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NIKAH: SOCIAL CONTRACT


Authored by Smarth Arora


Keywords: Mahr, Dowry, Shari-at, Sunni, Shia, All India Muslim Personal Law Board (AIMPLB), Hadith, Ulema, the Quran, Nikah, Talaaq, Talaaq-e-biddat, Alimony.


Abstract

This article discusses one amongst the different types of marriages recognised in India and analyses the prevailing law over it using the appropriate case laws and judgements. The article analyses the validity of such marriages in India and concludes with some opinions on such marital institution.


Introduction

India is a vast country with one of the oldest civilisations in the World. India is a mosaic of multicultural experiences. With a rich heritage and myriad attractions, the country is among the most popular tourist destinations in the world. One of its most important aspects is the diversity in Indian culture and the social fabric of the institution of marriage(s).

In India, many aspects of civil law are governed by secular legislation, which are neutral towards the treatment of individuals with respect to religious affiliations. However, certain aspects of life, like marriage, adoption, inheritance are broadly based on religious norms, which may or may not be codified. For instance, Muslim law is not codified but Hindu law is codified in legislations.

A constant subject matter of debate remains the search for secular- religious balance in light of claims of individual dignity and human rights. This has also been the chief bone of contention at the heart of the debate surrounding the proposal for a uniform civil code.

Uniform Civil Code

It refers to the concept of an overarching Civil law code in India. A uniform civil code administers the same set of secular laws to govern all people, even those belonging to different religions and regions. This supersedes the right of citizens to be governed under different personal laws supported their religion or ethnicity. Such codes are in situ in most up-to-date nations. Although Article 44 aspires for a uniform civil code as a Directive Principle of State Policy, there has never been adequate consent and political will in giving effect to the same. Islamic Law 1. The primary source for the Islamic law is the Shari - at, which is derived from the sacred text of Islam, the Quran and traditions (Hadith) gathered from the life of the prophet Muhammad, and the interpretation of these sources by the Islamic scholars (the Ulema). 2. In India, the All India Muslim personal law board (AIMPLB), a private body constituted in 1973 is the principal body responsible for adopting suitable strategies for the protection and continued applicability and interpretation of Muslim Personal Law in India. 3. The Muslim Personal Law (Shari - at) Application Act of 1973, provides for the application of the Islamic Law Code of Shari - at to Muslims in India in personal affairs. 4. The two major schools of Islamic Law are the Shia and the Sunni.

Muslim Marriage Muslims have their own provisions with reference to marriage and divorce. Islamic marriage (Nikah) is a contract. The following are the features of a Muslim marriage: 1. There shall be a proposal and its acceptance. The proposal of marriage is tied to agreements on a dowry (a gift by the family of the groom to the family of the bride) and a mahr (a marriage gift by the groom to the bride), etc. 2. Competence of parties - Any Muslim who is sound mind and who has attained age of puberty may enter into contract of marriage. There ought to be free consent of both parties to the wedding.

Talaaq/Divorce The Methods of Divorce are a little elaborate. Methods of Divorce:

1. A husband may divorce his wife by repudiating the wedding without giving any reason. Pronouncement of such words which signify his intention to disown the wife is sufficient. Generally this is done by talaaq. However, after a 2017, Supreme Court judgment, a man may not divorce his wife by the way of talaaq-e-bidat also known as instantaneous triple talaaq.

2. A wife may divorce her husband in accordance with provisions given in Muslim Women (Protection of Rights on Divorce) Act.

Maintenance 1. Section 125 of CRPC deals with the provisions regarding maintenance of wives, children and parents. If any individual having sufficient means neglects or refuses to maintain his wife, or his legitimate or illegitimate minor child, or a major child, who is disabled, or his father or mother, if unable to maintain themselves, features a right to maintenance. Then a Magistrate of the first class may, upon proof of neglect or refusal to maintain, order an individual to form a monthly allowance for the maintenance of his wife or such child, father or mother. 2. However, alimony is different from maintenance. It is a form of spousal support and an obligation established by divorce law or family law in many countries. This obligation is predicated on the premise that both spouses have an absolute obligation to support each other during their marriage (or civil union).

3. Alimony is the extension of the obligation to support after separation or divorce. It doesn't include child support, which is another indebtedness to be decided at the time of divorce. Child support is where one parent is required to contribute to the support of his or her children through the agency of the child’s other parent or guardian.

4. The present society treats men and women equal, as a result of alimony can now strike either side of the party depending upon the financial circumstances of the spouses. The terms and conditions of payment of alimony in India vary from one personal law to different. In the Shah Bano case, the SC held that S.25 is applicable to Muslim husbands divorcing their wives under Muslim Personal Law. Many agitated argued that the Supreme Court infringed on freedom of the minorities by this judgement, and the Rajeev Gandhi Government tried to appease these demands by bringing in a retrograde legislation in the form of Muslim Women (Protection of Rights on Divorce) Act, 1986. This was looked upon as vote bank politics.

5. More recently the Supreme Court in Daniel latifi vs. Union of India, {(2001) 7 SCC 740} read the Muslim Women (Protection of Rights on Divorce) Act, 1986 with Articles 14 and 15 of the Constitution which prevent discrimination on the premise of sex and held that the intention of the framers couldn't have been to deprive Muslim women of their rights.

6. Further the Supreme Court construed the statutory provision in such a fashion that it doesn't fall foul of Articles 14 and 15. However, Shah Bano case shall forever be remembered as a case that witnessed gross miscarriage of Justice within the Independent Indian history and where helpless women became victims to the vote bank politics.


Dowry or Mahr in Muslim Marriage 1. In Islamic Marriage ‘mahr’ is a precondition and a bridegroom must pay the same to the bride either at the time of the marriage or later on. On divorce, the wife can demand this mahr. It is defined as the woman’s portion of groom’s wealth (on wealth) or estate (on death). Maintenance is not mahr. 2. Mahr may be a mandatory gift given by the groom to the bride. Unlike a bride price, however, it is given directly to the bride and not her father. 3. Although the gift is usually money, it are often anything prescribed by bride and groom like a house or viable business that's put in her name and can be run and owned entirely by her if she chooses.


References

I. Text Books

1. Islamic Jurisprudence, Prof. Mohammad Hashim

2. The Code of Criminal Procedure, RatanLal & DhirajLal

II. Bare Acts

1. The Code of Criminal Procedure, 1973

2. The Constitution of India

III. Websites

1. https://www.shareyouressays.com

2. https://indiankanoon.org/

3. https://www.scconline.com/

4. https://www.manupatrafast.com/