JAMIA MILLIA ISLAMIA

Faculty of law

Family law-1 assignment on

“Marriage”

Submitted to- Submitted by-

Dr. Kahkashan Y. Danyal Md. Shoaib khan

B.A.L.LB (Regular)

4th Semester

Batch: 2018-23

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 TABLE OF CONTENT
1. INTRODUCTION----------------------------------------------------------------3

2. DEFINITIONS OF MARRIAGE-----------------------------------------------4

3. CONCEPT OF MARRIAGE UNDER MUSLIM LAW--------------------4

4. RULES OF THE MARRIAGE-------------------------------------------------6

5. FORMS OF MARRIAGE------------------------------------------------7

6. MUTA MARRIAGE-------------------------------------------------------------8

7. PROHIBITED DEGREE OF FEMALE RELATIONSHIP---------------9

8. OPTION OF PUBERTY-------------------------------------------------------9

9. LEGAL EFFECT OF MARRIAGE------------------------------------------13

10. RESTITUTION OF CONJUGAL RIGHTS--------------------------------14

11. BIBLIOGRAPHY---------------------------------------------------------------16

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INTRODUCTION
The position of women in pre Islamic Arabia was terrible. All the customary laws of pre Islamic
Arabia was in favor of male. Women were treated as an object. Regular marriage in those days
was rare and sexual relations flourished in pre Islamic Arabia may only be termed as prostitution,
adultery or polyandry.1

The only object of a marriage was the enjoyment of sex and procreation of children. Limitless
polygamy prevailed and a man could have as many wives at a time as he liked. Except a very few
blood-relations, such as the real mother or real sister, there was no restriction in marrying a’ girl
even in-one’s close relationship.

Some others types of marriages which were prevalent in pre Islamic Arabia were:2

1. Muta marriages were widely prevalent. On the ground of matter of policy prophet tolerated
them but latter on all these type of marriage were prohibited by prophet.

2. Marriages were allowed with two real sisters at same time.

3. Women were bought from their father and guardian for fixed sum.

All these forms of marriage were reformed by Islam. Sura IV of the Quran laid down some
regulation regarding the marriage. “Marriage not the woman your father have married, for this is
shameful and abominable and evil way.”

DEFINITIONS OF MARRIAGE

1. HEDAYA- “Nikah is its primitive sense, means carnal conjunction. Some have said that it
signifies conjunction generally. In the language of the law it implies a particular contract
used for the purpose of legalizing generation.”3

1
Syed Khalid Rashid, Muslim law 51 (Eastern Book Company, Lucknow, 5th edn., 2009).
2
Id. at 52.
3
Id, at 53.

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 2. AMEER ALI- “Marriage is an institution ordained for the protection of society, and in
order that human beings may guard themselves from foulness and unchasity.”4

3. JUSTICE MAHMOOD- “Marriage among Muhammadans is not a sacrament, but purely

a civil contract.”5

4. M.U.S. JUNG- “Marriage though essentially a contract is also a devotional act, its objects
are the right of enjoyment, Procreation of children and the regulation of social life in the
interest of society.”6

5. ABDUR RAHIM- “The Muhammadan jurists regard the institution of marriage as

partaking both of the nature of ibadat or devotional acts and muamlat or dealing among
men.”7

CONCEPT OF MARRIAGE UNDER MUSLIM LAW

Marriage in Islam is a contract and not a sacrament. Apart from these marriage has other aspects
as well. The other aspects are:8

1. Legal aspect
2. Social aspect
3. Religious aspect

LEGAL ASPECT OF MARRIAGE

Jurists are of the view that Marriage under Muslim law is contract and not a sacrament. The
characteristic of legal aspects are:

1. Consent is sina qua non for the marriage. There can be no marriage without consent.

4
Ameer Ali, Mohammaden Law 97, (Allahabad 7th edn.,1983).
5
Abdul Kadir v. Salima, (1886) ILR 8 All 149.
6
Supra note 1, at 53.
7
Id, at 53.
8
Asaf A.A. Fyzee, Outlines of Mohammadan Law, (Rekhta Printers Private LTD., New Delhi, 6th edn., 1987).

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 2. There is provision for the breach of contract in Indian contract act, 1872 the marriage under
Muslim Law has same provision i.e. Dissolution of marriage by the act of parties or by the
operation of law.

3. The terms on which the marriage are contracted are in the legal limits capable of being
altered to suit individual cases.

Persons (both male and female) who are neither minors nor insane can, under all schools of
Muslims Law, freely marry personally and without anybody else’s consent and such a girl too can
freely marry personally and without anybody else's consent under the Hanafi and Ithna Ashari
laws.9

SOCIAL ASPECT OF MARRIAGE

The main factors according to this aspect are:

1. After marriage a high social status is provided to women a under Islamic Law.
2. Unlimited polygamy prevalent in pre Islamic Arabia is restricted and controlled
polygamy is allowed.

The status of marriage is encouraged by prophet. There is no monkery in Islam.

RELIGIOUS ASPECT

This aspect is often ignored or misunderstood. Marriage is recognized as a basis of society.

Marriage is contract as well as sacred covenant. Mutta marriage is prohibited. Marriage is
recognized as an institution for the upliftment of human race. Prophet taught the best reason for
marrying a woman is nobility of character.

9
Mohd. Ibrahim v. Ghulam Mumtaz, A.I.R 1922 All p. 368.

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Anis Begum v. Mohd istafa10 Justice Shah Sulaiman has observed that under Islam marriage is
not only a civil contract but it is also a religious sacrament.

Ghulam Kubra Bibi V. Mohammad Shafi11 The First requirement for the marriage is to take the
consent of both the bride. Consent should be given at one meeting. There should be two witnesses
who should personally enquiry the girl then it is duty of the witness to explain the dower amount
after obtaining the consent and also inform the qazi about the willingness.

RULES OF THE MARRIAGE

(1) FARZ

(2) WAJIB

(3) SUNNAT-E-MUAKKADAH

(4) HARAM

(5) MAKRUHE TEHRIMI (ESSENTIALLY AVOIDABLE)

FARZ- If a man is capable of wife’s maintenance and other rights and he is sure that if he does
not marry he may indulge in illegal sex. It is farz or obligatory for him to get marry.

WAJIB- If a man is capable of providing women maintenance and other rights. He is not sure but
has a strong apprehension that he might indulge in sex it should be wajib (essential) for him to get
marry.

SUNNAT-E-MUAKKADAH- Man is capable of cohabitation and has capacity to provide

maintenance and marital right but if he does not marry there is no risk of indulging him
promiscuity.

10
ILR 1933 All 743.
11
AIR 1940 PESH. 2.

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HARAM- If a man is not capable of providing his wife’s dower, maintenance and Marital rights
or is not sure due to his temperament that he will be guilty of cruelty toward his wife.

MAKRUHE TEHRIMI- If a man is not sure but has a apprehension of indulging in cruelty to his
wife. The marriage is makruhe tehrimi that is essentially avoidable

Forms of marriages

Marriages may be either

1. Valid
2. Void
3. Irregular

Valid marriage-

A marriage which conforms in all respects with the law is term sahib i.e. correct in regard to legal
requirement. For a marriage to be valid it is necessary that there should be no prohibition affecting
the parties. Prohibition may be either perpetual or temporary. If the prohibition is perpetual, the
marriage is void; if temporary the marriage is irregular

Irregular marriages-

Those marriages which are outcome of failures on part of parties in non fulfillment of prerequisites
but then also are marriages; to be terminated by one of the party is termed to be Irregular marriages.
They are outcome of-

1. A marriage without witness (Not under Shia Law)

2. Marriage with fifth wife.
3. Marriage with a women undergoing Iddat.
4. Marriage with a fire-worshipper.
5. Marriage outcome of bar of unlawful conjunction.

An irregular marriage has no legal effect before consummation but when consummated give rise
to several rights & obligations.

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Void marriages

A marriage which is unlawful from it's beginning. It does not create any civil rights or obligations
between the parties. The offspring of a void marriage is illegitimate. They are outcome of-

1. Marriage through forced consent.

2. Plurality of husband.

3. Marriage prohibited on the ground of consanguinity.

4. Marriage prohibited on the ground of affinity.

5. Marriage prohibited on the ground of fosterage.

MUTA MARRIAGE12

In pre islamic arabia when people went to war for the purpose of house keeping they married for
only one or two years and one or two days. Children born out are legitimate but once the time
period is over the wife did not have right of maintenance. Muta marriage literally means marriage
for pleasure.

The main characteristics of muta marriage are:

1. The period of cohabiting was fixed.

2. The amount of dower may be fixed or specified.

3. Custom of mute marriage were prevalent in pre islamic arabia but prophet prohibited the
mute marriage.

4. The sunni law does not recognize the muta marriage but Shia law recognize it.
5. The marriage dissolved automatically after the completion of fixed period.

12
Supra note 1, at 66.

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PROHIBITED DEGREE OF FEMALE RELATIONSHIP

According to the Qur’an they are seven:

1. Mother
2. Daughter
3. Sister
4. Paternal aunt
5. Maternal aunt
6. Sister’s daughter
7. Brother’s daughter

OPTION OF PUBERTY

If a Muslim minor is married without obtaining consent. The minor on attaining the age of majority
has right to repudiate the marriage. This right is also known as khiyar al-bulugh. Mulla said the
right will be lost if the minor on attaining the majority does not immediately exercise it or fails to
exercise on informing her right. For male the option will be available until he expressly or implied
recognize it.

(1) The Period before 1939

According to traditional Muslim law if a minor has been given in marriage by the father or the
father's father, the marriage is binding and valid and the minor has no right to repudiate the
marriage on attaining puberty, unless it could be shown that the father or the father's father has
acted negligently or fraudulently; but if the minor was given in marriage by any other guardian he
or she has the right to repudiate it on attaining puberty. There are two limitations under which such
an option of repudiation is to be exercised; first, it should be exercised immediately on attaining
puberty; and, second, the marriage should not have been consummated. Delay in notifying such
an option and the fact of consummation of marriage is fatal to this right. The courts in India have

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applied this law in favors of females by invoking rules of equity and justice. In an Allahabad case13
a Shia girl given in marriage by her father to a sunni husband during minority was allowed to
repudiate the marriage as it was contrary to all rules of equity and justice to force such a marriage
on her, which might be repugnant to her religious sentiments. Considerable relaxation in respect
of the time during which option to repudiate the marriage could be exercised was also made by
courts. In Bismillah Begum v. Nur Mohammed14" it was held that a wife could exercise the option
only after she had known that she had such a right. The Patna High Court in Mst. Ayesha v.
Muhammad yunus15 It was held that a minor wife did not lose her right to repudiate the marriage
within a reasonable time after she became aware of her rights. These decisions, it may be pointed
out arc not entirely in tune with the teachings of Abu Hanifa and Abu Yusuf, according to whom
a woman would lose her option of puberty even if she was unaware of the right, unless she
exercised it immediately on becoming major; but they conform to the doctrine of Imam
Muhammad according to whom the right will be exercisable only when the wife is acquainted with
the fact that she has that right. 24. Thus, in the aforesaid cases the hardship caused by the Hanaf't
principle that option of puberty should be exercised immediately and that a day's delay would be
fatal has been considerably mitigated. Some decisions allowed delay in the exercise of the option
of. puberty even on the ground of non-acquiescence.25 As regards the rule that consummation of
marriage will put an end to the right of option, it has been held that mere consummation is not
sufficient; it must have taken place with the consent of the wife16.

(ii) The period after 1939

The law of option of puberty was largely modified by the Dissolution of Muslim Marriages Act
1939. One of the grounds on which the Act permitted a married Muslim woman to seek dissolution
of her marriage by the court was : that she, having been given in marriage by her father or other
guardian before she attained the age of fifteen years, repudiated the marriage before attaining the
age of eighteen years : Provided that the marriage has not been consummated. It may be noticed
that under the Act the traditional principle that a minor's marriage contracted by the father or the
grandfather could not be repudiated has been done away with. Conflicting decisions have gathered

13
Aziz Bono v, Muhammua (19:'5) 471.L.R. All. 823
14
. (1921) 44 I.L.R. All. 61
15
A.I.R. 1938 Pat. 604
16
AbdulKarim v. Aminabai (1935) 59 I.L.R. Born. 426.

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round the interpretation of this provision, as the remedy has been frequently availed of by Muslim
women. The difference of opinion has arisen in the courts on various points such as the time within
which the option could be exercised, the period during which marriage has been consummated;
whether a court's decree is essential to sever the marriage tie, and whether such option could be
exercised in the same suit in which the husband sued for restitution of conjugal rights. As regards
the time within which the option of puberty could be exercised, it was held in Gulam Sakina v.
Fa/ak Sher Allah Baksh17 that puberty is presumed in the absence of evidence on the completion
of the age of fifteen years. It may be pointed out here that the Act does not speak of puberty at all,
but only of an age.30 The court in the above case" proceeded on the basis of the presumption that
a girl attained puberty at the age of fifteen years. Therefore, when she was given in marriage before
attaining the age of fifteen years and the marriage was also consummated before attaining that age,
that consummation was given no considerations- This interpretation will prevent a minor from
misusing her option. As regards the question whether a court's decree is necessary to confirm the
exercise of the option of puberty and sever the marriage tie, there is difference in judicial opinion.
It was decided by the Calcutta High Court that a woman who contracted a marriage after exercising
the option did not commit bigamy even though the option was not confirmed by a judicial order.33
However, in another case an application made by the wife to a judicial officer was considered by
the same High Court sufficient to avoid the marriage." These decisions followed the opinion
expressed in Radd al-Muhtzr, according to which a decree of the qildi is not necessary to dissolve
the marriage. But according to Hidnya, such a decree is essential to dissolve the marriage’s
Accordingly, the Madhya Pradesh High Court has held that the repudiation must be confirmed by
a court and that a decree dissolving the marriage is necessary." In Pakistan, it has been held that
the exercise of the option of puberty puts an end to marriage without intervention by the court.38
Regarding the question whether a wife could successfully resist the suit of the husband for
restitution of conjugal rights by repudiating the marriage in such a suit on the basis of option of
puberty, it has been decided in Sk, Sahib Ali v. Jinnathan Nahar18 that a substantive suit by the
wife to exercise the option under the Act must be instituted. But the court in Madhya Pradesh took
the view that the wife could exercise the option even in a suit filed by the husband for restitution

17
A.I.R. 1950Lah. 45.
18
A.I.R. 1960 64 C.W.N. 756.

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of conjugal rights. This view is more reasonable as it does not force the' wife to go in for a separate
suit.

Aiyesha v. Mohd Yunus19 In this case it was held under Shia law, if the marriage is contracted by
anyone other than father or grandfather then the marriage will be ineffective until it is ratified by
minor on gaining the age of puberty.

Behram Khan v. Akatari begum Cohabitation before the age of puberty does not deprived the
wife of her right. If the repudiation by wife gets delayed the court held the wife could held the wife
could exercise the right after she has known that she has right and therefore her right to exercise
the right are prolonged until she was acquaintance with the fact that she has option.

In Abdul Sattar v. Mst Wakila Bibi it was held: “one of the most important principles is that a
minor girl contracted in marriage retains the option of puberty up to the age of 18 years until she
expresses her consent or disapprobation in express terms. In other words, the right of annulment
continues until she expressly ratifies it say by express words or by cohabiting with the husband, or
by asking for her dower or maintenance.”

In Shafiullah v. Emperor the Allahabad High Court held that marriage by a woman with another
man or attaining puberty was sufficient to constitute repudiation.

Thus by the Dissolution of Muslim Marriage Act, 1939 all restrictions on the option of puberty in
the case of a minor girl whose marriage has been arranged by a father or grandfather has been
abolished, and under section 2(vii) of the Act a wife is entitled to the dissolution of her marriage
if she proves the following facts, namely:

(1) The marriage has not been consummated;

(2) The marriage took place before she attains the age of 15 years (now 16 years by
amendment.
(3) She has repudiated the marriage before attaining the age of 18 years (It should be
mentioned here that by section 13(b) of Muslim Family Laws Ordinance, 1961 the age

19
1984 AIR 38.

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 limit be raised from fifteen to 16 years by amendment of the provision of Dissolution of
Muslim Marriage Act, 1939).

LEGAL EFFECT OF MARRIAGE

Abdul kadir v. Salima20. In this case justice Mahmood discussed the legal effect of marriage. Legal
effect is that it legalize the enjoyment in possible manner as allowed by the law.

The legal effects of marriage are as follows:21

1. After marriage sexual intercourse becomes legal and children born out are legitimate.

2. The marriage give the right to dower to wife.

3. The wife becomes entitle to maintenance.

4. The husband can control his wife movement in reasonable manner and can exercise his
marital authority.

5. Mutual rights of inheritance established.

6. After the iddat period the wife is entitle to remarry.

7. A woman does not change her status on marriage.

RESTITUTION OF CONJUGAL RIGHTS

If one party either male or female without assigning any lawful reason refuses to cohabit with
other. The aggrieved party can sue for restitution of conjugal right. Usually Man filled a case. It is
constitutional in India. The Quran enjoins husband to retain their wives with kindness or part with

20
(1886) ILR 8 All 149.
21
Supra note 8, at 116-117.

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them with equal consideration. So this right is not a absolute right and a wife can take defense of
cruelty.

The wife can take following defenses when a suit for restitution of conjugal right was filled against
her:

1. The defense of cruelty. When there is apprehension of actual violence as to ender personal
health or safety. Mere chastisement does not amounts to cruelty.
2. Chastisement
3. False charge of adultery by husband is a good defense which a wife can take.
4. Gross failure by the husband in maintenance.
5. Nonpayment of prompt dower can be valid defense.

Moonshee Buzloor Ruheem v. Shumsoonissa Begum22 In this case it was held if there is gross
failure on the part of Husband to perform his marital obligations created by marriage the court
would be justified in refusuing the suit for resitutuion of conjugal rights.

Anis Begum v. Muhammad Istafa23 the court held if the wife has apprehension of actual violence,
Infringing the safety of life of life, limb and health, charges of cruelty these are valid defense which
a wife can take for refusing the suit of restitution of conjugal rights.

Itwari v asghari24 In this case after the second marriage the Muslim husband filled a suit for
restitution of conjugal rights but the due to circumstance the court was of the opinion that if suit
would be allowed it will be inequitable. Thus court dismissed the petition.

Saheen parween v. mohd sakeel The court in this case held that there is no dispute about the legal
proposition. When the wife has reasonable apprehension that his life is in danger she should not
compel to live with his husband.

Raj Mohd v. Amina25- the court in this case held restitution of conjugal right is not a absolute
right. Gross failure of the performance of the husband which is imposes by the contract of marriage

22
(1867) 11 M.I.A. 551.
23
(1933) 55 All. 743.
24
(1960) A.I.R. All 684.
25
1976 (1) KarLJ 427.

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is a good ground for denying the assistance of court. The court should take into consideration that
whether it would be inequitable foe wife to compel to live with husband.

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 BIBLIOGRAPHY

1. Syed Khalid Rashid, Muslim law 51 (Eastern Book Company, Lucknow, 5th
edn., 2009).

2. Ameer Ali, Mohammaden Law 97, (Allahabad 7th edn.,1983).

3. Asaf A.A. Fyzee, Outlines of Mohammadan Law, (Rekhta Printers Private

LTD., New Delhi, 6th edn., 1987)

4. WWW. SCCONLINE.COM

5. WWW. MANUPATRA.COM

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