Muslim Law of Marriage | Family Law - CLAT PG PDF Download

Islamic Perspective on Marriage

• Strong advocacy for marriage as a fundamental social institution.
• Rejection of celibacy, contrasting with practices in some other religions such as Roman Catholicism.
• Marriage seen as a means to fulfill sexual needs in a regulated manner, preventing individuals from becoming enslaved by their desires.

Social Need and Family Structure

• Marriage is considered a  social necessity  as it leads to the establishment of families.
• Families are viewed as the  basic building blocks  of society.
• Islamic marriage is the only  legitimate (halal)  way for a man and woman to engage in intimacy.

Polygamy and Polyandry in Islamic Marriage 

• Islamic marriage permits  polygamy  (a man having multiple wives).
•  Polyandry  (a woman having multiple husbands) is completely prohibited.
• While polygamy is allowed, it is subject to  strict conditions  set by the Prophet Muhammad.
• These conditions are often not fully adhered to by some Muslims.

Celibacy in Islam 

• The Prophet Muhammad emphasized that there is  no place for celibacy  in Islam.
• Marriage is seen as a natural and necessary part of life, fulfilling  both spiritual and social needs  .

Marriage: Pre-Islamic Position 

Before the advent of Islam, Arab society had various traditions surrounding marriage that were considered unethical. These included practices such as buying a girl from her parents, temporary marriages, marrying two real sisters simultaneously, and the ease of divorcing and remarrying women. Recognizing the need to abolish these unethical traditions, Islam brought about a significant change in the concept of marriage.

Nature of Marriage 

To understand whether Muslim marriage is similar to the Hindu concept of marriage as a sacrament, let's explore different definitions of Muslim marriage:

•  Hedaya:  Marriage is a legal process that ensures the lawful and valid procreation and legitimation of children between a man and a woman.
•  Bailies Digest:  Nikah, in Arabic, refers to the union of the sexes and is a civil contract aimed at legalizing sexual intercourse and the legitimate procreation of children.
•  Ameer Ali:  Marriage serves as an organization for societal protection, safeguarding against immorality and unchastity.
•  Abdur Rahim:  Muslim priests view marriage as encompassing both  Ibadat  (devotional acts) and  Muamlat  (dealings among people).
•  Mahmood J:  According to Muslim law, marriage is not a sacrament but a civil contract.
•  Under Section 2 of the Muslim Women (Protection of Rights on Divorce) Act, 1986:  Marriage or Nikah among Muslims is seen as a  Solemn Pact  or  Mithaq-e-ghalid  , representing life companionship and taking the form of a legal contract or aqd.

Difference between Muslim Marriage and Civil Contract 

•  Contingent Contracts:  Muslim marriage cannot be based on future events, unlike contingent contracts.
•  Duration:  Muslim marriage cannot be set for a fixed period, except for Muta Marriage.

Purpose of Marriage in Islam 

The term  Zawj  in the Quran signifies a pair or mate. The primary purposes of marriage include:

• Offering companionship between the sexes.
• Facilitating the procreation of legitimate children.
• Ensuring a peaceful and tranquil life in accordance with Allah's commandments.
• Providing a means for emotional and sexual gratification.
• Serving as a way to reduce tension and stress.

Is Marriage Compulsory in Islam? 

• Imams Abu Hanifa, Ahmad ibn Hanbal, and Malik ibn Anas consider marriage in Islam to be  recommended  , but it becomes  obligatory  for certain individuals.
• Imam Shafi'i views marriage as  preferable  (Nafl or Mubah).

When does Marriage become Obligatory? 

• Marriage is considered  Wajib  (obligatory) if a person fears that they will commit  fornication  without it.

• However, one should not marry if they lack the means to  support a spouse  and future family, have no  sexual desire  , dislike children, or feel that marriage would seriously impact their  religious obligations  .

Importance of Marriage in Islam 

• The Prophet Muhammad (peace be upon him) said,  "When a man marries, he has fulfilled half of his religion, so let him fear Allah regarding the remaining half."  This statement highlights the  significance of marriage  in Islam.
• Based on this, it can be concluded that marriage is considered  essential  in Islam.

Capacity for Marriage

The general essentials for marriage under Islam are as follows:

• Every Mohammadan of sound mind and having attained puberty can marry. Where there is no proof or evidence of puberty the age of puberty is fifteen years.
• A minor and insane (lunatic) who have not attained puberty can be validly contracted in marriage by their respective guardians.
• Consent of party is must. A marriage of a Mohammadan who is of sound mind and has attained puberty, is void, if there is no consent.

 Essentials of Marriage 

The essentials of a valid marriage are as follows:

• There should be a proposal made by or on behalf of one of the parties to the marriage, and an acceptance of the proposal by or on behalf of the other party.
• The proposal and acceptance must both be expressed at once meeting.
• The parties must be competent.
• There must be two male or one male & two female witnesses, who must be sane and adult Mohammadan present & hearing during the marriage proposal and acceptance. (Not needed in Shia Law)
• Neither writing nor any religious ceremony is needed.

 Essentials of Muslim Marriage 

Muslim marriage has specific essential requirements that must be fulfilled for the marriage to be valid:

•  Proposal and Acceptance:  A valid Muslim marriage requires a proposal ('Ijab') from one party and acceptance ('Qubul') from the other. Both must occur in the same sitting.
•  Correspondence:  The acceptance must correspond exactly to the terms of the proposal.
•  Immediate Effect:  The marriage must be effective immediately. For instance, if the Wali (guardian) says he will marry her off after two months, the marriage is not valid.
•  Legal Competence:  Both parties must be legally competent, meaning they should be sane and of legal age.
•  Prohibited Class:  The woman must not belong to a prohibited class for marriage.
•  Free Consent:  Consent must be given freely, without any form of compulsion, duress, coercion, or undue influence.

 Kinds of Marriage Under Muslim Law 

•  Regular Marriage 
•  Muta Marriage 

 Muta Marriage: An Overview 

• Muta marriage, a form of temporary marriage, has its roots in pre-Islamic customs where Arab women would entertain men in their tents.
• This practice is recognized primarily within Shia Islam and is not acknowledged by Sunni law.
• A Shia male can enter into a Muta marriage with women of the Mohammadan, Christian, Jewish, or even fire-worshipping religions. However, he cannot marry a woman of any other faith. Conversely, a Shia woman is prohibited from contracting a Muta marriage with a non-Muslim.

 Essentials of Muta Marriage 

•  Fixed Cohabitation Period:  The duration of cohabitation must be predetermined.
•  Fixed Dower:  The dower (mahr) should also be specified.
•  Implications of Dower and Term:  If the dower is specified but the term is not, it may lead to a permanent or regular marriage. Conversely, if the term is fixed but the dower is not, the marriage could be deemed void.

 Effects of Muta Marriage 

•  Mutual Inheritance:  Parties in a Muta marriage do not have the right to inherit from each other.
•  Maintenance Rights:  A Muta wife is generally not entitled to maintenance. However, if stipulated in the contract, the husband is obligated to pay. Alternatively, the wife can file a petition under Section 125 of the Criminal Procedure Code (Cr.P.C.).
•  Dower Entitlements:  If the marriage is not consummated, the wife is entitled to half of the dower. If she leaves the husband before the contracted period, she is still entitled to a proportionate dower.
•  Iddat Period:  Upon consummation of the marriage, the wife is required to observe an iddat period of three months.
•  Procreation Rights:  In a Muta marriage, the husband has the right to refuse procreation.
•  Legitimacy of Children:  Children born from a Muta marriage are considered legitimate and inherit property solely from the mother.
•  Termination of Muta Marriage:  Muta marriage concludes at the expiry of the agreed term. If the husband wishes to end it earlier, mutual consent is required, often through a gift of the remaining term.

Classification of Marriage under Sunni Schools 

 1. Valid or Sahih Marriage:  A valid marriage in Islamic law is one that meets all the essential conditions set forth. It grants the wife rights such as  dower, maintenance, and residence  , and imposes obligations like fidelity, obedience, sexual relations, and observing  Iddat  .

 2. Irregular or Fasid Marriage:  These marriages occur when certain prerequisites are not met but are still recognized as marriages. They can include situations like a marriage without witnesses (except under Shia law), marrying a fifth wife, marrying a woman in Iddat, marrying a fire-worshipper, or marrying despite a legal barrier. An irregular marriage has no legal effect before consummation but creates rights and obligations once consummated.

 3. Void or Batil Marriage:  A void marriage is one that is illegal from the outset and does not create any civil rights or obligations between the parties. Children born from a void marriage are considered illegitimate. Reasons for a void marriage can include forced consent, plurality of husbands, or marriages prohibited due to consanguinity, affinity, or fosterage.

Effects of Valid Marriage (Sahih) 

• Mutual intercourse is legalized, and children born from the union are legitimate.
• The wife has the right to receive  Mahr  (dower).
• The wife is entitled to maintenance.
• The husband has the right to guide and restrict the wife’s movement for valid reasons only.
• Rights of succession develop.
• Prohibition of marriage due to affinity is established.
• The woman is bound to complete the  Iddat  period and cannot remarry during this time after divorce or the death of her husband.

Formal Validity of Muslim Marriages 

Formal validity of Muslim marriages is ensured by the completion of the following conditions:

 I. Formalities of the Marriage under Muslim Law: 

•  Offer (Ijab) and Acceptance (Qabul) on the Same Day:  Both parties must express their intention to marry on the same day.
•  Presence of Witnesses:  For Sunnis, two male witnesses or one male and two female witnesses are required. Shias do not require witnesses.
•  Uttering of Intent:  While specific words are not mandatory, the intention of the parties must be conveyed in Arabic or the local language.

 II. Deed of Marriage (Kabin Namah): 

This document outlines the dower amount, conditions for payment, and child custody arrangements.

 III. Consent of Parents: 

Marriages are typically conducted at the bride's father's or guardian's house. Hanafi and Shia traditions hold that if the parties are adults, parental consent is not necessary. However, individuals below the age of puberty or those of unsound mind require parental or guardian consent to enter into marriage.

 IV. Registration of Marriage: 

While not compulsory, the  Mutawalli  of  Jamat  or  Jamayat  can issue a marriage certificate in Bihar and West Bengal under the Muslim Marriage and Divorce Registration Act, 1935.

 V. Presumption of Marriage: 

• Prolonged continuous cohabitation between a husband and wife without legal barriers.
• When a man acknowledges a woman as his wife.
• When a man recognizes a child as his legitimate offspring.

Unlike Hindu marriages, which are considered a sacrament, Muslim marriages are viewed as civil contracts. Marriage is essential for legitimizing a child, and when conducted according to prescribed norms, it establishes various rights and obligations for both parties.