Muslim Law Introduction-1
Muslim Law Introduction-1
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