Conditions of Muslim Marriage
Q.1 According to the Muslim Law marriage is not a sacrament but a civil contract". Elucidate.
OR
Define 'nikah' and discuss its nature under Muslim Law.
Ans.-Nature and essentials of a valid marriage.-
According to Hedaya "Marriage is a contract for the purpose of legalizing sexual intercourse, and for procreation and legitimation of children, and the regulation of social life in the interest of the society by creating the rights and duties between the parties themselves, between each of them and the children born from the union."
As per Section 2 of Law of Marriage (Compendium of Islamic Law 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 obligations become enforceable.
According to Ashbah, "Marriage is a contract underlying permanent relationship based on mutual consent on the part of a man and a woman".
As per Al-Haj Mahommed ullah ibn S. Jung, "Marriage, though essentially a contract, is also a devotional act, its objects are right of enjoyment and procreation of children and regulation of social life in the interest of society” .
Fitzgerald states, "Although a religious duty, marriage is emphatically not a sacrament in Islam nor is it coverture".
However, Dr. Jung says "Marriage is both - a civil contract and a religious rite. The marriage is Sunnat-muwakkida i.e., an act compliance of which is virtue and a deviation from which is a sin.
According to Sir Abdul Rahim, "The institution of marriage partakes both of nature of ibadat or devotional acts and muamlat or dealing among men.
According to Tahir Mahmood, marriage is a solemn pact between a man and a woman, though it takes the form of a contract. It has to be remembered that Holy Prophet did describe nikah' (marriage) as his sunnat and every Muslim Law, the sacred socio-religious significance of sunnat as recognized by the Muslim religion.
In Amina v. Hassan Koye [reported in 1985 Cri L.J. 1996], it has been considered that concept of marriage under three broad headings, namely legal, social and religious. Juristically, it is a contract as opposed to a sacrament. But it cannot be considered as a contract pure and simple to be governed exclusively by the provisions of the Contract Act. It should be interpreted in the light of the personal laws of the parties and the ethic content and ethos of the institution of marriage, as popularly understood by the Muslim in the country.
ESSENTIALS OF A VALID MARRIAGE
It is essential to the validity of a marriage that 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 in the presence and hearing of two male or one male and two female witnesses, who must be sane and adult Mohammedans. The proposal and acceptance must both be expressed at one meeting a proposal made at one meeting and an acceptance made at another meeting do not constitute a valid marriage Neither writing nor any religious ceremony is essential; Moung Kyi v. Mo Shwe Batu, (1929) 7 Rang 777 121 IC 718
The requirements of law for a valid Muslim marriage should be distinguished from the other ceremonies and customs that prevail. In absence of any requirement, can a marriage be held invalid or void? The following are the main essentials for a valid marriage in Muslims:
1. Proposal (Ijab)
2. Acceptance (Qubul)
3. Consent
4. Sufficient witnesses
5. Capacity
6. No impediments to marriage.
1. Proposal (Ijab)-According to Muslims, marriage is a civil contract between the parties. Thus, it is necessary that there should be declaration of proposal on the part of one
2. Acceptance (Qubul)-Such proposal of marriage should be accepted by her or by her guardian or by other party on her behalf as the case may be. It was observed in Ghulam Kubra v Mohammal Shafi, AIR 1941 Pesh 23 by Mahmood J. that a man or someone on his behalf or a woman or some one on his behalf should agree to marriage at one meeting and the agreement should be witnessed by two adult witnesses.
The proposal and acceptance must be made in unequivocal terms. These should not be ambiguous and must denote a permanent and immediate rather than a temporary and deferred relation. A mere promise to marry in future does not constitute marriage.
There must be reciprocity between offer and acceptance. If the offer is accepted with modifications, there is no marriage. For example, if a Muslim man says to a woman that "I offer to marry you on Rs. 500 as dower" and the women replies, "I accept your offer for marriage on Rs 1,000 as dower", there is no reciprocity between offer and acceptance and therefore there is no marriage at all. It is not necessary that the offer and acceptance must be in writing. Offer and acceptance may be oral as well.
In Zainba v Abdul Rahman, AIR 1945 Pesh 51, it was observed that there is no particular form in which the proposal and acceptance should be made. But the words must indicate with reasonable certainty that a marriage has been contracted.
3. Consent-Consent of the parties to the marriage should be free ie without coercion, undue influence or fraud. If the marriage lacks free consent, it must be ratified afterwards. The consent may be express or implied. If the consent has not been obtained, the marriage is invalid and even consummation with the approval of the woman will not validate the marriage. Consent under compulsion invalidates the marriage, except under Hanafi law. Consent should not depend upon any contingency or future event.
4. Sufficient witnesses-(1) Sunini las-Sufficient witnesses are required at the time of solemnization of a Muslim marriage. The number of witnesses depends upon the sect or school to which parties to marriage belong. According to Sunni Hanafi Law, at least two adult witnesses are
(2) Shia Law -As per Shiaitis, the witnesses are not essential. They are required at the time of dissolution of marriage
5. Capacity-Every Muslim of sound mind who has attained majority can enter into a contract of marriage. Majority is attained at puberty: Abdul Cader v Razik, (1953) AC 285. The presumption is that a person attains majority at 15 years, but the Hedaya lays down that the earliest period for a boy is 12 for a girl 9 years. The Privy Council in Nauub Sadiq Ali Khan v. Jai Kishori, (1928) 30 Bom LR 1346(1351)(1C) said that majority in the case of a girl is attained at the age of 9.
The marriage of minors can be contracted only by their guardians. Such a marriage, although valid, is capable of being repudiated. A marriage entered into by a girl while she had not attained puberty was not a marriage in the eye of laws and was therefore void, Allah Diwaya v. Kammon Mai, PLD 1957 (WP) Lah 651.
Minority means physical immaturity. The age of puberty means the age on the completion of which a person is presumed to have acquired the competence to have sexual intercourse. This competency may be ascertained on the basis of natural signs or physical features of the boy and girl. It was observed by the Privy Council in Atika Begam v Mohal. Ibrahim, AIR 1916 PC 250, that according to Mohammedan law, a girl becomes major on the happening of either of the two events - (1) the completion of her 15th year or (ii) on the attainment of a state of puberty at an earlier period. The same rule applied in the case of boy also.
Limitation to valid Muslim marriage
There are seven main limitations to the unfettered capacity of a Muslim to marry any person of the opposite sex. The prohibition may be on the grounds of
(1) Number,
(2) Religion:
(3) Relationship (consanguinity or affinity);
(4) Fosterage:
(5) Unlawful conjunction;
(6) iddat, or
(7) Miscellaneous prohibitions,
(1) Number-As to plurality of husbands or wives, the rule in Islamic law is that a Muslim man may marry any number of wives, not exceeding four, but a Muslim woman can marry only one husband. If a Muslim marries a fifth wife, such marriage is not void, but irregular, whereas if a Muslim woman marries a second husband she is liable for bigamy under section 494 of the Indian Penal Code, the offspring of such a marriage are illegitimate and cannot be legitimated by any subsequent acknowledgement
(2) Religion - A Sunni Muslim male can marry a Muslim woman or a Kitabia. A Kitabia is a woman who belongs to that community which believes in a religion possessing a revealed Book (Kitab). In India, Christians and Jews are regarded as Kitabis if males and Kitabias if female. Under Sunni law, marriage of a Sunni male with a Kitabia female is valid. But marriage of a Sunni male with a non Muslim and a non-Kitabia female is irregular. Marriage of a Shia male is possible only with a Muslim female. Marriage of a Shia male or female with a non-Muslim is void.
However, Inter-sect marriages between members of different communities of Muslims are valid. Marriage of a Shia male with a Sunni female or a Shia female with a Sunni male is valid. But spouses retain their pre-marital status. Thus a Sunni girl after marrying a Shia male would Sunni, so long as she does not change her sect A Muslim woman cannot contract a valid marriage with a non-Muslim. But it can subsequently become valid if the non-Muslim becomes a convert to Islam.
(3) Relationship-Consanguinity (Batil) in Muslim law. If a person contracts marriage with
(i) his mother or grand-mother, how high-so-ever;
(ii) his daughter or grand-daughter, how low-so - ever
(iii) his sister full consanguine: or
(iv) his niece or great niece how low-so-ever,
(v) his aunt or great-aunt (it includes aunt from father's side or mother's side as well), the marriage is void on the ground of consanguinity
Affinity-A Muslim is prohibited from marrying with all such (relative) women with whom, he has
relationship of affinity, in case any marriage is done with any of the following relations, it is deemed in law, as void:
(i) Wife's mother or grand-mother, how high-so-ever,
(ii) Wife's daughter or grand-daughter how low-so-ever,
(iii) Son's wife or son's son's wife, how low-so-ever.
A woman can also not marry with her daughter's husband or daughter's daughter's husband. The above categories of marriages are prohibited due to the violation of the rules of affinity
(4) Fosterage-All schools of Sunnis and Shias argue that prohibited relationship arises on the basis of fosterage also. If any marriage is done in violation of rules of fosterage, it is void and non-effective in the eyes of law. The following are the foster relations
(i) Marriage of father of a child with mother of his child's foster mother.
(ii) Marriage of father of a child with her (foster mother's) daughter
(iii) Marriage of foster mother to brother of the child whom she fostered and
(iv) Marriage with foster mother with an uncle or aunt.
(5) Unlawful conjunction - A man may not have at the same time two wives who are so related to each other by consanguinity, affinity or fosterage that if either of them had been a male, they could not have lawfully intermarried as for instance, two sisters, or aunt and niece. The bar of unlawful conjunction renders a marriage irregular, not void
(6) Iddat.-Whenever a marriage is dissolved by death or divorce, the woman is prohibited from marrying within a specified period of time, which is called, iddat.
It is a term by completion of which a new marriage is rendered lawful. The object of following the period of iddat by a Muslim woman is to ensure certainty of paternity during which a woman is supposed to live a life of seclusion and to abstain from certain luxuries. There are a few rules regarding
following of the rules of iddat
(i)Where the cohabitation took place, the observance of iddat is necessary Cohabitation may be lawful in case of the consummation of marriage. In case of illicit intercourse, the cohabitation is unlawful. In case of pregnancy follows due to illicit intercourse, the iddat is to be followed
(ii) marriage is consummated but afterwards dissolved by divorce the period of iddat is three courses. In case woman is pregnant, it will continue till delivery. If marriage is not dissolved by death, it will be four months and 10 days or if woman is pregnant till delivery. If marriage is not consummated, the iddat is not necessary in case of death of husband but not in other cases
(7) Miscellaneous Prohibitions-In addition to the regular prohibitions to manage there are a few other prohibitions which must be considered. These are
(a) the doctrine of equality (Kafa's
(b) illicit intercourse:
(c) undue familiarity
(d) pilgrimage and
(e) divorce
(a) Doctrine of equality (Kafa'a)-According to this doctrine, the husband must be the equal of the woman in social status Previously, there was no corresponding provision that the wife should be of equal status with the husband, for by marriage he was assumed to raise her to his own position. The Hanafis, accordingly, hold that equality (Kafa'a) between the two parties is a necessary condition in marriage, and an ill-assorted union or a run away marriage is under certain circumstances, liable to be set aside by the court. In Hanafi law, the following factors must be considered for determining equality- (i)family, (ii)Islam, (iii)profession. (iv) freedom, (v) good character, (vi) means. The Stalis consider slightly different qualifications.
(b) Illicit intercourse-If a person has illicit intercourse with a woman, some of the woman relations are forbidden to him although he can marry the woman herself.
(c) Undue familiarity-Similarly, if a person commits acts of "undue familiarity with a woman, he is prohibited from marrying some of the woman's relations but he can marry the women herself
(d) Pilgrimage-In Ithna Ashari and Shafi Law, a man who has come within sacred precincts of the Kaba and put on the pilgrim's dress, may not enter into a contract of manage while on the pilgrimage.
(e) Divorce-When a man divorces a woman, and the divorce is effective as triple talak, remarriage between them is impossible unless the woman observes iddat, lawfully marriage another husband, the second marriage is consummated, and the second husband lawfully and effectively divorces her.
Legal effects/
obligation arising out of a valid marriage
In the leading case of Abdul Kadir v. Salima, (1886) 8 All 149, Mahamood J. has discussed the legal effects of a Muslim marriage as under
The legal effects of a marriage are that it legalizes the employment of either of them (husband or wife) with the other in the manner which in the matter is permitted by law; and it subjects the wife to the power of restraint, that is, she becomes prohibited from going out and appearing in public, it renders her dower, maintenance, payment obligatory on him; and establishes on both sides the prohibitions of affinity and the rights of justness between the wives and their rights, and on her it imposes submission to him when summoned to the couch; and confers on him the power of the correction when she is disobedient or rebellious, and enjoins upon him associating familiarly with her with kindness and courtesy. It renders unlawful the conjunction of two sisters (as wives) and of those who fall under the same category".
Thus the legal effects a valid marriage can be summed up as under
(1) The wife becomes entitled to get maintenance from her husband
(2) The husband become entitled to exercise marital authority over his wife. He can also pr restraints on the movement of his wife in a reasonable manner
(3) The sexual intercourse between spouses becomes lawful. The children born as a result of such marriage become legitimate
(4) The wife gets or becomes entitled to get dower (Mahr).
(5) Such a marriage creates the right of inheritance
(6) The prohibition regarding marriage due to the rules of affinity comes into operation.
(7) The wife cannot re-marry her husband without observing certain formalities, in case she is divorced by the husband. She will have to marry some other person after the period of iddat. She should then be divorced by the second husband after the consummation of the marriage Then only, she can re-marry
(8) If any agreement is entered into or by the parties of marriage at the time of marriage or afterwards, its stipulations come into operation provided they are not contrary to law.
(9) The status of a woman is not changed. She remains subject to her pre-marital school of law.
Concept of dower under Muslim Law
OR
Explain the different kinds of Talaq and distinguish between Sunni and Shia law of Talaq.
Concept of Divorce under Muslim Law
References
Muslim Law in India—Tahir Mahmood
Family law S.R Myneni`s
: https://www.thedailystar.net/law/2004/01/01/queries.htm
https://blog.ipleaders.in/essentials-of-valid-marriage-under-muslim-law/
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