Muslim Law

Introduction

• Marriage is considered a social structure due to its universality within different societies and cultures.
• Marriage is a socially and legally sanctioned union that is regulated by laws, rules, customs, and beliefs that prescribe the rights and obligations of the partners and accords status to their offspring (if any).
• For a Muslim marriage to be valid it has to comply with the formalities laid down by Muslim law although it is a contract. On performance of nikah, a marital status arises between the parties.

Essential Conditions of Muslim Marriage

A marriage can be legally performed between the parties possessing full capacity to marry. The general essentials for marriage under Islam are as follows:

Proposal And Acceptance

• Marriage, like any other contract, is constituted by Ijab-O-Qabul, that is by declaration and acceptance. One party to the marriage must make an offer (Ijab) to the other party.
  • Marriage becomes complete only when the other party has accepted (Qabul) that offer.
• The words conveying proposal and acceptance must be uttered in each other’s presence or in the presence of an agent.
  • Under Sunni law, the proposal and acceptance must be made in the presence of two males or one male and two female witnesses who are sane, adults and muslims.
    • Absence of witnesses does not render marriage void but voidable.
  • Under Shia Law, witnesses are not necessary at the time of marriage.

Free will and consent

• The consent should be without any fear, undue influence or fraud.
• That parties contracting a marriage must be acting under their free will and consent.
• In the case of a boy and girl who have not attained the age of puberty, the marriage is not valid unless the legal guardian consents to it.
• The consent may be express or implied.

Related Cases

• In the case of Sayad Mohiuddin v. Khatijabai (1939), the Bombay High Court held that where marriage of a Shafei Girl, who had attained puberty was performed by her father against her consent, the court held that marriage was void.
• Similarly in the case of Sheikh Abdullah v. Dr Hussaina Praveen (2012), Nagpur bench of Bombay High Court had reiterated that:
  • “Muslims in India are governed by the personal laws under which Nikah (marriage) is a civil contract and may be permanent or temporary. Therefore, all the ingredients of a valid contract must be satisfied. A woman who has attained the age of puberty must be of sound mind and competent to enter into a contract of marriage. Free consent should be given by both the contracting parties. A vakil is required to be voluntarily appointed. A proposal must be made in the presence and hearing of two male or one male and two female witnesses, all adult and sane muslims coupled with the payment of prompt dower. But there appears no such evidence in the present case to prove the marriage as valid.”

Competent Parties

For a marriage to be valid, the parties must be competent to give their consent without any fear or undue influence. There are many factors which determine the competency of the parties to the marriage. Some of them are as follows:

Age of Marriage

• The parties to a marriage must have the capacity to enter into a contract. In other words, they must be competent to marry. A Muslim who is of sound mind and who has attained puberty may enter into a contract of marriage. The parties must be able to understand the nature of their act.

Puberty

• Another important factor to determine whether the parties are competent is puberty. Puberty means the age when a boy or a girl becomes capable of begetting or bearing children.
• Puberty is presumed, in the absence of evidence, of the completion at the age of 15 years. The Indian Majority Act, 1875 does not apply to the muslims in respect of marriage, dower and divorce.

Marriage of minors and guardianship in marriage

• Marriage of a minor without the consent of the guardian is invalid unless it is ratified after the attainment of majority. A boy or girl who has attained puberty is at liberty to marry any one he or she likes, and the guardian has no right to interfere if the match be equal.

Abdul Ahad v. Shah Begum (1996):

• Jammu and Kashmir High Court held that marriage of a minor girl even contacted by a Wali is invited ab initio.
• A minor girl aged 14 years was married to a man who was a major. The husband lived in the house of his wife for some time and when he tried to carry his wife with him, the parents refused to send the wife. The husband therefore instituted a suit for restitution of conjugal rights against the defendant.
• The High Court in the case, came to a conclusion that at the time of marriage the girl was a minor and the marriage was contacted during her minority by a person who was not competent to give her in marriage. He was simply a Wali (not a guardian) and had not shown at any point of time that he had the authority of law to give minor girl in marriage. The court further observed that in no such circumstances there was given a reputation needed by the minor girl to enable the marriage because the marriage in itself had been invalid ab initio.

Dower

• It is referred to as ‘Mehr’. Dower means sum of money paid by husband to his wife at the time of marriage. According to Wilson, "Dower is a consideration for the surrender of person by the wife."

Free From Legal Disability

Under Muslim law, marriage is not permitted under certain circumstances. The restrictions/prohibition can be divided into two parts:

Absolute Prohibition

• A Muslim marriage cannot take place if the parties are within the blood relationship or prohibited degree of relationship of each other in this case the marriage turns to be void.

1. Consanguinity

• It refers to blood relationship in which a man is barred from marrying the following females:
  • His mother or grandmother (how high so ever),
  • His daughter or granddaughter (how low so ever),
  • His sister (irrespective of full blood/ half-blood/ uterine blood),
  • His niece or great-niece (how low so ever) and
  • His aunt or great aunt, whether paternal or maternal (how high so ever).
• A marriage with woman prohibited under consanguinity is void. Also, children born out of that wedlock are considered illegitimate.

2. Affinity

• A marriage with certain close relatives is also prohibited in Muslims due to closeness of relationship. The prohibited relationship are as follows:
  • His wife’s mother or grandmother (how high so ever),
  • His wife’s daughter or granddaughter (how low so ever),
  • His father’s wife or paternal grand-father’s wife (how high so ever) and
  • His son’s wife or son’s son’s wife or daughter’s son’s wife (how low so ever).
• A marriage with woman prohibited under affinity is void.

3. Fosterage

• It refers to the milk relationship. It is a condition when a lady other than the mother of the wife, breastfed/ suckled the child under the age of two years, the lady turns to be foster mother of the child.
  • A man is restricted from marrying the persons who comes under foster relationship.

Relative Prohibition

• Under Muslim law, certain prohibitions are relative and not absolute. If marriage takes place in violation of such prohibition, it is only irregular and it can’t be declared as void. Following fall in the category of relative prohibition:

1. Unlawful Conjunction

• It means contemporaneously marrying two women so related to each other by consanguinity, affinity or fosterage, which they could not have lawfully intermarried with each other if they had been of different sexes. Thus, a Muslim cannot marry two sisters, or an aunt and her niece.
• Under the Shia Law, a Muslim may marry his wife's aunt, but he cannot marry his wife's niece without her permission. Marriage prohibited by reason of unlawful conjunction is void under Shia Law.

2. Polygamy

• In Muslim Marriage law, 4 wives are allowed at a time. But if a man marries for the fifth time, that marriage becomes irregular. On termination of earlier marriage or death of one wife, the fifth marriage becomes valid.
• In Shia law, fifth marriage is void. Also, if a Muslim man is married under the provisions of Special Marriage Act, then he cannot do bigamy or polygamy, it means he can’t have 2nd wife while subsistence of the 1st marriage.

3. Absence of Proper Witness

• The marriage must be performed in the presence of proper and competent witnesses.
  • Under Shia law, presence of witness in not at all important for a valid marriage.
  • Under Sunni law, presence of witness is essential else the marriage would be irregular.

4. Difference of Religion

• A Muslim man can marry a woman who is Christian, Parsi & Jews, but he cannot marry a woman who is a worshipper of fire/idol. If he does so, it is considered as irregular marriage.
• In the case of Muslim woman, she cannot marry a non-Muslim man, if she does so, it is also considered as irregular.

5. Marriage During Iddat

• “Iddat” means a particular time after ending of marriage (divorce) or when the husband dies.
• The period of iddat is 3 lunar months in case of divorce and 4 lunar months 10 days when the husband dies. If the marriage was not consummated there is no need to follow iddat period.
• Under Shia law, the marriage during Iddat period is void whereas under Sunni law, the marriage during Iddat period is irregular.