MARRIAGE

1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. Implied ratification of marriage Consideration Contract of marriage is most important of all human transactions Duty of husband Duty of parents Habitual cruelty and desertion Invalid Marriage Marriage Mode of contracting Marriage Obligations attached to status of marriage Payment of damages Pre-marital and extra-marital liaisons Presumption of Marriage Whether a Muslim adult girl can marry without consent of her wali Whether marriage is a civil contract in Islam Consent of Wali

1. Consent of Wali:- Consent of Wali is not required and a sui juris Muslim female can enter into valid Nikah/marriage of her own free willMarriage is not invalid on account of the alleged absence of consent of waliMuhammad Imtaiz and another v. The state PLD 1981 FSC 308; Arif Hussian and another V. The state PLD 1982 FSC 42; Muhammad Ramzan V. The State PLD 1984 FSC 93; Muhammad Yaqoob and another V. The State and 3 others 1985 P.Cr.L.J 1064; Mauj Ali V. Syed Safdar hussain Shah and another 1970 SCMR 437, held, binding on the High court and courts subordinate to the High Court. P L D 2004 SC 219 2. Consideration:- Consideration is pre-condition and pre-requisite for valid matrimonial contract in absence where of relationship between man and his wife could not be legitimized and same would be regarded as a sinful union. 2003 Lawvision 190 = PLJ 2003 Lahore 227 3. Contract of marriage is most important of all human transactions--It is very basis of whole fabric of civilised society--Status of marriage is juris gentium--According to Sir Abdul Rahim, Muslim jurists regard institution of marriage as partaking both of nature of Ibadat or devotional acts and muamalat or dealings among men--Intimate connection between religion, law, and even politics is so interwoven in Muslim faith that it is difficult to draw defined and clear distinctions, more so when marriage is regarded as pillar of faith and Sunnat-e-Muuakida by all jurists--Muslim marriage, according to Mr. Verma's Book, "Muslim Marriage, Maintenance and Dissolution" (11 Edition page 16) differs radically from original Hindu conception which provides for indissolubility of marriage even after death PLJ 1996 Lahore 1522 Concept of a young girl or a boy for that matter, venturing out in search of a spouse is alien to the teaching of Islam and even otherwise this scheme of Husband-Shopping which obviously includes testing and trial of disired material is fraught and pregnant with dangers and cannot be viewed with favour-- PLJ 1997 Cr.C (Lahore) 681 4. Duty of husbandParties transgressing parameters laid down in Islam, should relieve each other with kindnessPrinciples. Marriage under Islamic Law is a civil contract

and not a sacrament. It is ordained by God in Holy Quran and it is for comfort, love and compassion. It is the bounden duty of husband to keep his wife with love and affection, respect and provide her maintenance during subsistence of marriage. Islam has laid down parameters for spouses to live within those bounds and if parties transgress those parameters, they should relieve each other i.e. they may break matrimonial tie with kindness. 2003 Lawvision 26 = 2003 CLC 878 5. Duty of parentsIt is the duty of parents to marry the children particularly girls at the earliest point of time--They should not afford opportunity to outsider in the house or outside to come across young gill may be visitors, servants, drivers of public conveyance--It is absolutely essential to preserve purely of homes and this is why much emphasis have been laid by Islam that females should not mixing with males. PLJ 1997 Cr.C (Lahore) 681 6. Habitual cruelty and desertion:- Allegations such as habitual cruelty and desertion have been proved--Petitioner deprived and misappropriate respondents belongings-It is also proved that he had deserted her for a period of more than three years--Held: Judgment does not suffer from any legal or factual flaw, therefore, it does not call for interference--Petition dismissed. PLJ 1997 Lahore 198 7. Invalid Marriage- Invalidating a marriage entails rather serious and even penal consequences not only for wife and husband but even for innocent children born out of such a union--Such a declaration could therefore not be given unless material was available which was of an un-impeachable character admitting of no doubt. PLJ 1997 Cr.C (Lahore) 681 8. Marriage--Marriage according to Muhammad Law is not a sacrament but a civil contract. PLJ 1997 Lahore 869 Parents are responsible for marriage of children generally and girls particularly--This is not only in Islam but recognised by all religion. PLJ 1997 Cr.C (Lahore) 681 9. Mode of contracting Marriage--In the light of Islamic Injunctions and established social and moral norms of our society ideal scheme for choosing marriage partners is let elders of family males or females do search and even re-search and then let whatever is available be put before boy or girl, who should then have final choice in matter--Held : This procedure is in consonance with respect and dignity of all concerned and would even eliminate crime which erupts where marriages are contracted in a manner which injures honour and pride. PLJ 1997 Cr.C (Lahore) 681 10. Obligations attached to status of marriage:- Institution of marriage is at the centre of Muslim Personal Law--Validity of a marriage may determine legitimacy, rights to inheritance, criminal liability for certain sexual acts, as well as obligations of maintenance etc. which are attached to status of marriage. PLJ 1996 Lahore 1522 11. Payment of damages:- Muslim law which governs rights and liabilities of spouses inter se does not envisage payment of damages as result of dissolution of marriage-Dissolution entitles wife to dower, if still unpaid and maintenance but not damages of any kind. PLJ 1997 Karachi 670 12. Pre-marital and extra-marital liaisons:- Pre-marital and extra-marital liasons, are not only offensive to the commands of Allah but are also one major source of serious crime in our society--Therefore, High Court recommended that executive and legislature examine desirability of enacting laws to take care of this menace and to provide remedies--Legislature

also consider advisability of making such-like immoral relationship and secret marriages etc. a penal offence--Per : Khalil-ur-Rehman Ramday, J. PLJ 1997 Cr.C (Lahore) 681 13. Presumption of Marriage---Marriage will be presumed in absence of direct proof, from- (a) prolonged and continual cohabitation as husband and wife, or (b) the fact of acknowledgment by man of paternity of child born to woman, provided all conditions of a valid acknowledgment mentioned in Section 344 below are fulfilled, or (c) the fact of acknowledgment by man of woman as his wife." The presumption does not apply if conduct of parties were inconsistent with relation of husband and wife, nor does it apply if woman was admittedly a prostitute before she was brought to main's house--Mere fact, however, that woman did not live behind Purda, as admittedly wives of man did, is not sufficient to rebut presumptions." Objector has to go to a family Court to rebut presumption and get a conclusive finding--In absence of such finding, no prosecution can be initiated. PLJ 1999 Lahore 962 Proof of Marriage:- Photographs in intimate postures--Whether could be considered as valid proof Question of--Photographs were shown in rather amorous poses do not necessarily reflect existence of a marital bond--Moments which have been captured in photographs could be weak moments when two young (performed nikah during minority) maternal cousins could not resist compulsions of basic human urge particularly when they were living nearby--Prima facie, these moral laxities could not be sanctified as symbolic of marriage as no husband would have himself photographed with his wife in such intimate postures--This could be treated as an attempt of blackmailing. PLJ 1999 Lahore 962 Nikah not invalidated if not registered under provisions of Muslim Family Laws Ordinance (1961)- P L J 1980 Cr. C. (Lab.) 422 14. Whether a Muslim adult girl can marry without consent of her wali -Runaway marriages are abhorrent and against norms of our society and must therefore he deplored--No principle is available on the basis of which it can be held that Nikah of sui juris Muslim girl without consent of her wali would be invalid--However, nature of marriage and the manner in which it has been performed may be relevant consideration for granting or withholding relief in a matter in which courts of law are called upon to exercise discretion. PLJ 1997 Cr.C (Lahore) 681 15. Whether marriage is a civil contract in Islam--View that marriage is a civil contract in Islam is mainly supported by view that dower was its consideration--View is superficial and advanced without taking into consideration philosophy of dower--Dower is no consideration of marriage in Islam--Women folks has been driven to the status of slaves by this theory--This was not only inhuman but most disgraceful and was completely inderogation to teaching of Islam. --Per : Ehsan-ul-Haq Chaudhry, J. (i) lslah-e-inglabe Ummat Page 52 volume II by Maulana Ashraf Ali Thanvi. Ref (ii) Mishqat Shareef translated by Maulana Muhammad Sadiq Khalil ref. (iii)Islamic Family Law edited by Chihli Mallat ref (iv)The Social Structure of Islam by Revenue Levy ref. (v)Muslim Personal Law and Judiciary by Dr. Muhammad Shabbir ref (vi)AIR 1933 PC 80 ref. (vii)AIR 1933 All 634 ref. (viii)AIR 1937 Lahore 345 ref. (ix)1881 3 All 266 (PC) ref (x)Encyclopaedia of religion and ethics volume V page No. 464, 470, 471, 472 ref (xi)Auza-ul-Tashriah ref PLJ 1997 Cr.C (Lahore) 681 16. Implied ratification of marriage-Argument that since the petitioner kept silent for a long time and filed present suit at the age of 29 years, clearly showed that she had acquiesed into factum of marriage with respondent after attaining age of puberty-Contention overruled in circumstances of the case. P. L. J. 1981 Lahore 112