Marriages Under Muslim Law Project
Marriages Under Muslim Law Project
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CERTIFICATE
my knowledge.
This work has not been copy pasted and is authentic work which will
Contents
1. Introduction 6.
2. Definition of Marriages
6.
3. Legal Requirements for Marriage in Muslim Law
7
4. Kinds of Marriages 7
5. MUTA Marriage 8
6. Essentials of a MUTA Marriage (case law)
9
7. Incidents of a MUTA Marriage
11
8. Classification of Marriages
12
i. Valid Marriage (SAHIH) 12
ii. Void Marriage (BATIL)
14
iii. Irregular Marriage (FASID)
15
9. Conclusion 16
10.References 17.
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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.
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
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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 Quran, yet the Mohammadan
law doesnt positively prescribe any service peculiar to the occasion Mahmood .J
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
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 Muta marriage. It would be proper to call Muta
marriage as term marriage. No other sect of Muslim recognizes the Muta marriage. It
should be noticed that even in a Muta marriage, there is Nikah. Just like the Sunnis, the
Shias also recognize the regular permanent marriage.
MUTA MARRIAGE
The word Muta 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 Muta was fairly common in Arabia both
before and at the time of the Prophet. The believer is only perfect when he has experienced a
Muta, thus observed the Shia theologian AlHurr-Al-Amili. It may be difficult to say that
when an Ithna Ashari Muslim enters into a muta marriage, he does so with the view to
perfecting his belief. The fact of the matter is that a Muta 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 whenever 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 Muta. This pre-Islamic
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institution of Muta 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 Muta.
According to Ithna Ashari law a Muta 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 Muta with a Muslim, Christian, Jewish
or a Fire-worshipping women1, but not with the follower of any other religion.
Relations prohibited by affinity are also unlawful in temporary marriage. A man may
contract Muta with any number of women.2
As regards the term of Muta , this must be specified: else a life-long Muta will be
presumed If the original cohabitation commenced with the lawful Mata. In Shoharat
singh v Mst. Jafri Bibi3 it was held that of the cohabitation of a man and a woman
commenced with the Muta , 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 Muta continued during the whole period of cohabitation
That there is no difference between a Muta for an unspecified period and a Muta for
life
That a permanent Nikah for a life can be contracted by the use of the word Muta also.
1 Syed V. Rajmaa, 1977 AP. 152.
That specification of the period for which a Muta marriage is contracted alone makes
a permanent marriage for life , a temporary Muta marriage for the period specified.
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.
That where the period is for life, Nikah marriage will result4.
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 . J5 and Sulaiman . J6 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 Muta 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 Muta for life: but to equate a Muta for life with a regular Nikah is a serious
step, which inter alia fails to take in cosideration the question of intention.
A Muta 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 term7 thereby terminate the contract , without the wifes 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 Muta 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 Muta 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 Muta10
o In a Muta marriage, parties have no right to mutual inheritance, even if one of the
parties dies when the Muta is subsisting. There is a difference of opinion among the
Shia authorities whether a specific stipulation to the effect in a Muta is valid.
o A wife in a Muta 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
o 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 dower12.
o 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.
o 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.
o 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.
o 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 husbands right of Talak does
not arise. However the parties may 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
The Ithari Ashari school of the Shias does not recognize the irregular marriage and therefore
among them marriages are either valid or void.
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.
13 There is a difference of opinion among the Shia Jurists itself on this matter.
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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.
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.
On ground of affinity, the following relations connected though marriage are prohibited for
marriage.
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.
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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.
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.
o Sexual intercourse becomes lawful and the children born of the union are legitimate.
o The wife becomes entitled to her dower (mahr).
o The wife becomes entitled to maintenance.
o The husband is entitled to restrain the wifes movements in a reasonable manner and
to exercise marital authority.
o Mutual rights of inheritance are established.
o The prohibitions regarding marriage due to the rules of affinity come into operation.
o The wife is not entitled to re-marry after the death of her husband, or after the
dissolution of her marriage, without observing Idda.
o 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.
o 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.
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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 wifes 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 wifes conversion to Islam, the marriage becomes valid.
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
17 Mulla 263
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
4. THE MUSLIM LAW OF INDIA, 3rd ed. Lexis Nexis Butterworths -TAHIR MAHMOOD
Statutes Referred:
2. Muslim Laws
Net Sources:
1. en.wikipedia.org
2. www.indiankanoon.org
3. www.moj.gov.jm