• LAWGIC STRATUM

MARRIAGE UNDER MUSLIM LAW

Author: Kohina Jain



Introduction:


Marriage under Muslim law is considered a social contract. The husband, wife and their respective families enter into a contract which is called nikkah. The bridegroom concludes the contract with the legal guardian (wali) of the bride and he pays an amount of money (Mehr) to the bride and in return bride agrees to marry the bridegroom. It is a matrimonial relation and institution which legalizes the sexual relation between man and woman for the object of procreation of children, promotion of love and union between the parties and mutual support to earn a livelihood. According to a different philosopher of Muslim marriage is a religious duty. It is necessary to marry for everyone to fulfill his/her desires procreation of children. Prophet Mohammad had laid down the rigid and fixed rules for Nikah.


Classification of Marriage:


Muslims are divided into two sects all over the world based on their belief and tradition, viz Sunni Muslims and Shia Muslims. Because of the division, there are several forms of marriage under Muslim law both the sects are conducted their marriage differently with different customs and different traditions. Muslim marriages are a social contract and legally binding upon parties hence it is classified accordingly

The classification of marriages under Muslim laws is:

  • Sahih Nikah (Valid Marriage)

  • Batil Nikah (Void Marriage)

  • Fasid Nikah (Irregular Marriage)

  • Muta Marriage


1. Sahih Nikah (Valid Marriage)


The Sahih word means correct or valid in Urdu and as already explained that nikkah is a social contract so when all the essentials of a valid marriage are fulfilled and there is no prohibition affecting the parties, then the marriage is correct or ‘sahih’. A valid marriage has social and legal implications some of which are as follows:

  • The spouses become legally married due to which sexual intercourse between them becomes legal.

  • Due to the marriage, husband and wife acquire mutual rights of inheritance which can be inherited.

  • The wife gets the right of maintenance and alimony for her and the children after the decision of the Supreme Court.

  • Ritual of Iddat has to perform by the divorced wife if she is being a widow after the dissolution of marriage. During this period, she cannot remarry.

2. Batil Nikah (Void Marriage)


The agreement between a prospective groom and bride which does not meet all prescribed legal conditions of a Muslim marriage is void ab initio agreement and any marriage that takes place in carrying out the void marriage is called Batil Nikkah or void marriage. It created no right and obligation children born out of this marriage are illegitimate.


In Munsh v, Mst. Alam Bibii[i] the court observed that due to non-adherence of a condition there is a permanent or perpetual marriage, which is void marriage.


Spouses are free to separate from each other at any time without obtaining a divorce or the wife may contact another marriage lawfully. Some of the essential social and legal implications of void marriage are:

  • The marriage is void from the very first day of the marriage i.e. void ab initio even if the marriage is consummated.

  • Right to maintenance after divorce is lost in case of a void marriage.

  • The children born out of this marriage do not have a right to inheritance.


3. Fasid Nikkah (Irregular Marriage)


If a marriage is performed in the violation of partial or qualified legal impediment or prohibition is considered as irregular marriage or fasid nikkah. An irregular marriage is not void completely it can valid by removing impediments or irregularities, for example, a Muslim man marries with Hindu woman is an irregular marriage that can be made valid if the wife converts into Islam. Only Sunni Muslims performed irregular marriage and Shia Muslims consider it void marriage.


In Ata Mohammed. Saiqul Bibi,[ii] the court observed that when a marriage is temporarilyimpedimental and not completely restricted it is considered as merely irregular of fasid and not void marriage. Because this marriage has several aspects involved and various points of view. The social and legal implication of irregular marriage depends upon that the marriage is consummated or not.


Some implications are as follows:

  • Before consummation in a marriage, the wife is not entitled to obtain a dower from her husband if he divorces her.

  • There is no legal obligation on the wife she is not bound to follow the rules of iddat.

  • The wife has no right to claim the right of maintenance from the husband during the iddat period of 3 months.

  • After consummation in marriage child born out of irregular marriage is consideredlegitimate and has all right of inheritance of property.

4. Muta Nikkah


This type of marriage is recognized by only Shia sects of Muslim because it is temporary marriage for a purpose of pleasure. Sunni Muslims consider it as a void marriage because marriage is a permanent union for them. Muta means “enjoyment”. Muta marriage is a union for a fixed period to fulfill sexual needs and desires. Shia Muslim man may contract Muta marriage with a Muslim, Kitabia or Parsi woman but the same is not with the Muslim woman she may contract Muta marriage only with Muslim man. This type of marriage occurred because in early Arabia Sheikh had to travel long and far for business purpose. To confer the legitimacy on the offspring produced during the travel they were used to marry the woman for a temporary period till they were in that town.


All the formalities of a social contract like free consent, capacity to enter into a contract, offer and acceptance and fixed dower have to be followed. The time period of dower must be specified at the marriage otherwise marriage will be void.[iii]


Conclusion:


Marriage under Muslim law is considered a devotional act. The main purpose of marriage is to create a family which is considered a fundamental unit of society. The Prophet Muhammad has also said Marriage is my tradition and anyone who does not want to marry is not from amongst me.


Also, Muslim law treats marriage as a civil contract, all the legal obligations of a contract like a proposal, acceptance, free consent and consideration are followed for a valid marriage. Marriage is classified based on its validity.



References:

[i] AIR 1932 Lah. 280. [ii] 1910 8 ALJ 953 [iii]Srivastava, Mitali,Family Law and Gender Justice: A Statutory Analysis & Case Study, SSRN (April 10, 2012) https://ssrn.com/abstract=2149872

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