:

a) Consanguinity-It refers to the prohibited degree of relationship where a man is forbidden to marry his ascendants like a mother, grandmother, sister, aunt, daughter, granddaughter, etc. Any marriage with such a female will be considered unlawful and children born out of such marriage are illegitimate.

b) Affinity-It refers to barring a man from marrying certain females due to the closeness of the relationship. Some examples of such females are-Wife’s mother or grandmother, wife of one’s own or daughter’s son or son’s son. Such close relatives are forbidden for marriage under Muslim law.

c) Fosterage– This denotes a milk relationship. These are the cases where any child under 2 years of age is breastfed by a woman other than the mother of the child. Such a woman becomes the foster mother of the child and man is not allowed to marry her. The following woman comes under such restriction: His foster mother or foster grandmother (how high so ever), and Daughter of foster mother.

There are some exceptions in the case of Sunni law under which marriage is lawful – Sister’s foster mother, Foster’s-sister’s mother, Foster-son’s sister, or Foster-brother’s sister. On the other hand, Shia law does not consider the exceptions by Sunni law.

2) Relative Prohibition-Some restrictions under Muslim law are relative which means that marriage with such relative prohibition is irregular and not void. As soon as the irregularity is removed, the marriage becomes lawful or valid. Following are the relative prohibitions:-

 a) Unlawful conjunction- A Muslim man is barred to wed two women on the off chance that they are identified with one another by methods for affinity, consanguinity, or fosterage as though they would have been of opposite genders their marriage would have been void. Like he cannot marry his wife’s sister. But after the end of marriage or demise of his wife, marriage can occur with the other.

As per Sunni law, marriage with unlawful conjunction is irregular i.e. Fasid. But in the case of Shia law, marriage with unlawful conjunction is void i.e. Batil.

b) Polygamy- Polygamy refers to more than one marriage. It is allowed under Muslim law but restricted to having four wives. Therefore, the fifth marriage of a Muslim man when he already has four wives will be considered irregular and not void.

c) Lack of Proper witnesses- Marriage under Muslim law must be done within the sight of appropriate and capable witnesses. Under the Shia law, the attendance of witnesses isn’t fundamental and marriage without witnesses is considered substantial. Marriage is valid if the parties to it are major or even in the presence of their guardians itself. Under Sunni law, attendance of the witness is basic else the marriage would be irregular. In any case, two male or one male and two female witnesses ought to be available and the witness ought to be of majority age, sane, and a Muslim.

d) Marriage with non-muslim – Under Sunni Law, a Muslim man can marry a Muslim woman or a woman who is a Christian or Jew. But marriage with a fire worshipper is considered irregular or void. But a Muslim woman cannot marry a non-Muslim man (Kitabia) and such a marriage will be considered irregular. On the other hand in Shia law, marriage with a non-muslim is void.

e) Marriage during Iddat- Iddat period means the waiting phase. Iddat is the period during which it is occupant upon a woman, whose marriage has been broken down by separation or demise of her husband to remain in isolation and to keep away from wedding another spouse. The idea is to check whether the woman is pregnant by the earlier husband. In case the woman is pregnant then she has to wait for marriage till the baby is born. Under Shia law marriage with a woman under the iddat period is void and contrary to it in Sunni law, marriage with such a woman is considered irregular.

III- The concept of valid Retirement

According to Fatwai-Alamgiri, “A valid retirement is equivalent to the actual consummation for the various purposes.”[9] At the point when the couple is distant from everyone else together under conditions that present no legitimate, moral and physical obstruction to intercourse or cohabitation, they are supposed to be in “valid retirement.” Valid retirement is known as ‘Khilwat-Ul-Sahih.’

Sunni law recognizes valid retirement and it has a similar legitimate impact as actual consummation with respect to dower, the foundation of paternity, the recognition of iddat, the bar of marriage with the spouse’s sister, and the bar of successive marriage. But the valid retirement has to be proved firstly in such cases. But it doesn’t have a similar impact as genuine fulfillment with respect to the bar of marriage with the spouse’s daughter or remarriage bar between divorced people. Shia law does not validate the concept of valid retirement.

As observed by Syed Ameer Ali, Indian jurist valid retirement only takes place when the couple is in complete privacy. So any place i.e. accessible by the public or is in open will not be considered as the consummation of marriage and then the assumption of the culmination of marriage doesn’t emerge.

This is the basic concept of marriages under Muslim law.

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[1] Abdul Kadir v. Salima, (1886) ILR 8 All 149

[2] Rahim, Abdur, The Principles of Mohammedan Jurisprudence Lahor, p. 227 (1958) (ed.)

[3] (1933)55 AP 743.

[4] Shoharat Singh v. Jafri Begum, (1915) 17 BOMLR 13

[5] Collins: “The National Dictionary”

[6] Dr. R.K. Sinha, Muslim Law, 5th ed. 2003, p. 42, Central Law Agency, Allahabad.

[7] Tahir Mahmood: Dissuasive precepts in Muslim Family Law” A.L. Journal, Vol. II (1965) p. 126.

[8] Hanufa Bibi v. Mokshed Ali Mondal And Anr., AIR 1961 Cal 59

[9] https://www.lawfinderlive.com/bts4/MUSLIM.htm?AspxAutoDetectCookieSupport=1, accessed on 21.06.2020.