MARRIAGE IN ISLAM

A LEGAL PERSPECTIVE
 INTRODUCTION

• In Islam, marriage is a legal contract between two people. The Quran specifically

refers to marriage as “mithaqun ghalithun” which means a strong agreement.

• Referred to as “nikah” which also means contract, in Arabic. Originally it meant the

physical relationship between man and woman.

• Before Prophet Mohammad, women were treated as chattel in the contract of nikah. He

brought about a change in the position of women.

• Thereafter, it was secondarily used to refer to the contract of marriage.

 ESSENTIALS OF A VALID MARRIAGE
SAHIH
1. There should be a proposal made by or on behalf of one of
the parties to the marriage, called ‘ijab’.
2. The other party must accept the proposal, which is called
‘qubul’.
3. ‘Ijab’ and ‘qubul’ must both be done in one sitting.
4. The marriage is effective immediately. If the ‘wali’ says he
will marry after 2 months, it is not a marriage.
5. The parties must be legally competent.
6. There must be 1 or 2 male witnesses and 2 female witnesses
who must be sane adults. [only Sharia law]
7. No writing or other ceremony is required.
 AIM AND OBJECT OF NIKAH

1. Relations between men and women are generally forbidden unless

evidence shows otherwise. This is contrary to Islamic

Jurisprudence which says the default state of all things is

lawfulness unless proven otherwise.

2. Pleasure: fitrah i.e. natural instincts and needs of mankind.

3. Procreation: with the blessing of Allah.

 MAHR

• Consideration for the contract of marriage between the parties.

• It is in the form of money/goods which given by the groom to

the bride.

• It is solely for use by the female.

• It could be immediate [mu’ajjal] or deferred [mu’wajjal].

 OBLIGATIONS OF HUSBAND

He undertakes not to:

• Abuse his wife/children.

• Desert his marital home for more than 60 days unless by

mutual agreement.

• Withhold economic contribution towards his family.

• Sexually transmit diseases.

• Misuse wife’s property.

 OBLIGATIONS OF WIFE

She undertakes to:

• Procreate

• Provide emotional and sexual gratification

• Preserve her chastity

• Managing social contacts which will benefit the family.

 LEGAL RESTRICTIONS

• Consanguinity [qurabat]: blood relations such as sister, aunt, niece

etc.

• Affinity [mushaarat]: Eg – mother-in-law, step-mother.

• Fosterage [riza]: Eg – foster mother.

• If you marry in ignorance of these restrictions, it results in a void

marriage i.e. batil

 UNLAWFUL UNION
FASID
• Marrying a fifth wife
• Marrying a woman undergoing iddat [4 lunar months and 10 days]
• Marrying a non-Muslim
• Absence of proper witnesses
• Woman going for a second marriage, during the existence of her
first marriage
• Marrying a pregnant woman
• Marrying own divorced wife
• Marrying during pilgrimage
• Marrying a fire-worshipper
 DIVORCE
• Divorce is the worst evil that is permitted by law as per the Prophet.

• Usually extra-judicial divorce.

• A husband may divorce his wife by repudiating the marriage without giving any
reason.

• Talaaq, Ila and Zihar are different forms of the same substance. They are the
pronouncements that may be used by the husband.

• A wife may divorce her husband only in certain circumstances.

• Mutual divorce is through Khula or Mubarat.

• Prior to 1939, the wife could seek divorce only on grounds of adultery, insanity or
impotency of the husband.
 DIVORCE BY WIFE

3 modes:
• Talaaq-e-tafweez – delegated divorce
• Lian – when the husband creates false charges of unchastity or
adultery against the wife, the wife has a right to ask for divorce.
• By Dissolution of Muslim Marriages Act, 1939:
1. Whereabouts of husband is not known for 4 years
2. Husband has not provided for her maintenance for 2 years
3. Husband has been sentenced to prison for 7 years or more
4. Husband has failed to perform his marital obligations for 3 years without
reasonable cause
5. Cruelty
TRIPLE TALAAQ JUDGMENT
A N O V E RV I E W
 TRIPLE TALAAQ

• Supreme Court declared it unconstitutional by 3:2 majority.

• Majority:
1. Direct UoI to consider appropriate legislation with reference to talaaq-
e-biddat
2. Injunction to Muslim husbands from pronouncing it, for 6 months. If
the legislature decides a positive decision or otherwise, the injunction
would continue till enactment.
3. It is not an integral part of their religious practice – Shamin Ara v.
State of UP
4. Continuing for a long time is not the same as legally valid.
5. It is manifestly arbitrary