1

Family law

Project

Submittted to

Tamil Nadu National Law School, Trichy

In fulfillment of the internal component family law

By

S.MYTHREYE

(reg no :- BA0130040)

Ii YEAR, B.A.L.L.B.,(HONS)

Under the guidance and supervision of

PROF.manjunath
 2

DECLARATION

I do hereby declare that the non-doctrinal research entitled muslim marriages are nothing but
contract submitted to Tamil Nadu National Law School in partial fulfillment of the requirement
of the award of the degree of Under graduate Department is a record of original work done by
me under the supervision and guidance of Mr.Manjunath (mentor) Law Department of Tamil
Nadu National Law School and that has not formed the basis of any degree or diploma or
fellowship or any other title to any candidate of any university

Place: Trichy S.Mythreye

Date: 10.11.2014 Family law.

 3

CERTIFICATE

This is to certify that the non- doctrinal research entitled Muslim Marriages are nothing but
contact submitted to Tamil Nadu National Law School in partial fulfillment of the requirement
of the award of the degree Bachelor of Law done by Miss.S.Mythreye under the supervision and
guidance of Mr.Manjunath (mentor) Undergraduate Department of Tamil Nadu National Law
School.

Place: Trichy Mr.Manjunath

Date:30.10.2014 (mentor)
 4

ACKNOWLEDGEMENT

Every work accomplished is a pleasure a sense of satisfaction. However a number of people

always motivate , criticize and appreciate a work with their objective ideas and opinions , hence
I would like to use this opportunity to thank all ,who have directly or indirectly helped me to
accomplish this project .

Firstly I would like to thank Prof.Manjunath without whose support this project could not be
completed .Next I would like to thank all people who gave their valuable time and support for
this project. I would also like to thank my college for supporting me with resources ,which
beyond any doubt have helped me.

Let me also take this opportunity to thank My family ,My friends for their priceless support and
suggestion.
 5

TABLE OF CONTENTS:

CHAPTER I

INTRODUCTION......................7

CHAPTER II

ESSENTIALS OF VALID MARRIAGE ...8

2.1. CAPACITY TO MARRIAGE..8

2.2.IRREGULAR MARRIAGE OR INVALID MARRIAGE10

CHAPTER III

MUTA MARRIAGE..13

CHAPTER IV

4.1.GUARDIANSHIP IN MARRIAGE....15

4.2. CONCERNING THE CONTRACT16

4.3.SOUNDS AND ACCEPTABLE STIPULATIONS..17

4.4.MUSLIM MUST FULFILL THEIR AGREEMENT.17

CHAPTER V

DOWER19

5.1.CONTRACT OF DOWER BY THE FATHER..19

5.2.SERMON..20

CHAPTERVI

DIVORCE22

6.1.DIVORCE BY TALAQ22

6.2.DIFFERENT MODES OF TALAQ...23

CHAPTERVII

CONDITIONS OF CONTRACT25

CHAPTERVIII ---- CONCLUSION.27

 6

LIST OF CASES

1.Asqaf qureshi v Aysha qureshi

2.Mohammed Ibrahim v Ghulan Ahmed

3.Amina v Hassan Koya

4.Syed Amalluah Hussain v Rajamma

5.Rehana Khatun v Iqtider Uddin

6.Mahadev Lal v Bibi Minaran

7.Abdul Kadir v Salima

8.Kumari Shabnoor v State of U.P

 7

CHAPTER I

INTRODUCTION :

Marriage according to the Mahomedan Law is not a sacrament but is a civil contract. No
religious ceremony is necessary to bring about this relationship. It is presumed that on
completion of 15 years of age, a person attains puberty. If a person is of sound mind and has
attained puberty marriage cannot be performed without his or her consent. This emphasizes the
contractual character of the marriage. One of the essential features of a valid marriage is the
payment of mehr. It is an obligation upon the husband, but the wife is well within her rights to
relinquish the said dower. The concept of contract of is the basis of marriage the principles of a
valid contract would be applicaple to relinquishment. It should be voluntary not by duress, fraud,
under influence or mistake. It should be with the free consent. It is also emphasized by the
prence of dower as an essential requirement marriage. Dower is defined as as sum of money or
property, which the wife receives from the husband or from his relative in consideration of the
marriage. A marriage under the mahomedan law may be unilaterally put an to end by the
husband pronouncing TALAK. All these incidents clearly show that Muslim marriage is
contractual in nature. In Islam marriage is a legal contract "matrimony contract"; Nik-nmah)
between two people. The bride is to consent to the marriage of her own free will. A formal,
binding contract is considered integral to a religiously valid Islamic marriage, and outlines the
rights and responsibilities of the groom and bride. There must be two Muslim witnesses of the
marriage contract. Divorce is permitted and can be initiated by either party. The actual rules of
marriage and divorce (often part of Personal Status Laws) can differ widely from country to
country, based on codified law and the school of jurisprudence that is largely followed in that
country.

Marriage under Muslim law is mainly solemnized by the consent of the bride and bridegroom, by
qubool. No instances of sacrament is seen. The marriage is valid by the consent only.
 8

CHAPTER II

ESSENTIALS OF A VALID MARRIAGE:

2.1 CAPACITY TO MARRIAGE

It is essential to the validity of a marriage that 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 in the presence and hearing of two male or one male and two female witnesses, who must
be sane and adult mahomedans. The proposal and acceptance must both be expressed at one
meeting; a proposal made at one meeting and an acceptance made at another meeting does not
constitute a valid marriage. The regular procedure for obtaining the consent of the girl and the
usual form of in which the proposal and acceptance is gone through where the women are in
purdah.cosent is important in marriage which is supported in the above cases.

Asfaq Qureshi vs Aysha Qureshi

The appellant has specifically alleged that the respondent is legally married wife of the
appellant under the Muslim law. Marriage was performed on 3- 8-2006 at Gandai madarsa.
Parties had agreed that they will enjoy their marital life peacefully after registration of marriage.
On 22-11-2006, marriage between the parties was registered, but even after registration of
marriage, parents of the respondent are not permitting the respondent for discharging her marital
obligations and have detained her. The respondent has filed petition for declaration of marriage
null & void at the instance and under the pressure of her parents. The appellant is ready &
willing to discharge his marital obligations. On the aforesaid basis, suit for restitution of conjugal
rights was filed on behalf of the appellant.

The court found that the respondent involuntarily and unwillingly went with the appellant to
Gandai, she was forcefully converted herself into Islam and after her forceful conversion she
contracted marriage with the appellant in accordance with Muslim law (nikah) on 3-8-2006. So
without the consent of the respondent marriage happened it was only with force .In case of non-
existence of valid marriage in any form between the parties, the Family Court has not committed
any illegality by declaring the marital status of the parties and dismissing the suit for restitution
of conjugal rights filed by the appellant.

Marriage under the Muslim law is a contract. Clause 251 of the Mulla's Principles of
Mahomedan Law provides capacity for marriage which reads as under: -

What agreements are contracts.-All agreements are contracts if they are made by the free
consent of parties competent to contract, for a lawful consideration and with a lawful object, and
are not hereby expressly declared to be void.
 9

Nothing herein contained shall affect any law in force in India, and not hereby expressly
repealed, by which any contract is required to be made in writing or in the presence of witnesses,
or any law relating to the registration of documents."

In accordance with Section 10 of the Indian Contract Act, 1872, the free consent of parties
competent to contract is sine qua non.

The term `free consent' is defined in Section 14 of the Indian Contract Act, 1872 which reads as
follows: -

Free consent' defined.-Consent is said to be free when it is not caused by-

(1) coercion, as defined in section 15, or (2) undue influence, as defined in section 16, or (3)
fraud, as defined in section 17, or (4) misrepresentation, as defined in section 18, or (5) mistake,
subject to the provisions of sections 20, 21 and 22.
Consent is said to be so caused when it would not have been given but for the existence of such
coercion, undue influence, fraud, misrepresentation or mistake."

Like contract even in Muslim law free consent of parties is important if there is no free consent
then the marriage will be considered as an invalid like contract. In Muslim law when it will be
considered as free consent is when it is not caused by coercion, undueinfluence,
misrepresentation and mistake and if the parties is caused by this then the marriage is void.

In Re Mohammed Ibrahim v Ghulam Ahmed1 an adult virgin of the shafei school can giver
herself in marriage through a wali and the marriage is not invalid because the fathers consent
was not obtained. A marriage is not valid unless consented to be an adult girl. The court held that
in this case the proposal and acceptance is not in the particular form. The evidence of the consent
of the girl and the husband had agreed to the dower and it was held under the circ

umstances after the lapse of a long time after the marriage all the formalities required should be
presumed to have been complied with.

(A) Capacity to marriage:

(i) The parties should have attained puberty or the marriage contract should be
entered into by the guardian in marriage on behalf of the party concerned
(ii) 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) Prohibited relationships:
The presence of any such forbidden relationship is an impediment to marriage. On
the ground of blood relationship i.e. consanguinity

1
.(1862)Bom.H.C.R.236
 10

(a) Mother and son

(b) Grandmother (how high-so-ever) and Grandson (how low-so-ever)
(c) Brother and sister
(d) Uncle and niece(how low so ever) and
(e) Nephew and aunt (how high so ever)

On the grounds of affinity these relations also prohibited for marriage

(a) Wifes mother how high so ever

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

Fosterage also may give rise to prohibited degrees of relationship. Thus a foster mother would
come under the ban as much as the mother herself.

2.2 IRREGULAR OR INVALID MARRIAGE:

In this case Asfaq Qureshi vs Aysha Qureshi 2 Para 264 deals with the Distinction between
void and irregular marriages.-

(1) A marriage which is not valid may be either void or irregular.

(2) A void marriage is one which is unlawful in itself, the prohibition against the marriage being
perpetual and absolute. Thus a marriage with a woman prohibited by reason of consanguinity,
affinity, or fosterage, is void, the prohibition against marriage with such a woman being
perpetual and absolute.

(3) An irregular marriage is one which is not unlawful in itself, but unlawful `for something else,'
as where the prohibition is temporary or relative, or when the irregularity arises from an
accidental circumstance, such as the absence of witnesses. Thus the following marriages are
irregular, namely-

(a) a marriage contracted without witnesses;

(b) a marriage with a fifth wife by a person having four wives;

(c) a marriage with a woman undergoing iddat;

(d) a marriage prohibited by reason of difference of religion;

2
Ibid.
 11

(e) a marriage with a woman so related to the wife that if one of them had been a male, they
could not have lawfully intermarried.

The reason why the aforesaid marriages are irregular, and not void, is that in Clause (a) the
irregularity arises from an accidental circumstance; in Clause (b) the objection may be removed
by the man divorcing one of his four wives; in Clause

(c) the impediment ceases on the expiration of the period of iddat; in Clause (d) the objection
may be removed by the wife becoming a convert to the Mussalman, Christian or Jewish religion,
or the husband adopting the Moslem faith;

and in Clause (e) the objection may be removed by the man divorcing the wife who constitutes
the obstacle; thus if a man who has already married one sister marries another, he may divorce
the first, and make the second lawful to himself.

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

Effects of an irregular (fasid) marriage.-(1) An irregular marriage may be terminated by either

party, either before or after consummation, by words showing an intention to separate, as where
either party says to the other `I have relinquished you'. An irregular marriage has no legal effect
before consummation.

(2) If consummation has taken place-

(i)the wife is entitled to dower, proper or specified, whichever is less;

(ii) she is bound to observe the iddat, but the duration of the iddat both on divorce and
death is three courses;

(iii)the issue of the marriage is legitimate But an irregular marriage, though consummated,
does not create mutual rights of inheritance between husband and wife.

So if a marriage happen like said in the case then it will be considered as a void marriage. The
marriage of a shafei virgin girl who has attained puberty if she is given in marriage in a proper
form is valid. Marriage under the Mahomedan law is a civil contract and attracts all the incidents
of contract. An idolatress or a fire-worshipper is not competent to marry a Muslim person in
accordance with clause 259 of the Mulla's Principles of Mahomedan Law. Clause 259 (1) of the
Mulla's Principles of Mahomedan Law reads as follows: -
Difference of religion.-(1) A Mahomedan male may contract a valid marriage not only with a
Mahomedan woman, but also with a Kitabia, that is, a Jewess or a Christian, but not with an
 12

idolatress or a fire- worshipper. A marriage, however, with an idolatress or a fire-worshipper, is

not void, but merely irregular."

As provided in clause 259 (1) of the Mulla's Principles of Mahomedan Law, a Mohammedan
male is not competent to contract marriage with an idolatress or a fire-worshipper i.e. Hindu, but
after conversion of a female to Islam, a Mohammedan male may contract marriage with the said
female. The Muslim law does not provide any ritual or ceremony for the purpose of conversion
into Islam. It is sufficient if he professes the Mahomedan religion in the sense that he accepts the
unity of God and the prophetic character of Mahomed.

In amina v hasan koya3 in this case at the time marriage the girl was running 5th months of
pregnancy. The court held that at such stage of pregnancy it was difficult to conceal the same and
it cannot be believed that husband was not aware about the pregnancy at the time of marriage.
With full knowledge of that he had entered into the marriage and therefore he could not later
challenge the validity of same.

Bar of unlawful conjunction:

He has already a wife who is related to the bride as sister or aunt or niece. two women related
should not be wives of a mahomedan at the same time. This is the bar of conjunction. Of course
if he divorces the wife who is unlawful conjunction this irregularity will no longer vitiate the
marriage.

3
.A.I.R.2003 SCW 2496
 13

CHAPTER III

MUTA MARRIAGE:

A muta marriage is, according to the law which prevails among Shias, a temporary marriage, its
duration being fixed by agreement between the parties. The word muta signifies "enjoyment,"
and as applied to a particular form of marriage indicates a marriage of a temporary character,
"the extent of the period being left entirely to the parties who may prolong or shorten it to a year,
a month, or a day; only some limit must be distinctly specified, so as to guard the period from
any extension or diminution."4It does not confer on the wife any right or claim to her husband's
property, but children conceived while it exists are legitimate and capable of inheriting from
their father. A nikah marriage is a religious ceremony, and confers on the woman the full status
of wife, and children born after it are legitimate.

The number of muta marriage, wives is not restricted to the usual number of four or even to
seventy 5. "there is no maintenance for a wife married in the muta form nor is a habitation to be
assigned to her6,--it is clear that the result of a muta marriage is to place the person of the wife,
without any restriction in any sense of the term, at the disposal of the husband for the term
agreed upon, the sole consideration being the dower stipulated between the parties. Her children
are entitled to inherit, but unless there is some special contract with this object, the husband and
the wife cannot inherit inter se. No doubt Rule 6 declares that, under this form of marriage, the
ordinary divorce cannot be affected, in as much as the marriage is dissolved on the expiration of
the period agreed upon

It is under an obligation to be at his will and pleasure, and he is not in return bound to contribute
to her maintenance or even to provide her with a place of habitation, and if a reference be made
to the circumstances under which this form of marriage was created by Mahomet himself, it was
intended to legalize sexual intercourse for any time agreed on by the parties concerned. It was
probably for this reason thought unnecessary to extend to it even the easy form of divorce
prescribed for dissolution of a permanent marriage.

A dissolution of a muta marriage by efflux of time is, however, subject to this limitation. It is
stated on the authority of the Tahir-ul-Ahkam 7 that, although "there is no divorce in the muta or
temporary marriage, still separation (bain) would take place upon the term being given away to
the wife, or upon the ex piration thereof." So also, the Sharaya-ul-Islam declares that, "if the
husband were to make the woman a gift of the term before coition, he would be liable for half the
dower, and if coition should have taken place, she is entitled

4
Baillie's Digest of Mahomedan Law, Part II, on the Imamia Code, page 42.
5
see Baillie, 345
6
Tahir-ul-Ahham Shama Charan, page 377.
7
see Shama Charan, page 380, note.
 14

whole dower on condition of her keeping the term, and A dower and a period for cohabitation are
mutually agreed upon; the dower being fixed, the woman is at her husband's disposal for the term
agreed on. If the marriage is not con-summated, the woman is nevertheless entitled to half the
dower, as it were by way of damages; but if the marriage is consummated, she is entitled to the
full dower, whether the parties continue to cohabit for the stipulated period or not, provided that,
if cohabitation ceases through any fault on the part of the woman, the husband is entitled to make
a proportionate deduction from the amount of the dower. But the husband, having paid or agreed
to pay the dower, is not bound to cohabit with the wife.

The shia law recognizes two kinds of marriage namely (1) permanent (2) muta or temporary.

(A) Amount of dower is fixed. Otherwise it would be void. If the marriage is not
consummated only half the dower would be payable.
(B) Period of cohabitation should be fixed. If this is not done the marriage is not a muta
marriage. Where dower is fixed but term of cohabitation is not fixed, if both parties are
muslims,the marriage is treated as a normal i.e., permanent marriage.

A muta marriage comes to and ends on the expiry of the stipulated term. If the parties continue to
live together even thereafter, it would be presumed that they extended the term of the muta
marriage and that it continued to subsist. There is no question of divorce in such a marriage. But
even before the expiry of the term the husband may put an end to the marriage by making a gift
of the remaining term to her and paying the full amount of dower. The children conceived or
begotten during the continuance of a muta marriage are legitimate. They can inherit both the
parents. Husband and wife however cannot inherit to each other. The muta marriage is now
obsolete in India.

In this case syed amanullah hussain v rajamma8 a muta marriage does not create mutual rights of
inheritance between the husband and wife but children conceived are legitimate and capable of
inheriting from both the parents. It is dissolved ipso facto upon the expiry of the term.

8
.(1976)2A.P.L.J.323
 15

CHAPTER IV

Marriage of minors:

The boy or a girl who has not attained the puberty is called minor, is not competent to
enter into a contract of marriage, but he or she may be contracted in marriage by his or her
guardian.

In kumari Shabnoor v State of Uttar Pradesh9 in which shabnoor is a minor, below 18 years of
age, she had no right to contract the marriage. Her contract of marriage is void as according to
'THE HOLY QURAN', as has been slated above, the age of majority is taken to be the age of 18
years. Till attaining of that age of majority it was only her father Mohammad Tahseem or her
guardian who could have contracted her marriage. She on her own free will before that age of 18
years was not competent to contract marriage. Before the Kazi, who got her marriage contracted,
there was no proof that Shabnoor was a major and hence he could not have performed the
marriage of Km. Shabnoor with Rizwan. The said marriage being against the tenets of Islam
cannot be considered to be a valid marriage and is therefore null and void. Resultantly this
habeas corpus petition deserves to be allowed. The petitioner Mohammad Tahseem , the father,
is entitle to have the custody of her daughter.

4.1.Guardianship in marriage (jabar):

The right to contract a minor in marriage belongs to successively to the (1) father, (2)
paternal father how high so ever and (3) brother and other male relations on the fathers side in
the order of inheritance. In default of paternal relations the right develops upon the mother,
maternal uncle or aunt and other maternal relations within the prohibited degrees. In default of
maternal kindred it developes upon the ruling authority.

Repudiation under the dissolution of Muslim marriage:

By the dissolution of Muslim marriage act 1939 all restriction on the option of puberty
in the case of minor girl whose marriage has arranged by a father or grandfather has been
abolished and under section 2(vii) of the act a wife is entitled to the dissolution of her marriage
if she proves

(1) The marriage has not been consummated

(2) The marriage took place before she attained the age of 15 years and
(3) She has repudiated the marriage before attaining the age of 18 years

Marriage brought about by other guardians: option of puberty

When a marriage is contracted for a minor by any guardian other than the father the minor
has the option to repudiate the marriage on attaining the puberty. This is technically called the
9
.2007(2)AWC 1719
 16

option of puberty. The right of repudiating the marriage is lost in the case of a female if after
attaining puberty and after being informed of the marriage and of her right to repudiate it, she
does not repudiate without unreasonable delay. The dissolution of muslim marriage act 1939
gives her the right to repudiate the marriage before attaining the the age of 18 years provided that
the marriage has been consummated. But in the case of a male the right continues until he has
ratified the marriage either expressly or impliedly as by payment of dower or by cohabitation.

4.2.Concerning the Contract

There is near complete agreement on the following conditions relating to the transaction of the
marriage contract: The offer and acceptance must be done in one sitting. In general, this means
that the response must be immediate. Exactly what is considered a "sitting" depends on custom
and related factors. The acceptance must correspond to what is being offered. If the guardian
says: "I marry you to Khadijah", a response of "I accept Fatimah as my wife" would not
constitute a valid contract. An exception to this is if the wali mentions a specific dowry amount
and the groom responds with a higher amount. It is regarded that there is no reason for dispute
since it is assumed that a higher dowry will be acceptable. The wali cannot rescind the offer.
Unlike transactions of selling, neither party can say "I have changed my mind" once they have
uttered the offer/acceptance. It is immediately binding. In a sale, they both continue to have the
option to change their mind until the "sitting" is over and they part. The marriage must be
effective immediately. If the wali says "I will marry her to you after one month", there is not
marriage and the two remain unmarried. Note that the custom of saying "I accept" three times
common in some Muslim cultures has no legal significance. Once the first "I accept" has been
uttered, everything after that is meaningless - whether positive or negative. Adding Stipulations
to the Marriage Contract. This is where one party states a stipulation binding on the other party
for specific reasons or goals. The offer/acceptance is tied to this stipulation by mention. There is
a difference of opinion among the scholars concerning the validity of conditions of this nature.
Conditions of contracts are two types: 1) those imposed directly by the shari'ah and 2) those
drawn up by one or more of the parties. When any contract is entered into, the first type of
conditions are covered automatically even if they are not stated in the contract.

It is a general principle in fiqh that customs can take the status of law. It becomes understood
that people are going to behave in a certain fashion. Since that is understood, one party has the
right to ask it of the other even if it is not stated in the contract. In the area of marriage, there are
some stipulations that are known by custom. These do not have to be mentioned in the contract
to be considered binding. However, there are some strict conditions that must be met before a
customary act is considered something equivalent to a legal stipulation.

These conditions are as follows:

The customary practice cannot contravene or contradict anything expressly laid down by the
shari'ah. The customary act must be common, well-known and universal and not something
 17

practiced only by some portions of the population. The custom must have been in existence and
known before the marriage contract took place.

Other conditions Laid Down by the Two Parties:

Any condition which contradicts, compromises or nullifies the main goals and purposes of the
marriage contract itself are rejected and, even if stated, are of no legal consequence. For example
conditions which state that the woman receives no dowry or that he does not have to support her
or that they will not consummate the marriage are all null and void and of no effect. Such
conditions must be stipulated and agreed upon at or before the time of the offer/acceptance.

4.3.Sound and Acceptable Stipulations:

There are two types of sound and acceptable stipulations: Those embodied in the contract even if
they are not stated. This includes conditions known from the shari'ah as well as those known
from custom as discussed previously. The Prophet (peace and blessings be upon him) said:
"The conditions which you have the most duty to fulfill are those by which you have made
marital relations lawful." [Bukhari & Muslim]

Many scholars understand this hadith to be referring to these kinds of conditions only, that is,
those that are covered by the shari'ah in the first place. This is the view of the Shafi'i school.
They do no allow any additional stipulations to be added to the marriage contract.

Those conditions not covered by the essential nature of the contract but which are agreed upon
by the contracting parties. These are those stipulations that do not contradict the general goals of
the contract, do not bring harm to anyone and which apply to things which are permissible and
within the right of the person to agree - that is something that does not go against the shari'ah.
They are laid out in the beginning to avoid any conflict or hardship in the future.

4.4. Muslims Must Fulfill Their Agreements:

Muslims must comply with any agreements that they make. Allah said about the believers:
During the time of 'Umar ibn Al-Khattab, a man married a woman upon the condition that he
would not move her from his house. The time came when he wanted to move her. They took
their dispute to 'Umar and he said: "She has the right to her stipulation." The man said, "In that
case, they will certainly end the marriage." He said, "The rights are broken off due to the
stipulations." This was the view of many of the Companions, There is another opinion which
says that external stipulations - those not covered by the nature of the contract itself - carry no
weight and need not be met.
 18

Conditions for the Execution of a Marriage Contract:

The bride and groom must be legally capable for such a marriage, i.e., sane, conscious, past the
age of puberty, etc. The contract can take place earlier than this, but the execution must wait until
the time that they can actually enter into the marriage relationship.The wali who performed the
marriage was not a more distant wali while a closer one was alive and reachable. For example, if
the woman's uncle married her to someone, the marriage would not be valid unless and until the
woman's father's consent was verified. In such a case, the contract could be executed.
 19

CHAPTER V

DOWER:

Mahr or dower is a sum of money or other property which the wife is entitled to receive
from the husband in consideration of marriage. Dower is an obligation imposed upon the
husband as a mark of respect to the wife in Abdul Kadir v Salima 10 said that it had been
compared to the price in a contract of sale because marriage is a civil contract and a sale is a
typical contract to which mahomedan jurists are accustomed to refer by way of analogy. If dower
were the bride price, a post nuptial agreement to pay dower would be void for want of
consideration but such an agreement is valid and enforceable. The court describing the
mahomedan marriage as a contract with dower as a consideration held that the transaction was in
the nature of a hiba-bil-ewaz. It contemplates two gifts and it is difficult to think that there was a
gift from the wife as ewaz for the dower. Amount paid by the mahomedan in connection with
daughters marriage to the prospective bridegroom for purchase of property in joint names of
daughter and would be son in law held not dowry within section 2 of dowry prohibition act.

Dower may be fixed after marriage:

The amount of dower may be fixed either before or at the time of marriage or after
marriage and can be increased after marriage.

5.1.Contract of dower may be made by the father:

A contract of dower made by the father on behalf of his minor son is binding on the son.
Such a contract may be made even after marriage provided the son was then a minor. Among
sunnis the father does not by entering into such a contract become personally liable for the dower
debt nor he is liable for it merely because he consents to the marriage. But by a decision of the
judicial committee the rule is otherwise among shias when the minor son has no means of his
own.

Confirmation of dower:

The dower becomes confirmed

(a) By consummation of marriage; or

(b) By a valid retirement; or
(c) By the death of either the husband or the wife
(d) Mutual agreement of bride and groom:

Marriage (nikah) is a solemn and sacred social contract between bride and groom. The
10
(1886)8 all.149 (supra)
 20

marriage contract in Islam is not a sacrament. It is revocable. Both parties mutually agree and
enter into this contract. Both bride and groom have the liberty to define various terms and
conditions of their liking and make them a part of this contract.

The marriage-gift (Mahr) is a divine injunction. The giving of mahr to the bride by the groom is
an essential part of the contract.Mahr is a token commitment of the husband's responsibility and
may be paid in cash, property or movable objects to the bride herself. The amount of mahr is not
legally specified, however, moderation according to the existing social norm is recommended.
The mahr may be paid immediately to the bride at the time of marriage, or deferred to a later
date, or a combination of both. The deferred mahr however, falls due in case of death or divorce.

It was held in Rehana Khatun v. Iqtider Uddin11, that the prompt portion of the dower may
be realized by the wife at any time before or after consummation. 12 In the case of Mahadev
Lal v. Bibi Maniran13 it was decided that prompt dower does not become deferred after
consummation of marriage, and a wife has absolute right to sue for recovery of prompt
dower even after consummation. Dower which is not paid at once may, for that reason, be
described as deferred dower, but if it is postponed until demanded by the wife it is in law
prompt dower.

It is only on the payment of the prompt dower that the husband becomes entitled to enforce
the conjugal rights unless the marriage is already consummated. The right of restitution
arises only after the dower has been paid. As the prompt dower is payable on demand,
limitation begins to run on demand and refusal. The period of limitation for this purpose is
three years. If during the continuance of marriage, the wife does not make any demand, the
limitation begins to run only from the date of the dissolution of marriage by death or divorce.

One matrimonial party expresses 'ijab" willing consent to enter into marriage and the other party
expresses 'qubul" acceptance of the responsibility in the assembly of marriage ceremony. The
contract is written and signed by the bride and the groom and their two respective witnesses.
This written marriage contract ("Aqd-Nikah) is then announced publicly.

5.2.Sermon:
The assembly of nikah is addressed with a marriage sermon (khutba-tun-nikah) by the
Muslim officiating the marriage. In marriage societies, customarily, a state appointed Muslim
judge (Qadi) officiates the nikah ceremony and keeps the record of the marriage contract.
However any trust worthy practicing Muslim can conduct the nikah ceremony, as Islam does not
advocate priesthood. The documents of marriage contract/certificate are filed with the mosque
(masjid) and local government for record.

11
AIR1943
12
Mohammad Taqi Ahmad Khan vs Farmoodi Begam on 23 December, 1940, AIR 1941 All 181

13
1933, 12 Pat, 297, as cited by ibid, p.17
 21

Prophet Muhammad (S) made it his tradition (sunnah) to have marriage sermon delivered in the
assembly to solemnize the marriage. The sermon invites the bride and the groom, as well as the
participating guests in the assembly to a life of piety, mutual love, kindness, and social
responsibility.

The Muslim officiating the marriage ceremony concludes the ceremony with prayer (Dua) for
bride, groom, their respective families, the local Muslim community, and the Muslim community
at large (Ummah)

Marriage (nikah) is considered as an act of worship (ibadah). It is virtuous to conduct it in a

Mosque keeping the ceremony simple. The marriage ceremony is a social as well as a religious
activity. Islam advocates simplicity in ceremonies and celebrations.
 22

CHAPTER VI

Divorce:

The contract of marriage under the mahomedan law may be dissolved in

(1) By the husband at his will without the intervention of a court

(2) By mutual consent of the husband and wife without the intervention of a court
(3) By a judicial decree at the suit of the husband or wife. The wife cannot divorce herself
from her husband without his consent except under a contract whether made before or
after marriage but she may in some cases obtain a divorce by judicial decree

6.1.Divorce by talak:

Any mahomedan of sound mind who has attained puberty may divorce his wife whenever
he desires without assigning any cause

Contigent divorce:

A divorce may be pronounced so as to take effect on the happening of a future event. In an

Allahabad case the husband agreed to pay his wife maintenance within a specified time and in
default the writing to operate as a divorce. It wass held that on the husbands default the writing
took effect as a valid divorce.

Talak may be oral or in writing:

A talak may be effected (1) orally (by spoken words) or (2) by a written document called a
Talaknama.

Oral Talak:

No particular form of word is prescribed for effecting a talak. If the words are express or
well understood as implying divorce no proof of intention is required. If the words are
ambiguous (kinayat) the intention must be proved. It was held in Asha Bibi v Kadir 14. It is not
necessary that the talak should be pronounced in the presence of the wife or even addressed to
her. A divorce must be pronounced orally in the presence of competent witnesses and a talak
communicated in writing is not valid unless husband is incapable of pronouncing it orally. This
is established principle of shia law that pronouncement of talak must be uttered orally in the
presence of hearing of two male witnesses who are muslims and of approved probity. It is not
however necessary nor has it been provided anywhere in text of shia law that the divorce must be

14
(1909)33 mad.23
 23

pronounced in the presence of imam. The only mandatory requirement for a valid divorce is that
it must be orally pronounced.

Talak in writing:

A talaknama may only be the record of the fact of an oral talak; or it may be the deed by
which the divorce is effected. The deed may be executed in the presence of the kazi or of the
wifes father or the other witnesses. The deed is said to be in the customary form if it is properly
super scribed and addressed so as to show the name of the writer and the person addressed. If it
is not so superscribed and addressed it is said to be in unusual form. If it is in customary form it
is called manifest provided that it can be easily read and comprehended. If the deed is in
customary form and manifest the intention to divorce is presumed. If the talaknama is costomary
and manifest it takes effect immediately even though it has not been brought to the knowledge of
the wife. It was held in the case Ahmed kasim v khatoon bibi15.

6.2DIFFERENT MODES OF TALAK :

Talak ahsan This consist of a single pronouncement of divorce made during tuhr followed by
absistence from sexual intercourse for the period of iddat. When the marriage has not been
consummated a talak in the ahsan form may be pronounced even if the wife is in her
mensuration. When the wife has passed the age of periods of menstruation the requirement of the
declaration during a tuhr is inapplicable. This requirement only applies to a oral divorce and not
a divorce in writing.

Talak hasan this consist of three pronouncement made during successive thurs, no intercourse
taking place during any of the three thurs. the first pronouncement should be made during a thur,
the second during a next thur, and the third during the succeeding thur.

Talak ul Bidaat or talak-i-badai- :

(i) Three pronouncement made during a single thur either in one sentence.
(ii) A single pronouncement made during a thur clearly indicating an intention irrevocably
to dissolve a marriage.

Mutual agreement of bride and groom:

Marriage (nikah) is a solemn and sacred social contract between bride and groom. This
contract is a strong covenant (mithaqun Ghalithun) as expressed in Quran 4:21). The marriage
contract in Islam is not a sacrament. It is revocable.

15
.(1932)59 cal.833
 24

Both parties mutually agree and enter into this contract. Both bride and groom have the liberty to
define various terms and conditions of their liking and make them a part of this contract.

The Marriage Banquet (Walima)

After the consummation of the marriage, the groom holds a banquet called a walima. The
relatives, neighbors, and friends are invited in order to make them aware of the marriage. Both
rich and poor of the family and community are invited to the marriage feasts.

Prophet Muhammad (S) said:

'The worst of the feasts are those marriage feasts to which the rich are invited and the poor are
left out". (Mishkat)
It is recommended that Muslims attend marriage ceremonies and marriage feasts upon
invitation.

Prophet Muhammad (S) said:

"...and he who refuses to accept an invitation to a marriage feast, verily disobeys Allah and His
Prophet". (Ahmad & Abu Dawood)
 25

CHAPTER VII

CONDITIONS OF CONTRACT

1. Conditions Required for Initiating the Contract

These are the conditions that must be present with respect to the pillars or fundamentals of the
marriage contract.

2. Conditions Required for the Soundness of the Contract

These are conditions which must be fulfilled in order for the marriage to have its proper legal
effect. If these conditions are not met, the contract is 'Defective' (Faasid), according to Hanafi
Fiqh, and 'Void' (Baatil) according to the others.

3. Conditions Required for the Execution of the Contract

These are conditions which must be met for the marriage to have actual practical effect. If these
conditions are not met, then the marriage is 'Suspended' (Mawqoof) according to Hanafi and
Maaliki Fiqh; for example, a minor girl until she reaches puberty.

4. Conditions Required for Making the Marriage Binding

If these conditions are not met, then the marriage is non-binding, meaning that either of the two
parties or others may have the right to annul the marriage. If they accept the marriage with such
shortcomings, it becomes binding.

Prerequisites Required for Initiating the Contract

In this category, there are conditions concerning the two who are getting married, as well as the
form in which the contract takes place.

Concerning the Two Getting Married:

The two people must meet the qualification of legal competence, i.e., they must be adult and
sane. If they are not, the marriage will be invalid.

Secondly, the woman cannot be from those categories of women that are forbidden for a man to
marry. For example, suppose a man married a woman and later discovered that they had been
breastfed by the same woman. In this case, it is as if the marriage never took place because these
two were not allowed to marry each other and the marriage becomes null and void.

Adding Stipulations to the Marriage Contract

 26

This is where one party states a stipulation binding on the other party for specific reasons or
goals. The offer/acceptance is tied to this stipulation by mention. There is a difference of
opinion among the scholars concerning the validity of conditions of this nature.

Conditions of contracts are two types:

1) Those imposed directly by the Sharee'ah (Islamic Legislation) and

2) Those drawn up by one or more of the parties.

When any contract is entered into, the first type of conditions are covered automatically, even if
they are not stated in the contract.
 27

CHAPTER VI

CONCLUSION :

The term Nikah has been used for marriage uder Muslim law. In Muslim law, Nikah is a
contract for the legalization of intercourse and the procreation of children. Hence Nikah means
union of sexes. It confers the status of husband and wife on a man and woman to marriage and
the status of legitimacy on the children born out of such union.Marriage is recognized as the
basis of society. Marriage as an institution leads to the uplift of man and is a means for the
continuance of the human race. Legally speaking, Muslim marriage is a civil contract. Therefore,
its legal nature is contractual. Besides being a civil contract, Muslim marriage is also a social and
religious institution.Sanctity attached to the institution of marriage. It is a religious duty of every
Muslim to contract a marriage according to the rules of Islam. Moreover, marriage is also the
tradition (sunnat) of the prophet. In Islam, it is believed that marriage is a Sunnat Muwakkidah.
This means that, it is an act.Islam reformed the old marriages and prescribed for only one form
of marriage (nikah) in which mahr was made compulsory though Ithna Asharis permitted a
temporary (muta) marriage. It restricted the number of marriages

The Dissolution of Muslim Marriage Act, 1939 passed by the parliament in order to provide a
relief of release from an unhappy marital tie is a welcome change that should be
appreciated.Thus except the power of pronouncement of talaq, limited polygamy and apostasy,
the position of Muslim women is improved. To strengthen the institution of marriage, change
should be brought in these spheres also.
 28

BIBLIOGRAPHY:

1.Principles of Mahomedan Law by Mulla.

2.PROF.G.C.V.Subba Rao- Family Law in India.

3. Dr. Nishi Purohit- The Principles of Mohammedan law, 2nd edn. 1998, p.105, Orient
Publishing Company, Allahabad.

4. A.A.A. fyzee- Outlines of Muhammadan Law, 1999 edn. p.90, oxford university press, New
Delhi.

5.Kusum Family Law