Marriage in Muslim Law

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Marriage

Under Muslim law, marriage is a civil contract for legalisation of the intercourse and for legitimatization of the children.

*According to Hedaya "Marriage (Nikah) implies a particular contract used for the purpose of legalising children (generations)".

*Justice Mahmood defined marriage among, Mohammedans is not a sacrament but purely a civil contract.

Essentials of a Valid Marriage

Following condition must be fulfilled in a valid Muslim Marriage-

1- Competency of the parties i.e huusband and wife.

2- The consent of the parties or their guardian

3- The required formalities are duly completed

4- There must not be any prohibition or impediment in contracting the marriage

1-Competency of the Parties- The Parties are competent if they are:

(a)age of puberty

(b)Sound mind

(c)Muslims

(a)-Age of Puberty-It is an age at which a person is supposed to acquire to sexual competency. The courts. have presumed that age of puberty is acquired on completion of 15 yrs of age.

*Option of Puberty - Under Muslim law, a minor on attaining the age of puberty, has right to approve or disapprove the marriage contracted by guardian.

*. The option of puberty can not be exercised by husband if his marriage was contracted by father, or grandfather.

*. A wife can exercise option of puberty even if her marriage was contracted by father or grandfather

*. The option of puberty must be exercised by a wife immediately after the attainment of puberty.

*. Under See-2 (vii) of Dissolution of marriage Act 1939, a wife has right to exercise this option till she attains the age 18.

*.The option of puberty is lost by both husband and wife after consummation, but for wife it was not before attainment of her age of puberty or against her consent.

*. The marriage does not dissolve merely by the exercise of option, confirmation by court is necessary must be performed at same sitting.

2-Free Consent

The consent of the parties or guardian in case of a minor must be free and fair consent. A consent is not free if it is given under compulsion fraud or mistake of fact

3-Formalities of Marriage

a-Offer and Acceptance - Offer(Ijab) signifies willingness of a person to contract marriage.

*Acceptance(Qubool) is made by girl or her Guardian.

*The offer and acceptance should not be doubtful or uncertain.

b-Oral or written - The offer and acceptance can be oral or written.

c-Same sitting - Offer and acceptance must be performed at the same sitting.

d-Conditional marriage - The offer and acceptance must be with an intention to marry presently that is with immediate effect.

e -Presence of witness - It should be done in presence of two competent witness.

f-Registration - Under Muslim law registration is not compulsory.

4. Absence of prohibition

1- Absolute prohibition

a. Consanguinity (Qurabat)

b. Affinity (Mushaarat)

c. Fosterage (Riza)

2- Relative prohibition

a. Unlawful conjunction

b. Marriage with 5th wife

c. Marriage with non Muslim

d. Marriage without witness

e. Marriage during Iddat

1- Absolute prohibition

a- Consanguinity

Blood relations are prohibited as:

I. One's own ascendant or descendant of

II. Descendant of one's father or mother

III. Brother or sister of one's ascendant

b-Affinity

Affinity means nearness. Relation by marriage prohibited are:

I. Ascendant or descendant of one's wife or husband

II. Wife or husband of one's ascendant or descendant.

c- Fosterage

Where a child has sucked the milk of any women under the age of 2 years is prohibited with consanguinity and affinity.

2- Relative prohibition

a-Unlawful conjunction

A Muslim is prohibited to have two wives at same time if these two wives are related to each other in such manner that if they had been of different sexes they could not intermarry.

b-Marriage during Iddat

*If the women is observing Iddat period after divorce or death of her husband at that time the women cannot remarry.

*If the marriage is dissolved by divorce the Iddat period is 3 month and if it is dissolved by death of husband the Iddat period is 4 month 10 days.

Kinds of Marriage

According to Sunni law the marriage may be classified as:

1.Valid (Sahih)-All the essential conditions are fulfilled prescribed in the law is said to be a valid marriage

2.Void (batil)-Void marriage exist neither in fact nor in law ,following marriages are void marriage-

(a) in violation of absolute prohibition

(b)marriage with any lawfully married women

3.Irregular(fasid)-A marriage constituted in violation of relative prohibitions are irregular marriage.

*Temporary Marriage(Muta)

Muta may be defined as a temporary union of male and female for specified duration on payment of some consideration.

Essentials of Muta marriage

1.Parties must have attend age of puberty (15 years)

2.The Shia male may contract Muta with any Muslim

3.The consent of both parties must be free

4.The formalities of offer and acceptance are necessary

5.There must not exist any prohibited relation

6.The period of marriage must be clearly mentioned

7.The Dower must be specified at the time of contract

*However Muta marriages are prohibited and abolished ,also in India Muta marriages are not seen.