Introduction
Muslim marriage is considered as a “Civil Contract”, unlike Hindu marriage where marriage is considered as sacrament. We can observe the concept of Muslim marriage as a Civil contract in the case, Abdul Kadir vs Salima and Anr. (1886) in which there was a statement passed that “Marriage in Islamic religion is not a sacrament but merely a civil contract”.
The basic aim of marriage in Muslim’s is to legalize sexual relationship of male and female and giving birth to child. That is why, a valid contract is necessary for a Muslim marriage.
Essentials of a Valid Muslim Marriage
Proposal & Acceptance
In a Muslim marriage, Proposal means ‘ijab’ & Acceptance of the same is ‘qubul’. A proposal should be done by or on behalf of one party & the same offer should be accepted by other party. Like we see for a valid contract, Offer & Acceptance is must. It is the starting point of a contract. Same applies in Muslim marriage as it is also a Civil contract so proposal & acceptance should happen to initiate a contact (marriage). It is also important that when the offer is made & when the acceptance is done. Because offer & acceptance should be done out at the same meeting. If proposal is made at first meeting & acceptance is done in another meeting, then it can’t be considered as a valid offer & acceptance.
Competency of Parties
- Major
For a valid Muslim Marriage, both the parties must attain the age of puberty i.e., 09 years of age for girl & 12 years of age for a boy. The minimum age or the age of puberty for a Muslim marriage is discussed in the case of Muhammad Ibrahim v. Atkia Begum & Anr. (1912). After attaining the minimum age, the parties can give their own consent, even there is no need of consent from guardians.
If the parties are minor i.e., not attained the age of puberty, then the consent of lawful guardian is must for making marriage lawful.
The persons recognized as a lawful guardian under Muslim law are:-
(a) Father,
(b) Paternal Grandfather,
(c) Brother or male member of father’s family,
(d) Mother,
(e) Members of Maternal Relation.
The right passes from one to another in the order of priority given above. If someone did not have any guardian then the marriage is contracted by Qazi. - Soundness of Mind
At the time of Marriage, both boy & girl should be of sound mind. They cannot be insane or mentally ill. Person of unsound mind cannot enter a contract, his/her consent is considered as no consent.
Unsoundness is of two types:
(a) Idiocy: In this state of mind, the person is fully insane. It means the complete abnormal state of mind. This type of people cannot enter a contract.
(b) Lunacy: It means a curable mental disease. This type of persons is in their sound mind in some interval. So, they can enter a contract only in those intervals. - Muslim
Both the parties must be Muslim. If one is Muslim & another is from any other religion then that marriage cannot be happened in Muslim law, then it comes to Special Marriage Act. Also, it does not matter that the parties belonged to which cast, sect or sub-sect of Muslims. Inter sect or sub-sect marriage is also valid in Muslim law
4. Free Consent
Free consent of both boy & girl is must for a valid Muslim marriage. Free consent means the consent should not be obtained from Coercion, Fraud or Mistake of Fact. If consent is obtained from all these things, then the contract is invalid. A marriage is invalid if it is held without free consent of the parties, held in the case of Mohiuddin v. Khatijabibi, (1939).
5. Dower
It is also known as ‘mahr’. It is the amount of money which the bridegrooms must give to the bride as a consideration of marriage. It is same as the consideration in a valid contract. Like without consideration the contract is invalid, same as without consideration the Muslim marriage is invalid. Right to Mahr comes into existence before cohabitation. If wife is a minor, her guardians can refuse to send to her husband until payment of dower held in the case of Nasra Begum v. Rizwan Ali (1979).
Free from Legal Disability
There are some restrictions/prohibitions under Muslim marriage law. That are:
- Absolute Prohibition,
- Relative Prohibition,
- Miscellaneous Prohibition.
Absolute Prohibition
A marriage cannot take place if the parties are in a blood relationship or prohibited degree of relationship. If this type of marriage happens, it becomes void. It is classified as follows:
Consanguinity
It is concerned to blood relationship. A man cannot do marriage with:
- 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 (how low so ever), and
- His aunt, whether paternal or maternal does not matter (how high so ever).
This type of marriage is totally void, & if a child is born out in this relationship, it is considered as illegitimate.
Affinity
A marriage with close relatives is also prohibited in Muslim law. Relations are as follows:
- His mother-in-law or Grand-mother-in-law (how high so ever),
- His daughter or Granddaughter (how low so ever),
- His mother or paternal Grandmother (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).
This type of marriage is also void.
Fosterage
It is known as milk relationship. When a lady breastfed any child, she becomes foster mother of that child. A man is restricted to marry in foster relations. It is classified as follows:
- foster mother or grandmother (how high so ever), and
- Daughter of foster mother (Foster’s sister).
Sunni law has few exceptions concerns with restrictions on the ground of fosterage. The following marriage is considered as valid:
- Sister’s foster mother, or
- Foster’s-sister’s mother, or
- Foster-son’s sister, or
- Foster-brother’s sister.
Relative Prohibition
This prohibition is not absolute. It means, if someone marries in violation of such prohibition, it is only irregular but cannot be considered as void. As soon as the problems or irregularities are fixed, the marriage become valid. It is as follows:
Unlawful Conjunction
A man cannot marry two women, if that woman is related with Absolute prohibition i.e., Consanguinity, Affinity & Fosterage. After the termination/death of one marriage/wife, he can have valid marriage with another woman.
Under Sunni law, if marriage is violating the rule of unlawful conjunction, it only becomes irregular (fasid) and not at all voids, but under Shia law, the marriage violating the rule of unlawful conjunction is totally void (batil).
Polygamy
In Muslim Marriage law, 4 wives are allowed at a time. But if he marries fifth time, that marriage becomes irregular. On termination of earlier marriage or death of one wife, only then the fifth marriage became valid.
But if we see Shia law, the fifth marriage is void in it. 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 having the 1st marriage.
Absence of Proper Witness
There must be proper & competent witnesses present in a contract of marriage. But under Shia law, presence of witness in not at all important for a valid marriage. The marriage is valid even without the presence of competent witnesses. If we talk about Sunni law, the presence of witnesses while the contract of marriage is must. Without the presence of witnesses the marriage is irregular. Minimum two male or one male and two female witnesses should be present during the contract of marriage. Also, the witnesses should be major, of sound mind & a Muslim.
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.
If we talk about the Shia law, a marriage of Muslim (male/ female does not matter) with non-Muslim is totally void. According to Fyzee, this type of marriage is void, but according to Mulla, it is irregular.
Marriage During Iddat
“Iddat” means a particular time after ending of marriage (divorce) or when the husband is dead. The basic aim of the iddat is to check whether the woman is pregnant or not & to clear the doubt that who will have the responsibilities of father.
For a divorced woman, a period of iddat is of 3 months, whereas for a widow woman, a period of iddat is of 4 lunar months and 10 days after the death of his husband. If it finds that the woman is pregnant then the period of iddat is extended till the duration of pregnancy.
Under Shia law, the marriage during Iddat period is void whereas under Sunni law, the marriage during Iddat period is irregular.
Miscellaneous Prohibitions
*When a Muslim man or woman is doing marriage during Pilgrimage, then the marriage is considered as void under Shia law.
- *Now if a Divorced couple wants to remarry again, then a woman must follow certain procedure without which she cannot marry her Ex-husband. That procedure is known as Nikah halala. In this procedure, a woman must marry another man, should have sexual relations with him, and then that man will have to give voluntarily divorce her. Then she must follow the period of iddat. Only after this procedure, she can marry with her former Husband again. If this procedure is not followed properly, then the re-marriage between the divorced couple is considered as irregular.
*A woman cannot practice Polyandry. It means she cannot have more than one husband. It is not allowed in Muslim Marriage law.
Classification of Muslim Marriage
- Valid Marriage (Sahih)
- Void Marriage (Batil)
- Irregular Marriage (Fasid)
- Muta Marriage
Valid Marriage (Sahih)
In Urdu, the term “Sahih” means correct or valid. A marriage becomes Valid when all the essentials discussed above are dully fulfilled & follow.
Void Marriage (Batil)
It is clearly stated that in The Indian Contract Act, 1872 that agreements which are not enforceable by law is not a valid contract. Similarly, an agreement between bride & groom which does not fulfill all the essentials of a Muslim marriage is considered as void agreement & if the agreement is void then the marriage itself turned into a void marriage.
Irregular Marriage (Fasid)
It simply means that marriage is not absolutely void. It has some irregularities. When all the irregularities are fixed, the Irregular marriage becomes Valid marriage. The concept of irregular marriage has been elaborately explained in the case of Ata Muhammad Chaudhry vs Musammat Saiqul Bibi and Anr., (1910).
The concept of irregular marriage is only present in Sunni Muslims whereas if a marriage has irregularities, then it will be totally void in Shia Muslims. There is no concept of irregular marriage in Shia law.
Generally, we can conclude that an irregular marriage is voidable marriage & not Void-ab-initio.
Muta Marriage
This type of marriages is only can be seen in Shia Muslims & not Sunni Muslims. The Muta marriage simply means that the Contract of Marriage is not for lifetime. The contract of marriage will last for a particular portion of the time. After the required period, the marriage automatically ends. Also, there is no need to do the process of Divorce. Generally, a Muslim man can marry a woman who is Muslim, Christian, Jew but not with a fire/idol worshipper. But Muta marriage is an exception. In Muta marriage, the Muslim man can also marry with a fire/idol worshipper which is strictly prohibited in normal Muslim marriages.
Conditions for a Valid Muta Marriage
(a) The term & duration of marriage must be fixed. Whether it may be for one day, a week or a few months.
(b) The term of Marriage indicates the amount of Cohabitation.
(c) Dower must be specified.
(d) If the term is not fixed but dower is specified, then the wedding is going to be presumed to be for lifetime & it is considered as a permanent marriage is implied.
(e) When duration of contract of marriage is fixed but dower is not at all decided, then the Muta marriage became void.
Consequences of Muta Marriage
(a) Spouse will not have right of inheritance.
(b) The wife is not entitled to any maintenance.
(c) The children born out of a Muta marriage are totally legitimate & they are entitled to inherit the property of their parents.
(d) Husband has no right of Divorce (Talak).
Case Law
In the case of Sohrat Singh vs. Jafri Bibi (1915), cohabitation of the parties to a Muta marriage has commenced but there is no evidence of the term or duration for which the marriage was contracted. In absence of evidence to the contrary, the Muta continued during the entire period of cohabitation and the children conceived during such period can inherit the property.
References
