CHANAKYA NATIONAL LAW UNIVERSITY

The Final draft for the fulfilment of project of Family Law I

On

“NIKAH”

Submitted to:- Dr. Sahwal Satyarthi

Faculty of Family law I

Submitted by: - Harshit Gupta

Roll no.1623

2st Year B.B.A.L.L.B (Hons)

CONTENTS
ACKNOWLEDGEMENT.........................................................................................................................3
DECLARATION......................................................................................................................................4
RESEARCH METHODOLOGY.................................................................................................................5
Aims & Objectives.................................................................................................................................5

Research Methodology..........................................................................................................................5

(1) INTRODUCTION........................................................................................................................6
(2) DEFINITION AND MEANING OF NIKAH.....................................................................................8
(3) DIFFERENT ASPECTS OF NIKAH..............................................................................................10
(a) Legal aspect...................................................................................................................................10

(b) Social aspect........................................................................................................................................10

(c) Religious aspect.............................................................................................................................11

(4) Nature of Muslim marriage....................................................................................................13

(5) ESSENTIALS OF NIKAH..................................................................................................................18
1. Capacity to marry..................................................................................................................................18

2. Proposal and Acceptance ……………………………………………………………………………………………………………….. .19

3. Free consent..........................................................................................................................................19

4. No Legal disability..................................................................................................................................21

4) Differences of religion (Marriage with non-muslim).............................................................................25

(6) TYPES OF NIKAH.....................................................................................................................27

Nikah muttah.....................................................................................................................................27
Nikah misyar.....................................................................................................................................27
Nikah ijtimaa.....................................................................................................................................28
Nikah Istibda.....................................................................................................................................28
Nikah Shighar....................................................................................................................................28
(7) CONCLUSION.........................................................................................................................29
BIBLIOGRAPHY...................................................................................................................................30
ACKNOWLEDGEMENT

Writing a project is one of the most difficult academic challenges I have ever faced. Though this
project has been presented by me but there are many people who remained in veil, who gave
their support and helped me to complete this project.

First of all I am very grateful to my subject teacher Dr. Sahwal Satyarthi without the kind
support of whom and help the completion of the project would have been a herculean task for
me. He took out time from his busy schedule to help me to complete this project and suggested
me from where and how to collect data.
DECLARATION

I hereby declare that the work reported in the BA LL.B (Hons.) Project Report entitled “NIKAH”
submitted at Chanakya National Law University, Patna is an authentic record of my work
carried out under the supervision of Dr. Sahwal Stayarthi. I have not submitted this work
elsewhere for any other degree or diploma. I am fully responsible for the contents of my Project
Report.
RESEARCH METHODOLOGY

Aims & Objectives

The researcher will do this research to understand the concept and various aspects of NIKAH.

Research Methodology

The researcher will emphasize and use the doctrinal method for this project topic.

The researcher will be collecting valuable data from library which includes the written works
and from the field. All these data will help the researcher to solve his research problem. All the
books, journals, articles published in newspapers, bodies, reports. The researcher will make use
of doctrinal. The doctrinal process includes the use of literary source.
 (1) INTRODUCTION
Marriage means A legal union between two persons that confers certain privileges and entails
certain obligations of each person to the other. Nikah is specifically the marriage in muslim
religion. Like anything a Muslim does, marriage should only be undertaken after gaining an
understanding of all that Allah has prescribed in terms of rights and obligations as well as
gaining an understanding of the wisdom behind this institution.
One of the principles of Islamic Jurisprudence says that: "The default state of all things is
lawfulness until some evidence shows otherwise." Based on this, if new foods are discovered,
they are considered lawful, unless there is some specific reason or attribute which would make it
forbidden for example if it is causes intoxication. Relations between men and women do not
follow this general principle and in fact are opposite to it. The principle is that: "Relations
between men and women are forbidden until some evidence shows otherwise."
Preliminary- nikah in pre Islamic Arabia, meant different forms of sex relationship between a
man and a woman established on certain terms, in pre Islamic days, women were treated as
chattels, and were not given any right of inheritance and were absolutely dependent. it was
prophet mohammad who brought about a complete change in the position of women.

Definition- The legal contract between a bride and bridegroom as part of an Islamic marriage;
the contract of Islamic marriage; Islamic marriage in general.
Nikah is an Arabic term used for marriage. It means "contract". The Quran specifically refers to
marriage as "mithaqun Ghalithun,". Which means "a strong agreement".

The original meaning of the work nikah is the physical relationship between man and woman. It
is also used secondarily to refer to the contract of marriage which makes that relationship lawful.

"A contract that results in the man and woman living with each other and supporting each other
within the limits of what has been laid down for them in terms of rights and obligations."
In Islam, marriage is a legal contract between two people. Both the groom and the bride are to
consent to the marriage of their own free wills. A formal, binding contract is considered integral
to a religiously valid Islamic marriage, and outlines the rights and responsibilities of the groom
and bride

Ibn Uthaimeen takes an even more comprehensive view of the institution of marriage in his
definition of it as:1
"It is a mutual contract between a man and a woman whose goal is for each to enjoy the other,
become a pious family and a sound society.”

1
http://www.legalserviceindia.com/article/l418-Muslim-Marriage.html
 (2) DEFINITION AND MEANING OF NIKAH
The Arabic word ‘Nikah’ (marriage) means “the union of sexes” and in law, this means
“marriage”.2 The term ‘Nikah’ has been used for marriage under Muslim law. ‘Nikah’ literally
means “to tie up together”. It implies a particular contract for the purpose of legalizing
generation. Nikah in its primitive sense means carnal conjugation. In Quran, the word Nikah has
been used in both senses of sexual connection and of contract of marriage. The Quran
specifically refers to marriage as "mithaqun Ghalithun,” Which means "a strong agreement".3

“Nikah” amongst Muslims has been considered as most pious act. In ‘Raddul-Mukhtar’ it has
been mentioned as “there is no act of devotion that has remained prescribed for us, since the time
of Adam, upon him be peace, up to this moment, and which is to be continued in paradise except
Nikah (or marriage) and Imaan (or faith)”.4

The meaning of marriage is wedlock or the mutual relation of husband and wife or the institution
whereby a man and a woman are joined in a special kind of social and legal relationship for the
purpose of making a family.

In Muslim law, Nikah is a contract for the legalization of intercourse and the procreation of
children. Hence Nikah means union of sexes. There is also some object behind this union, which
confers the status of husband and wife on a man and woman to marriage and the status of
legitimacy on the children born out of such union.5

The Quranic injunctions regarding marriage are: Marriage is recognized as the basis of society.
Marriage as an institution leads to the uplift of man and is a means for the continuance of the
human race. Spouses are strictly enjoined to honour and love each other. The prophet was
determined to raise the status of woman. He asked people to see their brides before marrying
them; and thought that nobility of character is the best reason for marrying a woman. It is a
contract for the legalization of intercourse and procreation of children.6

2
Dr. S.R. Myneni- Muslim Law, 1st edn. 2009, p.49, Asia Law House, Hyderabad.
3
http://www.legalserviceindia.com/article/l418-Muslim-Marriage.html
4
Radd-ul-Mukhtar, Vol. 2, at page 280 (Hizri); cited in Dr. Mohammad Nazmi- Mohammadan Law, 2nd edn. 2008,
p.32, Central Law Publications, Allahabad.
5
Dr. Nishi Purohit- The Principles of Mohammedan law, 2nd edn. 1998, p.105, Orient Publishing Company,
Allahabad
6
A.A.A. fyzee-Outlines of Muhammadan Law, 1999 edn. p.90, Oxford University press, New Delhi.
The objectives of marriage are:

1. to provide legal validity to the sexual relationship of husband and wife.

2. to legalize the children. Without a valid contract of marriage, the intercourse between a man
and woman is unlawful. Marriage legalizes also the children born out of that marriage. Children
born out of any union other than a valid marriage are illegitimate.

Legally speaking, Muslim marriage is a civil contract. Therefore, its legal nature is contractual.
Besides being a civil contract, Muslim marriage is also a social and religious institution.7

7
Dr. R.K. Sinha-Muslim Law, 5th edn. 2003, p.40; Central Law Agency, Allahabad
 (3) DIFFERENT ASPECTS OF NIKAH
(a) Legal aspect

Legally, a Muslim marriage is considered as a contract; because the elements which constitute a
marriage and the manner in which it is completed, is almost similar to that of a civil contract.
The contractual nature of a Muslim marriage is explained on the basis of the following elements:

1) The parties to the marriage also must be competent.

2) The marriage is not complete without offer, acceptance and free consent of the parties or
guardians.

3) The terms of marriage contract within legal limits may be settled by the parties themselves.

4) Just as there are rules for regulating the rights and duties of the parties upon the breach of a
contract, there are also provisions for respective rights and duties of husband and wife on divorce
or dissolution of marriage. 8 Therefore, the nature of Muslim marriage is similar to that of a civil
contract. But only on the basis of the above mentioned contractual elements, it is not correct to
define it as purely a civil contract. In its form, a Muslim marriage may look like a contract; but it
is not so in its essence. As is evident from the following arguments, its social aspect is also very
important.

(b) Social aspect

The social aspect of Nikah should also be studied to understand its real nature. Nikah is a social
institution by which, a definite and dignified status has been conferred upon the women. The
Prophet brought about a reform in the society. No social reform was possible without giving
equal status to the females. Therefore a definite institution or an established law was required to
give equality and freedom to the females. With this object in mind, the Prophet introduced Nikah
through which, the females could be placed on equal footing with males. It is therefore submitted
that Nikah is a well-established social institution which gives to the women, a separate and
dignified status in the society.

8
Dr. R.K. Sinha-Muslim Law, 5th edn. 2003, p.41; Central Law Agency, Allahabad.
The social institution may be explained on the basis of the following arguments:9

1) There is limited polygamy under Muslim law and a person is not allowed to marry more than
four wives at a time. In civil contracts, one may enter into many contracts at a time as he likes.

2) In every Muslim marriage, dower must be given or promised to be given by the husband to the
wife as a mark of respect towards her. In civil contracts, the general rule is that, there is no
liability to pay consideration if it has not been specified or referred in the contract. But in a
Muslim marriage, even if the amount of dower has not been specified, the husband should pay
proper dower to his wife as a mark of respect towards her.

3) There is prohibition in the marriage between certain close relatives. A brother cannot marry
his sister. But he can legally enter in to a valid contract with his sister.

4) There are certain circumstances in which the Muslim disapproves the contract of marriage.
For example, a Shia Muslim is not allowed to marry during a religious journey (Haj). Similarly
there are other circumstances which are called the relative prohibitions in marriage. There are no
such prohibitions in the civil contracts. But a marriage during Haj is void under Shia law 10.
Hence it is clear that, marriage among Muslims is not an ordinary contract. It is a powerful social
institution for the uplift of women and promotes the development of a healthy society free from
evils.

(c) Religious aspect

Apart from the Legal and Social aspects, Quran, which is a collection of the words of God,
directs every Muslims to marry a suitable woman of his choice. It is therefore a religious duty of
every Muslim to contract a marriage according to the rules of Islam. A person who remains
bachelor without any reasonable excuse disobeys the words of God. Moreover, marriage is also
the tradition (sunnat) of the prophet.11 In Islam, it is believed that marriage is a ‘Sunnat

9
Ibid
10
Dr. R.K. Sinha- Muslim Law, 5th edn. 2003, p.42; Central Law Agency, Allahabad.
11
ibid
Muwakkidah’. This means that, it is an act of such a nature that, if a person does it, he gets
religious benefits. If he abstains from doing it, then he commits sin.12

Abdul Rahim observes: “the Muhammadan jurists therefore regard the institution of marriage as
partaking both of the nature of ‘Ibadat’ or devotional act and ‘Muammalat’ or dealings among
men”. The sanctity attached to the institution of marriage in the Islamic system has neither been
comprehended nor sufficiently appreciated by outsiders. In Islam, marriage is recognized as the
basis of society. It is a contract but it is also a sacred covenant. Marriage as an institution leads to
the uplift of man and is a means for the continuance of the human race. The main aim of the
institution of marriage is to protect the society from foulness and unchastity. It has also been said
that marriage is so holy a sacrament that in this world, it is an act of Ibadat or worship, for it
preserves mankind free from pollution,13

According to Tyabji: “Marriage brings about a relation based on and arising from a permanent
contract for intercourse and procreation of children between a man and a woman, who are
referred to as ‘parties to one marriage’ and who after being married, become husband and
wife”.14 Thus according to Muslim law, marriage is a contract for the purpose of legalizing
sexual intercourse and the procreation and legitimation of children and the regulation of social
life in the interest of society by creating i) the rights and duties between the parties themselves,
and ii) between each of them and the children born from the union.

12
Aquil Ahmad- Mohammedan Law, 21st edn. 2004, p.108, Central Law Agency, Allahabad.
13
: Dr. R.K. Sinha-Muslim Law, 5th edn. 2003, p.108
14
Tyabji- Muslim Law, 4th edn. pp. 44-45; ibid, p.109.
 (4) Nature of Muslim marriage
With regard to the nature of Muslim marriage, there are divergences of opinion. Some jurists are
of the opinion that Muslim marriage is purely a civil contract while others say that, it is a
religious sacrament in nature. According to some text writers and jurists, Muslim marriage is
treated as a mere civil contract and not a sacrament. This observation seems to be based on the
fact that, marriage under Muslim law has similar characterstics as a contract. For instance:15

1) As marriage requires proposal (ijab) from one party and acceptance (qubul) from the other, so
is the contract. Moreover, there can be no marriage without free consent and consent should not
be obtained by means of fraud, coercion or undue influence.

2) Just as in case of contract entered into by a guardian, on attaining majority be set aside by a
minor, so a marriage contract in Muslim law, be set aside by a minor on attaining the age of
puberty.

3) The parties to a Muslim marriage may enter into any ante-nuptial or postnuptial agreements
which are enforceable by law provided it is reasonable and not opposed to the policy of Islam.
Same is the case with a contract.

4) Like any other contract, there is also provision for the breach of marriage contract. Describing
the nature of Muslim marriage, justice Mahmood in the leading case 16, observed: “Marriage
among Muhammadans is not a sacrament, but purely a civil contract; and though it is solemnized
generally with recitation of certain verses from the Quran, yet the Muhammadan law does not
possibly prescribe any service peculiar to the occasion”.

The prophet is reported to have said, marriage is essential for every physically fit Muslim who
could afford it. The prophet says “O assembly of youths, whoever among you is able to have, he
should marry, for it is a restraint to the looks and he who is not able let him keep fast” 17. The
following traditions may also be considered: “He who marries completes half of his religion; it
now rests with him to complete the other half by leading a virtuous life in constant fear of god”.
“There is no mockery in Islam”.

15
Aquil ahmad- Mohammedan law, 21st edn. 2004, p.110, Central Law Agency, Allahabad
16
Abdul Qadir v. Salima (1886)8, All 149
17
ibid
“There are three persons whom the Almighty himself has undertaken to help- first, he who seeks
buy his freedom; second, he who marries with a view to secure his chastity; third, he who fights
in the cause of god”. “There is no act of worship except marriage and faith, which has continued
from the days of Adam and which will continue in paradise as well”. Prophet said that: “I keep
fast and break it. I pray and I sleep and Iam married so whoever inclines to any other way than
my Sunnah, he is not of me”. “This is because marriage elevates the moral and spiritual standard
of man. Nikah is my precept. Those who are unmarried, are the unworthy of the deed”18.

Nikah is considered obligatory to every Muslim, because of its being continued to be

performed by the Prophet Mohammad, and on account of his rejecting from his followers, one
who has no liking for it amongst Muslims, there is a tradition “Nikah is my Sunnat and one
who19 dislikes my Sunnat is not mine”. According to the approved opinions, one commits sin by
not marrying, and does a meritorious act for which, he will be rewarded in after life, because by
marriage, he protects himself and the bride from committing adultery, and procreation of
children in modern condition.20

According to Hedaya: “Marriage (Nikah) implies a particular contract used for the purpose of
legalizing children (generations)”21.

Nikah amongst Muslims is a ceremony through which, a man is united with a woman with the
idea of enjoying life together and to produce children. Though a Muslim marriage is performed
through a ceremony in which Qazi (or some other learned man) reads the fatiha and other
Quranic verses, yet nonperformance of the ceremony is no fatal to the validity of the marriage22

Dr. Jang says: “marriage though essentially a contract, is also a devotional act; its objects are
rights of enjoyment and procreation of children and regulation of social life in the interest of
society”.23 There is a consensus of Muslim jurists that marriage under Muslim law is Sunnat
Muwakkida. i.e.,”the person, who complies with it, is rewarded in the next world, and he who
18
Aquil Ahmad- Mohammedan law, 21st edn. 2004, p.111, Central Law Agency, Allahabad
19

20
Dr. Mohammad Nazmi- Mohammadan Law, 2nd edn.2008, p.32, Central Law Publications, Allahabad.
21
Dr. R.K. Sinha-Muslim Law, 5th edn. 2003, p.40; Central Law Agency, Allahabad.
22
Habib-ur-Rahman v. Altaf Ali, AIR 1922 PC 159; Sir Ameer Ali said “Marriage may be constituted without any
ceremonial”
23
Dr. M.U.S. Jang- ‘Dessertation on the Development of Muslim Law in British India
does not, commits a sin”. Fitzgerald observes, “Although a religious duty, marriage is
emphatically not a sacrament, there are no sacraments in Islam, nor it is coverture”. The social
conditions of the ancient Arab women in Pre-Islamic Arabia were no better than that of animals.
They had no legal rights. In youth, they were the goods and chattels of the father. After marriage,
the husband became their lord and master. Polygamy was universal. Divorce was very easy and
female infanticide was common. There were no restrictions as to the number of wives by
polygamy. Female slavery and concubinage were common. The prohibited degrees of
relationship were very narrow and were confined only to close degrees existing at the time when
the Islamic laws came into vogue. Abdur Rahim citing the “Kashfu-i-Ghumm”, tells us of four
types of Arabian marriages24:

1) Regular form of marriage: A form of marriage similar to that sanctioned by Islam. A man
would ask the father or guardian of the girl to give the hand of his daughter or ward and then
would marry her by giving her, dower.

2) Sexual intercourse for procuring noble child: There was a custom that when a man was
willing to have a noble child, he would ask his wife to send for a noble and famous man and
have intercourse with him. The husband would stay away from his wife until the conception by
that noble man had been taken place. He would only return to her when the pregnancy had been
confirmed.

3) Invitation by a woman to have sexual intercourse: Less than ten men would be called by a
woman to have sexual relations with her. If conception had taken place and a child was
delivered, she had the right to summon all the men and they were bound to come. She would
then say, “O so and so this is your son”. This established paternity conclusively and the man had
no right to disclaim it.

4) Prostitution: Prostitutes were also common. They used to fix at the doors of their tents, a
flag as a sign of their calling. A huge number of men used to visit those prostitutes. If a woman
of this class conceived, those men who frequently used to visit her would be assembled and the
physiognomists would decide to whom the child belonged. Hence promiscuity was the rule and
the sexual unions were loose which resulted into frequent divorces25.
24
Abdur Rahim- Muhammedan Jurisprudence, quoting “Kashfu-i-Ghumm”, 1911 edn. p.7; cited in Dr. Nishi
Purohit-The Principles of Mohammedan Law, 2nd edn. 1998, p.5, Orient Publishing co., Allahabad.
25
Dr. Nishi Purohit-The Principles of Mohammedan Law, 2nd edn. 1998, p.5, Orient Publishing co., Allahabad.
Few of the conjugal relations described above can be called marriages in the modern acceptation
of the term. It is more appropriate today to consider them as forms of legalized prostitution or of
tribal sexual behaviour recognized by custom. The second form of marriage mentioned by Abdul
Rahim is similar to the ancient Hindu practice of ‘Niyoga’. 26 When Islam came into being, the
females were given due social status and they were regarded as dignified members of the society.
The prophet was determined to raise the status of woman. He asked people to see their brides
before marrying them, and taught that nobility of character is the best reason for marrying a
woman. Through Islam, the prophet brought about a reform in the society.Prophet introduced
Nikah through which, the females could be placed on a footing of perfect equality with males.

The main object of a Muslim marriage is the preservation of human race. According to Abdul
Rahim: “The Mohammedan law has obtained the institution of marriage, sanctioning thereby
sexual relations between two members of the opposite sexes with a view to the preservation of
the human species, the encouragement of chastity and the promotion of love and union between
the husband and wife and of mutual help in earning livelihood”. “The objects are the promotion
of a normal family life and the legalization of children” 27. From these objects, arise the
importance of marriage. The prophet himself gave much significance to this institution. He said:
“The man who does not marry is not one of my followers; the married man is more pleasing in
the sight of god than the most pious bachelor….” “Marriage was instituted for the solace of life
and one of the prime or original necessities of man. It is therefore lawful in extreme old age and
after hope of offspring has ceased and even in the last or death illness” 28. Hence the following
are the objects of Mohammedan marriage:

1) Legalization of sexual intercourse for the purpose of enjoyment, and

2) Procreation and legitimation of children for the purpose of:

a) Preservation of human race.

b) Systematization of domestic and social life.

26
K.J. Ayar’s Judicial Dictionary, 13th edn.2001, Butterworths India, New Delhi
27
Bokhari 67, 1,3,4,8; cited in DR. Nishi Purohit- The Principles of Mohammedan Law, 2nd edn.,1998, p.105,
Orient Publishing Company, Allahabad.
28
Fatwa Alamgiri, Baillie’s Digest, 1, 4; cited in DR. Nishi Purohit- The Principles of Mohammedan Law, 2nd edn.
1998, p.105, Orient Publishing Company, Allahabad.
(5) ESSENTIALS OF NIKAH

1. Capacity to marry

Every Muslim of sound mind who has attained puberty, may enter into a contract of marriage.
Puberty means the age at which a person becomes adult (capable of performing sexual
intercourse and procreation of children). A person is presumed to have attained the age of
puberty on the completion of 15 years.29 So the boy and girl who has attained puberty can validly
contract a marriage .A marriage under Muslim law is perfectly valid if the parties have attained
puberty and satisfied all other conditions specified by the law. 

According to the child marriage restraint act 1929, a marriage of male below 21years of age and
female below 18 years of age is child marriage. The act prohibits such marriage. The Act
prescribes that for a valid marriage the minimum age for male is 21 and female is 18. 30 The
parties who are violating the provisions of Child Marriage Restraint Act are liable to be
punished. Thus if two Muslims marry before attaining the age prescribed under the child
marriage restraint Act they are liable to be punished. However the marriage between two
Muslims who have attained puberty is valid though they have violated the provisions of Child
Marriage Restraint Act. 

2. Proposal and 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.31 Neither writing nor any religious ceremony is essential.

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. Absence of witnesses does not render marriage void
but make it void able.

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.32

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.33
29
Atika Begum v. Mohd. Ibrahim, 16 Ind Cas 597
30
https://www.webindia123.com/law/family_law/.../essentials_of_valid_marriage.htm

31
Rasida Khatun And Anr. vs Sk. Islam And Anr, AIR 2005 Ori 56
32
https://www.webindia123.com/law/family_law/.../essentials_of_valid_marriage.htm
3. Free consent

Free consent of the parties is absolutely necessary for a valid marriage .If there is no free consent
a Muslim marriage is void. Under the Muslim Law, a marriage of a Mohammedan who is of
sound mind and has attained puberty is void; if it is brought about without his consent The
marriage of a girl who has attained puberty and is of sound mind would be void if her consent is
not obtained. In a lucid and erudite judgment Pareed Pillay, J. of the Kerala High Court, in
Adam v. Mammad34, has set out the salient feature of Islamic law of marriage. In the case before
him, he held that where the girl’s father had given his consent, and the daughter had withheld
hers, no valid marriage had taken place. Here the judge cited J. Mahmood’s classic dicta in
Abdul qadir’s case, and upheld that for the validity of a marriage, consent is must. When the
consent to the marriage has been obtained by force or fraud, the marriage will be invalid, unless
it is ratified. When a marriage was consummated against the will of the women, the marriage is
void. The person who has been defrauded can repudiate the marriage.

Lunatics and minors who has not attained puberty may be validly contracted by their respective
guardians. A minor is incompetent to give valid consent. The right to contract a minor in
marriage belongs successively to the following persons:
i)Father
ii)Paternal Grand Father (h.h.s-How high soever)
iii)Brother and other male relations on the fathers side
iv)Mother
v)The maternal uncle or aunt and other maternal relations.

Under the Shia law only the father and the paternal grandfather are recognized as guardian for
contracting marriage of a minor.

33
www.shareyouressays.com/.../essential-requirements-for-a-valid-muslim-marriage-un...
34
(1990) (1) KLT 172.
If a minor, whether male or female, be contracted in marriage by a remoter guardian, while a
nearer guardian is present and available and such nearer guardian does not give consent to the
marriage, the marriage is void.35 But if the parties ratify it after attaining puberty, it will be valid.
However if the nearer guardian be absent at such a distance as precludes him from acting, the
marriage contracted by the remoter is also lawful.

Khair-ul-Balgh (Option of Puberty)

When a minor has been contracted in marriage by the father or father’s father,the contract of
marriage is valid and binding and it cannot be annulled by the minor on attaining puberty. But if
a marriage is contracted for a minor by any guardian other than the father or father’s father, the
minor has the right to repudiate such marriage on majority. This right is called Khair-ul-Balgh
which means Option of Puberty.36

When a minor wife’s right of repudiation should be exercised within a reasonable time after
attaining puberty and failing which would result in the loss of such right. The right is lost if she
after having attained puberty permits the marriage to be consummated .37If the consummation
was without her consent the right of repudiation will not be lost.

The dissolution of Muslim marriage act 1939 has considerably modified the law of option of
puberty. Prior to the Act the marriage is contracted for a minor girl by the father or grand father,
the minor has no right to repudiate such marriage on majority. But according to sec2(7) of the
act if the marriage is contracted for a minor girl by the father or grand father can also obtain a
decree for divorce from the court if the following conditions are satisfied.

 The marriage took place before the age of fifteen years

 She repudiated the marriage before attaining the age of eighteen years:
 The marriage has not been consummated 

35
www.islamlaws.com › Islam Laws
36
https://www.webindia123.com/law/family_law/.../essentials_of_valid_marriage.htm
37
www.yourarticlelibrary.com/muslim-marriage/muslim-marriage-essential.../47625/
4. No Legal disability
Under Muslim Law, marriage under certain circumstances is prohibited or not permitted. The
prohibitions can be classified into two classes:

 Absolute Prohibition
 Relative prohibition

A) Absolute Prohibition

1) 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:38

(a) 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)
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 consanguity is absolutely
void.Children born out of that wed-lock are illegitimate.39

(b) 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)

38
https://www.webindia123.com/law/family_law/.../essentials_of_valid_marriage.htm

39
www.yourarticlelibrary.com/muslim-marriage/muslim-marriage-essential.../47625/
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. 

(c) 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. According to Shia jurists fosterage includes
the same limits of relationship prohibitive to marriage as consanguinity. A man may not marry
the following females:

1.His foster-mother or grand mother (however high so ever)

2.His foster-sister (daughter of foster mother)

However Sunnis do not follow the same. Under the Sunni law, there are certain exceptions to the
general rule of prohibition on the ground of fosterage and a valid marriage may be contracted
with:

1.Sister's foster mother, or

2.Foster'-sister’s mother, or
3.Foster-son’s sister, or
4.Foster-brother's sister.

The Shia jurists refuse to recognize the exception permitted by the Sunnis. The above mentioned
prohibitions on account of 'consanguinity', 'affinity' or 'Fosterage' are absolute and the marriages
contracted in contravention of these rules are void.

2) 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.

B) Relative prohibition
Under Muslim Law, there are certain prohibitions, which are not absolute but only relative, and
marriage in violation of such relative prohibitions will only be irregular and not void and at the
moment when the irregularity is removed the prohibition ends and the marriage becomes valid.
The following are the relative prohibitions.

1) 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, which they could not have lawfully intermarried with
each other if they had been of different sexes40. Thus a Muslim cannot marry his wife’s sister
while the wife is alive. But he can make the marriage valid by marrying his wife’s sister after the
death or divorce of his first wife. Marriage with two such wives is an Unlawful conjunction.
Under sunni law a marriage in violation of the rule of unlawful conjunction is not void but only
irregular. However under Shia law, a marriage in violation of the rule of unlawful conjunction is
void. Under the Shia Law, a Muslim may marry his wife's aunt, but he cannot marry his wife's
niece without her permission

2) Marrying a fifth wife (Polygamy) 

Muslim law permits polygamy (Marrying more than one wife ) with a restriction of maximum
four wives. So a Musalman 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.41

40
www.islamlaws.com › Islam Laws
41
"Islams Women - Introduction to Marriage in Islam". islamswomen.com
In India no Muslim marrying under or getting his marriage registered under The Special
Marriage Act, 1954,can marry a second wife during the lifetime of his spouse.

3) Absence of proper witnesses

A marriage must be contracted within the presence of proper and competent witnesses. Under
the Sunni law at least two male 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 witnesses is irregular.42
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.

4. Differences of religion (Marriage with non-muslim)

The law with regard to marriage with a non-Muslim is different under Sunni law and Shia law.
Under Sunni law a male can marry a Muslim female or a Kitabia (a person who believes in a
revealed religion possessing a Divine Book viz Christianity and Judaism).43 A Sunni muslim
male can validly marry a jews or christian female. But he cannot marry an idolatress or a fire-
worshiper. A marriage, with an idolatress or a fire worshiper is merely irregular and not void.

A Muslim woman cannot marry a Kitabia /non-Muslim man. A marriage of a Muslim female
with a non-Muslim male, whether he is a Christian, or a Jew or an idolator or a Fire-Worshiper
is not void but irregular. According to Mulla, a marriage between a Muslim woman and Non-
Muslim male is irregular. But according to Fyzee, such a marriage is totally void.

Under Shia Law a marriage with a non-muslim is void. Both the spouses are required to be
Muslims. The marriage of Sunni male with a Shia female is void. A marriage of a Muslim
female with a non-Muslim male, whether he be a Christian, or a Jew or an idolator or a Fire-
Worshiper is void under Shia Law.44
42
Esposito, John (2002). What Everyone Needs To Know About Islam. Oxford Press. p. 80.
43
www.islamlaws.com › Islam Laws
44
www.yourarticlelibrary.com/muslim-marriage/muslim-marriage-essential.../47625/
In India a marriage between a Muslim and a non-Muslim can only take place under The Special
Marriage Act, 1954.If a muslim male marries and registers under the Special Marriage Act,
1954, he cannot marry a second wife during the subsistence of the first marriage.

A marriage of a Muslim female with a non-Muslim male, whether he be a Christian, or a Jew or

an idolator or a Fire-Worshiper is void under Shia Law.45

5. 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 it is incumbent upon a woman, whose marriage has been
dissolved by divorce or death of her husband to remain in seculasion, and to abstain from
marrying another husband. The purpose behind that is to ascertain whether she is pregnant by
earlier husband , so as to avoid confusion of the parentage of the child.

The period of Iddat is prescribed as under:46

1.In case termination marriage by divorce- three lunar months or three menstrual courses
2.In case of widow- 4 months and 10 days
3.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.

45
"Fatwa by Dr. Abou El Fadl: On Christian Men marrying Muslim Women". Scholar of the House.
46
https://www.webindia123.com/law/family_law/.../essentials_of_valid_marriage.htm
 (6) TYPES OF NIKAH
Nikah muttah

Nikah mut‘ah (temporary marriage47), often referred as fixed-time marriage. Many of these
marriages have a time limit, and is the second form of marriage, and is referred to in Al-Qur'an in
Surah An-Nisa ayat There is controversy on the Islamic legality of this type of marriage, since
Sunnis believe it was abrogated by Muhammad, while Shi'ia hold to Al-Qur'anand the ruling of
Ali that it is lawful in which he said "The first to ban Mut'ah was Omar 48" and "Were it not for
Omar banning Mut'ah only the sickest people would commit fornication 49" ). However, similar to
normal marriages that are common among Sunnis and Shi'ias, the woman still is given her
mahr,and the woman must still observe the iddah, a period of time where the woman cannot
remarry. This is to ensure that there is no pregnancy from the ex-husband and thus clarifies
paternal lineage.

Quran 4:24 (Pickthall)- And all married women (are forbidden unto you) save those (captives)
whom your right hands possess. It is a decree of Allah for you. Lawful unto you are all beyond
those mentioned, so that ye seek them with your wealth in honest wedlock, not debauchery. And
those of whom ye seek content (by marrying them), give unto them their portions as a duty. And

47
Answering-Ansar.org :: Mut'ah, a comprehensive guide
48
http://www.answering-ansar.org/answers/mutah/al_awail.jpg
49
http://www.answering-ansar.org/answers/mutah/tafsir_kabir_v4_p41.jpg
there is no sin for you in what ye do by mutual agreement after the duty (hath been done). Lo!
Allah is ever Knower, Wise.

Nikah misyar

Nikah Misyaar is a Nikah in Sunni's carried out via the normal contractual procedure, with the
specificity that the husband and wife give up several rights by their own free will, such as living
together, equal division of nights between wives in cases of polygamy, the wife's rights to
housing, and maintenance money ("nafaqa"), and the husband's right of homekeeping, and access
etc.50

Nikah ijtimaa

It is polyandrous marriage in which up to ten men would have sexual relations with the same
woman at around the same time. When she bore a child she would call all of them and attribute
paternity of the child to a man of her choosing. This practice was eradicated by Islam.

Nikah Istibda

It is a marriage in which a husband would send his wife to another person, usually of noble
lineage, to have sexual relations with him. The husband would refrain from sexual relations with
his wife until she became pregnant by the other man. Afterwards, the man would claim paternity
of the conceived child. This was done to get a child of noble breed. It was eradicated by Islam.51

Nikah Shighar

It is marriage in which two men would exchange their daughters, sisters or other close women
for marriage without paying Mahr. It was prohibited by Muhammad. 52

50
Al-Qaradawi, Yusuf : Misyar marriage
51
Islam and the Everyday World: Public Policy Dilemmas - Page 102, Sohrab Behdad, Farhad Nomani, Farhad
Nomani - 2006
52
IslamWeb Fatwa Q&A
 (7) CONCLUSION
On the basis of Juristic opinion we can easily conclude, that marriage is simply a civil contract
under Muslim Law. It fulfills all the conditions of a contract-proposal and acceptance, free
consent and consideration.

But from the religious angle, Muslim marriage is a devotional act. Marriage is not devoid of all
religious and spiritual values. Along with its secular aspect it also partakes the elements of a
sacred union of two souls means for spiritual ends.

In Quran and Hadith spouses are strictly enjoined to love and honour each other. Enjoyment and
showering love and affection by each one has been called a noble act. Marriage under Islam is
sacrament keeping the view of Quranic injunction and traditions.

In the ultimate analysis it can be said that the marriage in Islam is neither purely a civil contract
nor a sacrament. It is devoid of none but the blending of the two.

“Marriage though essentially a contract is also a devotional act, its objects are rights of
enjoyment and procreation of children and regulation of social life in the interest of society.”
BIBLIOGRAPHY
 Islam and the Everyday World: Public Policy Dilemmas by Sohrab Behdad, Farhad
Nomani, Farhad Nomani
 www.answeringansar.com
 Fatwa by Dr. Abou El Fadl: On Christian Men marrying Muslim Women
 www.shareyouressays.com
 www.yourarticleslibrary.com
 www.islamlaws.com
 Esposito, John (2002). What Everyone Needs To Know About Islam. Oxford Press
 www.islamwomen.com
 www.webindia123.com
 Dr. Nishi Purohit-The Principles of Mohammedan Law, 2nd edn. 1998, Orient Publishing
co., Allahabad.
 K.J. Ayar’s Judicial Dictionary, 13th edn.2001, Butterworths India, New Delhi
 Aquil Ahmad- Mohammedan law, 21st edn. 2004, p.111, Central Law Agency,
Allahabad
 Dr. Mohammad Nazmi- Mohammadan Law, 2nd edn.2008, Central Law Publications,
Allahabad.
 Dr. R.K. Sinha-Muslim Law, 5th edn. 2003, Central Law Agency, Allahabad.
 Dr. M.U.S. Jang- ‘Dessertation on the Development of Muslim Law in British India
 Tyabji- Muslim Law, 4th edn.
 Dr. S.R. Myneni- Muslim Law, 1st edn. 2009, p.49, Asia Law House, Hyderabad.