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The article is written by Prasoon Shekhar, from ICFAI Law School, Dehradun.

Introduction

In the landmark case of Abdul Kadir v. Salima And Anr.[i], (J) Mahmood observed nature of Muslim marriage purely as a civil contract rather than a sacrament. Based on his observations, we can conclude that the objective of Muslim marriage is to legalize sexual relationship of male and female and also procreation of child. Thus, a valid contract is necessary for Muslim marriage. The essentials of Muslim marriage are very much similar to that of a Civil Contract.

In this Article we will be dealing with the essentials of a Valid Muslim Marriage (Sahih).

Essentials of a valid Muslim Marriage

The essentials of a valid Muslim Marriage (Sahih) are as follows:

  • Proposal and Acceptance

In a Muslim Marriage, 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, proposal and acceptance should be carried out at the same meeting. If a proposal is made at one meeting and the acceptance of the proposal is done in the second meeting, it is not considered as valid.

  • Competency of Parties

The parties to the contract must be (i) Major, (ii) Of Sound Mind & (iii) Muslims.

Major

For the purpose of Muslim marriage, the age when a person reaches puberty is considered as the age of puberty. According to Hedaya, the age of Puberty for female is 9 years and for male, it is 12 years. The Privy Council in the case of Muhammad Ibrahim v. Atkia Begum & Anr.[ii] held that under Muslim law, a girl is considered to have attained the age of puberty if: (a) she has attained the age of 15 Years, or (b) attaining the state of puberty at an earlier age. The same rule is also applicable to a Muslim Boy. Thus, it can also be said that in absence of any contrary, a Muslim is considered to have attained the age of puberty at 15 years. After attaining the age of 15, parties can give their own consent and there is no need of consent of guardians.

If a person is a minor, i.e, not attained the age of puberty, the consent of the guardian is required to make the marriage lawful. The persons recognized as guardian under Muslim law are: (a) Father, (b) Paternal Grandfather, (c) Brother or any other male member of father’s family, (d) Mother, (e) Members of Maternal Relation. The right passes from one guardian to other, in absence of the previous one, in order of priority. In absence of any of these guardians, marriage may be contracted by Qazi or any other Government Authority. 

Soundness of Mind

At the time of marriage, both the parties should be of sound mind. Person of unsound mind has no capacity to enter into a contract and in the eyes of law his consent will be considered as no consent. Unsoundness is of two types: (a) Idiocy: It refers to a complete abnormal state of mind. Person belonging to this category are incompetent to contract, and (b) 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 sane person.

Muslim

The parties to enter into marriage must be a Muslim irrespective of their sect or sub-sect. A Marriage is considered to be as inter-sect marriage is both the parties are Muslim belonging to different sect but the marriage is valid.   

  • Free Consent

For a valid marriage 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 as invalid and the marriage is considered as void. In the case of Mohiuddin v. Khatijabibi [iii], the Court held that a marriage is invalid if it is held without free consent of the parties.

  • Dower

It is referred to as ‘mahr’. It refers to the amount of money or other property which a bride groom has to give to bride as a consideration of 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 v. Rizwan Ali[iv], Allahabad High court held that right to mahr comes into existence before cohabitation. The Court also concluded that if wife is a minor, her guardians can refuse to send to her husband until payment of dower, and if she is in husband’s custody, then she can also be brought back.

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  • Free From Legal Disability

Under Muslim law, marriage is not permitted under certain circumstances. The restrictions/prohibition can be divided into two parts:

  • Absolute Prohibition
  • Relative Prohibition
  • Miscellaneous Prohibition

Absolute Prohibition

A Muslim marriage cannot take place if the parties are within the within blood relationship or prohibited degree of relationship of each other and the Marriage turns to be void. The absolute prohibited degrees of relationship are as follows:

  • Consanguinity

It refers to 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/ 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 woman prohibited under consanguinity is void. Also, children born out of that wedlock are considered as illegitimate.

  • Affinity

A marriage with certain close relatives is also prohibited in Muslims due to closeness of relationship. The prohibited relationship are as follows:

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

A marriage with woman prohibited under affinity is void.

  • Fosterage

It refers to milk relationship. It is a condition when a lady other than the mother of the wife, breastfed/ suckled the child under the age of two years, the lady turns to be foster-mother of the child. A man is restricted from marrying the persons who come under foster relationship. The restrictions are as follows:

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

Under the Sunni law has a few exceptions with respect to prohibition on ground of fosterage and the following Marriage is considered as valid:

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

The Shia jurists consider Consanguinity and fosterage at same footing and deny the exception allowed by Sunnis.

Relative Prohibition

Under Muslim law, certain prohibitions are relative and not absolute. If marriage takes place in violation of such prohibition, it is only irregular and it can’t be declared as void. The marriage becomes valid as soon as the irregularities are removed. Relative prohibitions are as follows:

  • Unlawful Conjunction

A Muslim man is prohibited to marry two different women if they are related to each other by means of consanguinity, affinity or fosterage as if they would have been of opposite sexes their marriage would have been void (batil). After the termination of marriage/ death of his wife, marriage can take place with the other. 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 one despite of having four wives, the marriage turns to be irregular and not void. The fifth marriage can be valid after death/ termination of marriage of one of the four wives. However, the Shia law considers marriage with the fifth wife as void. In India, a Muslim marriage can’t have a second marriage if his marriage is registered under The Special Marriage Act, 1954.

  • Absence of Proper Witness

Contracting of marriage must be done in the presence of proper and competent witnesses. Under the Shia law, presence of witness is not essential and marriage without witnesses is considered as valid. Marriage is contracted by the parties themselves (if major) or by their guardians itself. Under Sunni law, presence of witness is essential else the marriage would 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 of religion

Under the Sunni law, a Muslim male is allowed to marry a female who shows respect for same scriptures, such as Christain, Parsi and Jews, but if he marries with an idol/ fire worshipper, the same is considered as irregular. A Muslim woman is not allowed to marry a non-Muslim man and if it happens, the same is considered as irregular. Under the Shia Law, a marriage with non-Muslim is considered as void. According to Fyzee, such marriage is void, but According to Mulla, such a marriage is irregular.

  • Marriage during Iddat

It is referred to as a period of waiting after the death of her husband or after termination of marriage during which she cannot remarry. The purpose of the iddat is to check whether the woman is pregnant or not to clear doubts of 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 husband. If the woman is pregnant then if extends up to her delivery. Under Sunni law, marriage during iddat is considered as irregular whereas, under Shia law, it is considered as void. 

Miscellaneous Prohibitions

  1. Marriage during pilgrimage is considered as void in Shia law.
  2. Re-marriage between Divorced Couple: A certain procedure needs to be followed in which a Muslim lady has to perform a valid marriage with another man. Then her husband needs to voluntarily divorce her. Then the lady needs to perform iddat. Now she can marry her previous husband. If this procedure is not followed the marriage is considered as 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.
  • Registration

Registration of Marriage is not necessary according to Muslim Law. However, few states like Assam, Punjab, Bengal, Bihar and Orissa have enacted laws for registration of Muslim Marriage. The registration is not an essential part for a Valid Muslim marriage but it acts as an authentic proof. The apex court in the Case of Seema v. Ashwani Kumar[v], held that marriage of Indian citizens irrespective of their religion should be registered in their states where the marriage has been solemnized. Also, in the case of M. Jainoon v. Amanullah Khan[vi], Madras High court observed that although registration of Marriage is not necessary, it cannot be said that registration of Marriage is prohibited under Muslim personal Law.

References

  1. (1886) ILR 8 All 149.
  2. 16 Ind Cas 597.
  3. 41 Bom L.R. 1020.
  4. AIR 1980 All 198.
  5. AIR 2006 SC 1158.
  6. AIR 2000 Mad 381.

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