INTRODUCTION

In this paper we will be observing and discussing about Marriage and its different aspects and
regulations related to it in detail. We will be covering and exploring various topics around it.
starting with the basic definition of Marriage which is, the Arabic word nikah (marriage) literally
means the union of the sexes and in law this term means ‘marriage’. In Baillie’s Digest, marriage
has been defined to be “a contract for the purpose pf legalizing sexual intercourse, and
procreation of children’’.1 Marriage is that practice which legalizes the sexual relations between
man and woman so as to preserve the human species, the growth of generation, promotion of
love and union between the parties and concerning mutual help to earn livelihood.

In Islam, marriage is said to be a legal contract between a man and a woman respectively. Both
the groom and the bride are to consent to the marriage by their own free wills. A thereby formal,
binding contract - verbal or on paper - is considered essential to a religiously valid Islamic
marriage, and demonstrates the rights and responsibilities of the groom and bride. There must be
two Muslim witnesses of the marriage contract, for the legal marriage to take place.

According to Hedaya: “Nikah in its primitive sense, means carnal conjunction. Some have said
that it signifies conjunction generally. In the language of law it implies a particular contract used
for the purpose of legalizing generation.”2

Amongst all the definitions given by different writers and thinkers the definition of Abdur Rahim
is considered to be the most balanced and improved one. Abdur Rahim said- “The Mohammadan
Jurists regard the institution of marriage as partaking both of the nature of Ibadat or devotional
acts and Muamlat or dealings among men.”

1
Aqil Ahmad, Text book of Mohammedan Law, (Central Law Agency, Allahabad, 25 th edition, pg no-107)
2
Hedaya, at p.25
Nature of Muslim Marriage

There are many conflicts 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 that it is a
sacrament in nature. In order to better appreciate the nature of Muslim marriage it would be
proper to consider it in its different notions.

The judgement in Abdul Kadir V. Salima3, is one of those classic pronouncement of the
illustrious Mr Justice Mahmood, the first Indian judge of the Allahabad High Court, which has
acquired so great a reputation that its Obiter Dicta carries the legal sanctity of ratio decidendi.

Describing the nature of Muslim marriage, Justice Mahmood observed:

“Marriage among Muhammedans is not a sacrament, but purely a civil contract; and though it is
solemnized generally with the recitation of certain verses from the Quran, yet the Muhammedan
Law does not positively prescribe any service peculiar to the occasion. That it is a civil contract
is manifest from the various ways and circumstances in and under which marriages are
contracted or presumed to have been contracted. And though a civil contract, it is not positively
prescribed to be reduced to writing , but the validity and operation of the whole are made to
depend upon the declaration or proposal of the one, and the acceptance or consent of the other
contracting parties, or of their natural and legal guardian before competent and sufficient
witnesses; as also upon the restrictions imposed, and certain of the conditions required to be
abided by according to the peculiarity of the case.”4

Muslim marriage, by some text writers and jurists, is treated as a mere civil contract and not a
sacrament. This observation seems to be based on the fact that marriage, under Muslim law, has
similar characteristics as a contract. For instance-

1. 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 shouldn’t be obtained by means of fraud, coercion or undue influence.

3
ILR (1886) 8 AII 149
4
Abdul Kadir v. Salima, (1886) 8 AII.149.
 2. 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.
3. The parties to a Muslim marriage may enter into any ante-nuptial or post-nuptial
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.
4. The terms of a marriage contract may also be altered within legal limits to suit individual
cases.
5. Although discouraged both by the Holy Quran and Hadith, yet like any other contract,
there is also provision for the breach of marriage contract.

The prophet is reported to have said that marriage is essential for every physically fit
Muslim who could afford it. the prophet says “ O assembly of youths, whoever among
you is able to have, he should marry, for it is a restraint to the looks and he who is not
able let him keep fast.”
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.”5
In the ultimate analysis it can be said that the marriage in Islam is neither purely a civil
contract nor as a sacrament. It is devoid of none but the blending of the two.

5
Dr. Jung (M.U.S), “ Dissertation on the Development of Muslim Law in British India”, pp.1-2
Formalities of a valid marriage
According to the Muslim marriage law there are no prescribed ceremonies or formalities
or special rites and rituals to solemnize a Nikah. Certain legal and reasonable conditions,
which are not opposed to the spirit of Islam, may be exercised to the contract at the time
of marriage. Nevertheless, following conditions are necessary:
i. The pillars of the marriage are Ejab-o-Kubool, i.e., offer or proposal on the part of
one party to the marriage and acceptance by the other party.
ii. This free and mutual consent must be expressed in one and the same meeting in
clear unambiguous words.
iii. Presence of 2 witnesses is required if the parties are Hanafis; no witnesses are
needed if the parties are Shias.
iv. Both the parties, i.e., the bride and groom or, when minor, their guardians, must
be of sound mind.

The Nikah is read by a Qazi who recites the marriage sermon (extracts from the
Quran and Hadis), there may be exchange of gifts, prayers are offered by the guests
for the health and happiness of the couple, and additional Maulvis from both sides
may be present.

Legal effects of a valid marriage

As a result of a valid marriage, sexual intercourse between the couple becomes legal.
The children born of the union are legitimate. As per the Muslim Marriage Law, the
husband is bound to provide for the maintenance of the wife by way of food, clothing,
lodging, and all such things as may be needed to support life. The husband also has a
duty to provide for the children begotten of such marriage. The wife is entitled to
Dower or Mahr, a sum of money or other property from the husband as a mark of
respect for the wife, the amount of which may be settled before or after marriage, and
payable either on demand or on the dissolution of marriage by death or divorce. They
can inherit property from each other. However, neither the husband nor the wife
acquires any right over each other’s property simply by reason of the marriage.
 Stipulations in marriage contract

Certain ante and/or post-nuptial conditions may be appended to a marriage contract.

These conditions must be legal, reasonable and not opposed to the spirit of Islamic
Law. The parties could modify or rescind these conditions at any time they like; it is
because marriage is mainly a civil contract. In cases where illegal and unreasonable
condition is attached with a marriage contract, the condition alone and not the
marriage itself will be treated as invalid.

Adding Stipulation in marriage contract define where one party states a stipulation
binding on the other party for specified condition or conditions. There is a variance of
opinion among the scholars concerning the validity of conditions or stipulation.

Stipulation of contracts by nature are two types:

1) Those imposed directly by the Sharia; and

2) Those drawn up by the parties (one/both) of the marriage contract.

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

There are many conditions, however, which because of their illegal or unreasonable
character cannot be appended to a marriage contract.

The validity of any given condition can be tested at once by asking: is it reasonable,
legal, moral, Islamic and conforming to the basic legal incidents of the marriage? A
very novel objection was raised by a husband about the validity of his wife’s
marriage! To resist the claim of his wife for maintenance allowance for her and her
child, the husband in Amina v. Hassan Koya6 took the plea that his wife had
concealed her pregnancy at the time of marriage and therefore their marriage was not
valid. Supreme Court held that the stage was advanced and he continued with such
marriage without raising any objection, attended to his wife at the time of delivery,
gave his name to the child born, brought up the child for nearly four years, and now,

6
Amina v. Hassan Koya, (2003) 6 SCC 93: 2003 SCC (Cri) 1276.
 after four and a half years filed for the divorce. In view of these facts, held, the
respondent was aware of the pregnancy of the appellant at the time of marriage, and
therefore the marriage was valid.7

Kinds of marriage
Being a civil contract, the validity of a Muslim marriage depends upon the conclusion of
the marriage contract. Muslim law does not insist upon any particular specific form of
marriage. If there is a proposal from one side, and its acceptance on the other side, a valid
marriage will come into existence, provided that the other conditions of marriage are also
fulfilled. No writing is necessary as such. ). There is only one known form of marriage
called Nikah.
Further Marriages may be either:
i. Valid
A valid marriage is one which conforms in all respects with the legal
requirements, and there should be no prohibition affecting the parties.
When all the legal requirements are fulfilled the marriage is called Sahih or
‘correct’, that is, a marriage in which no prohibitions affect the parties.
ii. Void
A marriage which has no legal results is termed as void. A marriage forbidden by
the rules of blood relationship, affinity or fosterage is void. Similarly, a marriage
with the wife of another, or remarriage with a divorced wife, without observing
the strict rules set for this occasion, is void.
iii. Irregular
A marriage may be either lawful or unlawful. Unlawfulness may be either
absolute or relative. If the unlawfulness is absolute, the marriage is void. If it is
relative, it is an irregular marriage.
In Shia Law, all the irregular marriages are treated as void, because Shia Law
does not recognize the distinction between irregular and void marriages. A
marriage is, according to that system, either valid or void.

7
Supra, p-64
 Muta marriages.- The word ‘Muta’ literally means ‘enjoyment, use’ and in its
legal context it may be rendered, a ‘marriage for pleasure’. It is a marriage for a
fixed period, for a certain reward paid to the woman. The institution of Muta was
fairly common in Arabia both before and at the time of the Prophet.
“It is lawful among Shias”, says Wilson, “to enter into a contract of (so called)
marriage for a limited period of time, which may be for a term of year, a month, a
day, or even a part of a day.”8

The marriage dissolves of itself, on the expiration of the term of marriage, if no

time limit is expressed, the marriage is presumed to be permanent.
The number of wives that can be taken into muta marriage is unlimited.
The amount of dower must be specified in the contract of Muta otherwise the
agreement is void.
The child born out of a Muta marriage is legitimate and capable of inheriting from
the father.9

Prohibitions to marry in certain cases

Prohibitions are of two types:

a) Absolute Prohibition
b) Related or Limited Prohibition

Absolute Prohibition- Absolute prohibition may arise because of consanguinity,

affinity or fosterage in the below following ways:
1. Consanguinity : Consanguinity means blood relationship and a
prohibits a man from marrying the following females-
I. His own ascendants or descendants;
II. His fathers or mothers descendants; and
III. The sisters or brothers of any descendants

8
Wilson, at p.446
9
Syed Khalid Rashid’s, Muslim Law, (EBC,5th edition, p no-66)
 2. Affinity : A man is prohibited from marrying certain female
relatives due to nearness of relationship. A man is prohibited from
marrying-
I. ascendants or descendants of his wife; and
II. the wife of any ascendant or descendant.
3. Fosterage: When a child is breast-fed/suckled by a woman other
than its own mother, she becomes the foster mother of the child. A
man is prohibited from marrying certain persons having foster
relationship. Generally a man is prohibited from marrying:
I. His foster-mother or grand mother (however high so ever)
II. His foster-sister (daughter of foster mother)

Such marriage is also void.

Limited Prohibition- There are certain prohibitions which are not absolute but only
relative and marriage in violation of such relative prohibitions will only be irregular.

4. Unlawful conjunction: A man is prohibited from marrying two

wives at the same time if they are related to each other by
consanguinity, affinity or fosterage, which they could not have
lawfully intermarried with each other if they had been of different
sexes.
5. Marriage during IDDAT: Under Muslim law, a woman who is
undergoing iddat is prohibited from marrying during that period.
Iddat is the period during which it is supervised upon a woman,
whose marriage has been dissolved by divorce or death of her
husband to remain in seculasion, and to abstain from marrying
another husband. 10

10
ibid
 Guardianship in marriage
Tyabji defines guardian as follows:
“A guardian for marriage is a person authorized by law to make a valid contract for
effecting the marriage of a minor person of unsound mind.”
Hedaya lays down that the guardianship in marriage, according to a saying of the
Prophet, belongs, in the first place, to the Usubah (agnates) in the order of inheritance;
the more remote being excluded by the nearer.
Under Shia and Shafii law, no person other than father and father’s father is entitled to
act as guardian for marriage.
In case of, Abdul Ahad v. Shah Begum11, the Jammu and Kashmir High Court has
reaffirmed this rule. The court held that during minority of girl only the rightful guardian
who is either father or grandfather could give the girl in marriage.
Guardians for marriage cannot be appointed by will. The authority of guardian to give his
ward in marriage ceases when the ward attains the age of majority.

Option of puberty
When a minor is married by his lawful guardian, other than the father or paternal
grandfather, such a marriage can be repudiated by the minor on attaining the age of
puberty. Such an option vesting in a minor is called the “option of puberty”.
Mulla says that the option of puberty is lost if a female does not exercise it immediately
after attaining puberty, or on being informed of marriage if she was not aware of it. in
case of male, however the right continues until he has ratified the marriage either
expressly or impliedly.12
According to Shia Law, a minor’s marriage contracted by anyone except father or
father’s father, is totally ineffective until it is ratified by the minor on attaining puberty.

11
AIR 1997 J&K 22.
12
Mulla, at p.298
 Restitution of Conjugal Rights
The concept of matrimonial remedies is an indigenous part of muslim,Christian,jews and
parsi marriage, a marriage under muslim law is a essentially a contract and a suit for
restitution of conjugal rights. When either the husband or the wife has without a lawful
cause withdrawn himself or herself from the society of the other , the aggrieved party
may bring a suit for restitution of conjugal rights which literally means-bring ones spouse
back.
The leading case on this point is Moonshee Buzloor Ruheem v. Shumsoonissa Begum13. It
was observed in this case that if either party to a marriage contract has withdrawn from
the society of the other without any valid reason, or has neglected to perform the marital
obligations, the aggrieved party may bring a suit in a civil court for the restitution of
conjugal rights. Thus, where a wife refuses to live with her husband, the husband is
entitled to sue for the restitution of conjugal rights. This right, however, is not absolute.
There are a number of valid defences available to a wife in a suit for restitution of
conjugal rights. She may prove that:
1. It is unsafe for her to live with her husband because of his cruelty; or
2. The husband grossly neglects the performance of the marital obligations; or
3. The marriage is irregular

Family and marriage are the basic pillars of institution of any society. Every society has
certain norms and rules which leads to the development of key concepts such as usage
and custom. Marriage as an important institution and has been recognized in the personal
laws of all the religions. With the passage of time, the complexities increased with areas
such as divorce, judicial separation and conjugal rights, this all came up in personal law
and it became necessary to codify the laws relating to marriage in personal laws to make
provisions healthier.
The restitution of conjugal rights is often regarded as a matrimonial remedy. The remedy
of restitution of conjugal rights is a positive remedy that requires both parties to the
marriage to live together and cohabit peacefully without conflict.

13
(1867) 11 MIA 551: 74 IC 166.
Polygamy in Islam
In Islam, monogamy is the general rule while polygamy is only an exception. The
Prophet did not favour polygamy except in exceptional circumstances. According to the
Muslim Marriage Law, a man can have up to 4 wives, but a woman can only have one
husband at a time. In India, the female population is low and polygamy adds to the
economic burden of supporting multiple wives and children. Polygamy under Islam has
not been fully abolished in India but it is also not widely practiced and is often provided
against by a special clause in the marriage contract by those who find it morally offensive
and in appropriate. The groom as well as the bride-to-be may stipulate monogamy as a
condition in the Nikahnama and, once signed, it requires the parties to not enter into any
formal or informal marriage contract with another person.
The Koran commands:
“ marry such women as seems good to you, two, three or four; but if you fear
that you cannot do justice(between them) then marry only one,-this is better so
that you may not deviate from the right path.” (Koran 4 : 4)

Polygamy was customary before Islam and was not abrogated with the coming of
Islam; instead, Islam has corrected and set various conditions for the practice. The
principle was permitted, but polygamy was limited to four wives.

The concerned verses of the Koran gives permission for polygamy on the condition
that there is no likelihood of refraining to observe fairness and justice, which is rather
unfeasible and very hard to attain.

A man who has more than one wife is obligated to observe and provide equality, justice,
and fairness among all his wives in the amount, type, and quality of nafaqah, sexual
enjoyment and intercourse, and even in general mannerism. It is the duty of polygamous
men to behave comparably in all events, even if their wives are different in age, beauty,
character, social status, and other virtues and perfections or any other states.

It is clear that completely adhering to justice and fairness is quite challenging and few
men can be sure about their ability to shoulder such heavy responsibilities whereas the
Quran makes it quite clear that if they doubt their ability to behave equally and justly
with their wives, they should limit themselves with only one wife.

Consequently, polygamy in Islam is a very onerous and high-liability undertaking,

something that most men are not competent enough to accomplish and hence practice.