This article was written by Prasoon Shekhar and further updated by Prashant Prasad. This article tries to bring out a detailed analysis of a valid Muslim marriage, along with the landmark cases associated with it. Furthermore, this article discusses the comparative analysis of marriage practices in Islamic religions with those in other religions. Additionally, the article highlights the importance of the registration of the marriage and the legal procedure involved in such registration.

Introduction 

The ceremony of marriage holds significance in anybody’s life, and, hence, it is regarded as the most crucial aspect of human relationships. In India, family law is the area that encompasses various frameworks that provide mechanisms for custody, divorce, marriage, adoption, issues pertaining to the relationship among spouses, etc. Family law is divided into different aspects, and different religions are governed by different pieces of legislation, such as the Hindu Marriage Act, 1955; the Indian Christian Marriage Act, 1872; the Indian Divorce Act, 1869; the Parsi Marriage and Divorce Act, 1936; the Special Marriage Act, 1954; and the Muslim Personal Laws. 

Marriage among Muslims is considered as a ‘nikah’; it can be regarded as a religious as well as a social institution among the couples that aims to create a bond of love, respect, and understanding among the spouses. Although Muslim marriage is a civil contract, the couples have certain responsibilities towards each other that must be followed by them in order to give rise to a valid marriage, apart from the other essentials associated with it. 

There exists variation among the different religions with respect to marriage and the essentials associated with it, and the main reason for the same is the difference in caste, sect, sub-sect, and school, along with the customs of that particular religion. In Muslim law, marriage is essentially recognised as a civil contract, and it receives protection against the immorality of society. 

Marriage under Muslim law

In Muslim law, marriage is considered a contract, and certain essentials are required to be performed in order to make that a valid marriage. Marriage under Muslim law is referred to as ‘nikah’ which means “union of sexes”. The contract of marriage can be done with the help of an agent who can act as an ‘ad hoc’ on behalf of the bride and groom. The Holy Quran describes marriage as a union of souls, and the couples married are the protectors of each other.

Importance of marriage in Islamic religion 

• A divine command through the holy Quran: It is advised through the Quran that individuals who are single should get married, and, furthermore, marriage is seen under the Islamic religion as obligatory and to avoid sin. 
• Following the tradition set by the prophets: Different prophets during the beginning of the Islamic religion emphasised marriage as a significant traditional practice. 
• Sexual life: The Islamic religion acknowledges that there are sexual urges among the people, and they must be fulfilled through marriage. 
• Enhancement in spirituality: The prophets of Islamic religion have time and again mentioned that the prayers of married couples are more valuable than those of singles. It is further believed that sexual relationships among married couples are rewarded and seen as an act that clears sins. 

Marriage in pre-islamic context

Before the existence of Islam as a religion, there were several practices that were carried out in Arabic. These traditional practices were mostly unethical and were associated with marriage. The practices include buying a girl from parents by paying money to them; there used to be temporary marriages (i.e., muta marriages) during that time; and the ceremony of marriage was also performed with two real sisters simultaneously. 

However, these unethical practices were completely eradicated, and now, the religion of Islam has gone through a drastic change with respect to the concept of marriage. In the present time, these practices are completely abolished, and new traditions and rituals have emerged on the basis of which the ceremony of marriage is performed among Muslims.

Marriage in contemporary times

In contemporary times, marriage among Muslims is considered as a civil contract that is legally binding on both parties. The various classifications of marriage under Muslim law are: Sahih Nikah, Batil Nikah, Fasid Nikah, and Muta marriage.

Sahih Nikah (valid marriage) 

A marriage that meets all the requirements for a valid marriage under Muslim law is considered a “Sahih Nikah”. Such marriages are neither void nor invalid, and, therefore, they carry certain social and legal implications.

If the marriage is a valid marriage, or sahih nikah, then the spouse has been provided with the right of inheritance. If sahih nikah has been dissolved, then the wife has to perform the ritual of iddat.

Batil Nikah (void marriage)

If the marriage does not fulfil the necessary requirements of a valid marriage, then such a marriage is considered a void marriage. Such a marriage can be considered void if it is performed under the following circumstances:

• Within the degree of a prohibited relationship.
• Prohibited by reason of affinity
• With a woman undergoing iddat.
• With someone else’s wife during the subsistence of her marriage.

If a marriage is void, then it does not create any rights or obligations among the parties. The wife is not entitled to maintenance if the marriage is void, and one cannot inherit any property from the other in the relationship arising out of a void marriage. If the marriage is void, then it will have no legal effect either before or after the consummation of the marriage. The parties have the liberty to get separated from each other at any time without any decree of divorce.

Fasid Nikah (irregular marriage)

Fasid nikah is an irregular marriage, and it can be converted into a valid marriage by removing the ambiguities in the process. Some of the instances in which the marriage can be considered an irregular marriage are:

• If the marriage is performed without a witness,
• If the marriage is performed with the fifth wife,
• Marriage with a woman undergoing the iddat period;
• Marriage is prohibited by different religions, among other things.

An irregular marriage can be terminated at any time by either party.

Muta marriage

The term “muta” means enjoyment. Therefore, a muta marriage is a marriage that is only for pleasure and for a fixed period of time; this marriage is also regarded as a temporary marriage. Such marriage is solely based on the terms of the contract, and the period of marriage can range from a few hours to a few years, but it is not permanent, and as soon as the terms of the contract cease to exist, the marriage is deemed to be dissolved.

Essentials of a valid Muslim marriage

For a Muslim marriage to be valid, certain formalities and essentials must be observed. The essentials of a valid Muslim marriage are as follows:

Proposal and acceptance 

In a Muslim marriage, a proposal is referred to as ‘ijab’ and acceptance of the same as ‘qubul’. A proposal should be made by or on behalf of one party, and the same should be accepted by the other party. For a valid Muslim marriage, the proposal and acceptance should be carried out at the same meeting. If a proposal is made at one meeting and the acceptance of that proposal is done at the second meeting, then marriage is not considered valid.

The proposal as well as acceptance must take place in the presence of the parties; however, a proposal and acceptance made in the presence of an agent are also considered to be a legally valid marriage under Muslim law. Under Sunni law, the proposal and acceptance must be done in the presence of witnesses, which can either be two male witnesses or one male and two female witnesses. However, it is pertinent to note that the witnesses present at the time of marriage must be of sound mind, adults, and Muslims. 

Competency of parties

For a legally valid marriage, the parties, i.e., the bride and the groom, to the marriage must be competent to enter into the contract of marriage. 

The various factors that determine the competency of the parties to a marriage are as follows:

Major 

Under Muslim law, the majority is not an essential requirement for a valid marriage; even minors can marry. However, a certain condition that needs to be fulfilled is that the minor must have reached the age of puberty. A Muslim is considered to have attended the age of puberty at the age of 15 years, and, after attending such an age, the parties are said to be competent enough to give their free consent.

The Privy Council in the case of Muhammad Ibrahim Rashid vs. Atkia Begum & Anr. (1912) held that, under Muslim law, a girl is considered to have attained the age of puberty if she has attained the age of 15 years of age. The same rule is also applicable to a Muslim boy. Thus, it can also be said that, in the absence of anything contrary, a Muslim is considered to have attained the age of puberty at 15 years. After attaining the age of puberty, parties can give their own consent, and there is no need for the consent of parents, as observed by the Delhi High Court in the case of FIJA & Anr. vs. State Govt. of NCT of Delhi & Ors. (2022). 

The legislation that determines the majority of the people in India, i.e., the Indian Majority Act, 1875, is an exception for the determination of majority among Muslims under Muslim law. Therefore, the Indian Majority Act, 1875, does not apply to marriages, dowers, or divorces among Muslims.

If a person is a minor, i.e., has not attained the age of puberty, the consent of the guardian is required to make the marriage lawful. The persons recognized as guardians under Muslim law are:

• Father,
• Paternal grandfather, 
• Brother or any other male member of the father’s family, 
• Mother, and
• Members of maternal relations. 

The right passes from one guardian to another, in the absence of the previous one, in order of priority. In the absence of any of these guardians, marriage may be contracted by Qazi (a man who gives his judgement as per Islamic law) or any other government authority.

Soundness of mind 

At the time of marriage, both parties should be of sound mind. A person of unsound mind has no capacity to enter into a contract, and, in the eyes of the law, his consent will be considered as no consent. Unsoundness is of two types:

• Idiocy: It refers to a completely abnormal state of mind. People belonging to this category are incompetent to contract. 
• Lunacy: It refers to a curable mental disease. A lunatic person can enter into a contract in the time interval in which he behaves like a sane person.

Muslim

The parties to a Muslim marriage must be Muslims, irrespective of their sect or sub-sect. A marriage is considered to be an inter-sect marriage if both parties are Muslims belonging to different sects, but the marriage is valid. However, there are certain exceptions provided; to read about those, click here.

Free consent

For a valid marriage, the free consent of the parties is a must. If the consent is obtained by means of coercion, fraud, or mistake of fact, it is considered invalid, and the marriage is considered void. If the person getting married has not attained puberty, then the marriage will be deemed invalid unless consent is given by the legal guardian of the person who has not reached the age of puberty. The consent given by the parties can either be an expressed consent or an implied consent.

Dower

It is referred to as ‘mahr’. It refers to the amount of money or other property that a bridegroom has to give to the bride as a consideration for marriage. Its object is to offer the bride a sense of financial security within and after the termination of marriage. In the case of Nasra Begum vs. Rijwan Ali (1979), the Allahabad High Court held that the right to mahr comes into existence before cohabitation. The Court also concluded that, if the wife is a minor, her guardians can refuse to send her husband until payment of the dower, and if she is in her husband’s custody, then she can also be brought back.

The dower, which is given by the husband, is classified into two parts. The first one is a specified dower, and the second one is an unspecified dower. 

Specified dower

The amount of dower that is specified under the contract of marriage is regarded as a specified dower. The amount mentioned under the specified dower can be agreed upon by the parties either before the marriage or after the marriage. In cases where the amount of dower is being decided by the guardian of a minor boy, at the age of majority, a plea cannot be taken by the boy that he was not the party to it. Therefore, the boy, after attaining the majority, is under the duty to pay the specified dower. Specified dower is further divided into two parts, namely ‘prompt dower’ and ‘deferred dower’.

• Prompt dower: The dower that becomes payable immediately after the marriage, on demand of the wife, is regarded as a prompt dower. However, the payment of the dower can be delayed if the delay is agreed upon between both parties. The wife has a right to refuse to stay with the husband until the dower is paid, and she can file a suit to recover the amount of the dower. The right with regards to the enforcement of conjugal rights arises only on the payment of dower. 
• Deferred dower: The amount of dower that is payable on the dissolution of marriage, either by death or divorce of the parties, is regarded as a deferred dower. However, if there is an agreement among the parties that the amount of dower will be payable earlier than the dissolution of the marriage, then that will be regarded as a valid and binding agreement among the parties. The wife has no right to demand the deferred dower, but the husband can treat such a dower as a prompt dower and may fulfil such demand beforehand, and such payment will not be considered void. 

Unspecified dower 

An unspecified dower is also known as a proper dower. Proper dower is the amount of dower that is not fixed during the contract of marriage. Even if the marriage is contracted on the condition that the wife will not claim any dower, the wife is still entitled to the prompt dower. There are various factors that should be taken into consideration while determining the amount of proper dower, which are: 

• Personal qualifications of the wife, like age, beauty, and fortune;
• Social position of the wife’s father;
• Circumstances of that particular time, among other factors. 

There is no maximum limitation for the amount of dower under Sunni law. However, under Shia law, the amount of proper dower should not exceed 500 dirhams (the basic monetary unit of Morocco and the United Arab Emirates). 

Free from legal disability

Legal disability means the existence of certain circumstances under which marriage is not permitted. Under Muslim law, marriage is not permitted under certain circumstances. The restrictions/prohibitions can be divided into:

• Absolute prohibition
• Relative prohibition
• Miscellaneous prohibition

Absolute prohibition

A Muslim marriage cannot take place if the parties are in a blood relationship or have a prohibited degree of relationship with each other, and the marriage turns out to be void. The absolute prohibited degrees of relationship are as follows:

Consanguinity 

It refers to a blood relationship in which a man is barred from marrying the following females. They are as follows:

1. His mother or grand-mother (how high so ever),
2. His daughter or grand-daughter (how low so ever),
3. His sister (irrespective of full blood, half-blood, or uterine blood),
4. His niece or great-niece (how low so ever), and
5. His aunt or great aunt, whether paternal or maternal (how high so ever).

A marriage with a woman prohibited by consanguinity is void. Also, children born out of that wedlock are considered illegitimate.

Affinity

Marriage with certain close relatives is also prohibited for Muslims due to the closeness of the relationship. The prohibited relationships are as follows:

1. His wife’s mother or grandmother (how high so ever),
2. His wife’s daughter or grand-daughter (how low so ever),
3. His father’s wife or paternal grandfather’s wife (how high so ever), and
4. His son’s wife, his son’s son’s wife, or his daughter’s son’s wife (how low so ever).

A marriage with a woman prohibited under affinity is void.

Fosterage

It means the relationship formed by breastfeeding a baby. It occurs when a lady other than the child’s mother breastfeeds or suckles a child under the age of two years. The lady turns out to be the foster mother of the child. A man is restricted from marrying the people who come into foster relationships. The restrictions are as follows:

1. His foster mother or foster grandmother (how high so ever), and
2. Daughter of a foster mother (foster sister).

Under Sunni law, there are a few exceptions to the prohibition based on the ground of a foster relationship, allowing the following marriage to be considered valid:

1. Sister’s foster mother, or
2. Foster’s sister’s mother, or
3. Foster-son’s sister, or
4. Foster’s brother’s sister.

The Shia jurists consider consanguinity and fosterage on the same footing and deny the exception allowed under Sunni law.

Relative prohibition 

Under Muslim law, certain prohibitions are relative and not absolute. If marriage takes place in violation of such a prohibition, it is only irregular and cannot be declared void, although the conditions for irregularity vary between Shia and Sunni Muslims. The marriage becomes valid as soon as the irregularities are removed. Relative prohibitions are as follows:

Unlawful conjunction

A Muslim man is prohibited from marrying two different women if they are related to each other by means of consanguinity, affinity, or fosterage, as if they were of opposite sexes, their marriage would have been void (batil). After the marriage ends due to divorce or the death of his wife, a man can remarry. Under Sunni law, marriage in violation of unlawful conjunction is irregular (fasid) and not void, but under Shia law, a marriage violating the rule of unlawful conjunction is void (batil).

Polygamy

Muslim laws allow polygamy, but it is restricted to a maximum of four wives. A Muslim man can have four wives at a time, but if he marries the fifth woman despite having four wives, the marriage turns out to be irregular and not void. The fifth marriage can be valid after the death or termination of the marriage of one of the four wives. However, the Shia law considers marriage with the fifth wife as void. 

Absence of a proper witness

A contract of marriage must be done in the presence of proper and competent witnesses. Under Shia law, the presence of witnesses is not essential, and marriage without witnesses is considered valid. Marriage is contracted by the parties themselves (if major) or by their guardians themselves. Under Sunni law, the presence of a witness is essential; otherwise, the marriage will be irregular. At least two male or one male and two female witnesses should be present, and the witness should be a major, of sound mind, and a Muslim.

Difference between religions

Under Sunni law, a Muslim male is allowed to marry a female who shows respect for the written holy scriptures or books, such as Christian, Parsi, and Jewish, but if he marries an idol or fire worshipper, the same is considered irregular. Therefore, a Muslim man can marry a non-Muslim woman who is kitabia (one who believes in a book of sacred scripture). A Muslim woman is not allowed to marry a non-Muslim man. Under the Shia Law, a marriage with non-Muslims by both male and female is considered void. According to Fyzee, such a marriage is void, but, according to Mulla, such a marriage is irregular.

Marriage during Iddat

It is referred to as a period that is observed by a woman after the death of her husband or after the termination of marriage, during which she cannot remarry. The purpose of the iddat is to check whether the woman is pregnant or not and to clear doubts about the paternity of any child born. A divorced woman has to observe for a period of three months, whereas a widow observes it for four lunar months and ten days after the death of her husband. If the woman is pregnant, then it extends up to her delivery. Under Sunni law, marriage during iddat is considered irregular, whereas under Shia law, it is considered void. During the period of iddat, the husband is bound to maintain the wife.

Miscellaneous prohibitions

1. Marriage during the pilgrimage is considered void in Shia law.
2. Re-marriage between divorced couples: A certain procedure needs to be followed in which a Muslim lady has to perform a valid marriage with another man. Firstly, her husband needs to voluntarily divorce her. After that, the women must observe the period of iddat. Now, she can marry her previous husband. If this procedure is not followed, the marriage is considered irregular. 
3. Polyandry: It refers to a condition in which a woman can have more than one husband. It is not permitted under Muslim law.

Comparative analysis : essentials of a valid marriage

There are some points of differentiation with respect to the validity of marriage in different religions, which are as follows:

‘Muslim marriage’ in contrast to ‘Hindu marriage’

On the basis of the age of the parties

For a valid marriage among Muslims, the parties should be above the age of puberty. The age of puberty is considered to be 15 years. On the contrary, for marriage among Hindus, the age of a girl should be 18 years and the age of a boy should be 21 years, as enshrined under Section 5(iii) of the Hindu Marriage Act, 1955. If the condition mentioned under this section does not comply, then such a marriage will not be considered as a valid marriage. 

On the basis of the number of marriages

In Muslim religion, polygamy is allowed, and one man can have four wives simultaneously, and the marriage with each wife will be considered as a valid marriage. However, under Hindu law, monogamy is the rule, and a person cannot have more than one wife at a time. Section 82 of the Bhartiya Nyaya Sanhita, 2023 (Section 494 of the Indian Penal Code, 1860) deals with the offence of bigamy, and an imprisonment period of up to seven years along with a fine can be imposed if a person marries a second time during a spouse’s life. Thus, this provision protects the sanctity of marriage by abolishing bigamy.

On the basis of the degree of prohibited relationship 

Under Muslim law, the degree of a prohibited relationship is based on consanguinity and affinity. Whereas, under Hindu law, the Sapinda relationship, consanguinity, and affinity are considered to be a degree of prohibited relationship.

On the basis of religious ceremonies

Under Muslim law, there are various ceremonies that are followed and are essential to giving rise to a valid civil contract, and those are: offer (ijab), acceptance (qubul), dower (mehr), etc. However, under Hindu law, the performance of certain ceremonies is considered as a tool for a valid marriage. Section 7 of the Hindu Marriage Act, 1955, discusses the ceremonies that are performed for a valid Hindu marriage. For a valid Hindu marriage, ‘saptpadi’, i.e., taking seven steps around the fire, and ‘datta homam’, i.e., the service of the burning of clarified butter, offered as a sacrifice to fire, are considered essential ceremonies for a valid marriage.

‘Muslim marriage’ in contrast to ‘Christian marriage’

On the basis of the age of the parties

For a valid marriage among Muslims, the parties should be above the age of puberty. The age of puberty is considered to be 15 years. On the contrary, for marriage among Christians, the age of a girl should be 18 years and the age of a boy should be 21 years, as enshrined under Section 60(1) of the Indian Christian Marriage Act, 1872. If the condition mentioned under this section does not comply, then such a marriage will not be considered a valid marriage.

On the basis of the number of marriages

In Muslim religion, polygamy is allowed, and one man can have four wives simultaneously, and the marriage with each wife will be considered as a valid marriage. However, under Christian law, monogamy is allowed, and a person cannot have more than one wife at a time.

On the basis of religious ceremonies

Under Muslim law, there are various ceremonies that are followed and are essential to giving rise to a valid civil contract, and those are: offer (ijab), acceptance (qubul), dower (mehr), etc. However, under Christian law, the certificate of a priest is essential in order to validate a marriage.

‘Muslim marriage’ in contrast to ‘Parsi marriage’

On the basis of the age of the parties

For a valid marriage among Muslims, the parties should be above the age of puberty. The age of puberty is considered to be 15 years. On the contrary, for marriage among Parsis, the age of a girl should be 18 years and the age of a boy should be 21 years, as enshrined under Section 3(c) of the Parsi Marriage and Divorce Act, 1936.

On the basis of the number of marriages

In the Muslim religion, polygamy is allowed, and one man can have four wives simultaneously, and a marriage with each wife will be considered a valid marriage. However, under Parsi law, monogamy is allowed, and a person cannot have more than one wife at a time.

On the basis of religious ceremonies

Under Muslim law, there are various ceremonies that are followed and are essential to giving rise to a valid civil contract, and those are: offer (ijab), acceptance (qubul), dower (mehr), etc. However, under Parsi law, the religious ceremony of Ashirvad, which means a prayer or divine exhortation to the parties, is essential for a valid marriage.

‘Muslim marriage’ in contrast to ‘Sikh marriage’

On the basis of the age of the parties

For a valid marriage among Muslims, the parties should be above the age of puberty. The age of puberty is considered to be 15 years. On the contrary, for marriage among Sikhs, the age of a girl should be 18 years and the age of a boy should be 21 years, in accordance with the Hindu Marriage Act, 1955 itself, as this Act is also applicable to people belonging to the Sikh religion.

On the basis of the number of marriages

In Muslim religion, polygamy is allowed, and one man can have four wives simultaneously, and the marriage with each wife will be considered as a valid marriage. However, under Sikhism, monogamy is allowed, and a person cannot have more than one wife at a time.

On the basis of religious ceremonies

Under Muslim law, there are various ceremonies that are followed and are essential to giving rise to a valid civil contract, and those are: offer (ijab), acceptance (qubul), dower (mehr), etc. However, under Sikhism, ‘4 Laava’, which is the four hymns of the Anand Karji, forms the main part of the ceremony of marriage.

Registration of marriage under Muslim Law

In India, the registration of marriage in any religion is not taken seriously, but it can have a great impact and is of crucial importance. The registration of marriage does not only give legal recognition to the parties, but, along with that, certain securities are offered to both husband and wife if things go awry. The registration of marriage serves various purposes; for instance, in the case of divorce, a legally registered marriage can facilitate a smooth separation process. Moreover, in case either the husband or wife dies, a legally registered marriage can make it easy for any party to make any kind of claim without any hindrance. 

The registration of marriage among Muslims is governed by Muslim personal law. Different states have different guidelines regarding the issue of marriage certificates. Some states have made the registration of marriage compulsory, whereas others have left it to the discretion of the parties to register their marriage. Muslim marriages can be registered under the marriage registration laws of the state where the couple resides. Alternatively, they can be registered under the Special Marriage Act of 1954; to do this, the couple must have lived in any part of India for at least 30 days.

Essential documents that are required for the registration of Muslim marriages 

Some of the essential documents that are required for the registration of Muslim marriages are as follows:

• Documentary evidence for the date of birth of both spouses, such as a matriculation certificate, birth certificate, or any other document.
• Address proof of both parties, such as a voter ID card, passport, or Aadhar card.
• Affidavit by both parties regarding the time and place of marriage, date of marriage, and nationality of the parties to the marriage.
• Passport-size photograph of both parties along with two marriage photographs and an invitation card to their wedding.
• 3 witnesses with ID proof.
• Certificate of marriage from any religious place, i.e., nikahnama.

Process of registration

The process of registration of Muslim marriages varies from state to state, but the one that is registered under the Special Marriage Act, 1954, is somehow similar to the registration in various states.

Firstly, all the necessary documents that are mentioned above must be submitted to the marriage registrar’s office. The husband and wife must be accompanied by three witnesses, who will have to physically appear before the marriage registrar’s office. On account of the submission of the essential documents, a 30-day notice will be issued, and if no objection arises from any person, then the parties can go for the registration of marriage after 30 days.

After the expiration of 30 days from the date of issuance of the notice, the husband, wife, and three witnesses can go to the marriage registrar’s office for the registration of the marriage. After the process of registration is completed, a certificate will be issued regarding the registration of marriage. 

Benefits of a registered marriage

The benefits of a registered marriage are as follows:

• In certain instances, when the spouse wants to buy a property together and register it under the joint co-ownership, one of the mandatory documents is the certificate of marriage.
• The foreign embassies in India as well as outside India do not recognize traditional marriage, and therefore, a certificate of marriage is necessary to prove the marriage.
• In case any of the spouses passes away without the name of the nominee, a claim can be made based on the certificate of marriage, which will ease the legal proceedings associated with the succession of the property of the spouse.
• If anybody wants to open a new bank account or wants to apply for a passport after the wedding, then under those conditions, a need for a marriage certificate arises.
• For any kind of legal proceeding ranging from the transfer of property to the custody of kids or legal separation, in any of such situations, the court requires the certificate of marriage.
• The certificate of marriage is considered to be vital and strong evidence of marital ties among the spouses. 

UCC and its impact on Muslim marriage 

The Uniform Civil Code, i.e., UCC, is a proposal that aims to replace the various personal laws with a common law that would be applicable to every person regardless of their religion, caste, creed, gender, etc. Recently, the state of Uttarakhand has become the first to adopt the Uniform Civil Code, and it is expected that it will bring changes in marriage, inheritance, divorce, adoption, and others. Therefore, the various changes that are expected to take place with the advent of UCC in Muslim marriage are as follows:0

• Impact on marriage: It has been stated under the Muslim Personal (Shariat) Application Act, 1937, that Islamic law will guide marriage, divorce, and maintenance among Muslims. However, if UCC comes into existence, then under that situation, the minimum age prescribed under Muslim law will change, and apart from that, the practice of polygamy might be abolished.
• Impact on adoption: At present, a Muslim person can’t adopt a child, but that person can become a kafil, and therefore, that person can provide maintenance for the well-being of the child even though that person is not a biological parent. It is expected that there will be a change in such practices as UCC comes in. 
• Age of marriage: The current legal scenario regarding marriage under Muslim law is that the marriage can be performed once the girl attains the age of puberty. This issue is an ongoing debate, and multiple petitions have been filed before the court, demanding that there should be a uniform age for marriage, irrespective of religion. If UCC comes in, then there would be a uniform age of marriage for all, irrespective of religion, which would change the current legal scenario and the position under Muslim personal law.
• Number of marriages: Under Muslim law, polygamy is allowed, and one man does have the right to legally marry four wives at once. The advent of UCC may abolish the practice of polygamy, i.e., Muslim men will lose their right to legally marry four different wives at once. 
• Divorce and separation: The UCC will ensure that there is a balance between the rights of Muslim men and Muslim women. Additionally, there can be some specific ways in which men and women can dissolve their marriages, which would be common among both of them. 

Important case laws

Sayad Mohiuddin Sayad Nasiruddin vs. Khatijabai (1939)

Facts of the case

In the present case, the wife and husband were married on May 30, 1934, and both of them belong to the Shafi sect of Sunni Mahomedans. It was contended on the part of the wife that, at the date of marriage, she was an adult virgin and her marriage was performed without her consent and against her wish. Therefore, the marriage is invalid, and the application that was filed for the restitution of conjugal rights must not be passed. The lower court upheld the contentions of the wife and dismissed the suit. The case finally reached the Bombay High Court by way of an appeal. 

Issue of the case

The main issue before the Bombay High Court was whether a marriage without the consent of the wife is valid according to the law by which the Shafi sect of Sunni Mahomedans is governed. 

Judgement of the case

The Bombay High Court was of the opinion that the wife attained the age of puberty at the date of marriage, and the marriage was performed by her father against the consent of the wife or of her mother, with whom she was living at her maternal uncle’s home. The Court referred to the case of Hassan Kutti Beary vs. Jainabha (1928), in which different views of ancient text-writers and modern jurists were discussed, and it was concluded that the consent of an adult virgin is essential in order to give rise to a valid marriage among the Shafi sect of Sunni Mohomedans. The Bombay High Court stated that, relying on the above-mentioned case, it can be said that not only minor females but also adult virgin females whose marriages were performed by their father or paternal grandfather without their consent are not legally valid marriages. The court finally concluded, stating that marriage among Muslims is a contract marriage; thus, marriage conducted under compulsion cannot be regarded as a valid marriage. 

Smt. Nasra Begum vs. Rijwan Ali (1979)

Facts of the case

In the present case, the plaintiff, named Smt. Nasra Begum, got married to a defendant, named Rijwan Ali, on 22^nd August 1975. On account of marriage, the amount of dower that was payable to the wife was fixed at the sum of Rs. 50,000, of which Rs. 25,000 was her prompt dower and the rest was the deferred dower. A son was born out of the marriage at Barabanki, where the husband and wife were living. Subsequently, on account of differences among the couples, their relationship got weakened with due time, and, as a result, there was a demand for the payment of her prompt dower by the wife. Instead of paying the dower to the wife, the husband made her leave the house, and, therefore, the wife filed a suit in the court of the Civil Judge, Bareilly, for the recovery of her prompt dower and certain other ornaments. It was contended by the defendant that the couples were living in Barabanki; it is the place where their marriage was consummated, and the demand for dower was also made in Barabanki; hence, the court at Bareilly has no jurisdiction to try the case.

It was observed by the Trial Court that, under Muslim law, the wife is entitled to dower from her husband by entering into the contract of marriage, and dower can be regarded as a consideration for conjugal intercourse. The court, after considering various facts and circumstances associated with dower, concluded that the cause of action relating to prompt dower arose either at the place where the marriage was consummated or at the place where prompt dower was demanded after the consummation and not at the place where marriage was performed. Therefore, it was concluded by the Trial Court that the Court of Bareilly had no jurisdiction to try the suit. The plaintiff was directed to present the petition before the proper court. 

Aggrieved by the order, an appeal was filed by the plaintiff in the Allahabad High Court. The court considered that, under Muslim law, a dower is the sum of money or any other property that is paid by the husband to the wife in consideration for marriage. The court clarified, in the present case, that the term ‘consideration’ must not be understood in the sense in which the word is used in the Indian Contract Act, 1872, and it must be regarded as an obligation imposed upon a husband as a mark of respect for the wife.

Issue of the case

Whether the ‘dower’, which is one of the essentials for valid Muslim marriage, can be claimed at the place where marriage is performed?

Judgement of the case

The Allahabad High Court was of the view that there had been an agreement among the parties at the time of their marriage regarding the payment of dower. Therefore, based on the agreement, it gives rise to a valid cause of action to recover the amount, whatever may be specified according to the terms of the agreement. The court ruled that, in the present case, there was an agreement among the parties to pay dower during their marriage at Bareilly. Therefore, the court in Bareilly has territorial jurisdiction to try the suit. Therefore, the Allahabad High Court set aside the order previously given by the civil judge in Bareilly.

Abdul Ahad vs. Mst. Shah Begum and Ors. (1996)

Facts of the case

The present case is the second appeal filed by the appellant-husband arising out of the original suit filed in the Court of Sub-Judge, Poonch, in the year 1990, stating that he was lawfully married to his wife. It was further stated by the husband that their marriage was performed five years ago, and their marriage was entered into the register as ‘Nikah Khwani’. It was alleged by the husband that, during the time of marriage, an agreement was executed that, after the marriage, he would reside with his wife at the house of his mother-in-law as ‘Khana Damad’ (the bridegroom living with in-laws) for a period of four years. It was submitted that he lived there for the said period and cohabited with her wife. However, when he returned to his own house, the respondents to the case did not allow his wife to live with him. As a result, he filed a suit for the restitution of conjugal rights, requesting that his wife be allowed to live with him. Along with that, he asked the court to issue a perpetual injunction against respondents for interfering in their lives.

The wife, in the present case, contended that her marriage was performed with the appellant, i.e., the husband, five years ago against her consent. At that time, she was a minor and was studying in the 8th class. It was further submitted by the wife that she had never lived with him or cohabited with the appellant.

The Trial Court, in the present case, issued the decree for the restitution of conjugal rights and also issued a perpetual injunction against the interference of respondents.

Aggrieved by the decision of the trial court, an appeal was filed by the wife before the District Judge, Poonch. The court concluded, on the basis of the evidence produced by the parties, that it is clear that the alleged marriage among the parties was performed forcibly when the wife was studying in 8th class against her wishes and without the guardian. As a result, the finding of the trial court was dismissed, and the District Court ruled in favour of the wife. Finally, the case, by way of appeal, came before the Jammu & Kashmir High Court, challenging the findings of the District Judge.

Issue of the case

Whether the marriage between the husband and wife was performed five years ago, when she was a minor studying in 8th class, under duress, against her wishes, with her mother’s consent, and without any guardian present?

Judgement of the case   

The court, after analysing the facts and issues associated with it, concluded that it did not want to interfere with the finding of the District Judge, who came up with the conclusion that the girl was a minor at the time of marriage. However, certain points were added by the Jammu & Kashmir High Court to give more clarity to the judgement. It was stated by the court that the marriage of the wife was done at the time when she was a minor, and, hence, she was not competent to give her consent at the time of her marriage. Therefore, there is even no need for the repudiation of a marriage on the part of the wife to annul this marriage, as the marriage is invalid in itself. As a result, the judgement given by the District Judge was upheld with the addition that the marriage among the parties is void ab initio.

Sheikh Abdullah vs. Husnaara Praveen (2011)

Facts of the case

In the present case, the appellant, i.e., the husband, filed a petition for the restitution of conjugal rights, and the respondent of the case was the cousin of the appellant, and both of them were residing at the Bhutiya Darwaza, near Masjid, Nagpur. As time passed, they fell in love with each other, and their love turned into martial ties. On 1st November 1997, both of them got married, as per the provisions of Muslim personal law. The amount of the dower was fixed at Rs. 11,000, and the marriage was registered on 7th November 1997. According to the appellant, i.e., the husband, it was asserted that their marital ties remained for four months without any inconvenience, but, after that, some of the close relatives of the wife started objecting to the marriage and thereby diverted the mind of the wife, as stated by the appellant.

In May 1998, the wife filed a petition alleging that their marriage was performed fraudulently. It was further asserted by the wife that the appellant misused her signature on certain blank forms, which were obtained by fraud and under compulsion. The wife concluded by stating that the appellant was a greedy person and he merely wanted a wife who was earning.

Issue of the case

One of the major issues in the case was whether the marriage between the appellant and the respondent was a legally valid marriage under Muslim law.

Judgement of the case

After ascertaining the evidence regarding the validity of the marriage, the Bombay High Court was of the opinion that the evidence presented in court lacked certain documentary proof regarding the validity of marriage under Muslim law. Moreover, in the case, witnesses admitted that there was a lack of specific details about the marriage, and the absence of relatives during the marriage is a matter of concern. There was no evidence found by the court regarding the validity of marriage, and, apart from that, no proof was there regarding the payment of the prompt dower. As a result, the appeal that was filed by the appellant regarding the restitution of conjugal rights was dismissed. 

Abdul Kadir vs. Salima and Anr. (1886)

Facts of the case

In the present case, the appellant, named Abdul Kadir, was married to Salima, and their marriage was happy and harmonious. After three months of their marriage, Salima went back to the home of her parents, but her father disallowed her to go back to her nuptial home, despite the appeal of her husband. As a result, a suit was filed by Abdul Kadir for the restitution of conjugal rights against his father-in-law and her wife. In return, a counter-claim was made by the defendant for the divorce decree, non-payment of dowry, and cruelty to the wife as one of the major reasons for not returning to her nuptial home.

The court, based on the claims and counter-claims, gave major attention to the second counter-claim, i.e., non-payment of dower, considering it to have some legal merits associated with it. The court was of the opinion that the husband is not necessarily required to pay the dower at the time of marriage or even immediately after the marriage. However, the husband is required to pay the dower at the time when the wife wishes to receive that amount of dower. 

Based on the statements made by the court pertaining to the dower, the husband deposited the amount of the dower with the court during the case hearing. The court, on the payment of the dower by the husband, issued the conditional judgement stating the restoration of conjugal rights, which is contingent upon the payment of the dower. However, both parties appealed the decision, and the court dismissed the appeal of Abdul Kadir, stating that he failed to pay the amount of dower before the initiation of litigation and, therefore, lacked standing to seek judicial remedy. The case was finally brought before the full judge bench of the Allahabad High Court to decide the issue relating to the non-payment of the dower.

Issues of the case

The following are the issues raised before the court: 

• Whether the petition for the restitution of conjugal rights should be filed before the payment of the dower?
• Whether non-payment of the dower can act as an impediment to the husband’s right to seek judicial remedy regarding the restitution of conjugal rights?

Judgement of the case

The court was of the opinion that, in case of non-payment of the dower, the wife can refuse to have cohabitation or refuse to live with the husband. The court clarified that if a suit is filed for the restitution of conjugal rights before sexual intercourse among the parties, then non-payment of dower can act as a complete defence. However, if the suit is filed for the restitution of conjugal rights after sexual intercourse and with free consent among the parties, then the decree for the restitution may be conditional on the payment of the dower.

Therefore, it was finally concluded by the court that the petition for the restitution of conjugal rights could be filed by the husband before the payment of the dower. However, such a decree would only be enforced on the payment of the dower.

Conclusion

The essentials of a valid Muslim marriage are the fundamental pillars on the basis of which marriage is regarded as a legally valid marriage. The key elements for a valid Muslim marriage are proposal and acceptance, free consent, competency of the parties, dower, and free from any kind of legal disability. Adhering to these essentials of a valid marriage lays the groundwork for a stable and fulfilling relationship among the couples, along with recognition in society as well as in the eyes of the law. These essentials endeavour to remove any subsequent misunderstandings and conflicts associated with the marriage and provide a favourable environment where couples can lead their marriage in the happiest possible way. Under Islamic law, registration of marriage is not mandatory, but it can serve as an important document, and the benefits associated with it are of paramount importance.

Frequently Asked Questions (FAQs)

Is there a difference in the number of witnesses required for a valid marriage between the Sunni and Shia schools of Muslim law?

For a valid Muslim marriage, the presence of a witness is essential. As a general rule, there must be two male witnesses present at the time of marriage, or one male and two female witnesses. However, the number of witnesses varies in the Sunni School of Muslim Law and in the Shia School of Muslim Law. 

Under Sunni School, there must be two witnesses present at the time of marriage, whereas under Shia School, there is no requirement of any witness.

Can a Muslim marriage be considered a valid marriage if the contract of marriage is not in writing?

If the marriage was done with an agreement and in the presence of witnesses, then it will be considered a legally valid marriage, even if the marriage contract was not in written form. However, it is highly recommended that the marriage contract be in writing, as it helps to protect the rights of people.

Who is ‘wali’ and what is the role of wali in a Muslim marriage?

Wali can be regarded as the lawful guardian of a bride. Wali cannot be anyone, and there are certain conditions on the basis of which wali can be decided. The wali of a bride can be:

• Her father, 
• Her brother, 
• Her paternal grandfather, 
• Her paternal uncle, or
• Any other male relative from the paternal side. 

Any other male relative on the paternal side must fulfil some criteria, which are:

• Must be of sound mind;
• Should have attended the age of puberty; 
• Must not be an adopted child, and
• Any other condition in accordance with Muslim law.

Wali is responsible for the life of the bride before her marriage, and he acts as a guardian of the bride. It is the duty of the wali to ensure that the person with whom the bride will be getting married is a trustworthy person and will take care of the bride after the marriage.

References

• https://www.livelaw.in/news-updates/muslim-law-minor-girl-can-marry-without-parents-consent-after-attaining-puberty-has-right-to-reside-with-husband-even-when-less-than-18-yrs-delhi-hc-207216 
• https://registration.telangana.gov.in/specialMarriageProcedure.htm 
• https://www.indiatoday.in/interactive/immersive/ucc-uniform-civil-code-india#:~:text=The%20Muslim%20Personal%20(Shariat)%20Application,and%20polygamy%20could%20be%20abolished.