This article is written by Shouraseni.  

Introduction

According to Mohammedan Law, marriage (nikkah) is a civil contract, the object whereof is to legalise cohabitation and the procreation of children. The institution of marriage is recognised in Islam as the basis of society. It serves the nature of both- a contract and a sacred covenant. The sermons delivered by the Prophet are to this day, repeated (with few variations) in various Muslim marriages, because of the reason of it containing practical advice and many noble sentiments.

As observed correctly by Sir Muhammad Sulaiman, C.J. in Anis Begum v. Muhammad Istafa that it may not be out of place to mention that a marriage is not regarded as a mere civil contract but also a sacrament. Unlike other religions, in order to constitute a valid marriage, no formality is desired, nor is there a necessity of a religious ceremony. The mere presence of the basic essence of the contract is sufficient to constitute a valid marriage.

In Hanafi law, marriage guardianship falls upon the male agnets in the same order as that in which they come in as residuary heirs- father, paternal grandfather, full brother, consanguine brother, full brother’s son, co-sanguine brother’s son, full paternal uncle etc, and if all of these agnets fail, the marriage guardianship transfers over to the mother and the maternal relations.

The parties should be of sound mind and shouldn’t be within degrees of a prohibited relationship to constitute marriage. However, lunatics and minors who have not attained the age of puberty (i.e., completion of the 15th year preferably) may be validly contracted in marriage by their respective guardians. In case of a boy or a girl who hasn’t attained the age of puberty, the marriage is not valid unless the guardian has consented to it.

The very object of Islamic marriage is to legalise children and to a large extent, regulate and validate sexual promiscuity. Hence, for a valid marriage, all the conditions must be satisfied, i.e., the parties must have a capacity to marry, there must be a clear proposal and acceptance, there must be free consent and there is no legal disability.

Marriage Under Muslim Law

Muslim marriage, as described by Justice Mahmood, is a “purely civil contract” which forms an institution by its recognition of either a sacrament or as a contract and confers the status of husband and wife on the parties and confer upon them a plethora of mutual rights and obligations, namely, the legalisation of sexual promiscuity and is of prime importance in the reproduction of children, the promotion of kinship, love and union between the parties, with the view of earning collective livelihood. Even though muslims have always considered marriage as a civil contract since the beginning of juristic development, traces also highlight its juxtaposition with the sacramental value, with certain religious texts referring to the permanent union, an ibadat (devotional act).

Sachact observes Marriage (Nikah) that occurs between a husband (Zawi) and the wife (zawafa) as a contract of civil law, which develops from the purchase of the bride from the guardian (wali) by the bridegroom. Such contract is effectuated by the payment of the consideration by the bridegroom as he undertakes to pay the nuptial gift (mahr sadak) or dower to the wife. This method is a sharp contrast from the pre-Islamic period, where the dower was customarily paid to the wali  and not the wife.

For a valid Islamic marriage, the following requisites must be fulfilled:

• The parties must be in a capacity to marry.
• There must be a proper offer (Ijab) and an appropriate acceptance of such offer (Qubool).
• There should be the presence of a free consent.
• It should be devoid of legal disability.

Capacity To Marry

Every Muslim of sound mind who has attained the age of puberty, may enter into a contract of marriage. Puberty means the age when there is a maturation of certain organs in a body, marked by the period of adolescence in one’s life. This time is marked by the body of the individual that is capable of performing sexual intercourse and aid in procreation. With the assumed age of puberty to be 15 years, a boy or a girl on attaining this age can validly consent to the marriage.

According to the Child Marriage Restraint Act, 1929, a marriage of a male below the age of 21 and a female below the age of 18 is a child marriage and this act prohibits such marriage. Even though according to the uniform law, marriage between pubescent Muslims is violative, it is upheld under the personal laws of the Muslims.

 But this case was taken into consideration in the Madras High Court case of Abdul Khader & Ors v. K. Pechiammal Child Marriage Prohibition Officer where the court held that “The Prohibition of Child Marriages Act is not against the Muslim Personal Law. The Act, which was enacted to provide protection and for the welfare of the girl children takes precedence over the personal law. It only aids in the issues of education and empowerment. The judgement ran counter to the claim of the petitioner who argued for the Muslim personal laws that allow the marriage of Muslim girls between the age of 15 and 18 years.

But even after such legislation, Muslim marriage between underage males and females continue to occur and hence, a discussion about the marriages between such males and females is a poignant topic of debate and discussion.

Proposal And Acceptance

Under the Muslim Law, the proposal and acceptance are required in the same meeting. There are buyers and sellers in a contract of sale and the subject matter of the sale are goods. Justice Mehmood further iterates that once consummation has taken place, her right to refuse cohabitation is gone, because it amounts to delivery or transfer of possession by the wife to her husband. While differentiating between the contract of marriage and the sale of goods, the author of Raddul Mukhtar iterates the fundamental difference between the two. In the former there are a series of transfers of possessions (sexual enjoyment is a lifelong affair) whereas in the latter one transfer of possession is sufficient. In pre-Islamic era, the position of a woman was highly synonymous with a chattel. The dower was treated as a price for the bride and she was an object of inheritance, after the death of her husband. But the Prophet of Islam, as a reformative measure, conferred a higher status to the women of the religion, by making them the sole proprietor of the dower, which was a lifelong unconditional security.

The presence of witnesses play a major role in the marriages. Under the Sunni Law, the proposal and acceptance are required to be made in the presence of two male Muslims who are of sound mind and have attained puberty or one male and two female witnesses who are of sound mind, are adults and practice Islam. Additionally, an absence of witnesses does not render the marriage void but voidable.

Whereas, under the Shia Law, witnesses are not necessary at the time of marriage. The proposal and the acceptance do not require to be in writing as in nikah-nama or Kabin-nama. The proposal made by or on behalf of one of the parties to the marriage, and an acceptance of the proposal by or on behalf of the female witness, who must be sane and adult Muslim.

Free Consent

The Indian Contract Act, 1872 lays down great emphasis not only to the desirability of consent but also on the presence of free consent. Similarly in Muslim law, consent is of prima-facie importance because of the marriage being an epitome of a contractual obligation. An Islamic marriage, to be contracted in its true form, requires the provision of free, declaratory consent. Such consent given by a man and a woman in the marriage is to cohabit with one another exclusively. The religious element does not require anything more from the parties.

Among Hanafis and Shias, an adult woman with a pristine degree of sanity has the capacity to contract herself in a marriage. For such a marriage, the guardian’s consent does not act as a substitute for the consent of a woman. But the intervention of a guardian is incumbent upon the conduction of marriage where an adult woman is a party, in the case of Shafi and Maliki Law.

So, in Shafei’s and Maliki’s schools the consent of an adult virgin is not sufficient for the completion of the marriage contract. It must be through the legal guardian with the consent being given either expressly or impliedly.. In the case of a girl who has once married or who is mature to understand the nature of the marriage contract, the consent is required to be expressive. Silence amounts to consent in case of virgin girls as far as the views of jurists of all schools are concerned. As per the words of the Prophet himself, the virgins are to be consulted in everything concerning them, but their silence to such enquiry implies consent.

But a minor child is not competent to enter into a marriage contract; he or she may be contracted in marriage by his or her guardian. So in the case of minors, consent of the guardian is required by Law. However, such a marriage involving a minor, whether conducted with or without the parents consent is not invalid, but voidable at the option of such minor when they attain puberty. This option is available to the party if the marriage was consented to or arranged by the guardian and not the father, or the paternal grand-father. If the father had arranged it, the marriage can be avoided only if it is contracted fraudulently or recklessly. This right is to be exercised between the attainment of puberty and the consummation of marriage.

The Dissolution of Muslim Marriage Act, 1939 pertains to any marriage contracted by the father, the father’s father or any other legal guardian. But the option of puberty enables a girl to secure dissolution of marriage irrespective of any of the circumstances in which it was contracted. This way, it provides a safeguard against an undesirable marriage. The provision of the option of puberty to a minor comes with a safeguard to them against a possible arbitrary, mala fide or unscrupulous exercise of authority by their guardian for their marriage. The right has been given to the minor to dissolve the marriage on attaining majority at becoming an adult, where the guardian showed a want of affection and discretion by contracting the minor in an undesirable marriage.

Khyar-ul-Bulugh

A minor cannot legally enter into a marriage contract nor is the contract of marriage entered into by a guardian on his or her behalf, always binding on the minor. The minor on attaining puberty may ratify or revoke such a contract if he or she chooses. This right is called Khayar-ul-Bulugh (the option of puberty). This right is one of the plethora of safeguards which the Islamic Law provides and it pertains against an undesirable marriage. The right to repudiate a marriage by a woman flows from the Hadith and it comes to their rescue if such marriage had been forcefully imposed upon them by the assumption of their mental and physical incapacity to exercise her independent discretion in her marriage.

The Background

Ibn Abbas reported that a virgin came to the Prophet of Allah and narrated that her father had given her in marriage to a person whom she disliked. The Prophet gave her an option. Aisha reported that a girl came and stated that her father had given her in marriage to his nephew and she disliked him. On hearing the discourse, he at once sent a 108 message for the father of the girl and enquired from him whether the facts stated were true, after which the option was left in the hands of the girl whether to stay in such marriage or have it repudiated.

 Ibn Umar says-

“Uthman bin Mazum left behind a young daughter. My uncle Qudamah, married her to me, and did not even consult her when the girl came to know of this, she disliked this marriage and wished to marry Mughirah bint Shubah. So she was married to Mughirah.”

All these Ahadith provides a freedm to a Muslim girl to repudiate of ratify her marriage contract on attaining the appropriate age. It makes her the sole negotiator of the contract of her marriage. The entire position of marriage is contingent upon her decision when she attains maturity. Under Hanbali Law position is the same as in the Maliki Law and in Shia law, it is the same as in Hanafi Law.

Positions Held By Varied Authors

While Imam Abu Hanifa held the view that such an option must be exercised on an immediate attainment of puberty, other authorities limit its application against unreasonable delays after attaining puberty. The rule basically pertains to a female unaware of her marriage by virtue of her minority. It provides her an option to reconsider her position in the marriage, when she is fully aware of it and its repercussions. Hence, she has the right to repudiate the marriage and she can exercise that right within a reasonable time.

The option is lost if the wife, after she attains puberty permits the marriage to be consummated but mere consummation is not sufficient unless it happens with the wife’s consent. The Qazi’s order for the dissolution of marriage is of prima facie importance for the dissolution of marriage, while exercising the option of puberty. This is in itself a procedural safeguard giving rise to a plethora of rights and duties flowing from the cancellation of marriage.

Likewise, Qazi’s order cannot be passed when the husband is not represented. The dissolution of marriage is incumbent upon the order made by the Qazi. The standard age for attainment of Puberty is presumed to be on completion of  fifteen years, in absence of plausible evidence stating otherwise. But, the Mohammedan Law vehemently provides that the guardian has the authority to be a part of the contract of marriage on behalf of a minor boy or girl.

The following have a  right to contract the minor’s marriage successively. They are:

• Father.
• Paternal grandfather.
• Brother and other male members on the father’s side in the order of inheritance.
• In the absence of paternal relations, the right to contract marriage falls upon the mother, maternal uncle or aunt and other maternal relations within the prohibited degrees.
• In default of the mankind kindred, the right to contract marriage devolves upon the ruling authority.

The Dissolution of Muslim Marriages Act, 1939 has removed all restrictions on the exercise of the option of puberty in the case of a minor girl whose marriage has been arranged by her father or grandfather. According to Section 2 (vii) of the Act, the wife can claim dissolution of her marriage if she is able to prove one of the following facts:

• The marriage hasn’t been consummated. 
• The marriage occurred before the woman attained 15 years.
• That the repudiation of the marriage had been done by her before attaining 18 years.

The right to exercise the option of puberty is contingent upon the facts and circumstances of each and every case. In the modern legal scenario, the Court decree in rendering such marriage invalid is necessary.

Prevalence of Puberty in the Indian Judicial Decisions

In the Indian judgment of Musammat Chirag Bibi v. Ghulam Sarwar, the plaintiff sued and plead for her marriage to be called null and void because of the fact that such marriage was contracted by her step-grandmother, who according to Islamic law couldn’t act as her guardian during the lifetime of her father and hence she wanted to exercise the Khayar-ul-Bulugh. The Lahore Court held that the marriage contract was affected by the step-grandmother but, since the father was a party to such marriage, it couldn’t be repudiated.

Secondly, in the case of Mrs. Tahra Begum v. State of Delhi and ors  the Delhi High Court held that a Muslim girl could marry as per her choice at the age of 15 years if she had attained puberty and held that the marriage of the minor girl was valid and that she could stay in her matrimonial house. 

The judgment of the court states the following :

“This court notes that according to Mohammedan Law, a girl can marry without the consent of her parents once she attains the age of puberty and she has the right to reside with her husband even if she is below the age of 18”.

Citing various Supreme Court judgments on rights of Muslim minor girl, the court held that it is clear, that a Muslim girl who has attained puberty can marry and such a marriage wouldn’t be a void marriage. However the marriage will be voidable at her option when she turns a major.

Analysis and Conclusion

The option of puberty is one very important aspect in Muslim marriage. In India, the age of puberty is considered to be 15 years in case of males and 13-14 years in case of females. The Privy Council has held the age of a pubescent Shia girl to be 9 years. This option of rejecting the marriage performed at a minor age should be upheld as there was no consent when such marriage occurred. Hence it is pertinent to hold that if the male or female refuses to accept the marital contract after attaining  the age of puberty, it is considered that the marriage never took place.

The Dissolution of Marriage Act, 1939 has benefitted a lot of Muslim women. In Muslim marriage mutual consent is the foundation stone of marriage relationship which must be from any type of pressure. In Muslim Law, marriage is a contract and it implies a mutual consent. When a marriage is contracted on behalf of an adult person of either sex, a mutual consent to be bound by such obligations acts as an essential factor for the recognition of such marriage.

Social justice is the need of the hour and recent judicial decisions have been based on this concept. It is the need of the hour that we resort to basic principles of human rights in order to save minor girls from exploitation, wrath of their parents. The only way to bring a change in their present condition is to distance the notion of age from the notions of consent. Hence, needless to say, the option of puberty comes as a great saviour in curbing child marriages.

References

1. Ghulam Lakina v. Falak Sha Allah Baksh, AIR 1950 Lah 45
2. Musammat Chirag Bibi v. Ghulam Sarwar, 60 IND Cas 453.
3. Mrs. Tahra Begum v. State of Delhi and ors, 2013 (1) RCR (Civil) 798.
4. Anis Begum v. Muhammad Istafa, (1993) 55 AII 743.
5. Abdul Khader & Ors v. K. Pechiammal Child Marriage Prohibition Officer LAWS(MAD)-2015-3-281.
6. Abdul Kadir v. Salima, (1886) 8 AII 149.
7. Lucy Caroll, Muslim Law in South Asia: The Right To Avoid An Arranged Marriage Contracted during Minority, 23 I.L.I.L.J.  149, June,1981.
8. Tahir Mahmood, Dissuasive precepts in Muslim Family Law, 2 A.L.J.  126 (1965).
9. Ibn Maja, Quoted by M.M.Siddiqi, Women in Islam, p. 52.
10. Nasai, Quoted by M.M.Siddiqui, Women in Islam, p. 52.
11. Mohsin Khan, Sahih-Al-Bukhari, Vol.7, p.52.
12. Fatwai Alamgiri, Vol. I p. 405 and Fatwai Kazi Khana Vol. 1, p. 481.
13. Raddul-Nukhtar, vol-11, p. 368.
14. S.S.H. Azmi: “Divergence of opinion between Mahmood J., and Sulaiman C.J., in respect of Nature of Muslim Marriage and Dower Debt.; Jaipur Law Journal (1973) vol. XIII, P. 156 at 163.
15. The Dissolution of Muslim Marriages Act, 1939, Section 2(vii).
16. Dissolution of Muslim Marriage Act, 1939.
17. Indian Contract Act, 1872.
18. The Child Marriage Restraint Act, 1929.