Essentials of valid muslim marriage

FAMILY LAW II - ESSENTIALS OF A VALID MUSLIM MARRIAGE

1. ESSENTIALS OF A VALID MUSLIM MARRIAGE

2. INTRODUCTION TO MUSLIM MARRIAGE The very foundation of the family and society is the marriage. It confers on parties, the status of husband and wife and gives rise to certain rights and obligations and of legitimacy of their children. In Muhammadan Law, marriage is regarded as ‘Civil Contract’. ‘Nikah’ is an Arabic term, which literally means “the union of two sexes”. Abdur Rahim says:- ‘The Muhammadan jurist regard the institution of marriage as partaking both of the nature of ibbadat or devotional acts and muamalat or dealings among men. According to Ameer Ali:- ‘Marriage is an institution ordained for the protection of the society, and in order that human beings may guard themselves from foulness and unchastity.

3. Mulla defined Nikah as “a contract which has for its object, the procreation and legalizing of children.” Justice Mahmood in Abdul Khadir v. Salima defines a Muslim Marriage as “a civil contract” , upon the completion of which by proposal and acceptance, all the rights and obligations, which it creates arise immediately and simultaneously. Justice Mitter in Saburannissa v. Sabdu Sheikh observed, “ The Marriage under Muslim Law is a civil contract and is like a contract of sale. In the contract of marriage the wife is the property and dower is the price.

4. ESSENTIALS OF A VALID (SAHIH) MARRIAGE A Muslim marriage (Nikah) to be valid, the following conditions are to be satisfied: Civil Contract : A Muslim marriage is purely a civil contract. There should be a PROPOSAL( Ijab ) made by or on behalf of one of the parties to the marriage, and an ACCEPTANCE( Qabool ) of the proposal by or on behalf of the other party. The proposal and acceptance must both be EXPRESSED AT ONCE MEETING. The acceptance must be corresponding to what is being offered. The marriage must be effectively immediate. The parties must be COMPETENT. The two parties must be legally competent; i.e. they must be sane and adult. There must be two male or one male & two female WITNESSES, who must be sane and adult Mahomedan present & hearing during the marriage proposal and acceptance. The consent of the parties or of their guardians must be a FREE CONSENT.

5. PROPOSAL & ACCEPTANCE Under the Muslim law for the validity of a marriage there must be a proposal and acceptance at the same meeting. The proposal and acceptance must both be expressed at one meeting; a proposal made at one meeting and acceptance made at another meeting does not make a valid Muslim marriage. Under the Sunni law- The proposal and acceptance must be made in the presence of two male Muslims who are of sound mind and have attained puberty or one male and two female witnesses who are sane, adult and Muslim. Under the Shia law - Witnesses are not necessary at the time of marriage. The proposal and acceptance need not be made in writing. Where the offer and acceptance are reduced into writing, the document is called ‘Nikah nama or Kabin-nama . The 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 female witnesses, who must be sane and adult Muslim.

6. CAPACITY FOR MARRIAGE The parties to the marriage must be competent to marry. In Muslim Law, a person, who is sane (sound mind) and has attained puberty is competent to marry. The person, who has not attained puberty is a minor. The age of puberty for both a boy and girl is 15years. Under Shia Law, in the case of males, puberty is presumed to be attained at the age of 15years but in case of females it is 9years. Those persons, who are not of sound mind, i.e., are lunatics or who have not attained puberty i.e., are minors, can be contracted in marriage by their respective guardians. But after the children become Baligh or the insane become sane, they can endorse or abrogate the marriage. Minority is of two kinds – (i) age of discretion ( Saghir ) and (ii) Puberty ( Bulugh ).

7. OPTION OF PUBERTY (KHYAR-UL-BULUGH) In Muslim Law, a person, who is sane and has attained the age of puberty is competent to marry. The age of puberty is the age at which a person becomes capable of performing sexual intercourse and procreation of children. In Muslim Law, a person, who has not attained the age of puberty is a minor. The age of puberty for both a boy and girl is 15years. If a boy or girl, without attaining puberty is given in marriage, the boy or girl can repudiate the marriage after attaining the age of puberty/majority. This right is known as “the Option of Puberty” or “ Khayr -ul- bulugh ”. This right shall be exercised within a reasonable time. In case of a boy(i.e., minor husband) it should be exercised before the ratification of the marriage by payment of the Dower or Mahr . ( Mahr is an amount of cash or property paid by the bridegroom (husband) to the parents of the bride (wife) at the time of marriage or later, in consideration for the marriage) or by cohabitation.

8. When a minor has been contracted in marriage by the father or paternal grandfather, such marriage cannot be repudiated unless such father or grandfather acted fraudulently or negligently According to Sec. 2 of the Dissolution of Muslim Marriage Act, 1939, a Muslim wife is entitled to the dissolution of her marriage if she proves that the marriage has not been consummated or the marriage took place before she attained the age of 15 years or she has repudiated the marriage before attaining the age of 18 years. Mere repudiation does not render dissolution of the marriage. The dissolution must be confirmed by a competent court.

9. FREE CONSENT The marriage to be valid, the parties must be freely consented to. If the consent is obtained by force or fraud, it is no consent and the marriage is not valid. It is a general law among all sects that in case of an adult woman consent must come from her. Without her consent, consent of her father, grandfather etc., only is not sufficient, though in some cases permission to marry may be obtained from father or grandfather, wherever it was possible. In order to validate the marriage of a boy or girl who has not attained the age of puberty, the consent of the legal guardian is necessary. The marriage of a minor girl without the consent of her guardian is void.

10. Under Hanafi law if the consent is obtained by fraud or compulsion, the marriage would be valid but only irregular and not void. Suppression of certain facts by any of the contracting parties have been held to amount to fraud. Under Shia and Shafi law, such marriages where consent was obtained through fraud or compulsion are void. A Shia adult (attained majority) woman should obtain permission of her father or grandfather to marry, although she may be looking after her own affairs.

11. ABSENCE OF IMPEDIMENTS Under Muslim Law, marriage under certain circumstances is prohibited or not permitted. The prohibitions can be classified into two classes: A) ABSOLUTE PROHIBITION Prohibited degrees of relationship : Under the Muslim law marriage between persons who come within the blood relationship, or certain other relationship is prohibited. The prohibited relationships are the following: Consanguinity   : Consanguinity means blood relationship and a prohibits a man from marrying the following females: 1. His mother or grandmother (however high so ever) 2. His daughter or granddaughter (how low so ever)

12. 3. His sister whether full blood half blood or uterine blood 4. His niece or great niece (how low so ever) 5. His aunt (father’s sister or mother’s sister)or great aunt (how high so ever) A marriage with a woman who comes within the relationship of consanguinity is absolutely void. Children born out of that wed-lock are illegitimate. Affinity   : A man is prohibited from marrying certain female relatives due to nearness of relationship. A man is prohibited from marrying 1. His wife's mother grandmother (however high so ever) 2. His wife's daughter or granddaughter (how low so ever) 3. His father's wife or paternal grandfather's wife (how high so ever) 4. Wife of one's own son or son's son or daughter's son (how low so ever) A marriage with a woman comes within the relationship by affinity is void. 

13. Fosterage : It means the milk relationship. When a child is breast-fed/suckled by a woman other than its own mother, she becomes the foster mother of the child. A man is prohibited from marrying certain persons having foster relationship. Polyandry  Polyandry means marrying more than one husband. Polyandry is a form of polygamy in which a woman is having more than one husband at the same time. Under Muslim law Polyandry is prohibited and a married woman cannot marry second time so long as the first marriage subsists and the husband is alive. If a woman violated this prohibition and contracted a second marriage ,the marriage is void and the woman is liable to be punished for bigamy under section 494 of the Indian Penal Code.

14. B) RELATIVE PROHIBITION : Under Muslim law marriage between persons who came within the blood relationship or certain other relationship is prohibited, the prohibited relation ship are as following :-   Unlawful conjunction A man is prohibited from marrying two wives at the same time if they are related to each other by consanguinity, affinity or fosterage. Marrying a fifth wife (Polygamy )  Muslim law permits polygamy (Marrying more than one wife ) with a restriction of maximum four wives. So a Muslim man can have four wives at the same time. If he marries a fifth wife when he has already four, the marriage is not void, but merely irregular. But the fifth marriage can be made valid after the death or divorce of any one of the four wives of his earlier marriages. Under the shia law marriage with the fifth wife is void. Absence of proper witnesses Under the Sunni law, at least two males or one male and two female witnesses must be present to testify that the contract was properly entered into between the parties. The witnesses must be of sound mind, adult and Muslim. A marriage without witness is irregular.

15. Under the Shia law the presence of witnesses is not necessary. The marriage is contracted by the spouses themselves or their guardians in private are held valid. The absence of witnesses does not render the marriage void but only invalid.   Marriage during IDDAT  Under Muslim law, a woman who is undergoing iddat is prohibited from marrying during that period. Iddat is the period during which the female is supposed to remain in seclusion following divorce or death of husband. The period of Iddat is prescribed as under: In case termination marriage by divorce- three lunar months or three menstrual courses. In case of widow, four months and 10days . In case the woman is pregnant - till the delivery Under Sunni Law a marriage with a woman undergoing Iddat is irregular and not void. Under Shia law a marriage with a woman who is undergoing Iddat is void.

16. Differences of religion (Marriage with Non-Muslim)  In Shias, marriage with Non Muslim is Void. In Sunni,

17. CASE LAW AMINA HASSAN KOYA CASE Validity of marriage in case where wife is pregnant before marriage A girl child was born out of the marriage, Wife filed a case of divorce demanding maintenance. Husband denied maintenance questioning the validity of marriage saying that the wife concealed the fact that she was pregnant before the marriage It was proved that husband knew about the pregnancy of wife before the marriage, Thus marriage was not considered invalid.

18. RASIDA KHATUN VS SK. ISLAM Proposal and acceptance The petitioner wife and respondent husband started cohabiting with each other on the assurance to marry by respondent, a male child was born. When husband denied to treat her as wife she filed a case Her case was dismissed because there was only assurance to marry and only assurance does not make her a legally married women.

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