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CERTIFICATE

This is to Certify that the project entitled MARRIAGE UNDER

MUSLIM LAW is submitted by, Avinash kumar Singh, to the best of

my knowledge.

This work has not been copy pasted and is authentic work which will

be submitted to the subject faculty

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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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Marriages under Muslim Law

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.

Marriage according to Mohemmadans is a civil contract what is necessary is the agreement

between the parties arising out of proposal and its acceptance. Contractual capacity for
purposes of marriage is governed by the Mohemmadan Law itself. According to that law
attainment of puberty confers contractual capacity. It is presumed that on completion of 15
years of age a person attains puberty. A marriage under the Muslim Law may be unilaterally
put to an end by the husband by pronouncing Talak (Divorce). The husband and wife may by
mutual agreement also put an end to the marriage.

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

LEGAL REQUIREMENTS FOR A MARRIAGE UNDER MUSLIM LAW

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

Ijab (proposal) The marriage should be proposed by or on behalf of either party

there to
Qubul (acceptance) The proposal should be accepted by or on behalf of the other
party.
Form of Ijab and Qubul Both ijab and qubul must be in definite words so as to result
into a complete and not an inchoate transaction and must not be conveying a mere
intention or promise to marry.
Wilayat (guardianship) Where legally the consent of a wali is essential, the ijab or
qubul as the case may be should be made by the guardian. In all other cases a wali
may do so on behalf and with the consent of the party concerned.
Vakalat (representation) Adults can make the ijab or qubul either personally or
through an adult and sane vakil(representative). Guadians of minors have the option
of naming the representatives.
Shahabat (witness) Except, if the parties are Isna Ashari, the ijab and qubul should
be made in the presence and hearing of alteast two adult muslim witnesses. One of
these may be replaced by two women.
Majlis- I wahid (single sitting) the ijab and qubul should be made in the same
sitting signifying continuity of transaction.
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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.

ESSENTIALS OF A MUTA MARRIAGE

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

In a recent Hyderabad case it was held

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.

2 Mulla 269 (4)(b)

3 (1914) 17 Bom LR 13 at 17.

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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

4 Shahzada Qanum V. Fakher Jahan, AIR 1953 Hyd. 6.

5 Agha Ali V. Altaf Hasan, 1892 14 All. 429, 450

6 Aziz Banos case 1952 47 All. 823, 828, 829.

7 Otherwise called hiba-e muddat

8 Mulla 269 (4) (d)

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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

INCIDENTS OF MUTA MARRIAGE

The main incidents of the Muta marriage are:

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.

9 Mulla 269 (4)(e)

10 Mulla 269 (4)(f)

11 Luddun V. Mirja Karma (1882) 8 Cal. 336.

12 Mad. Abid V. Ludden 1887 14 Cal. 276

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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

All the schools of Sunnis classify marriage into:

Valid ( Sahih) marriage.

Void (Batil) marriage.
Irregular (Fasid) marriage.

The Ithari Ashari school of the Shias does not recognize the irregular marriage and therefore
among them marriages are either valid or void.

VALID MARRIAGE (SAHIH)

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.

ESSENTIALS OF VALID MARRIAGE:

13 There is a difference of opinion among the Shia Jurists itself on this matter.
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For a valid marriage the following conditions should be satisfied:

(A) Capacity to marry:

The parties14 should have attained puberty or the marriage contract should be entered
into by the guardian in marriage on behalf of the party concerned.
The parties should be of sound mind otherwise the guardian in marriage should act
on behalf of the person of unsound mind in arranging the marriage contract.
(B) Form of Marriage:

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.

(C) Prohibited Relationships:

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.

Mother and son

Grandmother (how high-so-ever) and Grandson (how low-so-ever)
Brother and Sister
Uncle and niece (how low-so-ever)
Nephew and aunt (how high-so-ever)

On ground of affinity, the following relations connected though marriage are prohibited for
marriage.

o Wifes mother or grandmother (how high-so-ever)

o Wifes daughter or granddaughter (how low-so-ever) (if marriage with wife is
consummated
o Wife of father or paternal ancestor
o Wife of son on sons son or daughters son (how low-so-ever)

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.

THE LEGAL EFFECTS OF A VALID MARRIAGE

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.

The legal effects of a valid marriage are summarized as follows:

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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VOID MARRIAGE (BATI)

When a marriage is performed in violation of absolute impediments or perpetual

impediments, the marriage is batil, null and void and it is considered to be void-ab initio. A
void marriage is no marriage and no legal consequences flow from it. Neither it confers the
status of husband and wife on the parties, nor the status of legitimacy on the children, nor-
mutual rights and obligations arise from such marriage. It is called marriage because two
persons have undergone the necessary formalities of marriage. But since they totally lack
capacity to marry, marriage cannot come in existence between the two. Thus marriages
performed in violation of rules of consanguinity fosterage of affinity or with anothers wife,
are batil marriage. The issue of such a union is illegitimate and law knows no process
whereby the union may be legalized.15 Similarly, a marriage with the wife of another or re-
marriage with a divorced wife when the legal bar still exists is void. 16 Since the marriage is
void-ab-initio, the parties are free to go their own way. If the wife enters into another
marriage, she will not be guilty of bigamy. Third persons can take a stand and say that the
marriage is void, even though the marriage has not been formally terminated.

IRREGULAR MARIAGE (FASID)

If the impediment of prohibition to marriage is temporary or remedial, then the marriage

performed in violation of such impediments is not void, but as Muslim law gives call,
irregular. An irregular marriage under Muslim law is not same thing as voidable marriage
under English law or Hindu law. A voidable marriage is perfectly valid till it is avoided, and it
can be avoided only by either party to the marriage. No third person can take a stand on it.

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

15 Mulla 260 262, read with 264

16 Rashid Ahmed V. Anisa Khaun, 1931 59 I.A. 21

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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.

An irregular marriage is totally an ineffective marriage before consummation. Either party to

an irregular marriage has a right to terminate it at any time, either before or after
consummation, by just expressing an intention to do so. Any words indicating such an
intention are enough, such as one party may say to another I have relinquished thee. If
consummation has taken place in an irregular marriage, then the wife is entitled to dower,
proper or specified whichever is less. The wife is required to perform idda of three courses on
dissolution of marriage, either by divorce, or, by death of the husband. The children of such
marriages are fully legitimate, and have rights of inheritance to the property of both the
parents. The parties to an irregular marriage have no right of mutual inheritance.

A marriage under Muslim law is irregular in the following cases:-

A marriage performed without witness.

A marriage performed with a woman undergoing idda.
A marriage prohibited on an account of difference of religion.
A marriage with two sisters, or contrary to the rules of unlawful conjunctions.17
A marriage with a fifth wife.18

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

18 Mulla 264. Read with 255.

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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

3. FAMILY LAW, 9th ed. Allahabad Law Agency -PARAS DIWAN

4. THE MUSLIM LAW OF INDIA, 3rd ed. Lexis Nexis Butterworths -TAHIR MAHMOOD

5. MUSLIM LAW, 9th ed. Lexis Nexis Butterworths MULLA

Statutes Referred:

1. The Indian Constitution

2. Muslim Laws

3. The Civil Procedure Code

4. The Specific Relief Act, 1963

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Net Sources:

1. en.wikipedia.org

2. www.indiankanoon.org

3. www.moj.gov.jm