MARRIAGE IN MUSLIM LAW

MARRIAGE IN MUSLIM LAW
Islam, unlike other religions is a strong advocate of marriage. There is no place
of celibacy in Islam like the Roman Catholic priests & nuns. The Prophet has said There is no
Celibacy in Islam. Marriage acts as an outlet for sexual needs & regulates it so one doesn’t
become slave to his/her desires. It is a social need because through marriage, families are
established and the families are the fundamental entity of our society. Furthermore marriage is
the only legitimate or halal way to indulge in intimacy between a man and woman. Islamic
marriage although permits polygamy but it completely prohibits polyandry. Polygamy though
permitted was guarded by several conditions by Prophet but these conditions are not obeyed by
the Muslims in toto.
Marriage:-Pre Islamic Position
Before the birth of Islam there were several traditions in Arab. These traditions were having
several unethical processes like:-
(i) Buying of girl from parents by paying a sum of money.
(ii) Temporary marriages.
(iii) Marriage with two real sisters simultaneously.
(iv) Freeness of giving up and again accepting women
These unethical traditions of the society needed to be abolished; Islam did it and brought a
drastic change in the concept of marriage.
Nature of Marriage : It is quiet relevant to know whether the Muslim marriage is a sacrament
like the Hindu marriage, for this let us get acquainted with some of the definitions of Muslim
marriage. Some of the philosophers have following opinion about the marriage –
a) Hedaya – Marriage is a legal process by which the several process and procreation and
legitimation of children between man and women is perfectly lawful and valid.
b) Bailies Digest – A Nikah in Arabic means Union of the series and carries a civil
contract for the purposes of legalizing sexual intercourse and legitimate procreation of
children.
c) Ameer Ali – Marriage is an organization for the protection of the society. This is made
to protect the society from foulness and unchestity.
d) Abdur Rahim :- The Mahomedan priests regard the institution of marriage
as par taking both the nature of Ibadat or devotional arts and Muamlat or dealing
among men.
e) Mahmood J. :- Marriage according to the Mahomedan law is not a sacrament
but a civil contract.
(f) Under Section 2 of Muslim Women (Protection of Rights on Divorce) Act,
1986 Marriage or Nikah among Muslims is a ‘Solemn Pact’ or
‘Mithaq-e-ghalid’ between a man & a woman ,soliciting each others life
companionship, which in law takes the form of a contract or aqd.
Muslim marriage can also be differentiated from a civil contract on the basis of following
points:-
(a) It cannot be done on the basis of future happenings unlike the contingent contracts.
(b) Unlike the civil contract it cannot be done for a fixed period of time. (Muta Marriage
being an exception.)
Purpose of Marriage : The word Zawj is used in the Quran to mean a pair or a mate. The
general purpose of marriage is that the sexes can provide company to one another, procreate
legitimate children & live in peace & tranquility to the commandments of Allah. Marriage
serves as a mean to emotional & sexual gratification and as a mean of tension reduction.
Marriage compulsory or not? – According to Imams Abu Hanifa, Ahmad ibn Hanbal &
Malik ibn Anas, marriage in Islam is recommendatory, however in certain individuals it
becomes Wajib or obligatory. Imam Shafi considers it to Nafl or Mubah (preferable). The
general opinion is that if a person , male or female fears that if he/she does not marry they will
commit fornication, then marriage becomes Wajib. However, one should not marry if he does
not possess the means to maintain a wife and future family or if he has no sex drive or if
dislikes children, or if he feels marriage will seriously affect his religious obligations.
Prophet said:- “When a man marries he has fulfilled half of his religion, so let him fear Allah
regarding the remaining half.” This very wording of Prophet marks the importance of marriage,
thus it could be well concluded that marriage in Islam is must.
Capacity for Marriage : The general essentials for marriage under Islam are as follows:-
(i) Every Mohammadan of sound mind and having attained puberty can
marry. Where there is no proof or evidence of puberty the age of puberty is
fifteen years.
(ii) A minor and insane (lunatic) who have not attained puberty can be validly contracted in
marriage by their respective guardians.
(iii) Consent of party is must. A marriage of a Mohammadan who is of sound mind and has
attained puberty, is void, if there is no consent.
Essentials of Marriage: The essentials of a valid marriage are as follows:-
(i) There should be a proposal made by or on behalf of one of the parties to the marriage,
and an acceptance of the proposal by or on behalf of the other party.
(ii) The proposal and acceptance must both be expressed at once meeting.
(iii) The parties must be competent.
(iv) There must be two male or one male & two female witnesses, who must be sane and
adult Mohammadan present & hearing during the marriage proposal and acceptance.
(Not needed in Shia Law)
(v) Neither writing nor any religious ceremony is needed.
Further explanation on essentials:
(i) A Muslim marriage requires proposal ‘Ijab’ from one party and acceptance
‘Qubul’ from the other side. This must be done in one sitting.
(ii) The acceptance must be corresponding to what is being offered.
(iii) The marriage must be effectively immediate. If the Wali says I will marry her to you
after two months, there is no marriage.
(iv) The two parties must be legally competent; i.e. they must be sane and adult.
(v) The women must not be from the forbidden class.
(vi) The consent given must be free consent,. It must not be an outcome of compulsion,
duess, coercion or undue influence.
Kinds of Marriage : Under Muslim law, generally two types of marriage is recognized
(i) Regular Marriage and
(ii) Muta marriage
Muta Marriage:
It is a survival of pre-Islamic custom whereby the Arab women used to entertain men in their
own tents. Muta marriage is a temporary marriage. Muta marriage is recognized in Shia only.
Sunni law doesn’t recognize it. A Shia of the male sex may contract a Muta marriage with a
woman professing the Mohammadan, Christian or Jewish religion, or even with a woman who
is a fire worshipper but not with any woman following any other religion. But a Shia woman
cannot contract a Muta marriage with a non muslim.
The essentials of Muta marriage are:-
(1) The period of cohabitation should be fixed.
(2) Dower should be fixed.
(3) If dower specified, term not specified, it could amount to permanent or regular
marriage.
(4) If term fixed dower not specified, it amounts to void marriage.
Effects of Muta marriage :
1. Parties have no right to mutual inheritance
2. Muta wife is not entitled for maintenance – But if in their contract it is so mentioned then
husband is bound to pay or she may file Petition under Sec.125 of Cr.P.C.
3. If marriage is not consummated, wife is entitled for half of the dower. Also if wife leaves
husband before the contracted period, still she is entitled for proportionate dower.
4. When marriage is consummated, wife required to undergo idda of three months
5. In muta, husband has the right to refuse procreation Children of muta treated as the
legitimate and inherit property of mother only.
6. Children of muta treated as the legitimate and inherit property of mother only.
7. Muta comes an end after expiry of term, if husband want to end it early then by
mutual consent , he can do so by making gift of remaining term.
Classification of Marriage under Sunni Schools:
i) Sahih or Valid ii) Fasis or irregular iii) Void or Batil
(i) Valid or Sahih Marriage: Under the Muslim law, a valid marriage is that which has been
constituted in accordance with the essential conditioned prescribed earlier. It confers upon the
wife; the right of dower, maintenance and residence, imposes on her obligation to be faithful
and obedient to her husband, admit sexual intercourse with him & observe Iddat.
(ii) Irregular or Fasid Marriage: Those marriages which are outcome of failures on part of
parties in non fulfillment of prerequisites but then also are marriages; to be terminated by one
of the party is termed to be Irregular marriages. They are outcome of-
(a) A marriage without witness (Not under Shia Law)
(b) Marriage with fifth wife.
(c) Marriage with a women undergoing Iddat.
(d) Marriage with a fire-worshipper.
(e) Marriage outcome of bar of unlawful conjunction.
An irregular marriage has no legal effect before consummation but when consummated give
rise to several rights & obligations.
(iii) Void or Batil Marriage:A marriage which is unlawful from it’s beginning. It does not
create any civil rights or obligations between the parties. The offspring of a void marriage is
illegitimate. They are outcome of-
(a) Marriage through forced consent.
(b) Plurality of husband.
(c) Marriage prohibited on the ground of consanguinity.
(d) Marriage prohibited on the ground of affinity.
(e) Marriage prohibited on the ground of fosterage.
Effects of valid Marriage (Sahih) : The lawful obligations which arise after marriage are as
follows-
(i) Mutual intercourse legalized and the children so born are legitimate.
(ii) The wife gets power to get ‘Mahr’
(iii) The wife entitles to get maintenance.
(iv) The husband gets right to guide and prohibit the wife’s movement(for valid reasons
only)
(v) Right of succession develops.
(vi) Prohibition of marriage due to affinity.
(vii) Women bound to complete Iddat period & not to marry during Iddat period; after
divorce or
death of husband.
The obligations and rights set between the two parties during and after the
marriage are to be enforced till legality. On the basis of a marriage
husband and wife do not get the right on one another’s property.
Formal Validity of Muslim marriages on the completion of following
conditions
I. Formalities of the marriage under Muslim Law :
1. Offer / Ijab and acceptance/ qubul on same day :
2. Presence of witness – 2 male witness or 1 male and 2 female among Sunnis
– Shias do not require witnesses.
3. No uttering of particular words are necessary but in Arabic or local language
some words as to intention of parties are conveyed.
II. Deed of marriage / Kabin namah – contains amount of dower, conditons for it’s
payment and custody of child etc.
III. Consent of parents: Usually marriages are performed in bride’s father’s or guardian’s house.
Hanafi and Shia believe that if parties are adult then there is no consent of father / guardian is
required. But a person below the age of puberty or of unsound mind has no capacity to enter
into marriage without the consent of father or guardian.
IV. Registration of marriage is not compulsory – but Mutawalli of Jamayat / Jamat can issue
Marriage Certificate in the States of Bihar and West Bengal under the Muslim Marriage and
Divorce Registration Act, 1935.
V. Presumption of Marriage :
i. Prolonged continous cohabitation is established between husband and wife who have no
legal barrier against their marriage
ii. When a man acknowledges woman to be his wife.
iii. When a man acknowledges a child as his legitimate offspring
Unlike Hindu where the marriage is a sacrament, marriages in Muslims have a
nature of civil contract. Marriage is necessary for the legitimization of a child. When the
marriage is done in accordance to the prescribed norms it creates various rights and obligations
on both the parties.

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