This article is written by Neelam Prusty, from Madhusudan Law College, Odisha. This is an article that explains the rules relating to marriage under Muslim law, the maintenance of wives and the restitution of conjugal rights under Muslim law.
Marriage is a social institution that is sacred in nature. The rituals and rules relating to marriage differ with religion, region and practices. Under the Islamic system, there are various rules which need to be followed during and after marriage. In case the marriage did not work out and the parties decided to revoke the contract of marriage, they are allowed to break the marriage bond. In such conditions, women are mainly affected since the husband has the absolute power to divorce his wife. To safeguard the rights of the woman and to maintain her life, she has the right to claim the husband’s property and dower.
Definition of marriage
The definition of marriage varies with religion, region, and jurisdiction. Marriage is the form of contract between two parties whose objectives is to legalize the sexual activities with the objective to give birth to their children, promotion of love and support, and creation of a family to live together. As per Islam, marriage is called ‘Nikaah’ which is an Arabic word and means ‘the union of two parties.
According to Ashabah, marriage is a contract that holds a permanent relationship based on mutual consent on the part of a man and woman.
Unlike Hindu marriage, the marriage under Mahomedan law is a civil contract between husband and wife. In the contract of marriage under Mahomedan law, the wife accepts or ‘qubool’ the proposal of marriage by the husband on the condition to receive a certain amount of consideration which is to be paid as the dower or ‘Mehr’ by the husband to his wife. Although marriage is a contract under Muslim law, it is believed to be a sacred commitment.
In the case of Anis Begum vs. Mohammad Istafa (1933) 55 AP 743, C.J Sir Shah Sulaiman held a balanced view on Muslim marriage. He stated that Muslim marriage is not only a civil contract but also a religious sacrament.
The main aim of marriage is to maintain the human race and to legalize the child born out of the relation between the parties. Prophet Mohammad had made customs which treat men and women equally in the exercise of all legal powers and functions. The women are not supposed to lose their individual identity after marriage rather she also remains an independent member of the Islamic community.
Capacity for marriage
Under Muslim law, there are specific requirements that should be considered before marriage. The capacity of the parties to enter into the contract of a valid marriage is explained in Muslim personal law. The parties that are considered to have the capacity to enter into the contract of marriage must be (i) Major, (ii) Of sound mind & (iii) Muslims
In Muslim law, the age of minority is considered to be under 15 years for females and under 17 years for males. The marriage without consent even if the parties have attained puberty is void. But the marriage of a minor who has not attained puberty is valid with the consent of parents and guardians.
Soundness of mind
Both parties should be of sound mind during the time of marriage. Consent from a person of unsound mind is not considered as free consent. Hence, the marriage between parties without a sound mind can’t enter into the contract of marriage. If a person is partially unsound, such a person can only enter into the contract of the marriage when he is in a state to give free consent.
Under Muslim law, both parties must belong to the Muslim community if they wish to marry each other. In the case of Sunni Muslims, both the parties need not have to belong to the Muslim community for marriage, rather a Muslim male can marry a non-muslim kitabia female. The marriage of males with a female not belonging to the Muslim community is valid whereas, under Shia law, the marriage is void if both parties don’t belong to the Muslim community.
Essentials of marriage
Muslim marriage has some essential requirements which need to be fulfilled to give rise to a valid marriage. If any of the essential elements of the marriage is not fulfilled, the marriage will be considered as irregular and the parties have to fulfil the essentials to make the marriage valid. The essentials of Muslim marriage are as follows.
Proposal (Ijab) and acceptance (Qubool)
In a Muslim marriage, the proposal is otherwise called ‘ijab’ and the acceptance of the same is called ‘qubool’. For a valid Muslim marriage, one party has to offer the proposal and other has to accept the same. The process of proposal and acceptance of the contract of Muslim marriage is carried at the same meeting. If the proposal and the acceptance of the proposal are done in two different meetings at two different times, the contract of marriage is considered to be valid so the marriage is not void and the parties are required to rectify the loopholes of the marriage.
Free consent of both the parties
The free consent of the parties is necessary for a valid marriage under Muslim law. The consent obtained by coercion, fraud, or mistake of fact is regarded as invalid and the marriage without free consent is considered as void. In the case of Mohiuddin vs. Khadija Bibi [41 Bom L.R. 1020], the court held that a marriage without the free consent of the parties is invalid.
A consideration (Mehr)
Mehr is the money or property which a Muslim wife is entitled to from her husband on marriage as a token or symbol of respect for her. Mehr is fixed before or at the time of the marriage which the husband has to pay during his lifetime to his wife. The Mehr or amount of consideration is specifically written in the Nikaah Nama or orally declared. The parties decide their own Mehr after attaining puberty. But in case of an unsound person, their guardian decides the amount of consideration and takes the guarantee to pay the amount.
In the case of Nasra Begum vs. Rizwan Ali [AIR (1980) All. 118], the court held that a Muslim wife can refuse to cohabit with her husband if her prompt dower is not paid. The guardian of a minor or insane wife can also exercise this right against the husband.
No legal disability
Under Muslim law, the marriage within a prohibited relationship is restricted. The marriage within blood relation or milk relation is not allowed. The women in relation to father, brother, mother, grandfather, etc. of the male party is not allowed to marry. The close blood relationship or milk relationships like a foster sister or foster mother is also restricted. The relationship which is so high like the marriage of a male party with his grandmother or grandmother’s sister is also restricted. So marriage in such a relationship will be considered void.
Under Sunni law, witnesses are the essential requirement of a valid marriage. There must be a minimum of two males or one male and two females to witness the marriage. It is necessary to have at least one male witness for a valid marriage. If in case, there is no male witness, the marriage is called irregular. If the parties have no male guardian, the Qazi has to witness the marriage. But under Shia law, the witness is not necessary for marriage.
Kind of marriages
Valid marriage or Sahih
A marriage that has fulfilled all the legal requirements of Islamic marriage and without affecting the parties with any prohibited relationship or any prohibition is a valid marriage or ‘sahih’. The prohibitions can be permanent as well as temporary like the period of iddat. In such a case of permanent prohibition, the marriage will be declared void but the temporary prohibition declares the marriage as irregular.
Void marriage or Batil
Under Islamic law, a marriage with a party in blood relationship, affection, or fosterage is prohibited and hence called void. The void marriage confers no rights or obligations to the parties and the children born out of such marriage are considered to be illegitimate. Similarly, under Sunni law, a marriage with a female wife during the iddat period is also considered to be void.
Irregular marriage or Fasid
A marriage that lacks some formality according to the marriage rituals under Muslim law which can be rectified, is an irregular marriage. Since the irregularity in such marriages is not permanent in nature, the irregularities can be removed and thereafter convert the irregular marriage into a valid marriage. Therefore, the irregular marriage is not unlawful or void. The common mistakes that can be rectified due to which the marriage is called irregular or ‘Fasid’ are as follows:
- A marriage contracted without the required number of witnesses i.e. two males or one male and two females;
- Marriage with any divorced women or wife of another during the period of Iddat;
- Marriage with women without the consent of her male guardians;
- A marriage with prohibited religion like non-muslim or kitabia;
- A marriage with a pregnant woman, if the pregnancy was not caused by adultery;
- Marriage with more than four wives.
Iddat is the period during which it is necessary for a woman whose marriage has been dissolved by divorce or death of her husband to remain in seclusion and to abstain from marrying another husband.
The iddat is observed by the Muslim woman in various conditions mentioned below:
- Iddat of widowhood- When a person dies leaving back her widow, she is prohibited from marrying another man before the completion of the period of iddat or expiration of four months and 10 days from the death of her first husband.
- Iddat of a pregnant woman- If the woman is pregnant at the time of the death of her husband, the period of iddat will not terminate until the delivery of the child or miscarriage of the child. The woman has to observe iddat for the remaining period up to four months and ten days if the child is delivered or miscarried before the period of four months and ten days.
- Iddat of talaq– In the case of talaq, the period of iddat is the months between three mensuration or three lunar months within which the three courses of talaq are to be pronounced by the husband. If the woman is pregnant at the time of divorce, the period of iddat will not terminate until the child is delivered.
- Iddat when marriage is irregular- If the marriage is irregular and the parties have been separated before actual consummation, the period of iddat has not to be observed. If the consummation has taken place between the parties, the wife is bound to observe iddat.
- If the parties have not consummated after the marriage, iddat has not been to be observed in case of divorce, but it has been observed in case of the death of the husband.
- The period of iddat begins from the date of the divorce or death of the husband and not from the date on which the woman gets the information of divorce or death of the husband. If she gets the information after the expiry of the specific time, she is not required to observe iddat.
- Where a husband has divorced his wife and has died before the completion of the iddat, the woman is required to undergo a fresh iddat for a period of four months and ten days from the date of death of the husband.
The following are the rights and duties of the wife who is observing iddat:
- If the wife is observing iddat, the husband is bound to maintain the wife during the period of iddat.
- The woman cannot marry another person until the completion of her iddat and if the husband has four wives, including the divorced one, he cannot marry a fifth wife until the completion of the iddat of the divorced wife.
- The wife becomes entitled to the deferred dower and if the prompt dower has not been paid, it becomes immediately payable.
- In the event of the death of either party, before the expiration of the period of iddat, the other is entitled to inherit from him or her in the capacity of wife or husband, as the case may be if the divorce has not become irrevocable before the death of the deceased.
- If the divorce is pronounced in the death illness and the husband dies before the completion of iddat observed by the wife, the wife is entitled to inherit from him even if the divorce has become irrevocable prior to his death unless the divorce has been affected with her consent.
Difference between marriage under Sunni and Shia law
There are two categories in the Muslim community on the basis of their practice. The communities are Sunni Muslims and Shia Muslims. Since their beliefs are different, the rules relating to their marriage, divorce, dower, etc. are also different.
Here are some of the important differences between the marriage of Sunni Muslims and Shia Muslims:
- In Sunni law, the proposal and the acceptance are not an essential requirement in marriage hence a marriage under compulsion or without acceptance in Sunni law is valid. But in Shia law, the proposal and acceptance between two parties play a very important role in marriage. Any marriage under compulsion in Shia law is treated as void.
- During the marriage or ‘nikah’ in Sunni law, two males or one male and two females should be necessarily present as witnesses at the time of marriage. In Shia law, any witness is no requirement of a particular number of witnesses to witness the marriage.
- Under Sunni law, males can marry non-Muslim kitabia females whereas marriage of any male or female with a non-Muslim partner is void under Shia law. The marriage of non-muslim kitabia female with a Muslim male is only permitted in muta marriage under Shia law.
- A Muslim female has to observe iddat during the death of the husband or irrevocable talaq according to the Sunni law but iddat is not observed by Muslim females for revocable talaq under Shia law.
- The marriage during the visit to Mecca is valid under Sunni law whereas Shia law doesn’t allow anyone to marry during the visit to Mecca.
- Under Sunni law, a marriage with a woman who is undergoing iddat doesn’t prohibit the marriage between the parties but Shia law prohibits the marriage between the parties if cohabitation is done during iddat with the knowledge of probation.
- A marriage contract by a minor who has attended discretion is only irregular under Sunni law whereas all act before puberty and discretion under Shia law is void.
- A temporary marriage or Nikaah Mut’ah are not permitted under Sunni law whereas temporary marriage, otherwise known as muta marriage is allowed under Shia law.
- If a woman marries a male who is not equal to her status without the consent of the male guardian, the court can make decisions regarding the marriage. Under Sunni law, the factors which are taken into consideration for determining equality in marriage are as follows:
- Good characters
- Means of living
But under Shia law, equality between the parties is determined by the following categories:
- equality in respect of Islam
- ability to support the wife.
Presumption of marriage
Muslim marriage requires the presence of witnesses during the marriage of the parties. The Nikaah Nama signed by both the parties and the eye-witnesses of the marriage is the direct evidence of the marriage. But sometimes it is not possible to produce direct evidence of the marriage, especially when the marriage took place without any ceremony and the eyewitnesses are not present. In such cases, the evidence of the marriage of two parties who have been accepted by the society as husband and wife can be presumed from the different circumstances. This condition is called the presumption of marriage.
Such marriage can be inferred from the following circumstances and conduct:
- The cohabitation of the parties must be a prolonged one.
- The parties must have cohabited as husband and wife.
- The parties should not come within the prohibited degree of relationship.
- The woman should not be a prostitute or concubine in her past.
In the case of Gazanfar Ali vs. Kaniz Fatma [ILR 32 All 345], the Privy Council held a woman who is a prostitute in her past, cohabitating with a man as her husband can never give rise to the presumption of marriage.
The presumption of marriage doesn’t apply if the conduct of the parties was inconsistent with the relationship of husband and wife or if the woman admits herself as a prostitute before she was brought to the man’s house.
In Abdul Razak vs. Aga Mohammad [21 JA 56], the Privy Council decided that the parties, in this case, have an inconsistent relationship hence the conduct of the part was incompatible and doesn’t come under the concept of presumption.
The term ‘muta’ means ‘temporary.’ Muta marriage is a temporary marriage between two parties for a certain period of time. The minimum or maximum time limit for the validation of muta marriage is not prescribed anywhere hence, the time period can be for a day or extend to year(s). In case, the time period is decided during the marriage by the parties, the marriage will automatically dissolve after the expiration of the decided period. However, the marriage will be considered permanent if the time limit of the muta marriage was not mentioned in Nikah Nama in expressed or written form. This type of marriage is allowed by Shia Muslims. Such practice is seen as prostitution and lowering the dignity of a female in Sunni law, hence Sunni Muslims discourage this kind of marriage.
Muta marriage is practised by Muslim females to get monetary benefits hence no witnesses are required such marriage. This practice of muta marriage is adopted when Muslim males started moving to some other place in search of livelihood, they marry a female party with a condition for her sexual union up to a limited period of time. During this period of marriage, the husband has to bear all her expenses for her daily maintenance. The contract of muta marriage can be renewed or extended by the temporary husband and wife. In Muslim law, only the husband has the right to revoke the marriage but the woman has the right to refuse to be intimate with him.
In Luddun Sahiba vs. Mirza Kumar [(1882) ILR 8 Cal 736], the court held that a wife married under muta marriage is also entitled to maintenance under the provisions of Section 125, Code of Criminal Procedure, 1973.
Marriage of Minors
Marriage is not mandatory in the Islamic system. The main objective of the marriage is to give birth to the children and grow the family in the future. Hence, it is strictly followed that no party should marry when they are not prepared to provide children for their future family. A person with no sexual desire or willingness to have children is not forced to marry.
According to Hedaya, the age of the majority is 9 years for females and 12 years for males. In the case of Muhammad Ibrahim vs. Atkia Begum [16 Ind Cas 597], the Privy Council held that under Muslim law, the age of majority for a Muslim girl and boy is 15 years old. In Muslim law, the age of minority is considered to be under 15 years old for females and under 17 years old for males. The marriage without consent even if the parties have attained puberty is void. But the marriage of a minor who has not attained puberty is valid with the consent of parents and guardians.
Repudiation under the Dissolution of Muslim Marriage Act, 1939
Talaq means repudiation or rejection. Under Muslim law, talaq means to release the party from the marriage bond. There is no need to ask for approval from the wife for the dissolution of marriage. The revocable pronouncement of talaq does not dissolve the marriage immediately; rather the marriage will not dissolve till the period of iddat has expired. Whereas, in case of the irrevocable pronouncement of talaq, the marriage will expiry immediately.
In Moonshee Buzloor Rahim vs. Laleefutoon Nisa [8 MIA 397], it was held that under Muslim law, talaq is the mere arbitrary act of a Muslim husband who may repudiate his wife at his own pleasure with or without cause. He has the right to pronounce the talaq at any time. It is not necessary to obtain prior approval from his wife for the dissolution of marriage.
There are two kinds of talaq:
It is further divided into two categories i.e. talaq-i-Ahsan and talaq-e-Hasan.
If talaq is pronounced once between two menstrual cycles and the party abstains themselves from sexual intercourse during iddat, such talaq is revocable by the party before the completion of iddat. This form of talaq prevents hasty and unreasonable divorce.
The pronouncement of talaq three times during three different successive tuhrs (the period between two menstrual cycles) will lead to irrevocable divorce if the parties have no sexual intercourse during this period. Such talaq is irrevocable regardless of the period of iddat.
This is the instant form of Islamic divorce. Any Muslim man can legally divorce his wife by stating the word “talaq” three times orally, written, or through electronic means. This form of talaq is also known as “Triple Talaaq”. Sunni law recognizes talaq-e-biddat as sinful.
In the case of Shah Bano vs. Union of India [W.P. No. 118/2016], the court held that neither is the practice of triple talaq harmonious to the principle of modern society upholding the principles of gender equality and human rights nor does it uphold the integral principle of Islamic law which believes in the rights and dignity of a woman. The principle of triple talaq is unconstitutional and void since the practice of triple talaq violates Article 14, Article 15, Article 21, and Article 25 of the Constitution of India.
The Dissolution of Muslim Marriage Act came in 1939. The Act explains the right of dissolving the marriage under Muslim law.in India. The dissolution of marriage and rights given to the Muslim women during the dissolution of the marriage is explained in the provisions of the Act.
There are customs related to marriage, maintenance of wives, and restitution of conjugal rights under Muslim law which is being followed for the last many years. In India, the main Muslim population constitutes of Sunni Muslims. Nowadays, the customary laws relating to Muslim marriage, divorce, maintenance of wives, etc. are changing with time. The Muslim law provides the male party with superior power which is misused by them. The practice like muta marriage and triple talaq has a negative impact on society, especially Muslim women. The women are now standing for their rights and the laws are being controlled by the legislations and judgments delivered according to the need of the time. The changes are the demand of the time and should be encouraged. Previously, the rules were not much violative in nature but with time it started violating the rights of the women which should be avoided. The famous case of Shah Bano is the call for the revolutionary change in Muslim laws. The changes are the positive sign which makes the weaker section aware of their rights and provides them with the strength to stand for their rights to get justice.
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