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Nature of Marriage under Muslim Law


Authored by Satvica Dixit


Keywords: Muslim law, Muslim women, Marriage, Contract, Essential Conditions, Sacrament, Quran, Relationship, Valid, Competency, Polygamy, Proposal, Acceptance, Consideration, Free Consent.


Abstract

Muslim Law is based on “Shariat Law” and it is a Qitabiya Law i.e. based on the interpretation of the Quran. Marriage forms the very basis of the kind of social organization and society that we live in. Islam as compared to other religions is a strong advocate of marriage. The Prophet in Islam said long before about the discouragement of celibacy in Islam which means that no person can abstain from marriage.


It is a social need in Islam and a legitimate way of indulging in intimacy between man and woman. A Muslim marriage or Nikah as it is called in Arabic, has fixed and stiff rules which had been laid down by the Prophet, and everyone needs to be abided by them. Although marriage under Muslim law permits Polygamy with several conditions, it completely prohibits Polyandry. The exclusiveness of Muslim marriage is an interesting topic for discussions among legal luminaries and this article will justify this.


Introduction

The nature of marriage under Muslim law is similar to a civil legal contract between the man and the woman. The Quran especially refers to the marriage as "mithaqun Ghalithun," which means "a strong agreement". Juristically marriage under Muslim law is a contract and not a sacrament and this judgment was given by Justice Mahmood in the case of Abdul Kadir v. Salima[1]. He supported his view from the text of Kanz, Kifayah, and Inayah which conveys that "marriage is a contract which has for its object the right of enjoyment or procreation of children. But it was also instituted for the solace of life and is one of the prime or original necessaries of man... The pillars of marriage, as of other contracts are Ijab-o-Kubool, or declaration and acceptance”.


From the religious angle, the Muslim marriage is an ibadat (devotional act) as already said by Prophet that it is essential for every physically fit Muslim to marry, the only condition is that he should be capable of affording it whole-heartedly.


Essentials of a valid Muslim Marriage

A valid Muslim marriage (Sahih) is something that is formed after fulfilling all the essential conditions related to it and in accordance with it. With much pressure on the fact that Muslim Law is a kind of contract, one needs to fulfill all the essentialities of contract. The kind of essentialities that are needed to make a contract is the same in forming a Muslim marriage i.e. proposal, acceptance and consideration, and free consent.


1. Ijab (proposal) and Qubul (Acceptance)

As any contract begins with a proposal similarly the marriage in Muslim also begins with a proposal which is also known as “Ijab”. There should be a proposal on behalf of one party and acceptance of the proposal on behalf of another party. The proposal should be accepted unconditionally, only then it is considered to be a valid acceptance. It is necessary to agree for the marriage during one meeting only and the agreement should be witnessed by two adult witnesses.

2. Mahr (Consideration)

It refers to the money or property that is offered from the side of the groom to the bride as consideration for marriage. Its object is to guarantee the bride a sense of financial security within and after the termination of the marriage. In the case of Nasra Begum v. Rizwan Ali[2], the court held that the right to Mahr comes into existence before cohabitation and is a necessary element for marriage. The Court also concluded that if the wife is minor then her guardians can refuse to send to her husband until payment of Mahr.

3. Competency of Parties

Like any other contract, the parties need to be competent i.e. able to enter into marriage. The competency of parties to enter into marriage is that the person should be major, of sound mind, and is Muslim. The age of majority in Muslim law unlike contract laws is 15 years of age or when the person attains puberty. In the case of Nawab Sadiq Ali Khan v. Jai Kishor,[3] the court held that the age of puberty begins with menstruation. In the given case, the privy council agreed that the age of the majority of the girl is nine years. In Munshi v. Alam Bibi[4], every Muslim woman has attained puberty even though she is under fifteen years.

Similarly, the person who is of unsound mind or believes insects other than Islam cannot enter into marriage under Muslim law.

4. Free Consent

A contract is not valid if it is entered with coercion, fraud, the mistake of fact, etc same is with Muslim marriage. Free consent is a crucial aspect to enter into marriage under Muslim law and any marriage entered without free consent is not valid. In the case of Mohiuddin v. Khatijabibi[5], the Court said that a marriage is invalid if it is held without the free consent of the parties. In the case of Hasan Kulfi v. Jounga[6], free consent is not only essential for a valid marriage but is necessary.

5. Legal Disability

There are some relations between if marriage happens, it becomes completely void and is prohibited in Islam. The absolute prohibited degrees of relations in which the marriage is prohibited are:

I. Consanguinity: It is the relationship that we have with our ascendent and descendent and marrying any woman from this relation is prohibited in Islam. The relation of the mother, Grand-mother, daughter, Grand-daughter, sister (full blood/ half-blood/ uterine blood), niece, Great-niece, aunt, great aunt, whether paternal or maternal are considered as pious, and marrying in any such relation is not considered to be legal.


II. Affinity: Marriages in some proximate relations are also void in Muslims because of close relationships. For example, the wife’s mother or Grand-mother, wife’s daughter or Grand-daughter, father’s wife or paternal Grand-father’s wife and son’s wife or son’s wife or daughter’s son’s wife. Marriage to any such woman is void under Muslim law.


III. Fosterage: Milk relations are also considered as something very pure. So, marrying to any such woman who has fed you her milk or fosters you are forbidden.

6. Relative incapacity

Some cases render the marriage invalid, the moment it is removed the marriage becomes valid and legal.

I. Unlawful Conjunction: Marrying two women who are related to each other by consanguinity, affinity or foster age is invalid under the Muslim law.

II. Polygamy or marrying the fifth wife: Although polygamy is allowed under Muslim law it is only allowed till four wives. So, marrying any woman after having four wives is not allowed under Muslim law.

III. The difference of Religion: Muslim law only provides for valid marriage between the persons who have their faith towards Islam or believe in a divine book religion i.e. Islam, Christianity and Judaism are valid under the Sunni Law but marriages to idolatress or a fire-worshiper are invalid.

IV. Women undergoing Iddat: Marrying any woman who is going through her Iddat period is not allowed and is considered as invalid marriage. Iddat is a three months period which the women have to go through after the death of husband or divorce to claim their purity.

V. Absence of proper witness: The absence of proper sane and adult two male witnesses or one male and two female witnesses renders the marriage void however in Shia law it is not necessary.

7. Prohibitive Incapacity

There is certain prohibitive incapacity for Muslim women under Muslim law. Marrying to more than one man at a time i.e. Polyandry and non-Muslim male even to a Christian, or a Jew is prohibited.

8. Directory Incapacity

Marrying a woman who is already pregnant by her former husband and marrying a sick man suffering from a fatal disease is unlawful according to Muslim law. Marrying someone during the pilgrimage is not allowed under Shia law.

Conclusion

Unlike other contracts, Muslim marriage is not for a fixed period of time and it is not for contingent future contracts. Therefore, even this cannot be said to be fully contractual. In Islam. It is one of the religious sacrament which is utmost pious in nature and its duties and obligations should be respected. Although there is much contention on the fact that whether Muslim marriage is a contract or a religious sacrament but C.J Sir Shah Sulaiman in the case of Anis Begum v. Mohammad Istafa[7], tried to put a more balanced view of the Muslim marriage by holding it both a civil contract and a religious sacrament. In the ultimate analysis, it can be said that it is not a discrete that could be named but a unique blending of both.

References

[i] https://www.amu.ac.in/emp/studym/99995934.pdf

[ii] http://www.helplinelaw.com/family-law/MMUL/marriage-under-muslim-law.html

[iii] http://www.legalserviceindia.com/article/l162-Concept-of-Marriage-in-Muslim-Law.html

[iv] https://blog.ipleaders.in/marriage-under-muslim-law/

[v] https://www.lawctopus.com/academike/marriage-under-muslim-law/

Foot Notes: [1] Abdul Kadir v. Salima, (1886) ILR 8 All 149 [2]Nasra Begum v. Rizwan Ali AIR 1980 All 118

[3]Nawab Sadiq ali Khan v. Jai Kishor, (1928) 30 BOMLR 1346 [4]Munshi v. Alam Bibi AIR 1932 Lah. 280 [5] Mohiuddin v. Khatijabibi, 41 Bom L.R. 1020

[6]Hasan Kulfi v. Jounga, AIR 1928 Mad. 1285 [7]Anis Begum v. Mohammad Istafa, AIR 1933 All 634

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