MARRIAGE UNDER MUSLIM LAW (NIKAH)

INTRODUCTION:

 In Islam marriage is considered such a sacred sacrament that it is considered as doing ibadat or worship. The prophet of Islam regarded Nikah as his Sunnat. Legally Nikah is a contract that is done with the consent of both the man and the woman. Islamic law gives a woman a high social status after marriage. Islam considers marriage as a sacred covenant. Marriage as an institution is considered a means for the continuance of the human race. In Anis Begum v/s Mohammad Istafa, Justice Suleman observed that in Islam marriage is not regarded merely as a civil contract but is also considered as a religious sacrament. Under Islamic law, Nikah is a legal contract between the bride and the bridegroom to legalize the physical relationship between them and make their relationship lawful in the eyes of society. The object of marriage is to protect society from foulness and unchastity.

DEFINITION:

Section 2 of Muslim Women (Protection of Rights on Divorce Act, 1986) defines marriage or nikah among Muslims as a Solemn Pact between a man and a woman, soliciting each other life companionship which in law takes the form of a contract.

Hedaya said that marriage is a legal process by which procreation and legitimation of children between man and a woman is lawful and valid.

Ameer Ali said that marriage is an organization for protecting society from unchestity and foulness.

Prophet of Islam said that marriage is his Sunnat thus man and woman who do not follow this way of life are not his followers.

Ashabah said that Marriage or Nikah is a contract of a lifelong relationship on mutual consent of the man and the woman.

In Shoharat Singh v. Jafri Begum, the Privy council stated that under Muslim law Nikah is a religious ceremony.

Marriage or Nikah is a contract between a man and a woman with the object of legalizing intercourse and procreation of children.

ESSENTIALS OF A VALID MUSLIM MARRIAGE:

For a valid Muslim marriage, the following conditions are to be fulfilled-

1.       PROPOSAL AND ACCEPTANCE OF PROPOSAL – Proposal of marriage must be made by one party to the marriage and it should be accepted by the other party to the marriage.  Making a marriage proposal is called Ijab or declaration and acceptance of the proposal is called Qubul.

The proposal and its acceptance must be made in the same meeting in the presence of two witnesses who should be adult and sane Mahomedans. The words of the proposal and acceptance must be clear and unambiguous.

2.       CONSENT TO THE MARRIAGE SHOULD BE VOLUNTARY– The consent of the girl for the marriage should be obtained voluntarily. If the consent is obtained by force, coercion, fraud the marriage becomes invalid under Mahommedan law.

3.       CAPACITY TO CONTRACT MARRIAGE-

A.      Competent parties: Every Muslim person of sound mind who has attained puberty can enter into a contract of marriage. Puberty is the period of life when a person is capable of bearing children. Any person who has attained the age of puberty can marry any person of his or her choice and is not required to take the consent of their parents.

 In Mohd. Idris v/s State of Bihar it was observed by the court that a 15 years old Muslim girl who has attained the age of puberty is capable of marrying without the consent of her parents.

          In Sadiq Ali Khan v/s Taj Kishori, the privy council held that the puberty age for boys is 12 years and for the girl is 9 years.

B.      Marriage of Minors and Lunatics:  In the case of lunatics and minors who have not attained puberty can be made to enter into the contract of marriage by their guardian.

Guardianship in marriage (JABBR)-

A guardian has a right to contract the marriage of a minor. This is called ‘jabr’. This right belongs successively to the paternal relations of the minor like father, paternal father, brother, and other male members of the father’s family. If the paternal relations are absent then this right goes to the mother, maternal uncle, and other maternal family members.

When a minor entered into a contract of marriage by the father or father’s father such a marriage is valid and binds the minor and cannot be annulled by the minor on reaching the age of puberty. But if such a marriage is done fraudulently, negligently or the minor is made to marry a lunatic or the contract of marriage is for the disadvantage of the minor this contract of marriage becomes voidable at the option of the minor when the minor attains puberty.

Option of puberty ( Khyar-ul-bulugh)

 If the marriage of the minor is not contracted by the minor’s father or father’s father but by some other guardian the minor on attaining puberty can repudiate such a marriage. This is called Khyar-ul-bulugh

However, if the minor is informed of this right to repudiate such a marriage and after attaining puberty does not do so within a reasonable time then this right of repudiating the marriage is lost by the minor.

It must be noted that mere exercise of repudiation of marriage by the minor does not operate as the dissolution of marriage. Such a repudiation of marriage has to be confirmed by the court.

4.       ABSENCE OF PROHIBITIONS– For a valid Muslim marriage there should not be any prohibitions to the marriage. 

There are two types of prohibitions-

Absolute prohibitions render the marriage void

Relative Prohibitions render the marriage invalid or irregular but not void.

A.      ABSOLUTE PROHIBITIONS THAT MAKE MARRIAGE VOID:

a.       Polyandry- It is not lawful for a married Muslim woman who is not divorced and whose husband is alive to marry any other man. Such a marriage is void. A Muslim woman can have only one husband at a time.  Section 494 of the Indian Penal Code (IPC) punishes a Muslim woman remarrying another man during the lifetime of her husband. The children of such a marriage are illegitimate.

b.     Consanguinity– A man is prohibited from marrying-

 his mother, grandmother how high soever,

his daughter, daughter’s daughter how low soever,

his sister whether full, consanguine, or uterine,

his niece, grand-niece  how low soever,

his aunt, grand aunt how high soever whether paternal or maternal.

A marriage contracted by a man with a woman that is prohibited on the ground of consanguinity is void.

c.   Affinity- A man is prohibited from marrying-

his wife’s mother, grandmother how high soever,

his wife’s daughter or daughter’s daughter how low soever,

wife of his father or paternal grandfather how high soever,

wife of his son, son’s son or daughter’s son how low soever.

A marriage contracted by a man with a woman that is prohibited on the ground of affinity is void.

d.      Fosterage– when a relationship of fosterage is made Muslim law prohibits the marriage within certain limits.  A Muslim man cannot marry his foster mother or his foster sister. A marriage prohibited by fosterage is void.

B.      RELATIVE PROHIBITIONS THAT MAKE MARRIAGE IRREGULAR

a.       Absence of proper witnesses– If a marriage is contracted in the absence of witnesses as required by the law then such a marriage becomes irregular but not void.

b.   Number of wives– A Muslim man can have four wives at the same time but not more than four. If a man has four wives and marries a fifth wife then the marriage with the fifth wife becomes irregular but not void.

c.       Marrying a woman undergoing iddat– In Islam iddat is a period of chastity where the woman whose marriage has been dissolved by death or by divorce cannot marry another man. This helps in ascertaining whether the woman is pregnant by the former husband or her deceased husband thereby avoiding the confusion of parentage.  Marrying a woman before she completes her period of iddat is irregular but not void.     

d.      Unlawful Conjunction– A man is prohibited to have two wives at the same time, so related to each other by affinity, fosterage, or consanguinity, that they could not lawfully intermarry each other if they were not of different sexes.  For instance, a man cannot marry two real sisters, or aunt and her niece at the same time. However, a man can marry a real sister of his wife if his wife dies.  The bar of unlawful conjunction renders a marriage irregular but not void.

e.       Difference of Religion– A Muslim man can contract a marriage with a ‘Kitabia’ meaning a woman who refers to a Kitab that is Bible or taurat but not idolatress or fire worshipper. Such a marriage with an idoltress or fire-worshipper is not void but irregular.

f.        Divorce– If a husband pronounces three talaks against his wife their marriage gets dissolved irrevocably. They are forbidden from remarrying each other except in the following situations- the woman lawfully marries a second man, the second marriage is consummated and later dissolved and the woman also observes iddat after the dissolution of the second marriage.

CONCLUSION:

From the above discussion we can conclude that in Islam a valid marriage or nikah legalizes cohabitation between husband and a wife.  A valid marriage not only establishes the mutual right of inheritance between the husband and the wife but also guarantees to the children born out of valid marriage a right of inheritance in their parents properties. A valid marriage provides the wife the right to claim dower and also maintenance from her husband. The wife has to observe a period of iddat after dissolution of a valid marriage. A void marriage is a marriage which is forbidden by blood relation, affinity or fosterage. A void marriage creates no rights and obligations on the wife or the husband. The children born out of a void marriage are illegitimate. A marriage forbidden by relative prohibitions which can be rectified later on is called irregular marriage. It is not unlawful as it is this irregularity is not permanent can be rectified.  

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