This article is written by Khushi Rastogi, a student at Symbiosis Law School, Noida. In this article, she discusses various types of Muslim marriages, registration and dissolution of marriages under Muslim law.
Marriage under Islam is a matrimonial relation and an institution which legalizes the sexual activities between a male and female for the object of procreation of kids, promotion of love, mutual support and creation of families which are considered an essential unit in a society. Just like Hinduism, Islam is also a strong advocate of marriage. However, the Muslim conception of marriage differs from the Hindu conception according to which marriage is not a mere civil contract but a sacrament. According many philosophers, marriage in Islam is a religious duty. Everyone must marry in order to fulfil one’s desire of procreation of kids legally.
Muslim law has been derived from various codified and uncodified sources like- Quran, Ijma, Qiyas, customs, urf, precedents, equity and various legislations. There are 4 major sunni school of thoughts- hanifa, hamabli, maliki and shafai. These four schools recognize each other’s validity and they have interacted in legal debate over the centuries. In India, Hanifa school of Islamic law is dominant.
The general essentials of a Muslim Niqah are:
- Parties must have capacity to marry.
- Proposal (ijab) and acceptance (qubool).
- Free consent of both the parties.
- A consideration (mehr).
- No legal Impediment.
- Sufficient witnesses (different in shia and sunni).
Classification of Marriage
When all the legal requirements are fulfilled and there are no prohibitions affecting the parties, then the marriage is correct or ‘sahih’. The prohibitions can be permanent as well as temporary, in case of permanent prohibitions: the marriage will be void and if the prohibitions are temporary then the marriage is irregular.
Effects of a valid marriage
- The cohabitation between the husband and the wife becomes lawful.
- The children born out of a valid marriage are legitimate and they have right to inherit their parent’s properties.
- Mutual rights of inheritance between husband and wife are established. That is to say, after the death of the husband, the wife is entitled to inherit the husband’s properties and after the wife’s death, husband may also inherit her properties.
- Prohibited relationship for purposes of marriage is created between the husband and wife and each of them is prohibited to marry the relations of the other within prohibited degrees.
- The wife’s right to claim dower is fully established just after the completion of marriage.
- The marriage gives to the wife also the right of maintenance from her husband with immediate effect.
- After the dissolution of the marriage, the widow or the divorced wife is under an obligation to observe the Iddat, during which she cannot remarry.
The marriage being void ab initio creates no rights or obligations and the children born out of such marriage are illegitimate. A marriage forbidden by the rules of blood relationship, affinity or fosterage is void. Similarly, a marriage with the wife of another or a divorced wife during iddah period is also void.
Due to lack of some formality, or the existence of an impediment which can be rectified, a marriage becomes irregular, However, this irregularity is not permanent in nature and can be removed. Thus, the marriage itself is not unlawful. It can be made valid once the prohibitions are rectified. Marriage in such circumstances or with following prohibitions are called ‘Fasid’.
- A marriage contracted without required number of witnesses;
- A marriage with women during her Iddat period;
- A marriage with women without the consent of her guardian when such consent is considered necessary;
- A marriage prohibited on account of difference of religion;
- A marriage with a woman who is pregnant, when the pregnancy was not caused by adultery or fornication;
- A marriage with a fifth wife.
Muta or Nikah mut’ah
The term literally means “pleasure marriage”. Muta marriage is a temporary agreement for a limited time period, upon which both the parties agreed. There is no prescribed minimum or maximum time limit, it can be for a day, a month or year(s). The marriage dissolves itself after the expiration of the decided period, however if no such time limit was expressed or written, the marriage will be presumed permanent. This type of marriage is seen as prostitution by the Sunni Muslims and thus, is not approved by Sunnis.
However, it is considered legitimate by the Twelver Shia sect, which is predominant in Iran and constitutes 90% of India’s Shia population. In Iran, the word mut’ah is only from time to time utilized and this practice is called ‘sigah’. The rules for sigah are fixed for eg- the contract for temporary marriage can be attracted for one hour to 99 years; it can’t be for an indeterminate period. This provision distinguishes mut’a from nikah or lasting marriage, which has no time limit. However, just like in nikah, in sigah too, the bride must get some monetary benefit.
No witnesses are required for mut’ah. And just like in any other contract, the woman being a party can lay down conditions for her sexual union throughout this time limit, this can also include her daily maintenance. Her temporary husband must respect these conditions. The marriage automatically dissolves at the end of the stated period. No matter how short the duration was, the woman has to practice abstinence lasting up to two menstrual cycles.
Interesting part is that, the temporary husband and wife can renew the contract but the husband must regardless of this pay the amount to the bride. Husband has a unilateral right to revoke the marriage-mark of his superior position in the relationship. But the woman can refuse to be intimate with him or even leave him, but in such case, she must return back the amount she received from him.
India is a country that has partially approved live-in relationships; However, it will still be quite difficult for the Supreme Court to constitutionally invalidate this form of marriage. In modern day era, where feminists all across the globe see this arrangement equivalent to prostitution. There are many advocates of Nikah mut’ah who believe that being a contract, this arrangement is superior to the live- in relationships.
Registeration of Marriage under Muslim Law
Registration of marriage in Muslims is compulsory and mandatory, as a Muslim marriage is treated as a civil contract. According to section 3 of Muslim Marriages Registration Act 1981- “Every marriage contracted between Muslims after the commencement of this Act, shall be registered as hereinafter provided, within thirty days from the conclusion of the Nikah Ceremony”. Nikahnama is a type of legal document in Muslim marriages which contains the essential conditions/details of the marriage.
According to this act, a Nikahnama contains:
- Place of marriage (with sufficient particulars to locate the Place.)
- Full name of the bridegroom
- Full name of bridegroom’s father
- Whether father is alive or dead
- Civil condition of the bridegroom at the time of marriage whether – Unmarried Widower Divorced Married, and if so, how many wives are alive
- Signature or thumb impression of the bridegroom/Vakil/ Guardian according as the Nikah was performed in person by the bridegroom or through his Vakil or Guardian
- Full name of Nikah-Khan (that is the person conducting the Nikah Ceremony.)
- Signature of the Nikah-Khan (i.e person conducting the Nikah Ceremony with date.)
- Amount of dower fixed
- Manner of payment of dower
- Name of witnesses with parentage, residence and address
Dissolution of Marriage
There are 2 categories of divorce under Muslim law:
The Extra-judicial mode of Divorce can further be divided into 3 subdivisions:
- By husband- talaaq, ila, and zihar.
- By wife- talaaq-i-tafweez, lian
- By mutual agreement- khula and mubarat
A divorce falls into 2 categories:
It can further be divided into two categories:
A single pronouncement of divorce is made during the period of tuhr (the period of purity between two menstrual cycles), followed by abstinence from sexual intercourse during the period of iddat. Here, the divorce can be revoked at any time before the completion of iddat, thus preventing hasty and unreasonable divorces.
A husband is required to pronounce a formula of Talaaq three times, during three successive tuhrs. It is important that pronouncements are made when no intercourse takes place during any period of tuhr. The marriage is dissolved irrevocably, regardless to the period of iddat.
It is a form of Islamic divorce which is instant in nature. It allows any Muslim man to legally divorce his wife by stating the word “Talaaq” three times in oral, written, or more recently, electronic form. This is prevalent among the Muslims in India, especially among the adherents Hanafi school of Islam. This is also known as “Triple Talaaq” and has been a subject to debate and controversy.
In Shayara Bano V. Union of India and Ors. It was submitted that:
“This practice of talaq-e-biddat (unilateral triple-talaq) which practically treats women like chattel is neither harmonious with modern principles of human rights and gender equality, nor an integral part of Islamic faith, according to various noted scholars. Muslim women are subjected to such to such gross practices which treats them as chattel, thereby violating their fundamental rights enshrined in Articles 14, 15, 21 and 25 of the Constitution. The practice also wreaks havoc to the lives of many divorced women and their children, especially those belonging to the weaker economic sections of the society.”
There have been many cases in High courts and the supreme court, where the court invalidated the instant triple talaaq. In Shamim Ara V. State of U.P, the court observed that:
The correct law of Talaaq as ordained in Holy Quran is that:
- There must be a reasonable cause for the divorce.
- The declaration of divorce must be preceded by attempts of reconciliation between husband and wife by 2 arbitrators. If the attempts fail, then only the divorce will come into effect.
Supreme court in August 2017 declared Triple Talaaq as “unconstitutional”. The Modi Government introduced a bill called The Muslim Women (Protection of Rights on Marriage) Bill, 2017 and presented it in the Parliament which was passed on 28 December 2017 by the Lok Sabha. The bill makes moment triple (talaq-e-biddat) in any structure spoken, recorded as a hard copy or by electronic methods, for example, email, SMS and WhatsApp unlawful and void, with as long as three years of imprisonment for the husband.
However, one of the principle conflicts against the proposed enactment has consistently been its acknowledgment of a common offense as a cognisable and non-bailable offence.
The notions of Muta marriage can be evidently seen in our country. In India, temporary marriage is not recognized, although there exists few who contract Muta marriage but such marriages are not enforceable in court. Hyderabad is considered to be the epicentre of the practice where marriage can be instituted for time span as short as one or two days. In a Hyderabad case it was held that there is no difference between muta for an unspecified period and a muta for life; a permanent nikah marriage for life can be contracted by the use of word muta also; specification of the period for which a muta marriage is contracted alone makes a marriage a temporary marriage for the period specified.
The practice of Temporary “Muta” marriage is widespread in the modern times and often arranged by Imams and other Islamic leaders in Europe, America (Shia parts of Dearborn, Michigan), and in the Middle east. It is commonly the destitute widows and orphaned girls that are within the clutches of temporary marriage who are often sold to old men. For the women, there is no desire or pleasure that drives them into such misery; it is the extreme means to pay the rent and feed themselves and their children. As a result, this arrangement has received widespread criticism by various countries as it impliedly encouraging legalization of prostitution.
The conflicts over the rights of minority women are best dealt with by creating new representative bodies which have special provisions to ensure that women are sufficiently represented. In the Shah Bano case, this would have meant creating a new mechanism to administer Muslim personal law instead of simply recognizing the Muslim Personal Law Board as the legitimate representative of the Muslim community. Creating a new mechanism is more sensitive to the political reality of Muslims in India, which is that they consist of widely dispersed groups characterized by significant differences. It would also make some provision to ensure that Muslim women have some access to the institutions which make the rules which govern their lives.
- Ahmed, Akbar S. Discovering Islam: Making Sense of Muslim History and Society.
- New York: Routledge & Kegan Paul Inc., 1988. Brass, Paul.
- R. Ethnicity and Nationalism: Theory and Comparison. New Delhi: Sage Publications, 1991.
- Language, Religion and Politics in India. London: Cambridge University Press, 1974.
- The Politics of India since Independence. Cambridge: Cambridge University Press, 1990.
- Brydon, Lynne and Sylvia Chant. Women in the Third World. London: Edward Elgar Publishing Ltd, 1989.
- Bumiller, Elisabeth. May You Be the Mother of a Hundred Sons: A Journey Among the Women of India. New Delhi: Penguin Books India, 1990. Carroll, Lucy.
- “Muslim Family Law in South Asia: Important Decisions Regarding Maintenance for Wives and Ex-Wives.
- Women and Society in India. Delhi: Ajanta Publications, 1987. Everett, Jana M. Woman and Social Change in India.
- New York: St. Martin’s Press, 1979. Engineer, Asghar Ali. (ed.)The Shah Bano Controversy. Hyderabad, India: Orient Longman, 1987.