Muslim Law of Marriage [Nikah]

1. Muslim Law of Marriage [Nikah] • It is Contract and Object is the procreation and legalising of children. [Mulla, principle of Mohamedan Law] • A/c to Justice Mahmood- it is a civil contract. • A/c to Mr.Abdul Rahim-it is both in nature of Ibadat [devotional act] and Muamalat [a dealing among men] • Anis Begum v. Muhammad Istafa 1933 all • Justice Sulaiman-Marriage is not regarded as a mere civil contract but as a religious sacrament. • Ameer Ali defines marriage as -it is an institution ordained for the protection of society. • Abdul Kadir v.Salima, 1886 All • Justice Mahmood held that it is not sacrament but purely a civil contract.

2. Muslim Law of Marriage • Object of marriage is covered under three headings. • Religious –Prophet was great supporter of marriage. He says ‘ marriage helps in raising the status of women. • Social—it helps women in many ways. • Legal—Marriage can not be complete unless free consent is obtained. • Marriage is dissolved by the acts of parties or by operation of Law. • Capacity for Marriage • Every Muslim who is of sound mind • who has attained puberty is capable. • General presumption is 15 years. • Marriage of person above than 15 years without his consent is void. • Person of unsound mind and those who have not attained puberty –Guardians will contract Marriage for them.

3. Capacity of Marriage • Limitations to valid Muslim Marriage. • [1]Number—Man may marry any number, not exceeding four. [Wife only one .Otherwise liable for bigamy] • If a Muslim marries 5th wife –Marriage is not void but Irregular. • [2]Religion—Sunni male can marry muslim woman or woman of kitabia [Christian and Jews] [kitabis is male]—valid marriage. • Sunni male with Non Muslim or Non kitabia is irregular. • Shia male can marry only Muslim woman otherwise it will be void. • Inter sect marriage is allowed. The spouse retains his/her pre-marital status unless one changes sect. • [3]Relationship- one can not marry someone who is related to him by consanguinity or affinity or Fosterage. • [4]Unlawful conjunction-A man may not have two wives who are related to each other by consanguinity or affinity or fosterage[ wife , her sister, her mother etc] • Such marriage would be irregular.

4. Capacity of Marriage • [5] Iddat- when a marriage is dissolved by death or divorce , the woman is prohibited to marry within a specified period of time, which is called Iddat. • Object is to ensure certainty of paternity whether she is pregnant by the husband. • Iddat is necessary where cohabitation took place. • In case of divorce—3 Menstrual periods after date of divorce. [if marriage was consummated] • In case of death of Husband- 4 months and 10 days [bound to observe whether marriage was consummated or not] [Evidence not available] • In case woman is pregnant—she will observe iddat till delivery of child.

5. Capacity of Marriage • Legal Incidents of Iddat • Wife can not remarry during Iddat. • She can claim maintenance during this period. • Parties have a right of mutual inheritance during iddat period in case one dies . • Wife is entitled for deferred dower. • [6]Marriage during pilgrimage-it is prohibited. • [7]divorce-if man divorces a woman, he can not once again remarry her unless she undergoes Iddat of divorce, then lawfully marries another boy , marriage is consummated, and second husband lawfully and effectively gives divorce to her and then she observes Iddat then only she can remarry the boy who was her husband.

6. Proposal and Acceptance • Proposal-Ijab • Acceptance-Qubul [by girl or guardian or other person on her behalf. • Ijab+Qubul should be In one meeting. • ‘I have married myself to you’ and ‘ I have consented’ • This has to be done either by party or guardian. • Witnesses-2males or 1male and two females [No equality]. • Witnesses should be Adult Muslim [Not from other religion] of sound mind.

7. Proposal and Acceptance There should not be any ambiguity. • It may be oral or in writing. • There is no format for it. • Offer should be accepted as it is. • E.g Boy offers to marry girl on Rs 500 as dower. she accepts it on Rs 1000.[x]

8. Consent • Consent of both parties should be free. • Consent may be express or Implied. • If marriage lacks consent, it must be ratified afterwards. • No consent –Marriage is invalid.

9. Registration of marriage • Kazi/Mulla and witnesses are required and nikah nama [document] is prepared • Wherein conditions of marriage such as amount of dower, mode of payment, question related to custody of child etc are incorporated. • Registration is not compulsory. • If parties are interested, state governments have statutes for this purpose.

10. Legal Effects of valid Marriage • Sexual intercourse becomes lawful. • Children born of such union are legitimate. • The Wife becomes entitled to her dower [Mahr]. • The wife becomes entitled to maintenance. • Mutual rights of Inheritance are established.

11. Legal effects of valid marriage. • The wife is not entitled to remarry after death of husband or dissolution of marriage without observing Iddat. • Any agreement entered into by parties at time of marriage or after marriage is enforceable.

12. Muta Marriage • It is also known as temporary marriage. • It means enjoyment or use. • Marriage for pleasure for a fixed period of time. • It was very popular in Arabia before and at time of Prophet. • It was justified in olden days because that was the period of wars and travels. • Now not recognized except shia school. • This practice is almost obsolete in India.

13. Legal effects of Muta Marriage • It does not create mutual rights of inheritance. • Children are legitimate [good provision] • Muta marriage is dissolved ipso facto by the expiry of the term. • Dower is a necessary condition. If marriage is consummated-she is entitled for whole amount . • If marriage is not consummated then she is entitled for half the dower. • Muta wife is not entitled to maintenance. • A man may contract muta with any number of women.

14. Difference between Nikah and Muta marriage • Nikah accepted in both shia and sunni while Muta only in shia. • Nikah is permanent while Muta marriage is temporary. • Nikah gives rights of mutual inheritance while in Muta it is not so. • Nikah is dissolved either by death or divorce whild muta marriage is automatically dissolved on expiry of specified period.

15. Difference between Nikah and Muta marriage • Nikah –maintenance can be asked for Iddat period while it is not so in muta marriage.

16. Repudiation of marriage by option of puberty • If marriage is contracted by guardian for minor, he/she has this right. • One can repudiate after attaining majority. • This option of puberty can be exercised only when the minor is given in marriage by father or grand-father or by legal guardian.

17. Repudiation of marriage by option of puberty • Saghir-below 7 years. Consent given by minor has no importance. • Sarir-7 to 15 years-marriage of minor can be performed by parents/guardian but such minor consent has no value. • Bulugh-above 15-they themselves can marry

18. Repudiation of marriage by option of puberty • Option of puberty is lost in cases • Where marriage is consummated. • If wife does not repudiate within a reasonable time after attaining puberty. • She fails to exercise before attaining 18 years. • Option of puberty is confirmed by court. [decree of court is required to severe the marital tie]

19. Legal effects of void and irregular marriage. • Marriages may be classified under sunni as • [1] Sahih-valid • [2]Batil-void • [3]Fasid-Irregular • Shia does not recognise Fasid . • Legal effects of valid Marriage-Already discussed.

20. Legal effects of void and irregular marriage. • Batil marriage • When marriage is performed in violation of absolute /permanent impediments. [consanguinity, affinity etc • It is void ab initio-no marriage and no legal consequences flow from it. • No status as husband & wife • No mutual rights and obligations arise

21. Child will be illegitimate. [differs from Hindus] • If wife enters into another marriage, she will not be guilty of bigamy. • There is no need to get decree for remarrige. • One can file a declaratory suit u/s 9 cpc read with s.34 specific relief Act.1963 if marriage is valid and other spouse is going for remarriage.

22. Legal effects of void and irregular marriage. • Fasid-Irregular marriage • If impediment or prohibition is temporary/remedial • Irregular marriage is not similar as voidable marriage. • Voidable marriage is perfectly valid till it is avoided [only by either party] • Irregular marriage is not a valid marriage to begin with but it can be validated by removing the impediment. • E.g marring fifth wife. it can be validated by pronouncing talak on his wife.

23. Legal effects of Fasid Marriage • Once consummation takes place, wife is entitled to dower. • Wife is required to perform Iddat of death or divorce. • Children of such marriage are fully legitimate. • Children have rights of inheritance.

24. Legal effects of fasid marriage • Marriage is irregular in following cases • Marriage performed with w/o witnesses. • Marriage performed with a woman undergoing Iddat. • Marriage on account of difference of religion. • Marriage with a fifth wife.