This article has been written by Anwesha Pati. This article deals with the concept of marriage under Muslim law and how it has evolved from the pre-Islamic period to the present times. The article also discusses the formalities that are essential for a Muslim marriage to be declared valid and the legal status of the different kinds of marriages under Muslim law.  

Introduction

“Marriage is my precept and my practice. Those who do not follow my practice are not of me.”                            

                                                                                                      – Prophet Mohammad

An important aspect of personal laws governing any community is the concept of marriage. Under Muslim law, marriage is referred to as “Nikah”, which is an Arabic word meaning union of the sexes. Thus, the purpose of marriage has been the procreation of children and a mode of legitimising sexual behaviour. The Quran refers to Nikah as “Mishaaqan Ghaliza” which translates to a sacred and noble covenant. It is in the nature of a contract whereby two parties who have reached puberty (considered the age of majority in Islam for marriage) are tied in an eternal bond and vests them with duties and responsibilities that are to be fulfilled towards each other.

A perusal of the Quran and Hadees reveals that the purpose of marriage is threefold. Firstly, marriage provides an opportunity for a man and woman to experience each other’s company and the happiness of a shared home. Secondly, the object of marriage is to produce legitimate children and provide a conducive environment for their upbringing. Thirdly, marriage serves the social purpose of maintaining harmony and preventing men from indulging in promiscuous behaviour. Thus, marriage under Muslim law is considered crucial in regulating the social fabric and at the same time acts as a medium for men and women to fulfil their emotional needs through companionship.

Concept of marriage under Muslim Law

The concept of marriage has undergone significant changes since the inception of Islam. In pre-Islamic times, Arabic society was tribal in nature and is often referred to as Jahiliyyah (age of ignorance). The tribe was the main unit of society and in order to survive, every person had to belong to a particular tribe. Since the laws and regulations of each tribe differed, the position of women varied depending upon which tribe they belonged to. In most cases, it was not very favourable as it was a male-dominated society. The customs which were prevalent allowed men to take multiple wives and the marriages at the time did not bestow rights and obligations on the parties.

However, there is also ample evidence to show that women held high positions and were given rights, such as the right to choose their husbands, to divorce, and to return to their own tribe. The most common types of marriages that were in practice were marriage by agreement, marriage by capture, marriage by Mehr, marriage by inheritance, and Muta marriage. 

Marriage by agreement involves an agreement between a man and his future wife’s family.  The parties could belong to the same tribe or even different tribes. Some women were forbidden from marrying outside their tribe and had to marry within the tribe or a stranger who acquiesced to live with the tribe. In the case of intertribal marriage, the woman had to leave her family and reside with her husband. The children born from such marriages were considered a part of the father’s tribe unless a contrary agreement had been made during the marriage. In inter tribal marriages, women had more freedom and could refuse or divorce their husbands at any time.

In marriage by capture, referred to as Ba’al, women were taken as captives during the war by men from other tribes and were sold into slavery or marriage. The woman was completely under the control of the man in such a marriage. They had no freedom or the right to divorce and her only role was to bear his children. The husband was regarded as the lord or owner of the wife, and hence, it was referred to as a marriage of domination.

Marriage by purchase/Mehr is also another kind of marriage that was in vogue in pre-Islamic Arabia. The groom’s family paid Mehr to the bride in order to contract a marriage. Although such a marriage was slightly different from marriages by capture, the position of women remained unchanged as they were still under subjugation. The Arabs were wary about selling their daughters and wanted an equal match, charging a hefty Mehr while contracting such marriages.

Marriage by inheritance involves passing down a man’s wife after his death to his legal heir. When a man died, his heir inherited all his wives. He was allowed to either keep all of them as his wives or arrange a marriage in exchange for dower or he could simply dismiss them. This type of marriage was prevalent in most of Arabia, including Mecca and Medina.

Several other types of cohabitation practices like secret marriage (where the man visited the woman in secrecy occasionally), marriage by exchange (which allowed a man to exchange his wives with wife of another man), polygamy, polyandry, concubinage, service marriage (where a man unable to pay dowry agreed to serve the wife’s father or kin till he earned the bride price), wife lending (where a man allowed his wife to cohabit with “men of distinction” to bear children of noble lineage) can be seen in pre-Islamic Arabia.

However, in post-Islamic times, improvements in the concept of marriage can be observed. It is more of a contract between the parties who are on an equal footing and, at the same time, have secured the rights of women through the payment of dower. Islam has greatly strengthened the position of women who were subjected to male domination during the period of Jahiliyyah and recognised them as separate individuals who are equally entitled to rights of divorce, property, freedom, and dignity. The rights of women which were previously under the caprice of narrow societal norms were restored by Islam.

Nature of Muslim marriage

To put it in simple words, the nature of a Muslim marriage is essentially similar to a civil contract. The reasons behind connoting a contractual nature to a Muslim marriage are the following: 

• A contract consists of an offer made by one party and accepted by another. Similarly in a Muslim marriage, a party has to make an offer of marriage (Ijab) in clear terms to another which should be accepted (Qubool).
• Consent to a contract must be obtained freely without subjecting the party to any kind of coercion, fraud, misrepresentation, undue influence, or mistake. A Muslim marriage also stipulates that parties must consent to the marriage out of their free will.
• A contract with a minor is void ab initio. In a Muslim marriage also, the parties are expected to have reached puberty, in order to contract a valid marriage. Marriage with a minor is considered to be void.
• A contract that has been entered into when the parties were minor can be ratified or set aside by him/her upon reaching a majority. A Muslim marriage also provides the option of puberty wherein parties to the marriage, if given in marriage by their guardian during minority, can ratify or repudiate the marriage on attaining majority.

In the case of Abdul Kadir vs. Salima and Anr. (1886), Justice Mahmood dealt with the nature of Muslim marriage at length. Denoting it as a purely civil contract and not a sacrament, he goes on to elucidate that although the marriage is concluded with the recitation of Quranic verses, there are no stipulations provided in Islam such that its non-performance would render the marriage invalid. It is also not mandatory to be reduced to writing and the only considerations necessary are the declaration made by one party and the acceptance of it by another or by their guardians in the presence of proper witnesses. 

The moment a marriage is solemnised by making a declaration and its acceptance, both parties are vested with legal rights. Conjugal relations between them become legal. The wife has the right to dower, maintain, and raiment. The prohibitions of affinity are made applicable to both spouses and at the same time, they become entitled to mutual rights of inheritance. The husband is enjoined to treat all his wives equally, with respect and kindness, and also the power to chastise her in case of disobedience. Similarly, the wife is to provide access to her for establishing connubial relations.

However, in Shoharat Singh vs. Jafri Begum (1914), the Privy Council opined that a Muslim marriage is a religious ceremony. According to Justice Ameer Ali, marriage under Islam has its roots in tradition and religious duty ordained in the Quran. Its purpose is the propagation of the human race and to steer men away from foulness and unchaste behaviour. Muslim marriage is not entirely a contract and imbibes within it certain religious aspects also. It is mandatory that parties to the marriage must be Muslim by religion. The Quran describes marriage as “Ibadat” meaning a devotional act. Thus, men and women are discharging their religious duties by entering into the ties of marriage. 

Apart from these considerations, the concept of Mehr or dower has often been equated to consideration under Section 25 of the Indian Contract Act, 1872. However, such a view is not entirely true because the object of the dower is not only a payment of a sum by the husband, rather it acts as a mark of respect for the wife and provides her with security for sustenance. The Indian Contract Act contains provisions of contingent contract, but a Muslim marriage cannot be contingent in nature. Under the contract law, acceptance can be given subsequently within a reasonable time, but in Muslim marriage, offer and acceptance must be given in the same meeting.

In the case of Anis Begum vs. Malik Muhammad Istefa (1933), it was held by Justice Suleiman that a Muslim marriage apart from being a contract, is also a religious sacrament.

Essentials of Muslim marriage

The essentials of a Muslim marriage can be listed as follows:

Competency of the parties

Both parties must be Muslim, of sound mind, and have attained the age of majority at the time of solemnisation of marriage. The age of majority, for the purposes of marriage under Muslim law, is when they hit puberty. However, a person who has not reached the age of majority can be given in marriage by his guardian. In order to understand how guardianship in marriage works, it is pertinent to know the following life stages. Under Muslim law, a man and woman have three life stages-

• Saghir, when the boy or girl is under 7 years of age. A marriage solemnised at this age has no legal validity.
• Sariri is the age between 7 to 15 years old. Even at this age, consent of the boy and girl is immaterial and they can be married at this age only with the guardian’s consent. Under Shia law, only the father or paternal grandfather, if the father is not present, is allowed to give a minor in marriage. Under Sunni law, the following persons can contract a marriage, on behalf of a minor, successively,

1. Father,
2. Paternal Grandfather, how high soever,
3. Brother and other male relatives,
4. Mother,
5. Mother’s relatives,
6. The State/Kazi/Court.

• Bulugh, when the boy and girl attain the age of 15 years, they are allowed to contract marriage at their will and such marriages are considered to be legally valid under muslim law. 

It is also important to understand the concept of Khyar-ul-Bulugh in this context. Khyar-ul-Bulugh stands for the option of puberty where a minor who has been given in marriage by his or her guardian during minority is given the right to ratify or repudiate the marriage on attaining majority, provided the marriage has not been consummated. The option of puberty must be exercised immediately upon attaining puberty and any unreasonable delay may result in the expiration of the right. The wife can exercise the option of puberty on attaining 15 years of age, but before 18 years to ratify or repudiate the marriage.

However, the rigid application of this rule has been relaxed by the Courts wherein they have opined that if the minor wife is unaware of her right of repudiation, she is allowed to exercise it when it comes to her knowledge. She can ratify the marriage by making an express declaration or impliedly by entering into cohabitation with her husband or she can choose to repudiate the marriage by exercising this option. Repudiation of marriage by exercising this right is also a ground for divorce for a Muslim woman under Section 2 (vii) of the Dissolution of Muslim Marriage Act, 1939.

Similarly, the husband can ratify the marriage under the option of puberty by making an express declaration or payment of dower or by entering into cohabitation. However, the husband cannot exercise this right to repudiate the marriage if he has been given in marriage by his father or grandfather, but if it is proved that the father or grandfather has acted fraudulently or negligently at the time of contracting the marriage, then the minor is allowed to repudiate the marriage on attaining puberty. As to the question of whether a formal decree of the court is necessary after the marriage has been repudiated by the exercise of this right, there is a conflict of opinion among different courts. The Madhya Pradesh High Court in a case opined that the exercise of the option of puberty must be confirmed by a decree of court. But in Khatija Qubra vs. Iqbal Mohd(2009)., it was held that where the factum of repudiation has been proved, a separate decree is not mandatory. According to Radd-ul-Mukhtar, confirmation by Kazi is not required but the Hedeya stipulates confirmation by Kazi.

Parties must be sane at the time of marriage. A marriage contracted when the parties are not of sound mind will have no legal validity. However, if it is contracted during lucid intervals it will be considered as valid. A party who is not of sound mind can be given in marriage by his or her guardian.

Parties must be Muslim by religion in order to contract a valid marriage. Under Shia law, marriage with a non-Muslim is considered to be void or a Batil marriage. The position is different in the case of Sunni law. The validity of marriages based on differences in religion can be understood through the following table:

Marriage between	Sunni Law	Shia Law
Muslim male and Muslim female	Valid	Valid
Muslim male and Kitabia female	Valid	Void, but valid in case of Muta marriage
Muslim male and non-Muslim/non-Kitabia female (Hindu, Parsi)	Irregular	Void
Muslim female and non-Muslim/ Kitabia/Hindu male	Void	Void

The word Kitabia is derived from the word “kitab” meaning book and it denotes a person whose religion has been revealed through a Holy book. The followers of Christianity and Judaism are referred to as Kitabia.  

A Muslim female is prohibited from marrying a non-Muslim or Kitabia and such a marriage shall be void under both Shia and Sunni law. She is also prohibited from practising polyandry(having multiple husbands). A marriage between a Muslim and a non-Muslim can take place only under the Special Marriage Act, 1954.

Consent

Both parties must have consented to the marriage of their own free will. Since Muslim marriage is in the nature of the contract, consent to a valid contract must not be obtained by coercion, fraud, undue influence, misrepresentation, or mistake. It is necessary that consent should be devoid of the abovementioned factors. A marriage in which consent has been obtained by compulsion is void under both Shia and Sunni sects. In case of consent induced by fraud, a marriage is voidable at the option of the party who has been defrauded. In case of a mistake of fact, the marriage is void.

Formalities

Apart from competency and consent of the parties, certain formalities have to be fulfilled to render it a valid marriage:

Offer and Acceptance 

Since Muslim marriage is in the nature of a contract, it can be solemnised when one party makes an offer (Ijab) of marriage and the other party accepts it (Qubool). The offer must be clear and unambiguous.

Same meeting 

The offer and acceptance must be made in the same meeting. If an offer and acceptance are made in separate meetings, it does not constitute a valid marriage. Nikah over the telephone is permitted only if the parties are residing in different countries or cities and will be valid if all the essential conditions are fulfilled.  

Witnesses 

Under Sunni law, the presence of two male persons or one male and two females is required at the time of making the offer and acceptance. Such a person must be an adult, sane, and Muslim by religion. However, the absence of witnesses does not render the marriage invalid but only irregular. Under Shia law, the presence of witnesses is not required at the time of marriage but in case of a marriage being contracted by a guardian on behalf of a minor, two adult witnesses must be present.

Reciprocity 

Acceptance of an offer of marriage must be unconditional, similar to Section 7 of the Indian Contract Act, 1872.

Prohibited degrees

Parties to the marriage must not be within prohibited degrees. Two types of prohibition are recognised under Muslim law:

Absolute prohibition

It refers to a kind of relationship that exists between the parties such that marriage between them cannot be permitted at all. It arises because of consanguinity, affinity or fosterage. A marriage contracted in violation of absolute prohibition is void. The following relationships come under absolute prohibition:

• Qurabat or consanguinity means blood relationship. A man is forbidden to marry the following females: 

1. His mother or grandmother, how high so ever,
2. His daughter or granddaughter, how low so ever,
3. His sister, whether half blood or full blood or uterine blood,
4. His niece or great-niece, how low so ever,
5. His aunt (father’s sister or mother’s sister) or great aunt (how high so ever).

• Musharat or affinity refers to the nearness of a relationship. A man is forbidden from marrying the following female relatives:

1. Ascendants of his wife. For example, his wife’s mother or grandmother.
2. Descendants of his wife. For example, his wife’s daughter or granddaughter.
3. Wife of any ascendant. For example, his father’s wife or paternal grandfather’s wife.
4. Wife of any descendant. For example, the wife of one’s own son or son’s son, or daughter’s son.

Similarly, a woman  is forbidden from marrying the following male relatives:

1. Ascendants of her husband. For example, her husband’s father or grandfather.
2. Descendants of her husband. For example, her husband’s son or grandson. 

• Fosterage or Riza is the third prohibition. A child under the age of 2 years who has been suckled by a woman other than his mother becomes the foster mother. Thus a man is prohibited from marrying such persons with whom he shares a foster relationship. He cannot marry his foster mother or grandmother (how high so ever) and his foster sister (daughter of foster mother).

Limited/relative prohibition

It refers to a prohibition that is relative in nature and once the impediment is removed the marriage becomes a valid one. A marriage in violation of a relative prohibition is irregular under Sunni law and void under Shia law. The following prohibitions are considered to be relative:

• Unlawful conjunction–  A man is not allowed to marry two females who are related to each other because of consanguinity, affinity or fosterage. Thus a Muslim man marrying two sisters results in an unlawful conjunction and such a marriage will be irregular under Sunni law. He is allowed to marry his wife’s sister only after her death or divorce. 
• Marriage with a fifth wife– Under Muslim law, a man is permitted to take 4 wives. Marriage with a fifth wife while the other four are still subsisting renders it irregular; however, the fifth marriage becomes valid after the death or divorce with any of the four wives.
• Absence of proper witness– Muslim marriage requires the presence of proper witnesses at the time of its solemnization under Sunni law. The absence of witnesses only renders it irregular and not void. Under Shia law, the presence of a witness is not required.
• Marriage during Iddat– Marriage with a female undergoing Iddat is irregular. Iddat is a period during which a woman remains in seclusion if her marriage has been dissolved by the death of the husband or by divorce. During such a period, she is not allowed to marry another person for the purpose of determining whether she is pregnant or not by the previous marriage and to avoid the confusion of paternity. The duration of iddat where marriage has been dissolved by divorce shall be:

1. If not consummated, Iddat is not to be observed.
2. If consummated and the woman is subjected to menstruation, 3     monthly courses.
3. If the woman is not subjected to menstruation, then the Iddat period is 3 lunar months.
4. If the woman is pregnant at the time of divorce, Iddat is to be observed till delivery or termination of pregnancy.

The duration of Iddat where marriage has been dissolved by the death of the  husband shall be: 

1. 4 months and 10 days, irrespective of the fact of consummation.
2. If the widow is pregnant at the time of death of the husband, then Iddat is to be observed till delivery or termination of pregnancy. If the delivery or termination takes place before the 4 months and 10 days, the remaining period has to be observed.

The Iddat period commences from the date of divorce or death of the husband or the date on which the woman gets the knowledge of the death of the husband or divorce. In the case where the husband has divorced his wife and dies before the completion of Iddat, the wife has to undergo iddat for a fresh period of 4 months and 10 days from the date of the husband’s death. 

• Marriage with a non-Muslim– Under Sunni law, marriage with a non-Muslim is considered to be irregular. 
• Marriage during pilgrimage– A Muslim undergoing pilgrimage or Hajj is forbidden from entering into a marriage.
• Polyandry– Muslim women are not allowed to take multiple husbands and are to strictly practise monogamy. 
• Rule of equality– The doctrine of equality stipulates that the parties to marriage must be equal, in terms of rank and social standing. According to the Hanafis, a Muslim male must be of good character, possess sufficient means, and hail from a good family. Among the Malikis and Shias, being a Muslim and having the means to sustain a family are the only requisites for marriage. The doctrine of equality holds little relevance in modern times as strict adherence is hardly possible. In cases where an adult marries into a family that is lower in rank, the court does not have the power to declare such marriage ad invalid. However in cases, where the woman has entered into a runaway marriage with a person of low rank, against the wishes of the family, both Ameer Ali and Fyzee concur that the court can annul such a marriage on application made by the wali (guardian) of the female.

Fixation of Mehr

Dower or Mehr is also an important part of a Muslim marriage. Mehr is a sum of money or other property to be paid or delivered by the husband to the wife by operation of law or as agreed upon by the parties to the marriage. Even in cases where the Mehr has not been fixed, the wife is entitled to her right to dower. Thus Mehr is regarded as a mark of respect for the wife by the husband and also acts as a deterrent for the husband from arbitrarily exercising his right of divorce. The purpose of Mehr is also to provide a means of sustenance to the wife after her divorce.

The amount of Mehr must be fixed at the time of marriage by the parties themselves if they have reached the age of puberty and are of sound mind. In the case of the marriage of a minor or lunatic being contracted by the guardian, the amount of mehr is fixed by the guardian and will be binding on the minor. The subject matter of dower can be anything of value and which is not regarded as Haram in Islam. It can be a handful of dates or if the husband is a slave, his services to his wife or instructions of the Quran, or any immovable property, land, house, etc. In most cases, a Mahr deed is executed which contains the details of the amount and means of payment in written form. 

Registration of Muslim marriage

Although registration of a Muslim marriage is not a mandatory requirement, the same can be done under the Muslim Marriages Registration Act,1981  governed by the Shariat Act, 1937. Registration of Muslim marriage involves the issuance of Nikahnama which constitutes valid proof of the marriage. It is issued by the Kazi who solemnises the marriage after obtaining the consent of both parties. Section 3 of the aforesaid Act stipulates that a Muslim marriage must be registered within 30 days of the conclusion of the nikah ceremony. 

The Act also enjoins upon the bride, bridegroom, and the Kazi who performed the nikah, a duty to have the marriage registered and that a copy of the Nikah-nama, where it is written and in other cases a memorandum filled in by the Kazi should be delivered by registered post to the Sub-Registrar of the Sub-District in which the marriage took place. The Nikah nama or the memorandum should also specify the amount of dower, whether prompt or deferred, and the manner in which payment is to be made. The Schedule appended to the Muslim Marriages Registration Act, 1981 states the details to be mentioned in the Nikah Nama or memorandum. They are: 

1. The place of marriage
2. (i) Full name of the bridegroom

(ii) His age

(iii) His place of residence

(iv) Address

(v) Full name of the bridegroom’s father

(vi) Whether the father is alive or dead

(vii) Civil condition of the bridegroom at the time of marriage, that is whether he is unmarried or widower or divorced or married. If he is married, how many of his wives are still alive also has to be mentioned.

(viii) Signature or thumb impression of the bridegroom or guardian 

3. (i) Full name of the bride

(ii) Her age

(iii) Her place of residence

(iv) Address

(v) Full name of the bride’s father

(vi) Whether the father is alive or dead

(vii) Civil condition of the bride at the time of marriage

(viii) Signature or thumb impression of the bride or her guardian

4. (i) Full name of the Nikah-Khan (the person who conducted the Nikah ceremony)

(ii) His age 

(iii) Place of residence

(iv) Signature of the Nikah-Khan specifying the date

(v) Father’s name

5. (i) Amount of dower fixed

(ii) Manner of payment of dower

6. Name of witness with parentage, residence, and address. 

Section 7 of the Act states that a Nikah Nama or memorandum will not be invalidated by reason of the failure of delivery of the Nikah Nama or memorandum to the Sub-Registrar or because of the reason that the copy of the Nikah Nama or memorandum delivered turned out to be defective. Section 8 imposes a penalty on any person who wilfully or negligently fails to deliver the copy of the Nikah Nama or memorandum to the Sub-Registrar and on conviction, a Judicial Magistrate may impose a fine which may extend to three hundred rupees.

Types of Muslim marriages

On the basis of validity, marriage has been categorised as valid (Sahih), void (Batil), and irregular (Fasid). The Sunni sect recognizes all three types of marriage however the Shia sect only recognises valid and void marriages. There is no such thing as irregular marriage under Shia law. 

Sahih Nikah (Valid Marriage)

A marriage that has been solemnised by observing all the essential conditions of Muslim marriage and does not suffer from any infirmities is called a Sahih nikah. It is a completely valid marriage in the eyes of the law.

Essentials of a Valid Marriage

• Parties must be Muslim, of sound mind and reached the age of puberty. If the parties are minor, the marriage must be contracted by their guardians on their behalf.
• Parties must have consented to the marriage out of their free will.
• The offer(Ijab) and acceptance(Qubool) must have been made in the same sitting.
• The parties must not be within prohibited degrees of relationship.
• Two male witnesses or one male and two female witnesses must be present at the time of marriage, however, this is not necessary if the parties belong to the Shia sect.
• The amount of dower must be fixed. 

Legal effect of a valid marriage

A valid marriage has the following legal consequences:

• Consummation between husband and wife is legal.
• The children born out of a valid marriage are legitimate and entitled to inherit the property.
• Husband and wife can inherit each other’s property.
• The wife acquires the right of maintenance, dower, and residence.

Batil Nikah (void marriage)

A marriage that has been contracted in violation of essential conditions under Muslim law is a void or Batil marriage. Such a marriage has no legal effect and does not create any rights or obligations between the parties.

Essentials of void marriage

• Parties are not Muslim or of sound mind at the time of marriage.
• Either of the parties has not given his/her consent to the marriage out of their free will.
• The parties are within prohibited degrees of relationship which are absolute in nature like consanguinity or affinity or fosterage.
• The dower has not been fixed.
• The offer and acceptance of marriage has not been made in the same sitting or the acceptance has not been given unequivocably.

Legal effect of void marriage

A void marriage has the following legal consequences:

• Consummation between husband and wife is unlawful.
• Children of a void marriage are illegitimate and cannot inherit the property of their parents.
• The wife is not entitled to receive maintenance under a void marriage.
• The husband and wife are not entitled to inherit each other’s property, however she is entitled to dower if the marriage has been consummated.
• Parties can separate from each other at any time without divorce and can contract another marriage.

Fasid Nikah (irregular marriage)

If the marriage has been contracted in violation of certain relative prohibitions, then it is called irregular or Fasid marriage. Such marriages can become valid if the relative prohibitions cease to exist or are removed. A Fasid marriage is in contrast to void marriages where the prohibitions are permanent and cannot be removed at all. It is only recognised by the Sunni sect.

Essentials of irregular marriage

• Parties must be of sound mind and should have reached the age of puberty.
• Parties must have consented to the marriage out of their free will.
• The offer(Ijab) and acceptance(Qubool) must have been made in the same sitting.
• The amount of dower must be fixed.
• Parties must suffer from some relative impediments like-

1. If the wife is an idolatress or fire worshipper.
2. If the woman is undergoing Iddat.
3. If the husband already has four wives and he marries another woman.
4. If a Muslim man marries two women who are related to each other through consanguinity or affinity or fosterage.
5. If proper witnesses are not present at the time of marriage(applicable only to Sunnis).
6. If a Muslim woman has more than one husband.

Legal effects of irregular marriage

The effects of a Fasid marriage can be different depending upon whether the marriage has been consummated or not. If the marriage has not been consummated:

•  It has the same consequences as that of a void marriage. The spouses can separate without divorce or the intervention of the court. 
• The wife is not entitled to maintenance.
• The wife is not bound to observe iddat.

If the marriage is consummated:

• Children born out of such marriage are legitimate.
• Mutual rights of inheritance between husband and wife are not available, even if marriage is consummated.
• The wife is entitled to a specific or proper dower whichever is less.
• The wife has to observe iddat in case of the death of her husband or divorce.
• The wife is not entitled to maintenance during iddat.

Muta marriage

The word “Muta ” means enjoyment or use and a Muta marriage signifies a marriage that has been contracted temporarily for a specific duration by fixing the amount of dower. This type of marriage is recognised only under the Ithna Asharia school of the Shia sect and is void under Sunni law. The purpose of Muta marriage is to prevent the sin of Zina (adultery) and to give legitimacy to children born out of such marriages.

Essential conditions of Muta marriage

Competency

A male Shia is allowed to contract Muta marriage with a Muslim or Kitabia(Christian and Jew) or a fire worshipper. Muta marriage with a Hindu is void. A female Shia can enter into a Muta marriage with a Muslim only.

Fixed period

The term during which the Muta marriage is to last should be stipulated. The term could be for a week, a month, or a year. If the term is not fixed, then it will be treated as a permanent marriage.

Fixed dower 

The amount of dower to be paid is to be fixed at the time of marriage. If the dower is not fixed in a Muta marriage, the contract will be void.

Other formalities 

The essential conditions of marriage like consent of the parties, the option of puberty, age, and prohibited degrees must be kept in mind while contracting a Muta marriage. The presence of witnesses is not required.

Incidents of Muta marriage

• Children born out of such marriage are legitimate and have the right to inherit from both their parents. 
• The marriage is dissolved automatically on expiry of the stipulated period or by mutual consent or on the death of either party. Hence, a formal divorce is not required in a Muta marriage. If the wife leaves the husband before the term, he may deduct a portion of the dower.
• The wife is not entitled to maintenance under Muta marriage but she is entitled to claim maintenance under Section 125 of the Criminal Procedure Code, 1973 (replaced by Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023)
• If the Muta marriage is consummated the wife is entitled to full dower but if it is not consummated, she will be entitled to only half dower.
• Muta marriage does not give rise to mutual rights of inheritance between the parties. However, if the agreement contains an express provision regarding mutual or unilateral right of inheritance, then such an agreement will be effective. 
• The wife under a Muta marriage has to observe Iddat:

1. Where there is no consummation, Iddat is not required to be observed.
2. In case of death of the husband, for a period of 4 months and 10 days.
3. In case of pregnancy, Iddat is to be observed till delivery.

Difference between Nikah and Muta marriage

• Muta marriage is a temporary marriage entered into for a fixed period and which comes to an end on the expiry of the term or by death or by mutual consent whereas Nikah is a permanent marriage which can be dissolved by death of the husband or by divorce.
• Muta marriage is recognized by the Shias only and not by the Sunnis whereas Nikah is recognised by both Shia and Sunni sects.
• Muta marriage does not confer any mutual rights of inheritance between the husband and wife whereas, under nikah, both husband and wife are entitled to inherit each other’s property.
• Divorce is not recognised under Muta marriage as it is temporary in nature and comes to an end after the expiry of the fixed term or if the husband decides to end the marriage, he can make a gift of the unexpired term known as a Hiba-i-Muddat, whereas, in Nikah, parties are allowed to put an end to marriage through the procedure of divorce.
• The wife is not entitled to receive maintenance under a Muta marriage whereas, under Nikah, she is entitled to it.

Case laws and judicial interpretations

In Re; Petition of Luddun Sahiba vs. Mirza Kamar Kudar (1882)

Facts 

In this case, the petitioner filed an application under Section 536 of the Code of Criminal Procedure(replaced by Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023) claiming maintenance from her husband Prince Mirza Kamar Kudar. It was admitted by her that both the parties were Shias and had contracted a Muta marriage for a term of fifty years. However, the defendant alleged that the term was for one and a half months only. The Deputy Magistrate was of the opinion that a Muta wife has no right to maintenance under Muslim law and the defendant had given up the remaining term of the Muta marriage, therefore she was no longer a wife as required under Section 536. Hence she is not entitled to claim the same under the Criminal Procedure Code. 

Issues 

Whether a wife by Muta marriage is entitled to the right of maintenance under Section 536, Criminal Procedure Code or not.

Judgement

The Calcutta High Court held that although under Shia law, a Muta wife is not entitled to any maintenance but the same cannot interfere with the wife’s statutory right to maintenance provided under Section 536 of the Criminal Procedure Code. The right to maintenance can form the subject matter of a civil suit and can be enforced, depending upon the personal law of the individual. But such a right has to be distinguished from the statutory right to maintenance provided under the Criminal Procedure Code which is applicable to every person who, despite having sufficient means, neglects or refuses to maintain his wife. 

Shahzada Qanum vs. Fakher Jung & ors. (1953)

Facts

In this case, a compromise deed with respect to the partition suit of the estate of Nawab Fakhrul Mulk was made and a decree was passed. In the decree, the claim of Shahzada Qanum, the alleged wife of Nawab Fakher Jung(the deceased) was kept open. It was claimed by the petitioner that she had contracted a muta marriage with Nawab Fakher Jung which was of such nature that it conferred the right of inheritance on her, as the muta marriage was for an unspecified period and hence valid for life. 

The Learned counsel for the petitioner adduced the evidence of witnesses who attended the muta marriage and had deposed that the marriage was for an unspecified period and the dower was fixed at Rs. 500. The deposition of another Prosecution Witness, Husan Afruz Buwa was also taken into record wherein she had deposed that Nawab Fakher Jung had stated that he had entered into a Muta marriage with Ameera Qanum for 5 years and his Muta marriage with the other three wives which included the petitioner was for life. This statement of Nawab Fakher Jung was admissible under Section 32(5) of the Indian Evidence Act, 1872 as it is a statement relating to marriage made before the dispute arose. The application for partition filed by the legal heirs of the deceased admits of the fact that there were four wives, out of which three widows were of Muta marriage and one widow of a Nikah marriage which makes it abundantly clear that the petitioner’s Muta marriage with the deceased was for life. 

The Learned counsel for the defendants argued that Safdarunnissa Begum, the sister of the deceased had filed a partition suit for the estate of her father, Nawab Fakhrul Mulk in which the petitioner was not made a party which indicates that a near relative of the deceased did not consider the petitioner as a rightful heir. Further, it was submitted that when the petitioner was made a party to the partition suit, she did not mention in her written statement about the Muta marriage being for life. It was contended on behalf of the defendants that it is a general rule under Muslim law that a Muta marriage is contracted for a specific period and failure to mention the period results in the marriage becoming void. A Muta marriage does not give rise to rights of inheritance and if it was intended by the parties, they must specify it in the contract itself at the time of marriage. Since no such terms were specified, the petitioner cannot claim such rights.

Issues 

Whether a Muta marriage which has been contracted for an unspecified period or for life is equivalent to a Nikah and bestows the rights of inheritance on the wife of the deceased husband.

Judgement

The Learned Court referred to Jawahar-Ul-Kalam, a well renowned book and important authority amongst the Shia sect to discern the validity of a Muta marriage for an unspecified period. It states that although it is necessary to specify the period while contracting a Muta marriage, however, omitting to do so either in words or in intention will result in a permanent contract. According to Ibn Bukair and Imam Jafer-us-Sdek, if the period is specified it becomes a Muta marriage and if not, it becomes a Nikah. After referring to the opinion of several Jurists and Imams, the Learned Court reached the conclusion that a Muta marriage which fails to specify the period intentionally or inadvertently gives effect to a permanent marriage and all the legal incidents like a right of inheritance between the husband and wife follow from it. In reference to the present case, the Court found that the evidence of witnesses adduced from the petitioner’s side did not match with the circumstances of the case and accordingly her claim that the Muta marriage was for an unspecified period or for life was dismissed.

Syed Amanullah Hussain & ors. vs. Rajamma & ors. (1976)

Facts

In this case, a person named Habeebulla Hussaini, who was the owner of a house and certain other moveable property died on 7th February 1967. The appellants filed a suit for recovery of possession for the same on the ground that he was the brother of the deceased and the sole legal heir. He contended that the defendant No.1  who was claiming herself to be the legally wedded wife of Habeebulla Hussaini was merely a maidservant who used to live in the same house and that there was no valid marriage between them nor was defendant No. 2 the son of the deceased born out of the wedlock. Defendant No. 2, the alleged son deposed that Habeebulla Hussaini was his father and Hussaini Bee his mother who used to live in the same house. He also deposed that although his mother was a Hindu Harijan, she had embraced Islam before marriage and took the name of Hussain Bee. In his support, he has produced several witnesses out of which defence witness. 1 has deposed that the name of the deceased’s wife was originally Rajamma and after marriage, it was changed to Hussain Bee. He also stated that Habeebulla Hussaini had told him in the presence of several persons that he had taken Rajamma as his wife by Muta marriage and that she had embraced Islam and two children, a boy and a girl were born out of the marriage. 

Issues

The validity of a Muta marriage between the deceased and the defendant, in the absence of any documentary evidence, was in question. 

Judgement 

The Andhra Pradesh High Court perused the legal position of Muta marriage and the legitimacy of children born out of such marriage. A Muta marriage can be contracted between a Shia male and a Kitabia female who is a Christian or Jew or a fire worshipper but not a woman professing any other religion. A Muta marriage is contracted for a specific period and should specify the amount of dower. Such a marriage does not create mutual rights of inheritance between husband and wife but the children born out of a Muta marriage are legitimate. The validity of a marriage can be established by direct or indirect proof. The indirect proof involves the presumption of certain factors like prolonged cohabitation or acknowledgment of the legitimacy of children by the father or acknowledgment by the husband of the fact that a woman is his wife. 

After considering the evidence at hand, the Court held that although there is no direct proof to show that there was a Muta marriage between the deceased and Rajamma, the evidence furnished through documents reveals that Habeebulla Hussaini was drawing a pension and applied for maintenance for the defendants from the Nizam Private Force as he was their retired employee and he had mentioned Defendant No 2 as his son. 

Since the marriage between the deceased and Rajamma had taken place a long time ago, it raises the possibility that the marriage certificate was not issued and several of the defence witnesses had stated that the deceased and Hussain Bee used to live as husband and wife. The wife of the deceased was called by the name of Hussain Bee in her locality, which validates the fact that she has indeed converted to Islam. Considering these factors the Court dismissed the appeal. The defendant was regarded as the legally wedded wife of the deceased and the brother of the deceased was not entitled to a share in the property. 

Ahmedabad Women Action Group vs. Union of India (1997)

Facts

One of the grounds taken up for consideration in a bunch of writ petitions was Muslim personal laws that allow polygamy to be declared as void as they violate Articles 14 and 15 of the Constitution. It was also contended that the mere fact of allowing a Muslim man to take more than one wife must be declared as amounting to cruelty under Section 2(viii) of the Dissolution of Muslim Marriage Act, 1939.

Issues

• Whether Muslim personal laws that allow polygamy should be declared as void as they violate Articles 14 and 15 of the Indian Constitution or not.
• Whether Muslim laws which permit a Muslim man to take more than one wife amounts to cruelty under Section 2(viii) of the Dissolution of Muslim Marriage Act, 1939 or not.

Judgement 

While dismissing the writ petitions, the Hon’ble Supreme Court held that such matters were part of State policy, to be deliberated upon by the Legislature and the Court is not to interfere in it. As regards the question of whether Part III of the Indian Constitution ought to apply to personal laws, Justice Gajendragadkar has observed that since personal laws that deal with matters of marriage, divorce, adoption, succession, wills, joint family, partition, etc appear in item no 5 of the concurrent list, the central or state legislature is empowered to legislate on such topics. 

By keeping personal laws outside the purview of the term “laws in force” under Article 13, it can be inferred that the framers of the Constitution did not intend that they should be challenged through fundamental rights. In case of any reformations that should be brought about in the personal laws in force, the Parliament has been given the power to do so and the Courts should refrain from interfering as their function is to only apply existing laws and not lay them.

Abdul Kader vs. K. Pechiammal (2014)

Facts

In this case, the respondent who was a Child Marriage Probation Officer cum District Welfare Officer instituted a criminal case against the petitioner on the ground that he had arranged a child marriage where the bride has not attained the age of 18 years which was in violation of the Prohibition of Child Marriage Act, 2006. The petitioners contended that Muslim personal law allowed a girl to be given in marriage when she attains puberty, which is generally 15 years. The Learned Judicial Magistrate while perusing the provisions of Prohibition of Child Marriage Act, 2006 (hereinafter the PCM Act)  held that the Act is secular in nature and applies to Muslims. 

The word child defined in Section 2(a) of the Act means a person who has not completed the age of 21 years if male, and 18 years if female. Since the bride was a child under the said Act, the trial court passed orders restraining the petitioners from contracting the marriage until she attained 18 years of age. Thereafter the petitioners filed a criminal revision in Madras High Court against such an order. The petitioners contended that the Shariat Act, 1937 is a special law that makes applicable Muslim personal laws to Muslims. It has an overriding effect over the PCM Act which is a general law. They also argued that the Shariat Act, 1937 is a special law and it can be inferred from the fact that it has not been amended to apply the definition of child provided by the PCM Act. 

Issues

Whether a Muslim marriage contracted by parties who have not attained the age of majority is in violation of the Prohibition of Child Marriage Act, 2006.

Judgement

The High Court upon hearing the submissions of both the parties reached the conclusion that the object of the PCM Act has been to prevent the evil practice of child marriages and provide stringent punishment to those who indulge in such practice. Where legislation has been enacted to give effect to a set object (in this case prevention of solemnization of child marriages), the court cannot be compelled to rule against legislative intent and state that the provisions of the PCM Act is not applicable to the Muslim community. 

Also while referring to several judgements that have deliberated upon the distinction between religious beliefs and practices, the High Court reached the conclusion that although the Shariat Act permits the marriage of underage children, it cannot be claimed as part of a religious right. Marriage of a girl child who has not crossed the threshold of 18 years is contrary to the provisions of the PCM Act whose object is to enhance the health and status of women and accordingly, the revision petition was dismissed.

Mohammed Salim Through Lrs. vs. Shamsudeen Through Lrs. (2019)

Facts 

In this case, an appeal was filed in the Hon’ble Supreme Court against the judgement of the Kerala High Court on the basis of a suit for partition and possession of 14/16th share in Plaint Schedule A and half the rights over Plaint Schedule B filed by the plaintiff (now respondent). The property in question belonged to Zainam Beevi who had gifted it to Mohammed Ilias by a gift deed. Mohammed Ilias and Mohammed Idris were two sons born to Zinam Beevi. Mohammed Ilias had a previous wife named Saidat with whom he had no children. Subsequently, he married  Valliamma, who was a Hindu at the time of marriage and gave birth to a son(the plaintiff). The plaintiff claimed that after the death of his father, he became entitled to the 14/16th share in Schedule A property, by virtue of being the legitimate heir and half a share in Schedule B property through inheritance after the death of Zainam Beevi as it would have devolved upon him as the son of the predeceased son and the other share would devolve upon Mohammed Idris, being the sole surviving son of Zainam Beevi. 

The defendants contended that the marriage between Ilias and Valliamma was not a valid one because she was a Hindu at the time of marriage and therefore the plaintiff, being the son of Valliamma, was not entitled to a share in the property. It was further contended that Mohammed Ilias had died two years prior to the year in which the plaintiff was born. The dispute regarding the date of birth of the plaintiff was resolved by tallying the date of birth recorded in the birth register with the Government Almanac, a public record maintained by the Trivandrum Public Library which showed that he was born two months prior to the demise of his father. The Trial Court ruled in favour of the plaintiff however it was reversed by the first Appellate Court. Thereafter, the judgement of the appellate court was dismissed by the High Court and it upheld the decision of the trial court.

 Issues 

• Whether a marriage between a Muslim male and a Hindu female is void or irregular.
• Whether issues of such marriages are legitimate or illegitimate.
• Whether issues are entitled to inherit the assets of the father.

Judgement

The Supreme Court reaffirmed the decision of the High Court and held that the plaintiff was born out of a Fasid marriage and is the legitimate son of Mohammed Ilias. He is entitled to inherit the shares in his father’s property. The Court has extensively referred to several texts including Mulla’s Principles of Mohammedan Law and Syed Ameer Ali’s Principles of Mahommedan Law to reach the conclusion that marriage between a Muslim and Hindu is not void and children born out of such marriage are legitimate. A Fasid or irregular marriage is not an unlawful marriage in itself but it becomes unlawful due to the occurrence of certain temporary or relative factors. An irregular marriage can become valid on removal of the temporary impediment. Under Muslim law, a Muslim male is allowed to marry a Muslim female or a Kitabia but not an idolatress or fire worshipper. Marriage with an idolatress or fire worshipper is not void but invalid. The difference in the religion of the parties being a temporary impediment can be removed by the conversion of the wife into Islam. Coming to the effects of an irregular(Fasis) marriage, an irregular marriage does not create mutual rights of inheritance between the husband and wife, but the children born out of such marriage are legitimate and can inherit from the father’s property. In this case, since the wife was a Hindu, her marriage with the plaintiff’s father was Fasid or irregular and not void.

Sameena Begum vs. Union of India (2022)

Facts

In this case, the constitutional validity of regressive practices like polygamy and nikah halala has been questioned. The petitioner having been divorced twice through triple talaq contended that Section 2 of the Shariat Act, 1937 should be declared unconstitutional as it gives effect to polygamy and nikah halala. The acts of polygamy, Nikah Halala, Nikah Muta, and Nikah Misyar are against the constitutional principles of equality and the right to life under Articles 14 and 21 of the Constitution respectively. 

The petitioner also contended that such practices must be criminalised under Sections 498A, 375 and 494 of the Indian Penal Code and a Uniform Civil Code should be introduced so that all citizens are governed by the same rules regarding marriage and divorce. The petitioner also relied upon the judgement of Shayara Bano vs. Union of India (2017) whereby the practice of triple talaq was held to be discriminatory and unconstitutional. 

Issues

• Whether the practices of Nikah Halala and polygamy should be criminalised under Sections 494, 375, and 498A of the Indian Penal Code, 1860.
• Whether Section 2 of the Shariat Act, 1937 is discriminatory towards women and violates the right to equality provided under Articles 14 and 15 of the Constitution.
• Whether Section 2 of the Shariat Act, 1937 violates a Muslim woman’s right to dignity which is considered a part of Article 21 of the Constitution.

Judgement

The purpose of the petition is to reinstate the fact that triple talaq has been done away since it gives effect to gender bias, similarly, polygamy and nikah halala must be annulled. However, it is still pending before the Hon’ble Supreme Court and is yet to be decided. 

Conclusion

It is evident that the concept of marriage has undergone transformation since the propagation of Islam. In pre-Islamic times, the status of women was reduced to mere chattels of their husbands and did not entail any rights. However, the teachings of Prophet Mohammad have evolved the nature and meaning of marriage for the Muslim community. Marriage is considered to be an important part of the religious and societal duty of a person professing Islam.

According to the holy Prophet, a person who has entered into the holy union of marriage is deemed to have completed one-half of his duty towards his religion. At present, the rules regarding marriage are systematic and at the same time, it enjoins upon the parties certain rights and duties that are essential for a blissful and fulfilling conjugal relationship. The advent of Islam has also improved the position of women and introduced certain bars in the nature of absolute and relative prohibitions. 

Although the Quran favours monogamy, a Muslim male is allowed to take four wives as part of customary laws and stipulates that all of them are to be treated equally. Even though regressive practices of polygamy, nikah halala are still continuing, Muslim marriages which were previously pedantic have evolved to incorporate a semblance of religious as well as social aspects, bestowing both the husband and wife with important rights.

Frequently Asked Questions (FAQs)

What is the meaning of Khayr-ul-Bulugh?

The term Khyar-ul-Bulugh stands for the option of puberty. A minor who has been given in marriage by his or her guardian is given the right to ratify or repudiate the marriage on attaining puberty, provided the marriage has not been consummated. This right is available to both males and females.

Is Muslim marriage a contract or sacrament?

Muslim marriage is essentially a contract and not a sacrament. Islam defines marriage to be a civil contract whose purpose is the procreation of children and legitimising of sexual behaviour. 

What is the meaning of Iddat?

Iddat means waiting period or counting. When a marriage is dissolved by the death of the husband or by divorce, a woman is supposed to remain in seclusion and abstain from marrying another person for the purpose of ascertaining whether she is pregnant or not. The object of observing Iddat is to remove the confusion relating to paternity.

What is the meaning of  Valid Retirement (Khilwat-us-Sahih)?

Valid Retirement or Khilwat-us-Sahih refers to the presumption of the consummation of marriage. If the husband and wife retire into their nuptial chambers under such circumstances that there are no legal or moral bars or any other physical impediment, it raises the presumption that the marriage has been consummated. 

What is Nikah Nama?

Nikah Nama or marriage deed is a document that contains the details of the marriage like the name of the parties, information regarding the families, the amount of Mehr (dower) that is to be paid and when it is to be paid, and other relevant information. It acts as an important piece of evidence in validating the existence of the marriage. 

Is registration of Muslim marriage necessary?

It is not mandatory to register a marriage under Muslim law. However, it is advised to get the marriage registered as it facilitates the validity of the marriage and has evidentiary value in matters of custody of children, the age of the parties to the marriage, etc.

What are the modes of divorce available to a Muslim man?

The Muslim man has the right to give divorce unilaterally in any of the following ways: 

1. Talaq-ul-Sunnat

2. Talaq-ul-Biddat

3. Ila(Vow of Continence)

4. Zihar(Injurious Assimilation)

What are the modes of divorce available to the wife under Muslim law?

The Muslim wife has the right to divorce her husband through Talaq-e-Tafweez. It is delegated divorce whereby the husband delegates his power to divorce to his wife or any other third party. Even though the husband may delegate his power to the wife, he does not lose his own right to effect a divorce against her.

The wife may obtain a divorce on the grounds specified under Section 2 of the Dissolution of Muslim Marriages Act, 1939. Additionally, she is also entitled to divorce on the grounds of Lian(false charge of adultery) or Fask.

Fask means annulment or cancellation. Prior to the enactment of the Dissolution of Muslim Marriage Act, 1939, Muslim women had the right to divorce their husbands under the doctrine of Fask on the following grounds: 

1. That the marriage is irregular
2. That the person having the right to avoid the marriage has exercised his option
3. That the marriage was contracted in violation of prohibited degrees or fosterage

What is Khula?

Khula is a form of divorce by mutual consent where the wife gets the right to divorce her husband with his consent and on payment of certain considerations. As consideration of divorce, she may forfeit her dower. If the wife fails to pay the consideration, the divorce does not become invalid but the husband gets the right to claim the consideration. Once the offer of khula is made and the same is accepted by the husband, the divorce becomes irrevocable and the wife has to observe Iddat. 

What is Mubarat?

Mubarat is another form of mutual divorce whereby both the parties desire separation and are ready to release each other from the ties of marriage by mutual consent. An offer of Mubarat once accepted becomes irrevocable and the wife has to observe Iddat.

References

• Muslim Law in Modern India, Paras Diwan, 13th Edition (2018).
• Sneha P Mandal, Khyar-ul-Bulugh under Muslim Law, Journal of Women Law and Policy, Vol.1 Issue 1 (2021), available at: https://www.slsnagpur.edu.in/assetsnew/pdf/SNEHA%20P.%20MANDAL.pdf. 
• Principles of Mahomedan Law, Mulla, 20th Edition (2020).
• Leila Ahmed, Women in Pre-Islamic Arabia, Muslim Women’s League (1995) available at: https://www.mwlusa.org/topics/history/herstory.html