Project on Marriages under Muslim Law

INTRODUCTION

Although in most systems of the world the individual has the freedom to marry or to remain celebrate, marriage is regarded all over the world as a social institution. Whether considered as a sacrament or as a contract, marriage, apart from giving rise to certain mutual rights and obligations, confers the status of husband and wife on the parties and of the legitimacy of their children.

The fundamental concept of individual liberty and responsibility which is the corner stone of Muslim jurisprudence is incorporated in the institution of marriage. In Muslim law, marriage depends upon the free volition of the parties concerned.

Marriage according to Mohemmadans is a civil contract what is necessary is the agreement between the parties arising out of proposal and its acceptance. Contractual capacity for purposes of marriage is governed by the Mohemmadan Law itself. According to that law attainment of puberty confers contractual capacity. It is presumed that on completion of 15 years of age a person attains puberty. A marriage under the Muslim Law may be unilaterally put to an end by the husband by pronouncing Talak (Divorce). The husband and wife may by mutual agreement also put an end to the marriage.

DEFINITIIONS OF MARRIAGE

“Marriage (nikah; zawi the husband; zawaja the wife) is a contract of civil law, and it shows trace of having developed out of the purchase of the bride; the bridegroom concludes the contract with the legal guardian (wali) of the bride, and he undertakes to pay the nuptial gift (mahr sadak) o ‘dower’ …..not to the wali as was customary in the pre- Islamic period, but to the wife heself” - SCHACHT

“Muslim marriage is a contact for the purpose of legalizing sexual intercourse and the procreation of the children” - WILSON

“Marriage is an institution ordained for the protection of the society, and in order that human beings may guard themselves from foulness and unchastity” –Ameer Ali

“Marriage among Mohammadans is not a sacrament , but purely a civil contact, though solemnized generally with recitation of certain verses from the Kuran, yet the Mohammadan law doesn’t positively prescribe any sevice peculiar to the occasion” – Mahmood .J

LEGAL REQUIREMENTS FOR A MARRIAGE UNDER MUSLIM LAW

The Muslim law does not require a ceremonial solemnization of marriage, though there is nothing in it specifically prohibiting the same. The legal requirements for a marriage by the muslim law are

· Ijab (proposal) – The marriage should be proposed by or on behalf of either party there to…

· Qubul (acceptance) – The proposal should be accepted by or on behalf of the other party.

· Form of Ijab and Qubul – Both ijab and qubul must be in definite words so as to result into a complete and not an inchoate transaction and must not be conveying a mere intention or promise to marry.

· Wilayat (guardianship) – Where legally the consent of a wali is essential, the ijab or qubul as the case may be should be made by the guardian. In all other cases a wali may do so on behalf and with the consent of the party concerned.

· Vakalat (representation) – Adults can make the ijab or qubul either personally or through an adult and sane vakil(representative). Guadians of minors have the option of naming the representatives.

· Shahabat (witness) – Except, if the parties are Isna Ashari, the ijab and qubul should be made in the presence and hearing of alteast two adult muslim witnesses. One of these may be replaced by two women.

· Majlis- I – wahid (single sitting) – the ijab and qubul should be made in the same sitting signifying continuity of transaction.

KINDS OF MARRIAGES

Being a civil contract, the validity of a Muslim marriage depends upon the conclusion of the marriage contract. Muslim law does not insist upon any particular form of marriage. If there is a proposal from one side, and its acceptance on the other side, a valid marriage will come into existence, provided that the other conditions of marriage are fulfilled. No writing is necessary. Even the presence of witness is not necessary (the sunnis do insist on the presence of two competent witnesses). There is only one form of marriage called nikah. A normal Muslim marriage is a permanent marriage in the same sense in which the modern Christian marriage is a permanent union even though the husband enjoys the power of unilateral termination of marriage at any time, without any cause and without going to a court of law. But, since, no term is fixed in a normal nikah, the Muslim marriage is a permanent marriage.

However, the Ithna Ashari law recognizes, as it is commonly, though incorrectly, called, temporary marriage, known by the name of Mut’a marriage. It would be proper to call Mut’a marriage as “term marriage”. No other sect of Muslim recognizes the Mut’a marriage. It should be noticed that even in a Mut’a marriage, there is Nikah. Just like the Sunnis, the Shias also recognize the regular permanent marriage.

MUT’A MARRIAGE

The word ‘Mut’a’ literally means ‘enjoyment, use’ and in its legal context it may be rendered, according to Heffening , a ‘marriage for pleasure’. It is a marriage for a fixed period, for a certain reward paid to the woman. The institution of Mut’a was fairly common in Arabia both before and at the time of the Prophet. “The believer is only perfect when he has experienced a Mut’a“, thus observed the Shia theologian Al–Hurr-Al-Amili. It may be difficult to say that when an Ithna Ashari Muslim enters into a mut’a marriage, he does so with the view to perfecting his belief. The fact of the matter is that a Mut’a marriage is a survival of a pre- Islamic Arab custom whereby the Arab women used to entertain men in their own tents. This union gave rise to no mutual rights and obligations. The man entering the tent had of course, to pay the entrance money. The man could get out of the tent when ever he wanted and the woman could throw him out whenever she chose , if any child was born of such a union , it belonged to the woman. It seems that later on it developed into a fixed term union on payment of some consideration by the man and acquired the name of Mut’a. This pre-Islamic institution of Mut’a continued to exist for some time even after the advent of Islam in Arabia. It appears that on account of its widespread prevalence, the fiat of the Prophet too tolerated it for some time, but ultimately came out against such unions and declared them to b unlawful. But the institution survived inspite of the Prophet. It was Caliph Omar who liquidate it ruthlessly. Since the Ithna Ashari do not accept the first three Caliphs (in which is included Omar), they continued to recognize the Mut’a.

ESSENTIALS OF A MUT’A MARRIAGE

According to Ithna Ashari law a Mut’a is a marriage for a fixed period of time. It may be for a day, a month, a year or a term of years. The essentials of such a union are four: the Form, the Subject , the Period , and the Dower.

· As regards the form, there must be a proper contract: declaration and acceptance are necessary.

· As regards the subject, a man may contract a Mut’a with a Muslim, Christian, Jewish or a Fire-worshipping women[1], but not with the follower of any other religion. Relations prohibited by affinity are also unlawful in temporary marriage. A man may contract Mut’a with any number of women.[2]

· As regards the term of Mut’a , this must be specified : else a life long Mut’a will be presumed If the original cohabitation commenced with the lawful Mat’a. In Shoharat singh v Mst. Jafri Bibi [3] it was held that of the “ cohabitation of a man and a woman commenced with the Mut’a , and there was no evidence as to the term of the marriage , the proper inference would , in default of evidence to the contrary , be that the Mut’a continued during the whole period of cohabitation”

In a recent Hyderabad case it was held

o That there is no difference between a Mut’a for an unspecified period and a Mut’a for life

o That a permanent Nikah for a life can be contracted by the use of the word Mut’a also.

o That specification of the period for which a Mut’a marriage is contracted alone makes a permanent marriage for life , a temporary Mut’a marriage for the period specified.

o That where the specification of period is omitted , whether intentionally or unintentionally , a permanent Nikah marriage results, with all the legal incidents of a Nikah marriage , including the right of inheritance between the contracting parties.

o That where the period is for life, Nikah marriage will result[4].

The learned judge in this case purports to follow the authority of the Jawahi- al-Kalam , an exhaustive commentary on the Shara I Al – Islam , by Shaykh Muhammad Hasan Al-Najafi , in six volumes. He says that it is of higher authority than the Shara I Al – Islam. In view of the remaks of Mahmood . J [5] and Sulaiman . J [6] it is difficult to accept the opinion of the learned judge. The view which he advocates may, in the circumstances prevailing in Hydrebad , have some justification : but in so far as it tends to obliterate the well known distinction between a Mut’a and a Nikah , it is respectfully submitted that the judgement requires reconsideration. The fixation of a period in the marriage contract destroys the concept of Nikah as
understood in Islamic law. The mere omission to specify the period may result in a valid Mut’a for life : but to equate a Mut’a for life with a regular Nikah is a serious step, which inter alia fails to take in cosideration the question of intention.
A Mut’a terminates by the efflux of time or by death. On the expiry of the term, no divorce is needed, during the period , the husband has no right to divorce the wife , but the husband may make a “gift of the term”[7] thereby terminate the contract , without the wife’s consent.[8]

· The dower (mahr) is a necessary condition of such a union. If it is not specified , the agreement is void. Where the marriage is consummated , the wife is entitled to the whole amount , if not , to half the dower. In case the wife leaves the husband before the expiry of the term, the husband is entitled to deduct a proportionate pat of the dower[9]. On the expiry of the period , where there has been cohabitation , a short idda two courses is prescribed , however, there has been no consummation , no idda is necessary.

The issue of the Mut’a union are legitimate and entitled to inherit. In the absence of a specific agreement, the husband o the wife does not inherit from the other, but if there is such a stipulation it will be effectual.

A Mut’a wife is not entitled to maintenance, for, according to Shara I al- Islam, ‘the name of a wife does not in reality apply to a woman contracted in Mut’a [10]

INCIDENTS OF MUT’A MARRIAGE

The main incidents of the Mut’a marriage are:

· In a Mut’a marriage, parties have no right to mutual inheritance, even if one of the parties dies when the Mut’a is subsisting. There is a difference of opinion among the Shia authorities whether a specific stipulation to the effect in a Mut’a is valid.

· A wife in a Mut’a marriage is not entitled to maintenance. But if in the contract of marriage, it is specifically stipulated, the wife will be entitled to maintenance during the whole term, even if the husband chooses not to cohabit with her. In the absence of such a stipulation the court has the power to grant her maintenance, under section 125 of the code of criminal procedure.[11]

· If the marriage is not consummated, the wife is entitled to only half of the dower. If the marriage has been consummated, then the wife is entitled to full dower, even if the husband does not cohabit with her during the entire term or part of the term. On the other hand if the wife leaves her husband before the expiry of the term she is entitled to only a proportionate dower[12].

· When the marriage has been consummated, the wife is enquired to undergo idaa of three courses; if there is no consummation of marriage, no idaa is required.

· It seems that in a mut'a marriage the husband has the right to refuse procreation, that is to say, Izl is allowed, and no permission of the wife is necessary.

· The off spring of mut'a marriage has the status of legitimate children, and is entitled to inherit the property of both parents in the same manner as the off spring of the permanent marriage.

· The mut'a marriage comes to an end automatically on the expiry of the term, unless extended, or on the death of either party. The question of husband’s right of Talak does not arise. However the parties my terminate the union by mutual consent if the husband wants to terminate the union earlier, he can do so by making “gift of the tem” or of any portion of it. This is called Hiba-i-muddat for which the consent of the wife is not necessary.[13]

CLASSIFICATION OF MARRIAGE

All the schools of Sunnis classify marriage into:

Ø Valid ( Sahih) marriage.

Ø Void (Batil) marriage.

Ø Irregular (Fasid) marriage.

The Ithari Ashari school of the Shias does not recognize the irregular marriage and therefore among them marriages are either valid or void.

ESSENTIALS OF VALID MARRIAGE:

For a valid marriage the following conditions should be satisfied:

(A) Capacity to marry:

· The parties[14] should have attained puberty or the marriage contract should be entered into by the guardian in marriage on behalf of the party concerned.

· The parties should be of sound mind otherwise the guardian in marriage should act on behalf of the person of unsound mind in arranging the marriage contract.

(B) Form of Marriage:

· There should be a proposal and its acceptance at one meeting. According to the Shias witnesses are not necessary but according to Sunis atleast 2 male witnesses or 1 male and 2 female witnesses are necessary. Where witnesses are necessary they have, of course, to be sane and adult persons. The absence of witnesses however can only render marriage irregular and not void.

(C) Prohibited Relationships:

· The parties should not be within prohibited degrees of relationship. The presence of any such forbidden relationship is an impediment to marriage. On ground of blood relationships, that is, consanguinity the following relationships are not suitable for marriage and make the marriage void.

o Mother and son

o Grandmother (how high-so-ever) and Grandson (how low-so-ever)

o Brother and Sister

o Uncle and niece (how low-so-ever)

o Nephew and aunt (how high-so-ever)

On ground of affinity, the following relations connected though marriage are prohibited for marriage.

o Wife’s mother or grandmother (how high-so-ever)

o Wife’s daughter or granddaughter (how low-so-ever) (if marriage with wife is consummated)

o Wife of father or paternal ancestor

o Wife of son on son’s son or daughter’s son (how low-so-ever)

Foster age also may give rise to prohibited degrees of relationship. Thus a foster mother would come under the ban as much as the mother herself.

VALID MARRIAGE (SAHIH)

A marriage which conforms with all respects of the law is termed sahih, i.e. “correct”, in regard to legal requirements. For a marriage to be valid it is necessary that there should be no prohibition affecting the parties. In other words a marriage between the parties having full capacity to marry with all the necessary formalities is a valid marriage. Here the word ‘capacity’ is used in a wide sense, which includes all legal requirements of a valid marriage. If the marriage is sahih then all the consequences of a valid marriage flow from it.

THE LEGAL EFFECTS OF A VALID MARRIAGE

In the leading case of Abdul kadir V Salimma, Mahmood. J has discussed the legal effects of a Muslim marriage:

“the legal effects of marriage are that it legalizes the enjoyment of either of them (wife and husband) with the other in the manner which in this matter is permitted by the law; and it subjects the wife to the power of restrain ; that is she becomes prohibited from going out and appearing in the public; it renders her dower , maintenance, and raiment obligatory on him; and establishes on both sides the prohibitions of affinity and the rights of inheritance ; and the obligatoriness of justness between the wives and their rights, and on her it imposes submission to him when summoned to the couch; and confers on him the power of correction when she is disobedient or rebellious, and enjoins upon him associating familiarly with her with kindness and courtesy. It renders unlawful the conjunction of two sisters (wives) and of those who fall under the same category.”

The conception of mutual rights and obligation arising from marriage between the husband and wife bears in all main features similar to the Roman law and other European systems.

The legal effects of a valid marriage are summarized as follows:

· Sexual intercourse becomes lawful and the children born of the union are legitimate.

· The wife becomes entitled to her dower (mahr).

· The wife becomes entitled to maintenance.

· The husband is entitled to restrain the wife’s movements in a reasonable manner and to exercise marital authority.

· Mutual rights of inheritance are established.

· The prohibitions regarding marriage due to the rules of affinity come into operation.

· The wife is not entitled to re- marry after the death of her husband, or after the dissolution of her marriage, with out observing ‘Idda.

· Where there is an agreement between the parties, entered into either at the time of marriage or subsequent to it, its stipulations will be enforced, in so far as they are not inconsistent with the provisions or the policy of the law.

· A woman does not change her status on marriage. She remains subject to her own pre- marital school of law. Neither the husband nor the wife acquires any interest in the property of the other by reason of marriage.

VOID MARRIAGE ( BATIL)

When a marriage is performed in violation of absolute impediments or perpetual impediments, the marriage is batil, null and void and it is considered to be void-ab initio. A void marriage is no marriage and no legal consequences flow from it. Neither it confers the status of husband and wife on the parties, nor the status of legitimacy on the children, nor mutual rights and obligations arise from such marriage. It is called marriage because two persons have undergone the necessary formalities of marriage. But since they totally lack capacity to marry, marriage cannot come in existence between the two. Thus marriage performed in violation of rules of consanguinity fosterage of affinity or with another’s wife, are batil marriage. The issue of such a union is illegitimate and law knows no process whereby the union may be legalized.[15] Similarly, a marriage with the wife of another or re-marriage with a divorced wife when the legal bar still exists is void.[16] Since the marriage is void ab initio, the parties are free to go their own way. If the wife enters into another marriage, she will not be guilty of bigamy. Third persons can take a stand and say that the marriage is void, even though the marriage has not been formally terminated.

Thus A and B have undergone a ceremony of marriage, but their marriage is void, since they are related to each other within the degrees of prohibition. A dies leaving behind his father P and B. P claims A’s entire property by saying that since the marriage of A with B was void , B has no status of wife, and he is, therefore, entitled to the property. His claim will stand.

IRREGULAR MARIAGE (FASID)

If the impediment of prohibition to marriage is temporary or remedial, then the marriage performed in violation of such impediments is not void, but as Muslim law gives call, irregular. An irregular marriage under Muslim law is not same thing as voidable marriage under English law or Hindu law. A voidable marriage is perfectly valid till it is avoided, and it can be avoided only by either party to the marriage. No third person can take a stand on it.

A voidable marriage on its annulment has practically the same consequences as that of the void marriage. On the other hand irregular marriage is not a valid marriage: nor it is a void marriage. A fasid marriage is not a valid marriage to begin with, but it can be validated and made a fully valid marriage by removing the impediment or by remedying the prohibition. Thus, when a person marries his wife’s sister the marriage is irregular but he can validate it by pronouncing talak to his wife. Or, when a Sunni male marries an idolater the marriage is irregular, but, on his wife’s conversion to Islam, the marriage becomes valid.

An irregular marriage is totally an ineffective marriage before consummation. Either party to an irregular marriage has a right to terminate it at any time, either before or after consummation, by just expressing an intention to do so. Any words indicating such an intention are enough, such as one party may say to another “I have relinquished thee”. If consummation has taken place in an irregular marriage, then the wife is entitled to dower, proper or specified whichever is less. The wife is required to perform idda of three courses on dissolution of marriage, either by divorce, or, by death of the husband. The children of such marriages are fully legitimate, and have rights of inheritance to the property of both the parents. The parties to an irregular marriage have no right of mutual inheritance.

A marriage under Muslim law is irregular in the following cases:-

· A marriage performed without witness.

· A marriage performed with a woman undergoing idda.

· A marriage prohibited on an account of difference of religion.

· A marriage with two sisters, or contrary to the rules of unlawful conjunctions.[17]

· A marriage with a fifth wife.[18]

Since the Ithna Ashari law doen not recognize irregular marriages, a marriage with no witness is void under that law. But for a Shia marriage no witness is necessary.

CONCLUSION:

Human beings, at some stages of the development of the institution of marriage have attached some sanctity – some going to the extent of calling it a sacrament, a permanent union, just as Hindus and Christians did – to marriage and to that extent a Muslim marriage, too, maybe called an ibadat but the most remarkable feature of Muslim jurisprudence is, that even at the beginning of the development of their juristic thought, they squarely considered the marriage essentially as a civil contract – a concept which developed in the western world fully only after the industrial revolution. That of the two partners to a marriage, it accorded dominant position to the husband, was but natural at the stage in the development of human society which was starkly patriarchal. Thus it is submitted that in its formation the Muslim marriage is essentially a contact though in its dissolution the dominant position of the husband is recognized.

REFERENCE:

Books:

1. OUTLINES OF MOHAMADDAN LAW, 4th ed.

Oxford India Paperbacks

-ASAF A.A. FYZEE.


2. FAMILY LAW IN INDIA, 9th ed.

S.Gogia & Co.

-PROF. G.C.V.SUBBARAO


3. FAMILY LAW, 9th ed.

Allahabad Law Agency

-PARAS DIWAN


4. THE MUSLIM LAW OF INDIA, 3rd ed.

Lexis Nexis Butterworths

-TAHIR MAHMOOD


5. MUSLIM LAW, 9th ed.

Lexis Nexis Butterworths

-MULLA


Statutes Referred:

1. The Indian Constitution

2. Muslim Laws

3. The Civil Procedure Code

4. The Specific Relief Act, 1963


Net Sources:

1. en.wikipedia.org

2. www.indiankanoon.org

3. www.moj.gov.jm

4. www.jannah.org

[1] Syed V. Rajmaa, 1977 AP. 152.


[2] Mulla §269 (4)(b)


[3] (1914) 17 Bom LR 13 at 17.


[4] Shahzada Qanum V. Fakher Jahan, AIR 1953 Hyd. 6.


[5] Agha Ali V. Altaf Hasan, 1892 14 All. 429, 450


[6] Aziz Bano’s case 1952 47 All. 823, 828, 829.


[7] Otherwise called hiba-e muddat.


[8] Mulla §269 (4) (d)


[9] Mulla § 269 (4)(e)


[10] Mulla §269 (4)(f)


[11] Luddun V. Mirja Karma (1882) 8 Cal. 336.


[12] Mad. Abid V. Ludden 1887 14 Cal. 276


[13] There is a difference of opinion among the Shia Jurists itself on this matter.


[14] The Child Marriage Restraint Act 1929 applies to Muslims as it does to all other Indians, according to Art. 44 of The Indian Constitution.


[15] Mulla §§260 – 262, read with §264


[16] Rashid Ahmed V. Anisa Khaun, 1931 59 I.A. 21


[17] Mulla § 263


[18] Mulla § 264. Read with § 255