Sunteți pe pagina 1din 11

INTRODUCTION

Marriage/'Nikah' according to Muslim Law are a contract underlying a


permanent relationship based on mutual consent.
Essential Features
1. A Muslim marriage requires proposal (Ijab) from one party and
acceptance (Qubul) from the other as is required for a contract. Moreover
there can be no marriage without free consent and such consent should not
be obtained by means of coercion, fraud or undue influence.
2. Just as in case of contract, entered by a guardian, on attaining majority, so
can 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 agreement which is enforceable by law provided it is
reasonable and not opposed to the policy of Islam. Same is the case with a
contract.
4. The terms of a marriage contract may also be altered within legal limits to
suit individual cases.
5. Although discouraged both by the holy Quran and Hadith, yet like any
other contract, there is also provision for the breach of marriage contract.
REQUIREMENTS
The solemnization of marriage requires adherence to certain forms and formulas.
They are called the essentials of a valid marriage. If any of these requirements is
not fulfilled the marriage becomes either void or irregular, as the case may be.
Thus the essentials are as follows:

1. Proposal and Acceptance


2. Competent parties
3. No legal Disability

PROPOSAL ACCEPTANCE
A Muslim marriage requires proposal (Ijab) from one party and acceptance
(Qubul) from the other as is required for a contract. There should be a free
consent of the parties.

COMPETENT PARTIES
The Parties to a marriage must have the capacity of entering into a contract. They
must be competent to marry. Muslim who is of sound mind and who has attained
puberty may enter into a contract of marriage. The parties must be able to
understand the nature of their act.

NO LEGAL DISABILITY
Under muslim law, various categories of prohibited relationship are laid down,in
violation of which two person are not permitted to marry each other.
WITHOUT LEGAL DISABILITY

Contention to those who claim that Islam had followed pre-Islamic custom is
negated (except in sunni inheritance). Pre-Islamic custom had no order in
relation to matrimonial rules and laws. Unlimited polygamy and polyandry had
been brought to be subjected to strict laws. Polygamy was restricted only to four
wives and that too with the condition that they are treated equally and justly
(Quran-Supra), otherwise, Quran has advised Muslims to marry only one wife.
Against the pre-Islamic custom, marriages with step mothers, foster
relations, simultaneous marriage with two sisters were strictly prohibited. Also
against a custom a period (iddat) was fixed for remarriage of women who were
widowed or divorced, to ascertain the paternity of child, if born. A marriage
formula and dower were made mandatory.
Like any other system of personal law, Islam also prohibits marriage
between certain natural and created relations, etc. Tyabji has rightly categorized
these limitations as (1) number, (2) difference of religion, (3) prohibited
relationship, (4) unlawful conjunction, (5) iddat, (6) fosterage, (7) miscellaneous
prohibitions.1
Means the existence of certain circumstances under which marriage is not
permitted. These prohibitions have been classified into four classes as follows:

1. Absolute incapacity or prohibition


2. Relative incapacity or prohibition
3. Prohibitive incapacity
4. Directory incapacity

1. I-TYABJI 35.
The first three absolute incapacity to marriage and render it batil, null and void;
on the legal disability, the koranic verses run thus, We are forbidden marry
your father have had as wife for this is an uncleanlines, an abodmination, an an
evil way. we are forbidden to marry your daughters, your sisters, and your
aunts, both on the fathers side or the paternals side; your brothers daughters
and your sisters daughter; your mother who has given you birth or your foster
sisters; your wifes mothers; your step daughters born of your wife have
cohabited,. You are also probhited to take two wives , and to marry women
who are already married.2

ABSOLUTE INCAPACITY
Under Muslim law a person is restrained not to marry only with close blood
relations. Absolute incapacity to marry arises from-

(a) Consanguinity
(b) Affinity
(c) Fosterage

(a)Consanguinity
means blood relationship and bars a man from marrying. In this prohibition a
marriage with a women prohibited by reason of blood relationship is totally void
and issue illegitimate3.

(i) His mother and grandmother how high soever,


(ii) his daughter and granddaughter how low soever,
(iii) his sister whether full, consanguine or uterine,
(iv) his niece or great-niece how low soever,
(v) his aunt or great-aunt, how high so ever, whether paternal or
maternal.

The expressions how high so ever and how low so ever means ascendants of
any degree and descendants of any degree.

All the schools of Shias and Sunnis agree that a marriage perform in violation of
the disability on the ground of consanguinity or blood relationship is batil, null
or void and children born out of this marriage will be illegitimate.

2
The Koran ii
3
TYABJI 36; MULLA 260; FAT. LAW 105 sqq.
(b)Affinity
A man is prohibited from marrying:-

(i) His wifes mother or grandmother how high so ever.


(ii) His wifes daughter or grand daughter how low so ever
(iii) Wife of ones father or paternal grand-father how high so ever
(iv) Wife of ones son or sons son or daughters son how low so ever.

A marriage with a women prohibited by reason of affinity is void. Not


merely this, relationship come into existence from an adulterous
connection, and a person is prohibited from marrying all relations of the
women with the whom the relationship by affinity would have arisen, had
he married her.4 The Shafis do not subscribe to this view, and the
prohibition of affinity does not arise on the basis of adulterous
relationship. The shias, on the other hand, go a step further, and hold the
view that a perpetual prohibition arises by any way of impudicity between
two adolescent youths.5 All the schools of Shias or the Sunnis agree that,
once a valid marriage is contracted, the prohibition by affinity arises even
though the marriage has not been consummated.

(c)Fosterage
All the schools of the Sunnis and the Shias agree that prohibited relationship
arises on the basis of fosterage, but they differ in detail. The Shias take the view
that foster relationship arises only when the child has been actually nourished at
the breast of the foster-mother; in that case all prohibited relationship arises as
they arises on the basis of consanguinity or affinity. The Sunnis do not go to that
extent. They permit a marriage with following foster relations:

(i) Marriage of the father of the child with the mother or his childs
foster mother,
(ii) With her daughter,
(iii) The marriage of the foster-mother with the brother of the child
whom she has fostered, and
(iv) The marriage with the foster-mother of an uncle or aunt.

The prohibitions arising out of consanguinity, affinity and fosterage are


applicable to both man and woman.

4
See, Ameer Ali ,II,278.
5
Ameer Ali,ii,279.
RELATIVE INCAPACITY
Relative incapacity springs from cases which render the marriage invalid only
so long as the cause which creates the bar exist. The moment it is removed, the
incapacity ends and the marriage become valid and binding. This prohibition
being of a recommendatory or moral nature. The following are the cases:

(a)Unlawful conjunction,

(b)Polygamy or marrying a fifth wife,

(c)Absence of proper witnesses,

(d)Differences of religion,

(e)Woman undergoing IDDAT.

(a)Unlawful Conjunction:
means contemporaneously marrying two women so 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 sexes. Thus a Muslim
cannot marry two sisters, or an aunt and her niece.

The rule of unlawful conjunction applies only when first marriage subsists. Thus,
if one had divorced his wife, then one is free to marry ones wifes sister or
wifes aunt. The predominant view is that under the Sunni law, such marriages
are not void but irregular, in accordance with the Koran, such marriage should be
void.6 It is submitted that the decisions holding such marriage as irregular are in
consonance with the spirit of Muslim law which leans heavily against
illegitimacy. If such marriage is considered to be irregular, the children will be
legitimate, otherwise they will be bastards.7

Under the Shia Law, a Muslim may marry his wife's aunt, but he cannot marry
his wife's niece without her permission. Marriage prohibited by reason of
unlawful conjunction is void under Shia Law.

6
Fyzee; 10. Fyzee says that the court took this view on account of strong criticism by Ameer Ali of AIZUNNISSA
V. KARIUNISSA (1895) 23 cal 130 where such marriage shal held void.
7
The Fatwal Alamgiri clearly lays down that children of such marriage are valid, see Ameer Ali, ii,329-30.
(b)Polygamy or marrying a fifth wife:
Means plurality of wives, i.e. marrying a fifth wife. It is unlawful for a
Mohammedan to have more wives than four.

In ancient times before the promulgation of Islam, a man was not restricted from
marrying any number of wives, but the prophet limited the number to four and
represented monogamy as an ideal form of marriage.

A mohammedan husband has a legal right to take second wife even while the
first subsists, but if he does o and then seeks the assistance of the court of the law
to compel the first wife to live with him against her wishes she is entitled to raise
the question whether the court, as a court of equity ought to compel her to,to
submit to co-habitation with which his second marriage took place are relevant
and material in deciding whether his conduct in taking a second wife was in
itself an act of cruelty to the first.8

A Muslim woman cannot marry more than one husband. If a woman marries a
second husband, she is liable for bigamy under Sec.494, Indian Penal Code and
the issues of such a marriage are illegitimate.

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.

(c)Absence of proper witnesses:


It is essential amongst the Sunnis that at least two male witnesses or one male or
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.

The Hanafi jurists insisted upon the presence of witnesses because in connection
with the testimony of marriage, they had in view the authentication of its
factum.absence would affect its contractual completeness.

In Shia Law, a marriage contracted by the spouses themselves or their guardians


in private are held valid. Presence of witnesses is not necessary.

(d)Difference of religion:

A Sunni male can marry a Muslim female (Of any sect) or a Kitabia. Marriage

8
Moonshee byzloor raheem v. Shamsoonnissa begum ii MIS 551.
with the Kitabia, i.e. a woman who believes in a revealed religion possessing a
Divine Book viz Islam, Christianity and Judaism is valid under the Sunni Law.
But he cannot marry an idolatress or a fire-worshiper. A marriage; however with
an idolatress or a fire worshiper is merely irregular in Sunni Law, but void in
Shia Law. A Muslim woman cannot marry any man who is not a Muslim,
whether he is Kitabia (i.e. man believing in a revealed religion possessing a
divine book) or not. 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.

There is no material placed on record to show that the girl had converted heself
to islam. Only by putting an additional muslim name as alias. No inference can
be drawn that she had been converted to Islam. Validity of such conversion
dictated by convenience rather than conviction is also not free from doubt. Prima
facie the alleged marriage therefore, cannot be taken to be valid because
marriage between a jain girl goverened by Hindu Law cannot be soleminized
with a muslim in accordance with muslim and the qazi had nom legal authority
to soleminize such a marriage.9

Under Shia Law, no Muslim, whether male or female can marry a non-
Muslim in the Nikah form.

Thus a marriage between a Muslim and a non-Muslim can only take place under
The Special Marriage Act, 1954.

(e)Woman undergoing Iddat period:


Iddat is a period during which it is incumbent upon a woman, whose marriage
has been dissolved by divorce or death of her husband to remain in seclusion and
to abstain from marrying another husband.

The object of iddat period is to ascertain whether the women is pregnant or not
and ascertain the paternity of the child. The period of iddat in case of (a) the
marriage dissolved by death is 4 months and 10 days or, if the women is
pregnant, till delivery, whichever is longer ; and (b) the marriage is
consummated and dissolved by divorce, it is three courses, or till delivery in case
of pregnancy.

For example H has four wives A,B,C and D. He divorces A after consummation
of marriage with her. It is not permissible to A to marry another husband, nor to
H to marry another wife, during As iddat. H also cannot marry As sister,
during As iddat. A marriage contracted during the iddat is not void but
9
Anish Iqbal v,state,1996(2) civil LJ 131 at p.133.
irregular.

Under Sunni Law marriage with a woman undergoing Iddat is irregular


and not void. But under Shia law marriage with a woman who is
undergoing Iddat is void.

PROHIBTIVE INCAPACITY
It arises in the following cases:

(a) Polyandry
(b) A Muslim woman marrying a non-Muslim.

(a)Polyandry:
Means the fact of having more than one husband. Polyandry is forbidden in the
Muslim system and a married woman cannot marry second time so long as the
first marriage subsists.

(b)Muslim woman marrying a Non -Muslim:


A marriage of a Muslim female with a non-Muslim male, whether he is a
Christian, or a Jew or an idolater or a Fire-Worshiper is irregular under Sunni
Law and void under Shia Law.

DIRECTORY INCAPACITY
This may arise from:

(a)Marrying a woman 'enceinte':


It is unlawful to marry a woman who is already pregnant by her former
husband.10
Under the Sunni law, a man may marry a pregnant woman, if he himself
has caused the pregnancy by illicit intercourse. this marriage is irregular.
Under the Shia law, a pregnant women cannot marry and if marries, such
marriage is void.

10
The Hedaya 32 : Baillie ii. 38.
(b)Prohibition of divorce:
When the marriage is dissolved by the pronouncements of divorce three
times, re-union is prohibited except after the lawful marriage of the
woman with another man and then its being dissolved after
consummation.

A shia is permanently prohibited to marry a woman whom he has divorced


by triple talaq.

A marriage prohibited on the ground of the divorce is irregular according


to the Sunni Law, but void under the Shia Law.

(c)Marriage during pilgrimage:


Under Shia Law, Marriage during pilgrimage is void. Parties are
prohibited to marry when they are in the precincts of kaba for pilgrimage
and they have put in Ahram(pilgrims dress).

(d)Marriage with a sick man:


Marriage with a sick man suffering from disease which is likely to be
fatal is invalid. If however, he recovers and the marriage is consummated,
it is valid.

EFFECTS OF MARRIAGE WITHOUT LEGAL DISABILITY:


A muslim marriage without legal disability may be result into a, batil
marriage(void) or fasid marriage(irregular).

EFFECTS OF A VOID (BATIL) MARRIAGE:

a void marriage is no marriage at all. It does not create any civil rights or
obligations between the parties. The offsprings of a void marriage are
illegitimate.

EFFECTS OF AN IRREGULAR (FASID) MARRIAGE:

an irregular marriage by be terminated by either party, either before or after


consummation, by before consummation a marriage like a void marriage, it has
no legal effect, the wife is not entitled to dower, she is not bound to observe
iddat. After consummation, wife has to observe iddat period, she is entitled to get
proper dower, and she is entitled to maintenance during iddat. The offsprings of
irregular marriage are legitimate. Marriage may be terminated by a single
declaration on either side. Parties must be separated by the courts.

CONCLUSION

S-ar putea să vă placă și