MARRIAGE UNDER MUSLIM LAW

MARRIAGE UNDER MUSLIM LAW

Author: Aditi Shukla

College name: Banasthali Vidyapith

INTRODUCTION

The word Nikah implies marriage under Islam. The literal meaning of the word Nikah is ‘to tie up together’. Marriage is basically union of two people, a male and a female governed by certain established rules and regulations. Marriage in the Islamist context is a marital relationship and an institution which validates male-woman sexual activity for the reason of procreating children, promoting love, supporting one another and establishing families that are deemed to be an indispensable unit in social structure.In pre-islamic times women were treated as assets and were totally reliant. Prophet Mohammad was the one who caused a shift in women's status.

Definition of Marriage:-

“Baillie’s Digest defines marriage -a contract for the purpose of legalizing sexual intercourse, and procreation of children”.

“Hedaya defines- Nikah in its primitive sense, means carnal conjunction”.[1]

“Tyabji defines: Marriage brings about a relation based on and arising from a permanent contract for intercourse and procreation of children, between a man and a woman, who are referred to as parties to one marriage and who after being married become husband and wife”.[2]

In the case of Shoharat Singh v. Jafri Begum Privy Council[3] said Nikah is a religious rite under Muslim law.

Nature of Valid Marriage:-

Concerning the nature of Muslim marriage, differences of view exist. Some legal expert believe that Muslim marriage is just a contractual agreement while others believe that it is a religious ceremony.

In case of Abdul Kadir v. Salima[4] it was said that “Marriage among Mohammedan is not a sacrament, but purely a civil contract”.

· As marriage necessitates for one side to offer it (Ijab) and the other to accept it (Qubul), so the contract does. Furthermore, without free consent, no marriage can take place, and no such permission can be gained by deception, force or undue influence.

· Like in a contract concluded by a guardian, in accordance with Muslim law, a marriage agreement can be revoked by a minor when the age of puberty is reached.

· Although condemned both by the Quran and the Hadith, there is also provision for the violation of the marriage contract, as with any other agreement.

“Justice Mahmood observed: Marriage among Mohammedans is not a sacrament, but purely a civil contract; and though it is solemnized generally with the recitation of certain verses from the Quran, yet the Mohammedan law doesn’t positively prescribe any service peculiar to the occasion”.

A distinct view that considers that Muslim Marriage is not a contract because:-

· Marriage under Muslim law could not be made reliant on a future occurrence, unlike a civil contract.

· It cannot be for a set period unlike legal contracts (muta marriage is an exception).

· The analogy of lien cannot apply, unlike a civil agreement, to a marital agreement. Secondly, the underpaid seller might cancel the selling contract for items. The woman is not authorized by a marriage contract to divorce her husband, or to remain with a third party when part of her dower is not paid.

Observation of “M.C.J Jung: Marriage is an institution of Ibadat clothed in the legal form of contract regulating sexual intercourse; but its continuance is dependent upon the maintenance of conjugal affection”.[5]

From the above discussion it can be concluded that marriage under Muslim law is not purely a civil contract nor a sacrament. Marriage under Muslim law is mixture of both contract as well as sacrament.

Essentials of Marriage under Muslim law

Following are the essential elements of valid Marriage:-

a) Proposal and acceptance- ijab-o-qabool is a significant element of marriage under Muslim law which means by declaration and acceptance. An offer (ijab) is made by one party to the other. When the offer is accepted (qabool) the marriage is completed. The proposal must be accepted before two sane, adult Muslim male, or one male and two female witnesses. At the same meeting, the offer and acceptance must be made. It is crucial. The consent for marriage must be free and should not be subject to any influences, fears or conditions.

In case of Rashida Khatoon v. S.K. Islam[6] a man assured a women that he would marry and cohabit with her. A child was born after a while and women claimed wife status. In this matter, the court said that the proposal from a party and acceptance by the other party in the presence of two male or one male and two female witnesses and the Qaji are required to establish a lawful Muslim marriage. And in one meeting it shall be both proposed and accepted. There was no marriage in this scenario hence women was not entitled to the status of married women.

b) Competent Parties-

The parties must be:-

i. Major- Privy council in case of Muhammad Ibrahim v. Atkia Begum & Anr[7] discussed the age of puberty for girl and boy under Muslim law, girl is said to have attained puberty if (a) she is of 15 years age (b) attained puberty at an earlier age. Same thing goes for the Muslim boy. When the age of 15 is reached, parties can consent and they don't require guardian’s approval.

If a person is a minor, i.e. not at a puberty age, the guardian must provide his approval to make marriage legally permissible.

Following persons are eligible for providing approval to the marriage-

(i) Father

(ii) Paternal grandfather

(iii) Brother or any other male member of father’s family,

(iv) Mother,

(v) Members of Maternal Relation.

(vi) The state.

In the absence of the former, the right is passed by order of precedence from one guardian to another.

c) Soundness of mind-Both parties should have a sound mind at the moment of marriage. An unsound person is not capable of entering into a contract and his consent in the legal sense is regarded as no consent.

d) No legal disability-In accordance with Muslim law, in certain circumstances marriage is not allowed. The limitations can be divided into two parts:

i) Absolute Incapacity/ prohibition- A Muslim marriage is not possible if the parties fall into the blood relationship or he banned degree of each other's relationship and the marriage is unlawful. The strictly forbidden degrees of affinity are:

· Consanguinity-This is the banned degree of relationship in which a man has been prevented from marrying his ascendants –

Mother, grandmother, sister, aunt, daughter, granddaughter, niece etc.

Marriage with these women’s are void.

· Affinity- It is about preventing a man from marrying specific women because of the close connection-

-Mother and Grandmother of his wife (how high so ever),

-Daughter or granddaughter of his wife (how low so ever),

-The wife of his father or the paternal wife of his grandfather (how high so ever), and

-Wife of his son or wife of the son of his son or wife of a son of his son. (how low so ever).

Marriage with these women’s are void.

· Fosterage- it is considered as a milk relationship in which a women who is not the mother of the wife breastfeed/ suckled a child of below 2 years age, then the lady becomes the foster mother of that child. A man is barred from marrying:-

-foster mother or foster grandmother

-Foster mother’s Daughter (Foster sister).

Whereas under Sunni law few exceptions are found regarding fosterage. Marriage with these relations are considered valid-

- The foster mother of Sister

- Mother of Foster's sister

-The sister of Foster-son

- The sister of Foster-brother

Shia law don’t give validation to exceptions provided by Sunni law.

ii. Relative prohibition- Some prohibitions under Muslim laws are relative, meaning that marriage is irregular and not void with this kind of relative prohibition. The marriage becomes legitimate after the irregularity is addressed. The relative restrictions are as follows:

· Unlawful Conjunction- A Muslim man is barred from marrying two different women if they are connected to each other through affinity, fosterage, consanguinity because their marriage would be void (batil) if they were of opposing sexes.

Sunni law regards marriage in violation of unlawful conjunction as irregular not void, whereas the Shia law regards those marriages as void.

· Polygamy-Muslim law allows polygamy but are limited to four women only. A Muslim man could have four women at a time, but if he marries a fifth, although he has four women, then marriage becomes irregular and not void. Shia law considers marriage with fifth wife as void.

· Lack of Witness- Presence of proper and competent witness are must for contracting marriage. Under Shia law presence of Witness is not essential but in Sunni law without the witnesses marriage would be irregular.

· Difference of Religion- the Sunni law authorizes a Muslim male to be married to a woman who respects the same texts, such Christain, Parsi, and Jews but who marries an idol/fire worshipper then the marriage would be irregular. A Muslim women cannot marry a non-Muslim, it would be irregular if the same happens.

Shia law regard the marriage with non-Muslim as void.

· Marriage during Iddat- It is referred to be a waiting period after her husband's death or after marriage is terminated in which she cannot remarry. The goal is to examine whether or not the woman is pregnant and raises concerns about the parenthood of a kid who is born. Marriage during iddat is considered as irregular in Sunni law, and the same is considered void under Shia law.

[1] Hedaya, p.25. [2] Tyabji: Muslim Law, 4th Edn. Pp. 44-45. [3] (1915) 17 BOMLR 13. [4] (1886)8 All. 149 at 154 [5] Dr. Jung (M.U.S), “ Dissertation on the Development of Muslim Law in British India”, pp.1-2 [6] AIR 2005 Ori.57. [7] 16 Ind Cas 597.