Muslim Marriage | Family Law Notes

Muslim Marriage

INTRODUCTION

In Pre-Islamic days, the term ‘Nikah’ were used for marriage. The Muslim Law was discriminatory for women because men had full freedom and rights under Muslim Law but women were not given any single right of inheritance. Women were treated as chattels. On the other hand, men were considered as superior.

MEANING OF NIKAH

Nikah means Marriage in law. The term Nikah has been used in Muslim Marriage law. It’s generally meaning is ‘to tie up the physical relationship between man and woman’ on few conditions which have to be fulfilled by both after execution of conditions, they can legally proclaimed as a husband and wife.

Introduction To Muslim Law | Who Is A “Muslim”?

NATURE OF MUSLIM MARRIAGE

There are numerous opinions in regards of nature of Muslim Marriage. Some Jurists have their opinions on Marriage that it’s purely a civil contract while others say it’s our religious sacrament in nature.

However, Muslim Marriage law says that there is some requirements to commence a Marriage. There should be free consent, which means without apprehension of fraud, coercion or undue influence to both the parties. Secondly, Parties of Muslim Marriage must be obtained an age of majority. They may enter into Ante-nuptial and post-nuptial both which is enforceable under law and do not opposed the Islamic policy. The terms may change of Matrimonial Contracts within legal limits to suit individual cases.

Although, In the case of Abdul Rahim Vs Salima ( ILR 1886 8 ALL 149, Justice Mahmood observed that the Muslim Marriage is a civil contract that depends on proposal of one, consent and acceptance of each parties. Muslim Marriage has an amount called ‘mehar’ which works as a consideration as similar as Civil Contracts.

But, it is not merely a civil contract because Marriage contract cannot be made for future and it has not limited period of time (muta Marriage is an exception) and also wife is not entitled to live with third person or to give divorce to her husband until dower remains unpaid and lien system cannot be applied to Marriage contract.

ESSENTIAL CONDITIONS UNDER MUSLIM MARRIAGE

There are few conditions which are essential for the valid Muslim Marriage –

1. Proposal (Ijab) and Acceptance (Qubul)
2. Capacity of Party
3. Presence of Witness
4. Free Consent
5. Mehar or Dower

1) Proposal (Ijab) and Acceptance (Qubul):- Proposal is considered as ‘Ijab’ and Acceptance is referred as ‘Qubul’ in Muslim Marriage law. The proposal is made by one party on behalf of other and it is accepted by other party in one meeting. Both should be done in one meeting. In case, if proposal is made in one meeting and proposal is accepted in second meeting then, it will not be considered as valid Marriage.

2) Capacity of Party: – The parties must be major and sound mind and Muslims to enter into a Muslim Marriage contract. The age of majority of bride and bridegroom is 15 years.

3) Presence of Witness: – Presence of two male witness or one male and two females witness during proposal and acceptance of Marriage. Thus, absence of witness is not rendered as void Marriage because According to Shias, there is no necessity of presence of Witness.

4) Free Consent: – There must be free consent of both the parties. A Marriage contract does not made by Coercion, Fraud and Undue Influence.

5) Mehar or Dower: – Mehar is sum of money which is given by bride groom to his bride in consideration of Marriage, without consideration (Dower or Mehar) a Marriage becomes void.

FORMALITIES UNDER MUSLIM MARRIAGE:

There are not any special rituals and ceremonies are written in Muslim Law for a Valid Nikah. There are few conditions which are not opposed to Islamic policy and written in Muslim Marriage Law. Hence, these conditions are valid in the eye of law.

The following requirements are compulsory i.e, the proposal and acceptance of that proposal between the parties, the parties (bride and bridegroom) must have attained puberty. The existence of both the parties in the matrimonial contract must be without apprehension of fraud, coercion and Undue influence. The parties must be sound mind and there should not be execution of prohibited marriages. Therefore, the fulfilment of these conditions are required to make a valid Marriage in the eye of law.

IMPEDIMENTS TO MUSLIM MARRIAGE:-

Impediments to Muslim Marriage is mentioned in Asbab-Ul-Tahrim. Impediments to Muslim Marriage are those which is prohibited under Muslim Marriage law and makes the Marriage void or irregular. There are following kinds of impediments are as follows:-

1. Permanent or Absolute Impediment: – Muslim Marriage cannot commence within blood relationship. If anyone proclaimed to be a husband and wife within a blood relationship then, then that Marriage becomes void. There are absolute prohibited degree of relationships are as follows:-
   1. Consanguinity:- It refers to the blood relationship in which Marriage is prohibited such as his mother or grand-mother, daughter or grand-daughter,  his sister ( irrespective of full blood/ half blood or uterine blood), niece or great niece and aunt or great aunt(how high or lowsoever), whether it is paternal or maternal.
   2. Affinity: – it refers to the Marriage with close relatives is also void. The prohibited relationships are his wife’s mother or grand-mother, Wife’s daughter or grand-daughter, father’s wife or paternal grand-father’s wife and his son’s wife or son’s-son’s wife or daughter’s-son’s wife (how high and lowsoever).
   3. Fosterage: – it refers to the Marriage with milk relationship is also void. The prohibited relationships are his Foster mother or Foster grand-mother and daughter of foster mother (how high or lowsoever).

However, the marriage with these relationships are void.

Sunni law has few exceptions on prohibition of fosterage relationships in which Marriage becomes Valid. The relationships are Sister’s mother, foster’s-sister’s mother, foster-son’s sister and foster-brother’s sister.

But, Shia Jurists were denied from these above exceptions.

2. Temporary or Relative Impediment: – These impediments are temporary in nature. Although, the Marriage can become valid after the removal these impediments but the Marriage will remain void until the temporary impediments are removed.
   1. Unlawful Conjunction :- A Marriage with two wives at a same time who is belong to Consanguinity, Affinity and Fosterage relations and if one of them is male then, it cannot be considered as lawful Marriage. However, impediment can removed by death or divorce of any of the wives. Hence, these kinds of marriages are void under Shia law and irregular under Sunni law.
      
      There’s one exception under Shia law is that a man may marry a wife’s aunt but can’t marry with wife’s niece without wife’s consent.
   2. Polygamy: – Only four wives are allowed to Mohammedan Male to keep at same a time. Marriage with more than four wives at a same time are void under Shia law and irregular under Sunni law.
   3. Iddat: – It is a specific period in which a woman is restricted to remarry with Mohammedan Male from the death of her husband. Wife is entitled to stay away from re-marriage for period of 4 months and 10 days. In the case of divorce of an old women then, the wife shall observe Iddat for three menstruation periods. In case if a man going to take divorce from his wife  but  he dies before expiry of Iddat then, the new period shall commence on death.
   4. Absence of Witness: – According to Sunni law, the presence of witnesses are necessary. Hence, Absence of Witness shall be considered as irregular Marriage.
   5. Different religions: – A women can only marry wit Muslim men and men can marry a kitabyah but not with idol-worshiper.
   6. Supervenient illegality: – Prohibition on Consanguinity, Affinity and Fosterage arises after the Marriage considered as irregular Marriage.

3. Directory Impediment are as follows:-
   1. Pregnancy: A Mohammedan Male does not allow to marry with a divorced pregnant woman. It is void Marriage.
   2. Pilgrimage: A Hanfi law allows Marriage during pilgrimage.
   3. Equal status of parties: As per Baillie, hedaya and Dar-Ul-Mukhtar, the husband must have equal status in society as his bride’s status. The bride’s father status is considered as her status while high status husband can marry a low status bride.

KINDS OF MUSLIM MARRIAGES

1) Sahih Marriage: A wife has right to get Maintenance and Mehar from her husband and husband has a right to prohibit his wife movements under marriage. It is a valid Marriage.

2) Fasid Marriage: When both the parties are failed to fulfil the essential conditions are considered as irregular.

3) Batil Marriage: A Marriage which takes place without free consent of a woman is unlawful under Muslim Law.

4) Muta Marriage: A Muta Marriage is for temporary period. Only Shia Muslims practice such Marriage with a woman from Jewish, Mohammedan and Christian religion.