Search
  • Legis Scriptor

Critical Analysis of the Essential Conditions of a Muslim Marriage


Authored by : Anjali Chaudhary


Abstract

Muslim marriage deals with various conditions that are essential for the marriage to render it legal under the law of the land. This article briefs about the essential conditions of a Muslim marriage as well as the prohibitions which need to be taken care of while determining the validity of the marriage. It is argued in this article how some Muslim marriage laws are failing to implement the basic structure doctrine in the laws and are not following the Rule of Law which is covered as a component of critical analysis of the essential conditions of a valid Muslim marriage.

Keywords

Prohibition; Contract; Muslim marriage; Essential conditions; Polygamy; Muslim laws

Introduction

The essential conditions of a Muslim marriage are deciphered similar to a civil contract. This legal contract is the element of a Muslim marriage. Muslim marriage in its most authentic term is called ‘nikah’ which means ‘a contract’ in Arabic. The holy book of Muslims which is Quran specifies marriage as ‘Mithaqun Ghalithun’ which translates to ‘a strong agreement’ in the English language. This agreement is subject to certain stipulations and a Muslim marriage is only valid if these stipulations are sufficed, then only a Muslim man and woman could be pronounced as Husband and Wife. Otherwise, the marriage is considered to be invalid. Originally, the cardinal laws which all the people following the religion of Islam are expected to follow are mentioned in the Holy Quran but with the advancement in the society and the evolution owing to the dynamism of the ideologies of masses, these laws have found their way in codified laws provided by the authorities and the followers are bound to follow them. By the same token, the laws regarding the validity of a marriage are also to be followed by the people of this religion.

Essential Prerequisites of a Muslim Marriage:-

A Muslim marriage is considered to be valid under two circumstances

i) It suffices all the essentials for a marriage to be legally valid

ii) It does not fall under any restrictions or prohibitions under Muslim marriage laws

1. Proposal and Acceptance

For a Muslim marriage to be legal, there must be an offer and the acceptance of that offer. These two processes need to take place in one meeting. If the offer is made in one session and it is accepted in another, that act is not considered to be legitimate and hence, it defines as essential for the validity of the marriage. This proposal could be made by the parties or their agents and no witness needs to be present on the occasion.

2. Competency of Parties

This means that both the parties should be competent to enter into a contract of marriage according to the law and makes it mandatory for both the parties to be of sound mind, should’ve attained the age of puberty i.e. 15 years. The minor individuals or of unsound mind can also be made to enter into this contract of marriage if they have the consent of their guardians, however, they have the alternative to choose to stay in the marriage or step out after reaching the age of puberty.

3. Free Consent

This is one of the most crucial essentials of a Muslim marriage to be considered valid. Even if all the other conditions of a valid marriage are sufficed, it would not be valid if the ‘free will’ of either of the parties is not present.

4. Dower or Mehar

Dower or Mehar is a sum of the amount fixed by the parties which the bride is supposed to receive from the groom’s family which acts as the consideration of the contract. A marriage could not be considered valid without the Mehar.

Prohibitions under a Muslim Marriage:-

For a Muslim marriage to be valid, it just does not need to fulfill the conditions but should also fall out of any kind of prohibition.

1. Unlawful Conjunction

It is not allowed under the law for a Muslim man to marry two sisters who are related by blood. If he wants to marry the sister of his wife, he has to divorce the latter first and then marry the former.

2. Near relative marriage

A Muslim man is not allowed to marry a girl who is related to him by fosterage, consanguinity, or affinity. Such marriages are considered to be illegal under the law.

3. Marriage Plurality

A married Muslim woman is not allowed to marry another man without divorcing her husband. On the contrary, if a Muslim man wants to marry for the fifth time and already has 4 wives, he is required to divorce one of the four wives to marry the fifth woman as he is not allowed to keep more than five wives.

Critical Analysis – Objective exploration of the legal issue

India is a sovereign and a secular country that allows different religions to apply their personal laws on their followers but in addition, it requires all the laws to comply with the Rule of law which falls under the Basic Structure doctrine. It is given under Article 15 of the constitution that there must be no discrimination based on race, caste, sex, religion or place of birth and the preamble advocates this provision too but there are a few personal laws that end up breaching this principle of equality. The Muslim laws are somewhere failing to adapt to the Laws against discrimination based on sex as they allow a man to have four wives but at the same time, a woman is not allowed to have more than one husband. It’s high time that the laws promoting this type of discrimination are reconsidered and identical laws regarding both the genders should be adopted.

Conclusion

It was observed in the case of Abdul Kadir v. Salima and Anr that the nature of a Muslim Marriage is primarily contractual in nature and needless to say, for a contract to be legal under the law, essential conditions should be sufficed and the same procedure is followed in a Muslim Marriage. In Islam, marriage is seen along with the concept of morality where the community is of the belief that marriage safeguards the social security of a woman. It is comprehended as a contract which both man and a woman enter to confirm with their rights and obligations of cohabitation.

References: [i] http://www.legalserviceindia.com/article/l418-Muslim-Marriage.html [ii] https://www.academia.edu/39175568/Essentials_of_Valid_Muslim_Marriage [iii] https://blog.ipleaders.in/essentials-of-valid-marriage-under-muslim-law/ [iv] https://www.academia.edu/39175568/Essentials_of_Valid_Muslim_Marriage

[v]https://www.yourarticlelibrary.com/muslim-marriage/muslim-marriage-essential-conditions-and-prohibitions/47625


Footnote :

[1] Abdul Kadir v. Salima and anr. (1886) ILR 8 AII149

CONTACT US

Website:-          www.Legisscriptor.com

E-mail:-            Info.legisscriptor@gmail.com

For Internship:- Legisscriptor.internship@gmail.com

Contact info:-    8851264387 (WhatsApp Only)

© 2020 by Legis Scriptor. 

  • LinkedIn
  • Instagram