CHAPTER-III

IRREGULAR MARRIAGE UNDER MUSLIM LAW

AND ITS SOCIAL IMPLICATION

A- HISTORICAL BACKGROUND OF IRREGULAR

MARRIAGE UNDER MUSLIM LAW

The Mohammedan law has made a departure from the

usual classification of marriage into legal and illegal by
introducing an intermediate kind of irregular marriages.
Marriages are classified for purpose of validity into three classes,
valid irregular (or invalid) and void. According to the
Mohammedan law there are some marriages which are not valid
but which are not wholly void. Marriages of this kind are
defective or irregular but are not entirely without any effect.
There are important consequences resulting from an irregular
marriage and such marriages may also in certain circumstances
become valid marriages.

The problem of determining whether a marriage is void or

only irregular is one of some difficulty and there has been a
conflict of judicial opinion on-many points which have arisen for
decision. It is clear that certain classes of marriages are definitely
only irregular and not void but with respect to some. There is a
difference of opinion.
 There is unfortunately a difficulty in ascertaining the exact
criterion which may be used for determining. Whether a marriage
is void or is only irregular.1 2The generally accepted test is that a
marriage is void in those cases in which the prohibition is
perpetual and absolute, while a marriage which is defective only
by reason of a relative or temporary prohibition or for want of
some legal formality is only irregular. Thus marriages prohibited
on the ground of consanguinity, affinity, or fosterage are under
perpetual prohibition and are void. On the other hand, marriages
the prohibition against which are only temporary and may be
removed by some means (e.g. marriage with a fifth wife which
may be rendered valid by divorce of one of the other four wives)
are only irregular. So also marriages solemnized in the absence of
witnesses are merely irregular.

But this does not itself seem to be a safe test. For instance a
marriage with a woman whose husband is alive is, according to
all authorities void although the prohibition against it is only
temporary and not perpetual and may be removed by the
dissolution of that marriage.

The Indian penal code however, makes no distinction

between void and invalid'marriages. The term “void” in section-

1 Ata Mohd. V. Saiqul BIbi, (1910) 8 ALJ 953: 7IC 820

2 Munshi V. Mst. Alam Bibi AIR 1932 Lah. 280: 33 IC 126
494, IPC, covers both classes and is not used in the technical
sense in the Mohammedan law.3

Shia Law:

The Shia law does not recognize the difference between

void and irregular marriages. Marriages are according to that law
classified only as valid and void. Marriages which are not valid
under the Shia law are void. But under the Shia law also the
consequences of an irregular marriage arise in the case of some
void marriage. Thus, if a man marries a woman undergoing her
iddat, the marriage would be void and if coition has taken place,
there would be perpetual prohibition between the parties. If
however he was not aware of the fact that she was undergoing
iddat or of the unlawfulness of the marriage in such circumstances
and a child is bom the child would be legitimate and would be
affiliated to him provided that it is bom at six month or more from
the time of consummation. In such case while the parties must be
separated, the man must pay the dower and the woman must also
complete her iddat.4

Muslim marriages may be divided into three types: (1)

Sahih (2) Fasid and (3) Batil. Sahih means a marriage which is

3 Hamad V. Emperor, AIR 1931Lah. 194

4 Bail H 26: Ameer Ali H 397
valid in all respects. Fasid is irregular marriage and Batil is a void
marriage which is void from the beginning. Under the
Mohammedan Law the distinction between a Batil and the Fasid
marriage is that a Batil marriage is one which is unlawful in itself.
The prohibition against the marriage is perpetual and absolute.
Thus the marriage with a woman prohibited on the ground of
consanguinity, affinity or fosterage is void. The prohibition
against such marriage is perpetual and absolute. There'is no scope
of lifting the prohibition in any manner and a Fasid marriage is
one which is not unlawful in itself but unlawful for something
else. Such as in the cases where prohibition against marriage is
temporary or relative or accidental circumstances. This provision
of temporary or relative nature can be removed rendering a Fasid
marriage to be a Sahih marriage.

In the instant case Tanjela Bibi V. Bajrul Sheikh5 the

learned session’s judge held that marriage with a pregnant woman
is void the prohibition of pregnancy can be said to be absolute or
perpetual in nature. If the child in the womb is bom the
prohibition disappears in nature. If the child in the womb is bom
the prohibition disappears. According a marriage with the
pregnant woman under the Muslim law is an irregular or Fasid
marriage. Unless it is avoided it remains.

s 1986, Cr.L.R.(Cal.)222
 In the Ata Mohd. V. Saiqul Bibi6 7, Justice
8 karamat Husain
has held that where a marriage is not certainly prohibited then
alone it is irregular. If however the marriage is certainly
prohibited then it would be void if the person had knowledge of
the fact but if there was ignorance of its unlawfulness in fact and
not in law then the marriage would be irregular and the children
would be legitimate.

*7
Dr. Jung observes that it is a safe rule that if a marriage is
contracted with the knowledge of its illegality on the part of the
parties, it is batil, null and void ab initio but otherwise it is only
fasid and issue are regarded as legitimate. Amir Ali also agrees
with this view and according to him marriage even with
perpetually prohibited relations and with wife of another person
Q
would be only irregular if there was no knowledge.

B- CONCEPT OF IRREGULAR MARRIAGE

Classification of marriages:

A Marriage according to Mohammedan law may be either:

(1) 'Valid (Sahih)

6 (1910) 8 ALJ 953: 7IC 820

7 Jug. Muslim Law of marriage p. 11,12
8 Amir Ali II 202,205
 (2) Void (batil)

(3) Irregular (Fasid)

Though in Mohd. Law the concept of marriage in purely

contract. Even some legal prohibition have been prescribed for
the valid Nikah by Kooran or sunnat those prohibitions of four
kinds-Absolute, relative, directory and prohibitory. If any
marriage between two Muslim in violation of absolute and
prohibited prohibition the marriage is Batil and if there is
violation of relative and directory prohibition the marriage is fasid
i.e. irregular and if all these prohibition are avoided and marriage
is contracted, the marriage is sahih i.e. let us discuss the concept
of Fasid marriage in Muslim law.

Irregular Marriage (fasid):

A union between a man and a woman may be either lawful

or unlawful. Unlawfulness may be either absolute or relative. If
the unlawfulness is absolute we have a void (batil) marriage. If it
is relative, we have an irregular (fasid) marriage a marriage
contracted by parties suffering from relative, prohibitory or
directory incapacity is irregular both according to Bailie and
Ameer Ali.

Relative in capacity:

Relative incapacity springs from cases which render the

marriage invalid only so long as the cause which creates the bar
exists. The moment it is removed the incapacity ends and the
marriage become valid and binding. Thus it differs from the case
of absolute incapacity where the marriage is void ab initio and can
never become valid. For instance a man is prohibited from
marrying more than four wives at a time. His marriage with the
fifth will be invalid until he divorces one of them.

Grounds of irregular (fasid) Marriage:

I Grounds pertaining to Relative prohibition-

I Marriage contrary to the rules of unlawful

conjunction

II Polygamy or marriage with a fifth wife.

III Absence of proper witnesses

IV Marriage with a non-scriptural (i.e. idolatress or fire

worshipper) woman.

V Marriage with a woman undergoing iddat.

II Grounds pertaining to directory prohibition-

I. Marriage during illness;

II. Marriage during pilgrimage;

III. Marriage to a pregnant woman;

IV. Marriage by an unauthorized person

According to Shia Law Marriage may only be either:

1. Valid (Sahih) or

2. Void (batil)
 There is nothing like invalid marriage under Shia law and
hence marriages that are not valid are void. Those marriages
which are irregular under Sunni law are void under Shia law.
Marriage contracted without witnesses is valid it is not void.

I. Unlawful conjunction:

It means contemporaneously marrying two women so

related to each other by consanguinity, affinity or fosterage that
they could not have lawfully intermarried with each other if they
had been of different sexes. The reason behind this prohibition is
to avoid confusion kindred i.e. dual relationship. A Muslim
therefore can not contract a valid marriage with his wife’s sister
till his wife is living.

A Muslim male can not have at the same time two wives
who are related with each other by consanguinity, fosterage and
affinity9 as two sisters or niece and her aunt. But man may marry
other sister or other relation after death or divorce.10

a. A Mohammedan male of the Sunni is prohibited to marry,

at the same time two wives who are so related to each other
by consanguinity, affinity or fosterage, and if one of them
where a male, they could not have been lawfully married.

9 Sura 4- Aayat 23.

10 Hedaya, 27: Fatima Bi Ammal v. A.A. Mahomed (1971) MLJ 451.
b. A Shia male may marry his wife’s aunt but he can not
marry his wife’s niece without the consent of his wife.

c. A Marriage prohibited on the ground of unlawful

conjunction is irregular according to the Sunni law, but
under the Shia Law such marriage is void.

II. Polygamy or marriage with a fifth wife:

It means plurality of wives, i.e., marrying a fifth

wife. It is unlawful for a Mohammedan to have more wives than
four. Marriage with a fifth wife is invalid but this irregularity may
i

be removed by divorcing one of them.

In ancient times before the promulgation of Islam a man

was not restricted from marrying any number of wives, but the
prophet limited the number to four and represented monogamy as
an ideal form of marriage. The Shias do not observe any such
restriction as regards temporary marriages; thus both the great
sects tolerate polygamy to this extent, as is evident from the text
of the Holy Quran. Thus it can be said that the Muslim system of
law inherited the doctrine of plurality of wives from immemorial
and subsequently it restricted the number to the legal four and that
also in the restricted sense that all wives should be treated
equally. A Muslim woman cannot marry more than one husband.
If a Muslim women marries a second husband. She is liable for
bigamy under section-494 of the Indian penal code and the issues
of such a marriage are legitimate.
 Mohammedan law enforced in India considered polygamy
as on institution to be tolerated but not encouraged and has not
enforced upon the husband any fundamental right to compel the
first wife to share his consortium with another woman in all
circumstances. A Mohammedan husband has the legal right to
take second wife even while the first marriage subsists, but if he
does so and then seeks the assistance of the court of law to
compel the first wife to live with him against her wishes, she is
entitled to raise the question whether the court, as a court of
equity ought to compel her to, to submit to co-habitation with
which his second marriage took place are relevant and material in
deciding whether his conduct in taking a second wife was in itself
an act of cruelty to first.11

It is clearly laid down in the Quran

“If ye fear that ye shall hot be able to deal justly,

with the orphans marry women of your choice, two or three
or four. But ye fear that ye shall not be able to deal justly
(with them), than only one or (a captive) that your right
hard possess. That will be more suitable to prevent you
from doing injustice.”

“ ye are never able to be fair and just, as between

woman, even if it is your ardent desire, but turn not away

11 Moonse Byzloor Raheem V.Shamsoonnissa Begum II MIS S51

 (from a woman) altogether, so as to leave her (as it were)
hanging(in the air), if ye come to a friendly understanding
and the practice, self restraint. God is oft-forgiving most
19
abundance.”

On the basis of these verses, it may be assumed that limited

polygamy is allowed only if a man is capable of treating all the
wives alike. In the first verse, permission to have four wives is
given but in the second verse that permission has been withdrawn,
because it is not possible for a man to treat all his wives equitably.
However in India also limited polygamy is permitted.

It is not correct to say that a Mohammedan husband has a

vested right to marry more than one wife viz. to have four wife at
a time. It can not also be said that anybody has got a vested right
in the matter of divorce. To say the least dissolution of marriage is
not a part and parcel of the contract of marriage. Nobody has got
any vested right in the matter of dissolution of marriage. So far as
the polygamy is concerned, the provision of Mohammedan law is
only permissive or optional in nature and not obligatory.13

Polygamy under Islam was always an exception and never

a generality. Then polygamy went and goes with the obligation of
equality, equity, justice to be discharged or dispensed amongst
more than one wife. The Quran speaks of conscience as an

12 The Quran IV.3. trans. By yusuf Ali.

13 Dr Abdur Rahim Undre V.Smt Padma Abdur Rahim Under AIR 1982 Bom 341
P.354
obligation on the husband before taking two or three or four
wives. It speaks of equality of love amongst wives and equality
which is with in the sole perception of the woman not the male. It
is hard discipline of the Islamic religion which requires perfection
as any wife in a polygamous marriage can as of right speak out in
a case of in equal treatment and make matters difficult for a
husband. Thus a polygamous marriage under Islam is exception
with a mathematical justice of equality amongst the wives woman
is the keeper of conscience. The husband only discharges it with
an effort which borders or justice. The scales are with all the
wives. If one complains of inequality no one can question her.
Such is the discipline of the Quran.14

Now, after passing of the dissolution of Muslim marriage

Act, 1939, a Mohammedan wife can file a suit for divorce against
the husband on the ground that her husband having more than one
wife is not treating her equality.15

A married Mohammedan female cannot marry a second

husband during the life lime of her husband. A marriage
prohibited on this ground is altogether void and the children are
illegitimate.16

14 Chandra Pal V/s Keshav Deo 1990(1) civil LJ 790 at P.793 (All).
15 Mr.Zubaida Begum V. Sardar Shah AIR Aitaf Ali 46 Col.259.
16 Habibur Rahman V. Aitaf Ali 46 Cal.259
 Mohammedan man can not have more than four wife at a
time. But if the marries a fifth wife, in presence of four, such
17
marriage is irregular under the Sunni law.

1 o

A Muslim may marry four wives at a time on the

condition that all the wives must be dealt justly and equitably
otherwise Muslims are commanded to marry only one wife.19

III. Absence of proper witnesses:-

Shahadat is condition in marriage by reason of a saying of

the prophet: “there is no marriage without witness.”” According
to the Sunni law the presence of witness at a marriage is essential
to its validity. This is so even where the girl is given away by her
guardian. It is not sufficient for a person to call God and his
prophet to bear witness. The presence of witnesses cannot be
said to be a mere matter of evidence. The marriage itself becomes
79
irregular (fasid) by the absence of witnesses.

Shia Law:

No witnesses are necessary for the validity of a marriage

under the Shia Law.23 Thus, a marriage held in the absence of

witnesses would be valid although the presence of the witnesses is

17 Shahulammeda V/s Subaida Bibi(1970) Mad. LJ Cr 562

18 Quran Sura 4; Aayat 3
19 Zubaida v. Sardar Shah AIR 1943 Lah 310
20 Hed. 26
21 Bail 1,10
22 Minhaj. 527
23 Bail II, 4., DaVimuI-Mam, Sharh-i-Viqaya, Vol.II Nikah Ch-I
required at the time of dissolution of marriage.24 Even the positive

injunction of secrecy does not invalidate the contract of marriage.

A marriage contracted by the spouses or their guardians in secret
is valid.

Qualification of witnesses:

There are four conditions requisite to the competency of

witness’s freedom, Sanity, majority and Islam.25 The question of

freedom would not arise any longer owing to the abolition of

slavery. All authorities are agreed that it is essential that the

witnesses should be in possession of a sound mind. No particular

type of witnesses is needed only some witnesses must be present.

Witnesses otherwise disqualified may be qualified as witnesses

for marriage. Thus a profligate (fasik) or one who had received

punishment (hadd) for slander or zina, or descendants of one or

both of the parties to the marriage. Who would in other matters

be disqualified as witnesses may be witnesses for marriage. Under

/JO

the shafei Law: Profligates are disqualified as witnesses.

24 Bail II, 117

25 Bail I, 6; Hed 26
26 Bail 16, Hed.26
27 Abdur Rahman, Art 7.
28 Hed, 26-27; Minhaj 284-285.
 Sex not a disqualification:
HQ

Sex is not a disqualification. It is not necessary that all the

witnesses should be male for a marriage may be contracted with
one man and two women witnesses but not with women only
without a man.30

Shafei Law:

It is necessary that both witnesses should be males. Female

11

are not competent as witnesses to marriage. Ameer Ali however

states that two man or one man and two women are sufficient
both under Hanafi and Shia laws.

Deaf and Dumb witnesses:

Deaf persons are not qualified to be witnesses for a contract

of marriage. The reason is that a deaf witness is incapable of
hearing the words of either party and cannot give evidence about
marriage. A blind person may be a witness. A dumb person who
is able to hear is qualified to be a witness.34 But Ameer ali states
that no valid marriage can be contracted in the presence of two
persons who are dumb.35

29 Hed.26
30 Bail 1,7
31 Bail 1,7; Minhaj 283
32 Ameer Ali, n, 315 Submitted not correctly.
33 Bail 1,6-7.
34 Bail, 7; Durr 9
35 Ammer Ali, II, 310
 Guardian as witness:

The guardian of a minor girl is qualified to be a witness for

a marriage if he appoints some other person to act as an agent or
if he makes the contract an adult virgin by her own desire and in
-2/:

her own presence but not if she is absent.

Drunk witnesses:

A marriage contracted in the presence of witnesses who are

drunk would be valid if they apprehended the matter at the time
even though they may not recollect it on becoming sober but not
"XI
if they were unable to understand what they heard.

Witnesses should be able to identify the parties:

They must be able to speak as to the identify of the persons

from whom the proposal and consent respectively emanated. But
if the woman be actually present though veiled and unknown to
the witnesses, the marriage is lawful. If the woman be known to
the witnesses, though absent, and the husband mentions her name
only, the witnesses understanding him to intend the woman with
20

whom they are acquainted, the marriage is lawful.

Whether witnesses should understand the language

used at marriage:

36 Bail I, 9: Hed 27; Durr 9-10

37 Bail 1,8 ,
38 Bail 1,8.
 While it is necessary that the witnesses should generally
understand what is said it is not insisted upon that they should
understand the actual words used.39 But according to better
opinion the comprehension of the contract by the witnesses is also
a necessary condition.

Non-Muslim witnesses:

Islam is one of the four requisites for the competency of the

witnesses to a contract of marriage as the testimony is to be given
against a Muslim.40 In case of both parties being Muslims the
witnesses must be Muslims. But if the wife is a non-Muslim, two
non Muslims may be witnesses according to Abu Hanifa and
Yusuf but not according to Muhammad.41

Simultaneous presence of witnesses necessary:

It is essential that the witnesses should be present at the

time when the contract is being actually entered into (i.e. when
the proposal is made and the consent is given); and it is insisted
upon that both the witnesses should hear the words of both the
contracting parties simultaneously so that if one witness was to
hear the words of one and not of the other, the contract would be
invalid.42

39 Ameer Ali.H, 315

40 Hed, 26; Bail I, 6
41 Hed 27. Batoolan v. Koolssom, 25 WR 444
42 Bail 1,7
 If both the witnesses should hear both the parties but hear
them separately (for instance, if the marriage should first take
place in the presence of one of the witnesses and should then be
repeated in the presence of the other who was absent on the first
occasion), the contract would be invalid. Even if both witnesses
are present and one of them hears and the other being partially
deaf does not hear and someone tells aloud the words in his ears,
the marriage would not be lawful.43

Whether the witnesses should be invoked:

It is sufficient that witnesses are present at the time of the

marriage but it is not necessary that they should be specifically
asked to act as the witnesses for the marriage.44

IV. Differences of religion (Marriage with a non scriptural

woman):

There is no prohibition for marriage between the different

Muslim sects. Shias and Sunnis whether males or females can
marry one another. Marriages between persons of different sects
of different biradaris are valid.

As to a marriage between a Mohammedan male and non-

Mohammedan female is concerned such a marriage will only be
irregular and not void. The offspring will not be illegitimate.45 As

43 BaO 1,7
44 Mst Shamul V. Dost Mohd., 1933 Sind 317.
45 Ihsan v Panna Lai AIR 1928.19 at p.21
to marriage between non Muslim male and Muslim female there
v
is a difference of opinions among the original text-writers. Some
of the authorities have held that such marriage is void and
amounts to zina while other hold such marriage would be
invalid.46 Prohibition not being perpetual, such marriage would

perhaps be only irregular. Marriage with a Kitabia i.e. a woman

who believes in a revealed religion possessing a Divine Book
viz—Islam, Christianity and Judaism is valid under Hanafi Law.
But he can not marry an idolatress of a fire-worshipper. Under
Shia law, no Muslim, whether male or female can marry a non
Muslim in the Nikah form. But a Shia male can cantract a muta
marriage with a kitabia (including a fire-worshipper). A Muslim
woman cannot marry any man who is not a Muslim, whether he is
Kitabi is a man believing in revealed religion possessing a divine
book.

i. A Mohammedan female is prohibited to marry a non-

Mohammedan.

ii. A Mohammedan male is prohibited to marry an

idolatress or a fire-worshipper. On the other hand he
may contract a valid marriage not only with a
Mohammedan woman but also with a kitabia (a
Christian or a Jewess but not a Hindu).

46 Ameer Ali H, 351

 iii. A Sunni male may contract a valid marriage with a
Shia female and contrary.

iv. A marriage prohibited on the ground of difference of

religion is irregular according to the Sunni law,47 but
void under the Shia law.

The Muslim law of the Sunni sect as to marriage between a

Muslim and a non-Muslim and has been summarised in Mulla’s
AS!
Mohammedan law thus:

(1) A Muslim male may contract a valid marriage not

only with a Muslim woman, but also with a kitabia,
that is a Jewess or a Christian, but not with an
idolatress or a fire-worshipper. A marriage however
with an idolatress or a fire-worshipper is not void but
merely irregular.

(1) A Muslim woman cannot contract a valid marriage

except with a Muslim. She cannot contract a valid
marriage even with a kitabi that is a Christian or Jew. A
marriage, however with a non-Muslim, whether he is a
kitabi that is a Christian or a Jew or a non-kitabi, that is
an idolater or a fire-worshipper, is irregular not void.

47 Ishar v. Panna Lai (1928)7 Pat.6, Ameer Ali Hnd Ed.54 Fyzee 94-96
4818th Ed., pp.287,290. 291
 The Shia law however does not recognize the distinction
between irregular and void marriages. According to that law a
marriage is either valid or void marriage that are irregular under
the Sunni law are void under the Shia law.

Justice A.M. Bhattacharjee49 quoting the view of Abdur

Rahim asked why there is discrimination between the marriage
between a Mohammedan male and a kitabia female and the
marriage between a Mohammedan female and a kitabia male has
observed:-

Now, permitting a Muslim male to contract a valid

marriage with a kitabia female while rendering a marriage
between a Muslim female and a kitabia male irregular is patently
discriminatory against a Muslim female on the ground of sex
alone. According to Abdur Rahim50 “this distinction is drawn
between the case of a Muslim man and Muslim woman, because
if a Muslim woman was allowed to marry a Christian or a Jew,
there would be likelihood of her being converted to the faith of
her husband. While there could be little apprehension of a
husband adopting the faith of his Christian or Jewess wife”. But
however reasoned the distinction might otherwise be, the resulting
discrimination would not case to be on the ground of sex alone to
attract the injunction of article of the constitution.

49 Muslim law and the constitution Ilnd Ed. P.130,131

50 Muhammadan Jurisprudence, 1911, p.329
V. Marriage during Iddat:

Iddat: Iddat literally means numeration.51 Almost every

system of law has prescribed a certain period during which a
woman whose marriage is dissolved must wait before she re­
marries. Mohammedan law has provided elaborate rules on the
subject. Iddat is the waiting for a definite period which is
incumbent on the woman after dissolution of a valid marriage or
an irregular marriage which has been confirmed by
consummation.

The most approved definition of iddat is the term by the

completion of which a new marriage is rendered lawful.52 Iddat is
described as a period during which a woman is prohibited from
marrying again after the dissolution of her first marriage, i.e. the
period of waiting.

Ameer Ali says that it is “an interval which the woman is

bound to observe between the termination, by death or divorce of
one matrimonial alliance and the commencement of another”

(i) A Mohammedan male is prohibited to marry a woman

who is undergoing iddat.

51 Durr.275
52 Fyzee: out line of Mohammedan Law. 3rd Ed. P.102
 (ii) A marriage prohibited on the ground of iddat is irregular
according to the Sunni law, but under the Shia law it is
void.

The following incidents of marriage continue during the

period of iddat:

(i) The wife cannot contract another marriage

(ii) The husband cannot, if he has already got four wives

make up his number of wives in cases of divorce.

(iii) She is entitled to maintenance from her husband or from

his properly in certain cases.

(iv) The parties are entitled to inherit from each other in

certain cases.

(v) The prohibition against unlawful conjunction continues.

Object of iddat:

The object of iddat is to decide the paternity of a possible

child of the union and to avoid confusion of parentage. The
Mohammedan law has great aversion against bastardizing the
offspring of a marriage and iddat has'been prescribed for
determining legitimacy. But it is also intended to be a mark of
respect for the husband; it is made incumbent as fulfillment of one
c-3

of the rights of marriage.

Iddat when necessary:

A Mohammedan wife is bound to observe iddat is

necessary is the case of:

(a) a consummated marriage.

(i) whether it is valid or irregular:

(ii) Whether it is dissolved by death or divorce:

(a) an unconsummated marriage- only if the marriage:

(i) was valid and

(ii) was dissolved by death ( and not by divorce)

Iddat when unnecessary:

Iddat is unnecessary in the case of every unconsummated

marriage or one in which there has been no valid retirement.54

(a) If it was irregular; or

(b) If it was valid and was dissolved by divorce.

There is of course no iddat for adulterous intercourse.55

53 Bail-1,352, Hed. 128,130

54 Durr, 275
55 Durr,275
 Shia Law:

Under the Hanafi law, iddat is necessary, even for a woman

who has despaired of having issue.56 Under the Shia law with

regard to a woman who has passed the child-bearing age or one

who is not yet arrived at puberty, the better opinion is that no
cn
iddat of any kind is obligatory on either of them.

Iddat in Irregular Marriage:

No iddat is necessary in the case of an irregular marriage

which has not been consummated. Valid retirement is not
sufficient to make iddat necessary.

Period of Iddat

By Taiak By Death
1 For valid marriage 1 4 month 10 days
(a) if she is subject to
menstruation- 3 M.C.
(b) If she is not
subject of M.C.-3
Lunar month
2 If pregnant tie 2 If pregnant ties
delivery delivery
Muta Contract - 45 3 Muta contract 45
3 days days

56 Bail, 335.
57 Bail 11.162
 Where iddat is necessary a Mohammedan wife shall
observe it during the following period;

(1) In the case of a valid marriage.

(a) Terminated by death- four month and ten days.

(b) terminated bydivoree-

(i) if she is subject to menstruation-three courses;

(ii) in other cases - three lunar months.

(2) In the case of an irregular marriage (whether terminated by

divorce or death)-the same as in the case (1) (b) above.

(3) In the case of the wife being pregnant-

(b) If the delivery or miscarriage comes off after the

expiration of the period of iddat; iddat shall be
extended up to the date of delivery or miscarriage.

(c) If the delivery or miscarriage comes off before the

expiration of the period iddat the period (i) will
terminate on delivery, if the marriage was dissolved
by divorce; and (ii) will continue till the expiry of the
prescribed period, if the marriage was dissolved by
death.
(4) If the husband dies while the wife is observing iddat for
divorce, a fresh iddat for death shall be observed from the
date of death.

(a) if the divorce was revocable; or

(b) If the divorce was irrevocable and the wife was

entitled to inherit.

(5) The period of iddat shall commence-

(a) in case of death-ffom the date of death (whether the

marriage was valid or irregular);

(b) in case of divoree-

(i) where the marriage is valid-from the date of divorce;

(ii) Where the marriage is irregular-from the date on which

separation is made (by court or otherwise).

It has been held in Lahore58 and oudh59 High courts a

marriage with a woman undergoing iddat is only irregular and
this view seems to be correct. The parties would not be guilty
of bigamy. Such marriage do not become valid simply by
consummation or the 'expiry of the period of iddat61 or the

58 Mohd. Hayt V. Mohd. Nawaz AIR 1935 Lah. 262, the Hedaya 128-129., Baillie
138,151,352-358
39 Mohd. Shaft V. Raunaq Ali AIR 1928 oudh 231.
60 Abdul Gani V. Azizul Haq. I.L.R. 39 Cal. 409
61 Mst. Bakh Bibi V. Qaim Din AIR 1934 Lah 907
 mere absence of a formal dissolution. The parties must be
separated and the parties can enter into a fresh contract of
marriage but the children would be legitimate.62

Shia Law:

A marriage with a woman who is undergoing iddat is void.

If there is cohabitation during the iddat with the knowledge of the
prohibition the parties would become perpetually prohibited from
marriage. If a child is bom of such marriage after six month, it
would be legitimate provided that the father was ignorant of the
fact, the woman would be entitled to dower and must observe
iddat the parties must be separated. The marriage of a pregnant
woman is not void but only invalid (irregular) and the offspring of
the marriage are considered to be legitimate.

II- GROUND PERTAINING TO DIRECTORY

PROHIBITION

I Marriage during death illness

A marriage contracted during death illness is an irregular

marriage, but if the person recovers from the malady, the
consummation can cure the irregularity. The consent given by a
woman in death-illness if not valid and the marriage subject to the
consequences of an irregular marriage. Sharaya-ul-Islam says:

62 Ameer Ali: Mohammedan Law II340 at P. 353

63 Bail H 26-27
 “A marriage contracted by a sick person is dependant on
consummation so that if he dies of the illness without
consummation, the contract is void and the wife is not entitled to
dower and there are no mutual rights of inheritance”. There is a
difference of opinion as to the husband’s right to succession who
in death-illness marries a woman in health. But a woman in marz-
ul-maut, marrying a man in health who dies without
consummating the marriage, is entitled to her dower and to a
share in the inheritance of her deceased husband as the contract is
valid. The same principle applies both to the Sunnis and Shias.

Effect of death-illness on marriage

A marriage contracted when either the husband or the wife

is suffering from death-illness is irregular but it becomes a valid
marriage.

(a) If it is consummated; or

(b) if the party in health predeceases the party who is

suffering from death-illness.

II Marriage during Pilgrimage:-

(i) A shia or Shafi or Maliki or Hanafi male in pilgrim’s dress

is prohibited to marry a woman during pilgrimage to
Mecca.

(ii) A Hanafi male is not prohibited to marry during pilgrimage

to Mecca.
(iii) A marriage prohibited on the ground of pilgrimage is
permanently void according to the shia law, but under the
Hanafi law it is valid. According to the Shafiis, Malikis and
Hanbalis, such marriage is irregular.

Ill Marriage to a pregnant woman

(i) A Mohammedan male is prohibited to marry a

divorced woman who is already pregnant by her
former husband.

(ii) Under the Sunni Law, a man may marry a pregnant

woman, if he himself has caused the pregnancy by
illicit intercourse.

(iii) According to Abu Hanifa and Imam Mohammad, a

man may knowingly, marry a woman who is
pregnant by illicit intercourse by somebody else,
but, he must refrain from sexual intercourse with that
woman till delivery provided that the paternity of the
child is not established. Abu Yusuf adds such
marriage as illegal.

(iv) Under the Shia Law, a pregnant woman cannot

marry and if marries, such marriage is void.

(v) A marriage prohibited on the ground of pregnancy is

irregular according to the Sunni Law. Abu Hanifa
and Imam Mohammad agree that a marriage may
 also be contracted by a man with a woman who is
pregnant by some other man but he must no cohabit
with her until after her delivery, but it is essential
that the parentage of the child should not be
established before he marries her.

The marriage with pregnant woman is void.

The prohibition of pregnancy can be said to be
absolute or perpetual in nature. If the child in the
womb is bom the prohibition disappears.

IV Marriage by an unauthorized Agent:

Marriage by an unauthorized agent or by one who has

exceeded his authority, would not be binding. Thus where a
minor girl was given in marriage by her mother in presence of
first cousin, it was held that the marriage was invalid (irregular) in
the sense that the girl could exercise her option of puberty.64 Such
marriage may however become valid if it is ratified. If a marriage
contracted by a fuzuli is ratified either expressly or impliedly it
becomes valid ab Initio.65 The ratification may be made either
expressly in words or by some act (e.g. by the receiving of
congratulations, acceptance of dower, etc.). There is however a
difference of opinion whether the sending of dower without it’s
reaching the woman or without valid retirement would be

64 Mohd Sharif V. Khnda Bux, 1936 Lah 683

65 Hed. 42-43; Bail 1,75,85, 87; durr 55-57
sufficient ratification.66 Consummation is not per se a ratification
of marriage.67

A marriage contracted by a minor who has not attained

discretion (Saghir) is void but a marriage contracted by a minor
who has attained discretion (Sarir) would be only irregular. Such
marriage can become valid on ratification. The marriage of a
minor contracted by a person who is not a guardian is not valid.
Such a marriage would however be only invalid (irregular) and
not void.69

Effect of an irregular marriage:

The following are the consequences of an irregular

marriage which is not validated:-

(1) Before consummation- An irregular marriage has no

legal effect.

(2) After eonsummation-

(a) the wife become entitled to recover her dower ( of the

proper and specified whichever is less)

(b) the wife is bound to observe iddat for three courses

only

66 Bail I, 85
67 BaU 1,352
68 Bail II, 4; Rahiman Bibi V. Mohboob Bibi ILR1938 Mad. 141.
69 Mohd. Sharif V. Khuda Bux 1936 Lah 683
 (c) the children of the marriage are legitimate.

Rights which do not arise:

The following rights do not arise even after consummation:

(1) Restitution of conjugal rights:- Where the parties are

governed by Mohammedan law, and the marriage
between the parties was performed during the iddat
period the marriage was invalid. If the marriage was
consummated after the expiry of the iddat period, the
husband cannot be held to be entitled to any decree for
<1A

restitution of conjugal rights.

(2) Inheritance: - There are no mutual rights of

inheritance between the husband and the wife.71

(3) Maintenance: - No maintenance is due in an irregular

marriage except in one case namely where the only
cause of irregularity is the absence of witnesses. A
fifth wife is not entitled to maintenance. Even an
agreement for maintenance is not valid in the case of
an irregular marriage.

(4) Dissolution of irregular marriage :- An irregular

marriage would stand dissolved-

70 Mst. Bakh bibi V. Qaim Din AIR 1934 Lah. 907

71 Bail 1,694.
72 Durr. 318: Bail 1,414
 (i) By the death of either party; or

(ii) By the cancellation of the marriage by either party-

(a) Before consummation, expressly or impliedly, or

(b) After consummation, by express declaration in the

presence of the other party showing an intention to
7'X
separate, or

(iii) By separation by the court if the parties do not agree

to separate or

(iv) By apostasy of either party.

There is no divorce for an irregular marriage. Thus in the

case of an irregular marriage the pronouncement of three talaq
would not operate as a bar to a re-marriage without going through
an intermediate marriage as in the case with valid marriages.74 An
irregular marriage does not acquire validity in the absence of a
formal dissolution and can be repudiated by the parties at any
time. Consummation does not stand in the way of terminating
the marriage.

73 Bail 1,156, Abdul Kasim V. Jamila AIR 1940 Cal. 251

74 Durr.151
75 Mst Ruro V. Bagh singh AIR 1935 Lah. P.23
76 Abdul Kasim V. Jamila AIR 1940 cal. P. 253
 Shia Law:

A marriage with a woman undergoing iddat is void. If the

marriage is made with knowledge of the fact or if it is

consummated even though in ignorance of the fact, there would

be perpetual prohibition between the parties.77

HOW TO REGULARISE A FASID MARRIAGE

FASID (IRREGULAR) REGULARISED

1 Marriage in the absence of a By consummation

witnesses at the time of
contracting the marriage

2 Marriage without free consent By ratification with free consent

(a) of the parties to the (a) by the party concerned or

marriage, if major; or

(b) of the guardian, if minor (b) by the guardian during

has not attained discretion. minority or by the minor after
. . . .
attaining majonty

3 Where marriage is contracted by ratification after recovery of

in a state of intoxication consciousness

4 Where a contract is made by By ratification by the person on

an unauthorized person or by. whose behalf the marriage has
a person beyond the scope of been contracted
his authority

77 Bail II, 26,171

78 Durr. 45
5 Marriage with a person of a
different religion
Irregularity is removed when
the wife becomes a convert to
Islam, Christian or Jewish
religion; or the husband adopts
Islam faith

6 Marriage by a person who has By death or divorce of any wife

already four wives reducing the number to four

7 Marriage where it is By the termination of the

prohibited by reason of marriage which creates the
unlawful conjunction prohibition

8 Marriage during death illness By consummation or by the

party in health pre-deceasing
the party suffering from death-
illness

9 Marriage with a woman Irregularity cases to exist on the

undergoing iddat expiry of the period of iddat.

Valid marriage becoming irregular-

A valid marriage may become irregular by reason of some

supervening illegality

Prohibition on the ground of supervening irregularity- A

marriage otherwise regular would become irregular if a
prohibition arises by reason of fosterage or by any conduct of the
parties.
 Certain marriages which are irregular may become valid by

removal of some defects while a valid marriage may become

irregular by reason of some supervening irregularity. Such

prohibition may arise on the ground of fosterage. Thus if an adult

wife suckles a child wife, both of them would become unlawful to

the husband. So also if the mother of an adult wife suckles a child

wife, both wives would become separated from the man. In Shia

Law also a prohibition by fosterage cancels an existing

• 80
marriage.

The marriage may also be annulled by any conduct (e.g.,

the kissing of the son of the husband after consummation) giving

rise to a prohibition.81

Shia Law:

Any conduct after the marriage (e.g. the husband having

illicit intercourse with the mother of the wife) would not have

retrospective effect in rendering the wife unlawful to the

husband.82

79 Bail 1,178-79
80 Bail II, 18-19
81 Durr 276
82 Bail II, 23
C- IRREGULAR MARRIAGES AND ITS SOCIAL
IMPLICATIONS

A union between a man and a woman may be either lawful

or unlawfulness may be either absolute or relative. If the
unlawfulness is absolute, we have a void (batil) marriage. If it is
relative, we have an irregular (fasid) marriage.

The following marriages have been considered irregular:

(i) A marriage without witnesses:

(ii) A marriage with a woman undergoing idda;

(iii) A marriage prohibited by reason of difference of

religion:

(iv) A marriage with two sisters or contrary to the rules of

unlawful conjunction.

(v) A marriage by an unauthorized person.

(vi) A marriage with a fifth wife.

The ithna “Ashari” and Fatimid Schools of law do not

recognize the distinction between void and irregular marriages. A
marriage is according to those systems either valid or void; hence
the above mentioned unions would be treated as void marriages.

The effect of an irregular union in considering these effects

we shall observe that two principles emerge. As between the
parties themselves, the irregular union is a flimsy tie, giving very
few rights: but, as regards the issue, they are given full legal
status.

As to separation:

It is the duty of the kazi to separate the spouses but the

union may be terminated also by either party at any time; neither
divorce, nor the intervention of a court is necessary one of them
may say ‘I have relinquished you’,83 and the unholy alliance ends.

As to consummation:

If there has been consummation the wife is entitled to

dower, proper or specified, whichever is less and she must
observe iddat for three courses.

As to inheritance:

No rights of inheritance are created between the husband

and the wife by an irregular marriage.84

83 Tyabji 83-5; Mulla 267

84 Ameer AUH, 348.
 As to issue:

The issues are treated as legitimate and are entitled to a

QC

share of the inheritance. The ‘irregular marriage’ of Islam is a

connection between a man and a woman which, though not
amounting to a lawful marriage, confers the status of legitimacy
on the children. In this respect it is similar to a Scottish or
Canadian putative marriage. The logical separation of the
question of the legitimacy of the child from that of the validity of
the parent’s marriage was also developed by canon law and has
been accepted in English law. It was said by the privy council in a
case dealing with a Chinese conjugal union that ‘a court may do
well to recollect that it is a possible jural conception that a child
may be legitimate though its parents were not and could not be
legitimately married ’86

Sometime the question arises whether a man and a woman

who have cohabited are validly married or not. Where there has
been prolonged and continuous cohabitation as husband and wife,
in the absence of direct proof a presumption arises that there was
a valid marriage. Similarly, where a man acknowledges the
woman as his wife, or the issue of the union as legitimate, a like
presumption arises.

85 Ameer Ali II, 343, Wilson 39 A

86 Khoo Hooi Leong V. Khoo Hean Kwee (1926) A.C. 529, 543, per Lord
Phillimore: Ameer Ali, II176.
 The presumption does not arise, however, where there is a
legal prohibition, or where the conduct of the parties was
inconsistent with the relation of husband and wife. It has been,
for example that cohabitation with a woman admittedly a
common prostitute does not raise the presumption of marriage.88

An irregular or Fasid marriage has no legal effects unless it

is consummate or until the temporary or relative impediments are
removed. Either party to such a marriage has right to terminate it
at any time. Any intention expressed to terminate such marriage is
enough to make an end to this marriage. Only the words “I have
relinquished you” is enough for its termination.89

In the Abdul Ahad V. Mst. Shah Begum90 J & K High

Court held that the girl was minor at the time of Nikah. This
conclusion is final and this court cannot interfere in this
conclusion in the second appeal. This court feels it proper to aid
that the marriage of the respondent No.l had been contracted
during her minority by a person who was not competent to give
her in marriage. Mohd. Assadullah who is shown to be the “Wali”
has not shown at any point of time what authority of law he had to
give respondent No.l in marriage during her minority. Therefore,
there was not even a repudiation needed by respondent No.l to
annul the marriage because the marriage in itself had been invalid.

87 Abdool Razack V. Aga Mohammed (1993) 21IA 56

88 Ghazanfar V. Kaniz Fatima (1910) 37 LA
89 Bakh Bibi V. Quimdin 1934 Lah. 907
90 AIR 1997 J & K 22 at p.24
 The Fatawai Alamgiri. -Iddat of separation obligatory in an
irregular marriage.

In Muhammad Hayat V. Muhammad Nawav.91 The Lahore

High Court held that at one time a marriage with a woman before
completion of her iddat was regarded as void but the later view is
that such a marriage is only irregular and the children are
legitimate.

In Rohiman Bibi V. Mehaboob Bibi92 the Madras High

Court held that an irregular marriage has no legal effect before

consummation if consummation has taken place the wife is
entitiled to dower and the children bom of such marriage are
legitimate.

No maintenance is due in an irregular marriage except in

one case namely where the only cause of irregularity is the
absence of witnesses93 a fifth wife not entitled to maintenance.

Even an agreement for maintenance is not valid in the case of an

irregular marriage.

91 AIR 1935 Lah. 622

92 AIR 1938 Mad. 14
93DURR318; BaiII414
 In the Bakh Bibi V. Qaim din94 Lahore High Court held

that where the parties are governed by Mohammadan law and the
marriage between the parties was performed during the iddat
period the marriage was irregular. If the marriage was
consummated after the expiry of the iddat period the husband
cannot be held to be entitled to any decree for restitution of
conjugal rights.

•kick

94
AIR 1934 Lah. 907