MUSLIM MARRIAGE : ITS ESSENTIALS & KINDS

 

MUSLIM MARRIAGE AND ITS ESSENTIALS

 

1.Introduction:

Muslim Marriage (Nikkah) is a civil contract as well as a religious obligation. It’s a method of legalizing sexual relationship between a man and a woman and to legitimize their children. Under Islamic law, the contract of marriage needs not to be in written form.

Regarding marriage, the Holy Prophet(P.B.U.H) said:

“If a person is in a position to maintain his wife and give don’t, he must get himself married”.

 

2. Meaning Of Marriage:

Literally, it means wedlock, legalized mutual relationship of husband and wife. It is a term which is used for validating the union of two sexes and their relationship.. 

 

3. Definition Of Muslim Marriage:

According To Hedaya:

“Marriage is defined as to be a contract which has for it’s objects the procreation and legalizing of children”.

According To Amir Ali:

Marriage is an institution ordained for the protection of society, and in order that human being may guard themselves from foulness and unchastity.

4. Nature Of Muslim Marriage:

·      Civil Contract

·      Religious Obligation (Sunnat-e-Muwakkidah)

 

5. Objects Of Muslim Marriage:

·      To legalize sexual relationship between a male and female.

·      Legitimization of children.

·      Preservation of human race.

·      Performance of religious obligation.

·      Regulation of social life.

 

6.Essentials Of A Valid Marriage:

a):Legal Capacity:

·      Every Muslim of sound mind, who has attained puberty may enter into a contract of marriage.

·      Lunatics and minors who have not attained puberty may enter into the contract of  marriage by their respective guardians.

 

b):Proposal And Acceptance: (Ijab-o-Qubool)

There are must be an offer made by one party(Ijab). The offer so made should be accepted by or on behalf of the other party(Qubool). The offer and acceptance should be in the same meeting. An offer made at one meeting and it’s acceptance at the other meeting does not constitute a valid marriage.

 

c):Dower:

There must be some consideration in the contract of marriage, which is dower. Dower is so essential that even if it is not mentioned at the time of solemnization of marriage, still the law will presume it.

According to Hazrat Ali(RA): “There can be no marriage without dower”.

 

d):Presence Of Witnesses:

·      In case of Sunni marriage,either two male witnesses, or one male and two female witnesses are necessary.

·      In case of Shia marriage,no witnesses is necessary.

·      Qualification of witnesses: (1) Adult, (2) Sane, (3) Muslim

·      Marriage, in the absence of witnesses, is irregular.

 

e):Free Consent:

Marriage of a Muslim who is of sound mind and who has attained puberty is void, if it is brought about without his/her free consent.

 

Case laws:

·      1998 MLD 1972,  PLD 1994 Kar 46: Consent of wife was obtained by fraud, the court dissolved the marriage.

·      Muhammad Imtiaz etc versus The State, Federal Shariat Court held that an adult Muslim girl has  every legal right to marry of her own free will.

 

Who Can Give Consent On Behalf Of A Minor(Male Or Female):

1) Father       2) Father of Father.      3) Brother and male relatives.       4) Mother.      5) Maternal uncle.

·      They can give consent on behalf of a minor(when he has not attained the puberty).

·      In Sharia, when the consent is given by Father or Father of Father, then the option/right of puberty cannot be exercised, and when it’s given by other relatives, then the option of puberty can be exercised.

·      However, according to Section 2(7) of the Dissolution of Muslim Marriage Act, 1939: a female can dissolve marriage even if the consent was given by father, or father of father.

 

Age Of Puberty According To Law Of The Land:

·      For male=18 years

·      For female= 16years

 

Case law: 2000 MLD 1886:

·      If the marriage was carried before 16 years.

·      If the marriage was not consummated or consummated through coercion.

·      Before the completion of 18 years, a female can exercise her option of puberty to invalidate/dissolve the marriage, without even the decree of the court.

 

f):Absence Of Prohibitions/Impediments/legal disabilities :

These are the restrictions imposed by Islamic law, which make a marriage either void or irregular depending upon the nature of restriction. These may be classified as:

 

 i): Permanent/Absolute Prohibitions:

These are the impediments which make the marriage “void ab initio” and the marriage is not allowed in any case. These include:

a)    polyamory: a woman marrying more than one man at the same time.

b)    Consanguinity: blood relations e.g mother, sister, daughter, niece etc.

c)    Fosterage: relationship due to suckling of milk. Marriage with foster mother and her daughter(foster sister with whom the man/person suckled milked at the same time during infancy).

d)    Affinity: relationship due to marriage, e.g marrying wife's daughter from another husband.

e)    Same sex marriages: marriage of a male with another male, or a female with another female.

 

  ii): Temporary/Relative Prohibitions.

These prohibitions are temporary in nature, making the marriage irregular and can be cured. These are:

·      polygamy: marrying another(fifth) woman, while already having four wives at the same time, is not allowed. Such a marriage is irregular.

·      Iddat: marrying a woman who is observing Iddat, is not allowed.

·      Unlawful Conjunction: man cannot marry two women who are related to each other in prohibited degrees of relationship e.g two sisters, aunt or niece of wife etc.

 

·      Difference of religion:a Muslim woman cannot marry a non-Muslim, such a marriage is void an initio. However, marriage of a Muslim man with a non Muslim female(Ahl-e- kitab) is valid, and irregular with a non Muslim(Non Ahl-e-kitab).

·      Absence of witnesses: two witnesses are necessary at the time of solemnization of marriage.

 

 

 

7.Classification Of Muslim Marriage:

Ø According to Sunni law, marriage can be valid, irregular or void.

Ø According to Shia law, marriage can either be valid or void.

 

 

a):Valid Marriage:

A valid marriage fulfills all the requirements as prescribed by the Sharia. It must be noted that there should be no prohibitions(legal disability) in these marriages.

 

Legal effects/consequences of a valid marriage:

Ø Sexual relationship becomes lawful.

Ø Children born as a result of a valid marriage are legitimate.

Ø Wife has the right to dower and maintenance.

Ø All prohibitions of affinity apply.

Ø Wife has to observe Iddat on dissolution of marriage.

Ø Both spouses have mutual rights of inheritance.

Ø The legal status of woman does not change under Muslim marriage. Her personality is not merged with that of the husband unlike English concept of converture.

 

B) Irregular Marriage:

Irregular marriages are midway between value and void. There exist some defects(relative prohibitions) which can be removed. Upon curing the defects, these marriages become valid. Irregular marriage is recognized only by Sunni law and Shia law does not recognize it.

Examples:

Ø A marriage without witnesses

Ø A marriage with a woman undergoing iddat

Ø A marriage with two sisters.

Ø A marriage with fifth wife in the presence of existing four wives.etc

Legal effects/consequences of Irregular marriage:

The legal effects of irregular marriage can be studied in two steps I.e before consummation and after consummation. Before consummation , no legal consequences arising out of irregular marriage, however, after consummation, there are many legal effects recognized by Islamic law such as:

Ø Children will be legitimate

Ø Dower will be payable

Ø Iddat will be observed by wife in case of dissolution of marriage.

Ø Children will inherit from both parents

Ø Spouses will not inherit from each other.

 

Void Marriages:

These marriages are void an initio due to permanent/absolute prohibition. The defect due to which they are not validated cannot be cured. Hence,

Ø void marriages create no legal effects and the sexual relationship amounts to zina.

Ø The children thus produced are illegitimate and thus do not have any inheritance rights.

Ø No right of dower and maintenance .

Ø No need to repudiate marriage through talaq.

Examples of void marriage:

Ø A marriage with the wife of another where the marriage is still subsisting.

Ø Marriage with foster and blood relations

Ø Marriage of a same and adult person brought about without his/her consent is void .

Ø Same sex marriages.etc

 

A general test for the validity of a marriage is that a marriage is void in those cases in which the prohibition is absolute/perpetual, while a marriage which is defective only by reason of a relative or temporary prohibition or for want of some formality (lacking essential) is only irregular.

 

 

 

 

9: Conclusion:

In short, we can say that muslim marriage is not only a religious obligation but also a civil contract between a male and a female of sound mind who has attained the age of puberty with their free consent.