Family law

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An Overview of Concept of Marriage in Muslim Law

Islam, unlike other religions is a strong advocate of marriage. There is no place of celibacy in
Islam like the Roman Catholic priests & nuns. The Prophet has said There is no Celibacy in
Islam.
Marriage acts as an outlet for sexual needs & regulates it so one doesnt become slave to
his/her desires. It is a social need because through marriage, families are established and the
families are the fundamental entity of our society. Furthermore marriage is the only legitimate
or halal way to indulge in intimacy between a man and woman.
Islamic marriage although permits polygamy but it completely prohibits polyandry.
Polygamy though permitted was guarded by several conditions by Prophet but these
conditions are not obeyed by the Muslims in toto.
Marriage:-Pre Islamic Position
Before the birth of Islam there were several traditions in Arab. These traditions were having
several unethical processes like:(i) Buying of girl from parents by paying a sum of money.
(ii) Temporary marriages.
(iii) Marriage with two real sisters simultaneously.
(iv) Freeness of giving up and again accepting women.
These unethical traditions of the society needed to be abolished; Islam did it and brought a
drastic change in the concept of marriage.
Marriage Defined
It is quiet relevant to know whether the Muslim marriage is a sacrament like the Hindu
marriage, for this let us get acquainted with some of the definitions of Muslim marriage.
(a) Hedaya 1: - Marriage is a legal process by which the several process and procreation and
legitimation of children between man and women is perfectly lawful and valid.
(b) Bailies Digest 2:- A Nikah in Arabic means Union of the series and carries a civil
contract for the purposes of legalizing sexual intercourse and legitimate procreation of
children.
(c) Ameer Ali 3:- Marriage is an organization for the protection of the society. This is made to
protect the society from foulness and unchestity.
(d) Abdur Rahim 4:- The Mahomedan priests regard the institution of marriage as par taking
both the nature of Ibadat or devotional arts and Muamlat or dealings among men.

(e) Mahmood J. 5:- Marriage according to the Mahomedan law is not a sacrament but a civil
contract.
(f) Under Section 2 of Muslim Women (Protection of Rights on Divorce) Act, 1986 Marriage
or Nikah among Muslims is a Solemn Pact or Mithaq-e-ghalid between a man & a
woman ,soliciting each others life companionship, which in law takes the form of a contract
or aqd.
Its a matter of query still existing whether Muslim marriage is only a civil contract or an
Ibadat & Muamlat. While unleashing the various definitions its quite a big problem to say
which one is the most appropriate, in my opinion although the essentials of a contract is
fulfilled yet marriage can never be said to be a contract because marriage always creates a
bondage between the emotions and thinking of two person.
J Sarsah Sulaiman6 has said In Islam , marriage is not only a civil contract but also a
sacrament.
Muslim marriage can also be differentiated from a civil contract on the basis of following
points:(a) It cannot be done on the basis of future happenings unlike the contingent contracts.
(b) Unlike the civil contract it cannot be done for a fixed period of time. (Muta Marriage
being an exception.)
Purpose of Marriage
The word Zawj is used in the Quran to mean a pair or a mate. The general purpose of
marriage is that the sexes can provide company to one another, procreate legitimate children
& live in peace & tranquility to the commandments of Allah. Marriage serves as a mean to
emotional & sexual gratification and as a mean of tension reduction.
Marriage compulsory or not ?
According to Imams Abu Hanifa, Ahmad ibn Hanbal & Malik ibn Anas, marriage in Islam is
recommendatory, however in certain individuals it becomes Wajib or obligatory. Imam Shafi
considers it to Nafl or Mubah (preferable). The general opinion is that if a person , male or
female fears that if he/she does not marry they will commit fornication, then marriage
becomes Wajib. However, one should not marry if he does not possess the means to
maintain a wife and future family or if he has no sex drive or if dislikes children, or if he feels
marriage will seriously affect his religious obligations.
Prophet said:When a man marries he has fulfilled half of his religion, so let him fear Allah regarding the
remaining half.
This very wording of Prophet marks the importance of marriage, thus it could be well
concluded that marriage in Islam is must.

Capacity for Marriage

The general essentials for marriage under Islam are as follows:(i) Every Mahomedan of sound mind and having attained puberty can marry. Where there is
no proof or evidence of puberty the age of puberty is fifteen years.
(ii) A minor and insane (lunatic) who have not attained puberty can be validly contracted in
marriage by their respective guardians.
(iii) Consent of party is must. A marriage of a Mahomedan who is of sound mind and has
attained puberty, is void, if there is no consent.
Essentials of Marriage
The essentials of a valid marriage are as follows:(i) There should be a 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 the other party.
(ii) The proposal and acceptance must both be expressed at once meeting.
(iii) The parties must be competent.
(iv) There must be two male or one male & two female witnesses, who must be sane and
adult Mahomedan present & hearing during the marriage proposal and acceptance. (Not
needed in Shia Law)
(v) Neither writing nor any religious ceremony is needed.
Essentials Explored
(i) A Muslim marriage requires proposal Ijab from one party and acceptance Qubul from
the other side. This must be done in one sitting.
(ii) The acceptance must be corresponding to what is being offered.
(iii) The marriage must be effectively immediate. If the Wali says I will marry her to you
after two months, there is no marriage.
(iv) The two parties must be legally competent; i.e. they must be sane and adult.
(v) The women must not be from the forbidden class.
(vi) The consent given must be free consent,. It must not be an outcome of compulsion,
duess, coercion or undue influence.
Kinds of Marriage
Under Muslim generally two types of marriage is recognized
(i) Regular Marriage (essentials discussed earlier)
(ii) Muta marriage
Muta Marriage: Muta marriage is a temporary marriage. Muta marriage is recognized in Shia only. Sunni law
doesnt recognize it. (Baillie, 18). A Shia of the male sex may contract a Muta marriage with
a woman professing the Mahomedan, Christian or Jewish religion, or even with a woman
who is a fire worshipper but not with any woman following any other religion. But a Shia
woman cannot contract a Muta marriage with a non muslim.
The essentials of Muta marriage are:-

(1) The period of cohabitation should be fixed.

(2) Dower should be fixed.
(3) If dower specified, term not specified, it could amount to permanent or regular marriage.
(4) If term fixed dower not specified, it amounts to void marriage.
Aspects of Marriage
(i) Valid or Sahih
(ii) Irregular or Fasid
(iii) Void or Batil
(i) Valid or Sahih Marriage: - Under the Muslim law, a valid marriage is that which has
been constituted in accordance with the essential conditioned prescribed earlier. It confers
upon the wife; the right of dower, maintenance and residence, imposes on her obligation to be
faithful and obedient to her husband, admit sexual intercourse with him & observe Iddat.
(ii) Irregular or Fasid Marriage: - Those marriages which are outcome of failures on part of
parties in non fulfillment of prerequisites but then also are marriages; to be terminated by one
of the party is termed to be Irregular marriages. They are outcome of(a) A marriage without witness (Not under Shia Law)
(b) Marriage with fifth wife.
(c) Marriage with a women undergoing Iddat.
(d) Marriage with a fire-worshipper.
(e) Marriage outcome of bar of unlawful conjunction.
An irregular marriage has no legal effect before consummation but when consummated give
rise to several rights & obligations.
(iii) Void or Batil Marriage:- A marriage which is unlawful from its beginning. It does not
create any civil rights or obligations between the parties. The offspring of a void marriage is
illegitimate. They are outcome of(a) Marriage through forced consent.
(b) Plurality of husband.
(c) Marriage prohibited on the ground of consanguinity.
(d) Marriage prohibited on the ground of affinity.
(e) Marriage prohibited on the ground of fosterage.
Effect of Marriage (Sahih)
The lawful obligations which arise after marriage are as follows(i) Mutual intercourse legalized and the children so born are legitimate.
(ii) The wife gets power to get Mahr
(iii) The wife entitles to get maintenance.
(iv) The husband gets right to guide and prohibit the wifes movement(for valid reasons only)
(v) Right of succession develops.
(vi) Prohibition of marriage due to affinity.
(vii) Women bound to complete Iddat period & not to marry during Iddat period; after

divorce or death of husband.

The obligations and rights set between the two parties during and after the marriage are to be
enforced till legality. On the basis of a marriage husband and wife do not get the right on one
anothers property.
Conclusion
Marriage is a religious duty of every Muslim and it is considered to be a moral safeguard and
a social need. The Prophet has also said Marriage is my tradition whosoever keeps away
there from is not from amongst me.
Unlike Hindu where the marriage is a sacrament, marriages in Muslims have a nature of civil
contract. Marriage is necessary for the legitimization of a child. When the marriage is done in
accordance to the prescribed norms it creates various rights and obligations on both the
parties.
Foot Notes
1- Hedaya P. 25
2- Bailie P. 4
3- Ameer Ali, Mahomedan Law, Students 7th Ed., 97
4- Abdur Rahim,327
5- Abdul Kadir V Salima, (1886) 8 Allahabad, 144 at p 154
6- Anees Begum Vs. Mohammad Istafa (1933) 55 All 743

http://www.legalserviceindia.com/article/l418-Muslim-Marriage.html
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."

Ibn Uthaimeen takes an even more comprehensive view of the institution of marriage in
his definition of it as:
"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.
Essential Condition Of Nikah
Nikah is based on few conditions. When these conditions are fulfilled, then a man and a
woman are proclaimed as husband and wife and can live together and carry on their
marital duties. These are:
Essentials of Marriage
The essentials of a valid marriage are as follows:(i) There should be a 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 the other party. A Muslim marriage
requires proposal Ijab from one party and acceptance Qubul from the other side. This
must be done in one sitting.
(ii) The proposal and acceptance must both be expressed at once meeting. The
acceptance must be corresponding to what is being offered. The marriage must be
effectively immediate. If the Wali says I will marry her to you after two months, there is
no marriage.
(iii) The parties must be competent. The two parties must be legally competent; i.e. they
must be sane and adult.
(iv) There must be two male or one male & two female witnesses, who must be sane and
adult Mahomedan present & hearing during the marriage proposal and acceptance. (Not
needed in Shia Law)
(v) Neither writing nor any religious ceremony is needed.
Aim & Object Of Nikah
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. Nearly all peoples and all
societies practice marriage in some form, just as they practice business (buying and
selling). Umar ibn Al-Khattab used to expel people from the marketplace in Madina who
were not knowledgeable of the fiqh of buying and selling. Likewise, a Muslim should not
engage in something as important as marriage without having understanding of the
purpose of marriage in Islam as well as a comprehensive understanding of the rights and
obligations which it brings about.
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."
Procreation (Children)
One of the most important purposes of marriage is to continue and increase the
population of the Muslims. Clearly, this goal could be achieved without marriage, but
when actions are undertaken in disobedience to Allah, they do not receive the blessing of
Allah and the whole society is corrupted. The Prophet said:

"Marry, for I will outnumber the other nations by you on Qiyama."

It should be stressed that the goal is not simply to produce any child that will live in the
next generation. It is to produce righteous children who will be obedient to Allah and who
will be a source of reward for their parents after they die. The Prophet will NOT be
boasting before the other nations on the day of Qiyama with children of Muslim parents
who left the path of Islam. Thus it is the responsibility of Muslim parents to seek the
means of giving their children the training and education they need not just to grow, but
to succeed as Muslims worshipping and obeying Allah. This obligation may include
migration[1], establishing of Muslim communities and schools and other obligations. As
the scholars have said in another principle of fiqh:
"That without which an obligation cannot be fulfilled is itself obligatory."
Pleasure
Islam is the religion of the fitrah[2] - the religion which is consistent with the natural
instincts and needs of mankind. It is not like the man-made (of modified) religions which
set unnatural constraints on people whether self-inflicted prohibition of marriage (nuns
and monks, etc.), prohibition of divorce or monogamy. Men are inclined toward women
and women are inclined toward men. Marriage is the institution which fulfills this desire
and channels it in ways pleasing to Allah Most High. Allah mentions this attraction:
The love of the desires for women, sons, ... has been made attractive to people.
The Messenger of Allah himself made clear that the attraction between the sexes is
something natural and not something to be denied or suppressed - only channelled in
the ways pleasing to Allah Most High, saying:
"Women and perfume have been made beloved to me of this world of yours and my
peace of mind is in the prayer."
The desire of men and women for each other is an urge which needs to be fulfilled. If it is
left unfulfilled, it will be a source of discord and disruption in society. For this reason, the
Prophet ordered all men who are capable of meeting the responsibilities of marriage to
do it:
"Whichever of you is capable should marry for it will aid him in lowering his gaze and
guarding his body (from sin). As for the one who is not capable, fasting is his protection."
Nature Of Muslim Marriage
The Prophet emphasised the necessity of marriage saying-"To live in marriage is to
observe my way. He who turns away from this way is not of me".
Rights & Duties
Mutual Rights and Obligations:
Marriage is a union for life having mutually inclusive benefits and fulfillment for the
contracting parties including the following:
# Preservation of chastity and security of gaze
# Companionship inside and outside home
# Emotional and sexual gratification
# Procreation and raising of any children by mutual consultation
# Agreement to live together in a mutually agreed country and establish their
matrimonial home therein
# Working collectively towards the socio-economic welfare and stability of the family
# Maintaining their individual property rights but contributing to the welfare of the family

according to their capacity

# Maintaining social contacts with family and friends mutually beneficial for the family
# Managing their individual activities/roles inside and outside the home by mutual
consultation
Obligations of the husband:
In addition to the mutual duties and obligations, the husband undertakes not to:
# abuse his wife/child(ren) verbally, emotionally, physically, or sexually
# desert/be absent from the marital home for more than 60 days unless by mutual
agreement
# withhold economic contribution towards his wife/family
# sexually transmit disease or other transmissible diseases
# misuse /interfere with the wifes property
Obligations of the Wife:
In addition to the mutual duties and obligations the wife undertakes not to:
# abuse her husband/child(ren) verbally, emotionally, physically, or sexually
# desert/be absent from the marital home for more than 60 days unless by mutual
agreement
# sexually transmit disease or other transmissible diseases
# misuse/interfere with the husbands property
Composites Of Marriage In Islam
Mahr[3]Mahr is the consideration for the contract of marriage between the parties. It may be in
the form of money and/or goods given by the Bridegroom to the Bride in consideration
for the marriage. It is an essential element of Muslim marriage and is exclusively
reserved for the use of the female partner. Payment of Mahr could be immediate
(prompt), or deferred.
Full Amount of Mahr: Record the total value of the agreed Mahr, e.g., 5,000 in cash, or
xyz weight in gold.
a) Muajjal (Immediate/Prompt): This means the total amount of Mahr payable by the
Husband at the time of signing of marriage contract.
b) Muwajjal (Deferred): This means the portion of the Mahr which is payable to the
wife at a specified point in the marriage or at the time of dissolution of the marriage
through divorce or death of the husband. Any deferred Mahr that remains unpaid at the
time of dissolution becomes a debt against the former husbands assets.
Portion of the Mahr paid at the time of marriage: the amount of money and/or goods
received as Mahr at the time of marriage. This does not include general gifts to the bride
from the bridegroom and/or his family unless these be expressly included in (a) above as
part of the amount of Mahr.
WitnessesAccording to Islamic law, a witness should be sane, adult and reliable. This requirement is
gender/faith neutral. Hence, the Muslim Marriage Certificate requires to be witnessed by
two adult witnesses of good character.
# TWO men can be the witness

# ONE man and TWO women can be the witness

# ONLY women can not be the witness
INSANE and MINOR can not be the witness
DivorceAccording to Islamic law, marriage is the most sacred commitment in life between two
adults of opposite sex. It attempts to save it wherever possible. As a consequence
divorce is regarded by Allah as the most hated thing. However, breakdown in marriage
does take place for a variety of reasons. If the divorce is initiated by husband he has to
pay the woman any Mahr that remains unpaid. If the divorce is initiated by the wife,and
the husband is found to be at fault by the arbiters she does not lose her Mahr. But if she
cannot prove his fault, she has to return to her husband whatever Mahr amount she has
already received. If the wife initiates the divorce without any grounds, this is called
khula and she must return whatever the husband has given her in consideration for the
marriage.
Legal Disability
It means the existence of certain circumstances under which marriage is not permitted.
these
Absolute Incapacity
There is absolute prohibition of marriage in case or relationship of consanguinity. In this
case the situation is such that the relationship has grown up of the person through
his/her father or mother on the ascending side, or through his or her own on the
descending side. Marriage among the persons associated by affinity, such as through the
wife it is not permitted. Marriage with foster mother and other related through such
foster mother is also not permitted.
Consanguinity (qurabat)-it means blood relationships and bars a man from marryingMother or grandmother, Sister, aunt, niece etc.
Affinity (mushaarat)-a man is prohibited from marryingmother-in-law, step-grandmother, danghter-in-law, step-granddaughter, etc.
Fosterage (riza)- when a child under the age of two years has been suckled by a
woman other than his or her mother,the woman bocomes his foster mother,a man may
not marry his foster mother or her daughter or foster sister
A man cannot marry his foster mother, nor foster sister, unless the foster brother and
sister were nursed by the same mother at intervals widely separated. But a man may
marry the mother of his foster sister, or the foster mother of his sister.
Exception# Sisters foster mother
# Foster-sisters mother
# Foster-sons sister
# Foster-brothers sister
Relative Incapacity
Relative incapacity springs from case which render the marriage irregular only so long as

the cause which creaes the bar exist,the moment it is removed,the incapacity ends and
the marriage becomes valid and binding.
Unlawful union
# Marrying a fifth wife
# Marrying a woman undergoing iddat
# Marrying a non-Muslim
# Absence of proper witnesses
# Woman going for a second marriage even after the existence of the first marriage.
# Marrying pregnant women
# Marrying during pilgrimage
# Marrying own divorced wife
Prohibitory Incapacity
It arises in the following cases:
(a) Polyandry- it means the fact of having more than one husband.it is forbidden in the
muslim system and a married women 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 made whether he be Christian or jew or an idolater or a fire worshipper is
irregular in nature under sunni law and void under shia law.
Directory Incapacity
# This may arise out of: Marrying a woman enciente
# Prohibition of divorce
# Marriage during pilgrimage
# Marriage with a sick man
Aspects Of Marriage
Valid Marriage (Sahih)
Under the Muslim law, a valid marriage is that which has been constituted in accordance
with the essential conditioned prescribed earlier. It confers upon the wife; the right of
dower, maintenance and residence, imposes on her obligation to be faithful and obedient
to her husband, admit sexual intercourse with him & observe Iddat.
Irregular Marriage (Fasid)
Those marriages which are outcome of failures on part of parties in non fulfillment of
prerequisites but then also are marriages; to be terminated by one of the party is termed
to be Irregular marriages. They are outcome of(a) A marriage without witness (Not under Shia Law)
(b) Marriage with fifth wife.
(c) Marriage with a women undergoing Iddat.
(d) Marriage with a fire-worshipper.
(e) Marriage outcome of bar of unlawful conjunction.
An irregular marriage has no legal effect before consummation but when consummated
give rise to several rights & obligations.
Void Marriage (Batil)
A marriage which is unlawful from its beginning. It does not create any civil rights or
obligations between the parties. The offspring of a void marriage is illegitimate. They are
outcome of-

(a) Marriage through forced consent.

(b) Plurality of husband.
(c) Marriage prohibited on the ground of consanguinity.
(d) Marriage prohibited on the ground of affinity.
(e) Marriage prohibited on the ground of fosterage
Iddat
In Islam, iddah or iddat (Arabic: period of waiting) is a period after a divorce, during
which a woman may not marry another man. The period is calculated on the number of
menses that a woman has, usually three. Iddah was intended to ensure that the male
parent of any offspring produced after the cessation of a nikah would be known.
Iddat after death of husband[4]Qur'an prohibits widows to engage themselves for four (4) lunar months and ten (10)
days after the death of their husbands. This is also to ascertain whether a woman is
pregnant or not, since four and a half months is half the length of a normal pregnancy.
Husbands should make a will in favor of their wives for the provision of one years
residence and maintenance, unless the wives themselves leave the house or take any
other similar step
The directive of the Qur'an regarding the waiting period of a widow, are as under:
Whoever from amongst you dies and leaves behind wives, the wives will hold themselves
[from marriage] for four months and ten days. Then, when they have expired this period,
there is no blame upon you in whatever they do regarding themselves, according to the
recognized traditions. And God is fully aware of whatever you are doing. And there is no
blame upon you in proposing [marriage] to these women or in keeping such proposal to
yourself - God is aware that you would mention it to them - but do not make with them
any secret commitments, except that you say a noble word to them. However, do not
commit the marriage-contract with them, until the law has reached its prescribed time.
Iddat after divorce[5]
Comparing this waiting period with the one prescribed for a divorced woman (i.e. three
menstrual periods of the divorced woman), we see that the waiting period prescribed for
a widow exceeds that, which is prescribed for a divorced woman by at least a month and
a half. It is also clear from the stipulations of the Qur'an that the prescription of the
waiting period for a divorced woman is with the basic purpose of ascertaining her
condition with reference to pregnancy as well as to provide the divorcing couple
adequate time to review and, if possible, to revise their decision. Thus, in view of the
increased prescription of waiting period in the case of a widow, it seems that the waiting
period prescribed for a widow entails other purposes, besides merely ascertaining the
woman's position with reference to pregnancy. The Muslim jurists and thinkers have
generally construed this additional purpose entailed in the prescription of the waiting
period for widows to be that of the widow's 'mourning' her deceased husband. The
understanding of the Muslim jurists and thinkers seems to be quite logical and in
consonance with sayings ascribed to the Prophet. However, it seems important to add
that the prescription of a specified 'waiting' or 'mourning' period is for the purpose of
safeguarding the woman against defamation, slander and ill-repute in society. It is
specifically for this purpose that others are directed against making a 'secret'
commitment of marriage with the widow or deciding about the time and place of the
marriage-contract, during the prescribed period. It is reported that Muhammad advised
widows to be extra modest in their appearance and to even refrain from wearing any

fragrance, during this period. All these directives and advice seem to point to the fact
that a woman should not only be, but also appear to be in a state of mourning, so that
her social circles do not get a chance to say a negative word about her.
No other restrictions apply to a widow during her waiting period.
Duration Of Iddat
The Iddat of divorce commences immediately upon the pronouncement of repudiation
and in case of invalid marriage if they are separated voluntarily then from the time of
separation but if the separation is effected by the court then it starts with the issuance of
judicial decree. In case of widowhood the period of Iddat begins with the decease of
husband. If the information of divorce or of her husbands death does not reach the wife
until after the expiration of Iddat period, she is not bound to observe Iddat. The period is
considered to have been passed.
Iddat is normally observed in the following manner;
If the marriage is terminated by divorce or in consequence of annulment by the Court,
then the Quran has specifically explained the situation in such words, women who are
divorced shall wait, keeping themselves apart, three (monthly) courses. And it is not
lawful for them that they should conceal that which Allah hath created in their wombs if
they are believers in Allah and the last day. Therefore the divorced woman is bound to
observe Iddat for three menstrual cycles i.e. the period of three complete courses of
menstruation.
In the above two cases if the marriage has not been consummated nor any valid
retirement has taken place then after the termination of marriage the woman is not
required to observe Iddat.
Iddat Of A Pregnant Widow
In case of pregnancy, the widow is bound to observe the Iddat for a period which ever is
the longest. i.e. if the child is born before the period of four months and ten days then
her Iddat is not over with the delivery but she will complete the normal specified period
of Iddat (four moths & ten days). If the child is expected to be born after the specified
period, then the Iddat will lost up till the delivery of a child. They consider it binding upon
all widows who are pregnant or non pregnant, so according to their view the fore
mentioned period of four months and ten days is the minimum obligatory period for a
widow.
Maintenance During Iddat
The husband is under obligation to pay for the wifes maintenance during her period of
Iddat, regardless of its duration. Thus, in the following cases the wife is entitled to
maintenance during Iddat:
When the marriage is dissolved by repudiation, no matter the repudiation was revocable
or irrevocable, it was perfect or imperfect.
# When the marriage is dissolved by Lien (oath of imprecation) or by Illa (a vow of
continence) or by way of Khula provided she has not renounced her right to
maintenance.
# When the husband on attaining puberty, exercises the right of option and dissolves the
marriage.

# When the marriage is dissolved by reason of the inferiority of dower or by reason of the
husbands inequality or his impotency.
When a wife, who is not subject to menstruation, observing Iddat by months becomes
subject to menstruation before the completion of specified period. She is entitled for
maintenance in the additional period of Iddat because she is obliged to stay in Iddat for
three full monthly courses.
# Widow is not entitled to maintenance even if she is pregnant; almost all the Muslim
jurists have the same opinion in this regard.
Judicial Interpretation In Muslim Marriage
In Abdul Kadir vs. Salima[6]
This case was argued before the Full Bench, Mr. Justice Mahmood said thatIn this view of the case the reference cannot, in my opinion be satisfactorily answered
without considering, first, the exact nature and effect of marriage under the
Muhammadan law upon the contracting parties; secondly, the exact nature of the liability
of the husband to pay the dower; thirdly, the matrimonial rights of the parties as to
conjugal cohabitation; and fourthly, the rules of the general law as to the decree of Court
in such cases.
In nawab sadiq ali khan vs. jai kishori[7]
In the case of a shia female, the age of puberty begins with menstruation, it has been
held by the privy council in shia case that the age of the majority in the case of the girl is
attained at the age of nine years.
In pooja arya vs. state of UP[8]
Where a muslim girl married a hindu boy, which created a furore in local communities, in
cases like this law authorities buy peace at the cost of constitutional rights and
privileges.
Conclusion
After analyzing thoroughly the system of Islamic marriage a reasonable and prudent way
of thinking would always conclude that the Islamic personal law with regards to marriage
and divorce need to be changed a lot so to maintain its status in modern society.
Marriage is a religious duty of every Muslim and it is considered to be a moral safeguard
and a social need. The Prophet has also said Marriage is my tradition whosoever
keeps away there from is not from amongst me.
Unlike Hindu where the marriage is a sacrament, marriages in Muslims have a nature of
civil contract. Marriage is necessary for the legitimization of a child. When the marriage is
done in accordance to the prescribed norms it creates various rights and obligations on
both the parties.
It appears that Islamic law of marriage and divorce is not identical to the man made laws
which are changed by man himself moment after moment. It is evident that the position
of man and woman in the social set up of the community, is equal in every respect, but
keeping in view the mindset of both the genders, Islam segregates the rights, duties and
functions of both the gender and then declares their status with regard to family matters.

If it is asked that are man and woman equal in Islamic way of life? There would not be
simple positive or negative way of answer rather, one must scrutinize, examine and
inspect closely and thoroughly their respective rights, duties and functions. And then
placing a complete picture in front, it may be possible to answer the above question. In
other societies of the world, the state of affairs is not in concurrence to Islamic way of
life. Those other societies always try to claim that man and woman are equal in every
respect which is not a natural phenomenon.
-------------------------------------------------------------------------------[1] hijrah
[2] the religion which is consistent with the natural instincts and needs of mankind
[3] Dower-amonut paid by bridegroom to bride
[4] Iddat e wafaat
[5] iddat of Talaaq
[6] (1886) 8 All. 149
[7] (1928) 30 bom. LR 134
[8] AIR 2006 All 60

Marriage Under Muslim Law

December 7, 2014 by admin Leave a Comment
Editors Note: The Arabic term nikah is used to describe marriage is transliterated into the
Union of Sexes and under this Arabic term, marriage became a civil contract in Muslim
Law, as intended by the Prophet Mohammed. It has since become one of the most sacrosanct
social institutions known to Man, while providing equal importance and according equal
rights to both sexes.
Chastity is forbidden and, in fact, looked down upon in Muslim communities. Marriage is a
contract for the purposes of the legislation of intercourse, procreation of children and the
regulation of social life in the interests of society by creating both rights and duties for the
parties partaking in this social contract and also between the parties and the children born out
of the aforesaid union. It can be entered into by parties who have reached puberty (majority
for the purposes of marriage) or by guardians of the persons concerned. Even lunatics can be
entered into marriage by their guardians.
Unlike civil contracts, however, a contract of nikah cannot be time-limited, not cancelled if
procreation is not possible (due to various reasons). It is, however, a very devotional act from
the perspective of the Muslim religion- an entwinement of two souls to achieve the spiritual
ends of continuing the line of the male.
Introduction- the History of Nikah
In the pre-Islam Arabia, the laws were favorable towards men and discriminatory against
women. Polygamy had to be accounted for in a very few blood relationships like in marriage
with ones real mother or sister. Marriages were of different kinds and divorce was simple
and easy for men. Women were denied their basic rights since men were always considered
superior. Women were treated aschattels, 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.

Prophet Mohammad placed woman on a footing of almost perfect equality with men in
theexercise of all legal powers and functions.[i] Under the Muslim Law marriage is
considered as civil contract. After the marriage,women does not lose her individuality. She
still remains a distinctmember of community.
The Arabic word Nikah (marriage) means the union of sexes and in law, this means
marriage. 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. It is a matrimonial contract
as well as an institution that gives the women a particular and high status in the society.
Nikah was to ensure stability in a married life as it bound both the partners together for an
indefinite period and also required the woman to be honored with the mahr.
Islam unlike other religions is a strong advocate of marriage. There is no place for celibacy in
Islam like the Roman Catholic priests and nuns. The Prophet has said, There is no Celibacy
in Islam.
Definition of Marriage
Marriage (nikah) is defined to be a contract which has for its object the procreation and the
legalizing of children.[ii]
Contract: Marriage according to the Mahomedan law is not a sacrament but a civil contract.
All rights and obligations it creates arise immediately and, are not dependent on any
condition precedent such as the payment of dower by husband to a wife.[iii]
Ashabah says: Marriage is a contract underlying a permanent relationship based on mutual
consent on the part of a man and woman.
In Shoharat Singh v. Jafri Begum,[iv] the Privy Council said that nikah (marriage) under the
Muslim law is a religious ceremony.
The sanctity attached to the institution of marriage in the Islamic system has neither been
comprehended nor sufficiently appreciated by outsiders. Marriage is recognized in Islam as
the basis of society. It is a contract but also a sacred convenant. 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.[v]
Thus, marriage according to Muslim Law, is a contract for the purposes of legislation of
intercourse, procreation of children and regulation of social life in the interest of society by
creating:

the rights and duties between the parties themselves, and

between each of them and the children born from the union.

Capacity of Marriage

Every Mahomedan of sound mind, who has attained puberty may enter into the
contract of marriage.

Their respective guardians may validly contract lunatics and minors who have not
attained puberty in marriage. (Sec 270-275)

A marriage of a Mahomedan, who is of sound mind and has attained puberty, is void,
if it is brought about without his consent.

Nature of Muslim Marriage

There are divergence of opinion with regard to the nature of Muslim marriage. Some jurists
are of the opinion that Muslim marriage is purely a civil contract while others say it is a
religious sacrament in nature.
Marriage under Muslim law has similar characteristics as a contract.[vi] For instance:

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
such consent shouldnt be obtained by means of fraud, coercion or undue influence.

Just as in case of contract, entered into 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.

The parties to a Muslim marriage may enter into any ante-nupital or post-nupital
agreement which is enforceable by law provided it is reasonable and not opposed to
the policy of Islam. As is the case with a contract.

The terms of a marriage contract may also be altered within legal limits to suit
individual cases.

Although discouraged both by the holy Quran and Hadith, yet like any other contract,
there is also provision for the breach of marriage contract.

Justice Mahmood observed:

Marriage among Muhammedans is not a sacrament, but pureply a civil contract; and though
it is solemnized generally with the recitation of certain verses from the Quran, yet the
Muhammedan law doesnt positively prescribe any service peculiar to the occasion.
He described that Muslim marriage was dependent upon declaration or proposal of the one
and the consent or the acceptance of the other of the contracting parties.
From the above observation Justice Mahmood couldnt be held to have taken the view that
marriage is nothing but purely a civil contract. As per him the dower in the Muslim marriage
shouldnt be confused with consideration in context of civil contract.

In a lucid and erudite judgment Pareed Pillay, J. of the Kerala High Court, in Adam v.
Mammad[vii], has set out the salient feature of Islamic law of marriage. In the case before
him, he held that where the girls father had given his consent, and the daughter had withheld
hers, no valid marriage had taken place. Here the judge cited J. Mahmoods classic dicta in
Abdul qadirs case, and upheld that for the validity of a marriage, consent is must.
In Yusuf v. Sowramma[viii], there is a popular misconception by J. V.R. Krishna Iyer that no
religious significance or social solemnity attach to Muslim marriage and it is mere a civil
contract. The learned judge doesnt put forward any definite argument and hasnt gone
through the principles of Shariah it is said.
Though sacramental nature of marriage is considered as an orthodox view but it is also
supported by the Judiciary. Anis Begum v. Mohammad Istafa,[ix] is a leading case on the
point where C.J Sir Shah Sulaiman has tried to put a more balanced view of the Muslim
marriage by holding it both a civil contract and a religious
sacrament.
Taking religious aspect into account
Muslim marriage us a devotional act (ibadat). The Prophet is reported to have said that
marriage is essential for every physically fit Muslim who could afford it.
Muslim marriage is not merely a contract because:

unlike civil contract, it cannot be made contingent on future event; and

unlike civil contracts, it cannot be for a limited time (mutamarriage is an exception).

Unlike civil contract, the analogy, of lien cannot be applied to a marriage contract.
Secondly, the contract of sale of goods may be cancelled by unpaid seller. He may
resell the goods by rescinding such contract, whereas in a contract of marriage, the
wife is not entitledto divorce her husband or to remain with a third person if a part of
his dower remain unpaid.

As per Dr.Jung:
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.[x]
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.
Edited by Nikhil Variyar
BIBLIOGRAPHY

Mulla; Lexis Nexis: Buttersworth Publications, Islamic Law

Tanzeem Fatima; Islamic Law and Judiciary

Aqil Ahmad; Mohammedan Law

http://kanwarn.wordpress.com/2010/11/25/marriage-under-muslim-law/

http://www.scribd.com/doc/22273999/Nature-of-Muslim-Marriage

http://www.legalserviceindia.com/article/l162-Concept-of-Marriage-in-MuslimLaw.html

http://shodhganga.inflibnet.ac.in/bitstream/10603/8109/9/09_chapter%202.pdf