Muslim Law

Nikah- Introduction
• In pre-Islamic days- women- not given any rights.
• Marriage- means different forms of sex relationship b/w man & a woman.
• Treated as goods & chattels of father before marriage & after marriage, it
was husband who had full control over mind & body.
• Improvement in position of woman- brought by Prophet Mohammad.
• Placed women on same footing with men in exercise of all legal powers &
functions.
• Under Muslim law- purpose of solemnizing marriage- not for sexual
enjoyment b/w themselves.
• It is an act of Ibadat.
• The prophet said: Men marry for beauty, for ranks, for wealth, for piety,
choose piety. He declared marriage is my Sunnat (or order) & those who
do not obey it are not mu followers.
 Definition
• The Arabic word nikah (marriage) literally means the
union of sexes & in law this term means marriage.
• Ashabah says:
“Marriage is a contract underlying a permanent
relationship based on mutual consent on part of a man
& woman”
• Ameer Ali:
“Marriage is an institution ordained for procreation of
society & in order that human beings may guard
themselves from foulness & unchastity.
 Object of Marriage
The basic objectives:
1. Securing a comfortable atmosphere for husband & wife.
2. Producing a new generation of healthy, faithful & virtuous children.
Fyzee says: “the objects therefore are the promotion of a normal family life &
legalization of children.”
Objects of Mohammedan Marriage:
• Legalization of sexual intercourse for purpose of enjoyment.
• Procreation & legitimation of children for purpose of-
1. Preservation of human race.
2. Systemization of domestic & social life.
• The restraint of sexual passion.
• The ordering of domestic life.
• The increase of the family.
• The discipline of the same in the care & respectability of wife & children.
• Upbringing of virtuous children.
 Object of Marriage Continues…
Hedaya speaks of Marriage as-
1. Cohabitation
2. Society
3. Equal Friendship
Nature of Muslim Marriage
• Different opinions of different writers & jurists.
• Some held it is purely a civil contract while
others said it is a religious sacrament.
 Marriage as a civil contract
• Religious duty as well as contract.
• The reason for calling it contract- one party makes an offer(ijab) &
other party- accept it & may not accept it.
• Consideration- dower- husband pays to wife.
• Free consent- necessary- without coercion, fraud or undue influence.
• In contract- a person- ratify/ repudiate contract on attaining Majority,
same applies to Muslim law, a marriage contract can be set aside by a
person on attaining age of puberty- known as khyar-ul-balugh.
• Justice Mitter observed-
“Marriage under Muslim law is a civil contract & is like a contract of
sale. Sale is a transfer of property for a price. In contract of marriage
the wife is the property & dower is price.”
 Marriage is a religious sacrament
• Marriage- considered to be Ibadat.
• The difference b/w Contract & Muslim Marriage.:
1. In contract- there is contingent contract but under Muslim
marriage, no such provision is mentioned.
2. People enter into contract- limited period but marriage amongst
Muslims considered- Ibadat, a permanent union, until & unless
divorce or death takes place.
• In words of M.C.J. Jung:
“Marriage is an institution of Ibadat clothed in the legal form of
contract regulating sexual intercourse: but its continuance is
dependent upon maintenance of conjugal affection.”
So, it can be concluded that marriage amongst Muslims is an
amalgamation of both contractual & sacramental element
Essentials for validity of Muslim Marriage

• Certain formalities- should be complied with

when Muslim marriage is to be performed.
• If any of formalities/essentials- not complied-
marriage is void or irregular.
• If all ceremonies- performed- marriage is valid.
1. Capacity of the parties- Every Muslim, who is of
sound mind & who has attained puberty-
capacity to marry. Marriage of such person
without his/her consent- void.
 Essentials for validity of Muslim Marriage
Continues…
2. Consent of Parties must be free- persons- not of sound mind, minor or
have not attained puberty- contracted in marriage by guardian. A consent-
not to be given under compulsion, fraud or mistake of fact.
3. Essential ceremonies of marriage
• Should be proposal (ijab) & an acceptance (qubul) of proposal.
• Proposal & acceptance- made either by or on behalf of party.
• Marriage- done in presence & hearing of two male or one male & two
female.
• Proposal & acceptance- expressed in one meeting.
• No ambiguity with words- indicating only an intention or a promise to
marry at a future time.
• Offer & acceptance- reciprocal to each other.
• Acceptance- exactly for proposal & nothing else.
• If acceptance- conditional or with modifications, it is no acceptance for
proposal.
 Bars to Muslim Marriage
• Merely because Muslim has a capacity to marry &
all essentials are fulfilled- nom make Muslim
marriage- valid. There should be no legal bar.
These bars can be of two types- absolute &
relative.
• Violation of absolute & perpetual bars makes
marriage void under all schools of Muslim law,
while violation of relative & temporary bars makes
marriage irregular in Sunni law & void/ valid in
Shia law.
 Absolute Bars (Void Marriage)
• An absolute prohibition for a Muslim to marry
a person who is within his/her prohibited
relationship.
• Two persons said to be- prohibited relation if
they are related to each other by-
1. Consanguinity
2. Affinity
3. Fosterage
Prohibition on ground of Consanguinity
A Muslim man- prohibited from marrying following blood relations:
1. Mother, grand mother (how high so ever)
2. Daughter, grand daughter (how low so ever)
3. Sister (full, half or uterine)
4. Niece (brother’s or sister’s daughter) or grand niece ((brother’s
or sister’s daughter) (how low so ever)
5. Aunt or great aunt (how high so ever, whether paternal or
maternal) (Father’s sister, Mother’s sister etc.)
• Expressions (how high so ever) or (how low so ever)- ascendants
of any degree & descendants of ant degree.
• In Muslim Law- two cousins- marry each other unlike Hindu Law.
• A man can lawfully marry his divorced or widowed Chachi or
Mami.
 Prohibition on ground of Affinity
• Means nearness
• Muslim- prohibition from marrying certain persons, relationship
with whom arises on account of Marriage, valid or invalid.
1. Ascendants of his wife (wife’s mother, grand mother etc.)
2. Descendants of his wife (wife’s daughter, grand daughter etc.)
3. Wife of any ascendants (father’s wife, grand fatther’s wife etc)-
includes step mother i.e. other wives of his father, if any, other
than his real mother.
4. Wife of any Descendant (son’s wife, son’s son’s wife or
daughter’s son’s wife etc.)
• Ascendants & descendants- any degree.
• Rule- applicable to women. Thus a woman- no marry her
daughter’s husband, daughter’s daughter’s husband etc.
Prohibition on ground of Fosterage
• Where a child- under age of 2yrs- sucked milk of
any woman (other than his own mother)- called
foster mother of child.
• Whoever is prohibited by Consanguinity & Affinity-
prohibited by reason of fosterage.
Ex: Muslim male- no marry- foster mother, foster
sister or foster mother’s daughter.
• prohibition on ground of fosterage- almost
outdated as in most Indian Muslim families-
relationship is now not in Practice.
Plurality of Husbands/ Marrying Another’s
Wife
• Marriage with woman- has alive husband &
who has not been divorced by him- void
(bigamy of wife).
• If ground of divorce- available to her- The
Dissolution of Muslim Marriages Act, 1939,
she has to prove that ground & obtain a
court’s decree before marrying another
person.
 Relative Bars (Irregular/ Void Marriages)
• Prohibitions- compliance- not mandatory but their presence-
deemed to be unjust.
• Bars- recommendatory/ Directory/ moral nature. Such bars are
of temporary nature & can be overcome.
1. Unlawful Conjunction- A man may not have at same time two
wives who are related to each other by Consanguinity, Affinity,
Fosterage, that is either of them had been a male, they
couldn’t have lawfully inter- married.
Thus, a man- prohibited to marry the sister of his wife because, if
one of them is presumed to be a male, they would become
brother & sister & could not inter marry.
• A man may not marry his wife’s sister in his wife’s lifetime. But
a man can marry his wife’s sister after death or divorce of wife.
 Relative Bars (Irregular/ Void Marriages)
Continues..
2. Marrying the fifth wife- Muslim Law- permits a limited polygamy
of 4 wives.
• A male- have- 4 wives.
• Can marry 5th wife only after divorcing one of the four.
• Noted- Muslim Law- no permit- polyandry for a Muslim female.
3. Absence of proper (two competent witnesses) only under Sunni
Law.
4. Marriage of a Muslim major without his/her consent.
5. Difference of Religion- Sunni male- validly marry kitabia (jewess/
Christian), but not an idolatress/ fire- worshipper i.e. Hindu.
• Marriage with Hindu- irregular. A Sunni female- no marry- non-
muslim, whether Kitabia or a non- kitabia.
• In shia Law- no muslim- male/female- marry a non- muslim
 Relative Bars (Irregular/ Void Marriages)
Continues..
6. Marriage with woman undergoing Iddat- means
counting days of possible conception to ascertain
whether a woman is pregnant or not.
7. Rule of Pilgrimage- if person enters Kaba in pilgrim
dress finds another woman there & marries her,
marriage will not be valid (Shia Law). It is valid under
Sunni Law.
8. Marriage with Divorced Woman- person can not
remarry woman whom he had already divorced by
Triple Talaq, unless woman marries another man, the
marriage- consummated with him & then he divorces
her. A marriage in violation of this rule is invalid.
 Effects of Valid marriage
A marriage performed b/w two parties- full capacity to marry with
all necessary formalities- valid marriage.
Legal effects of valid marriage:-
• Status of Husband & wife conferred.
• Status of legitimacy on Children conferred.
• Mutual rights of inheritance conferred on parties.
• Husband- entitled- to restrain wife’s movement in a reasonable
manner.
• Wife acquires- right of maintenance, dower & residence.
• Wife- bound to allow conjugal union, obey commands of her
husband & to observe Iddat.
• Prohibited degrees of relation created b/w parties.
• Other rights/obligations- agreed upon marriage contract.
 Iddat
• Period- necessary upon a woman, whose marriage has been dissolved by
divorce or death to remain in seclusion & to abstain from marrying
another husband.
• Condition- imposed- discover whether pregnant by husband- avoid
confusion of parentage.
• She has to stay indoors & make sure even shadow of a man- not fall over
her.
• When marriage- dissolved by Divorce- duration of Iddat of woman is
subject to menstruation- 3 course. If she is not subject- 3 lunar months.
• If pregnant- period b/w divorce & delivery of child or termination of
pregnancy (abortion), whichever is earlier.
• When marriage- dissolved by death- iddat- 4 months & 10 days or unto
delivery (if pregnant), whichever period is longer.
• In case of death- husband- observe iddat whether marriage was
consummated or not.
 Iddat Continues…
• In case of divorce-if no consummation- no iddat- can marry
immediately.
• Period- starts- from date of dissolution of marriage or death
of her husband.
• If information- death/ divorce- not reach wife- until after
expiration of iddat period- not bound to observe Iddat.
• If divorced woman-observing iddat – 3 months & former
husband dies before completion- 3 months- start fresh
Iddat- 4 months & 10 days from date of husband’s death.
• Husband- no remarry during Iddat period as husband has to
provide maintenance to her.
• Shia Law- marriage- with woman observing Iddat- void