Marriage As A Civil Contract or A Sacram

Muslim Marriage
“Is a civil contract or a sacrament”

Question:
Marriage is the tradition or a practice which is followed by most of the persons in the world and
not only Islam but every religion encourages its followers to be married except few. But as a
Muslim the confusion which I faced is that marriage is a sacrament or a contract?
Answer:
According to my point of view marriage is not purely a contract or not completely a sacrament.
And I support my argument as follows:
Introduction:
Opinion of different Judges, Lawyers and Scholars:
According to many scholars’ even judges, lawyers made remarks on the Muslim marriages cases
and family law cases that “marriage is not a sacrament but a civil contract” and they observed
that marriage is a contract which hold the right of enjoyment and procreation of children.
But on the other hand there are many judges and scholars who still go with the statement that
“marriage is sacrament not a civil contract”. They think marriage has the nature of ibadat and
Muslims are bound to perform their holy duty and holy agreement.
Essentials of Contract:
Both the views of marriages are supported by the arguments of different judge’s scholars and
writers by considering the essentials of valid contract like offer and acceptance, consideration,
free consent, lawful consideration and lawful object.
Civil Contract V Sacrament

Acceptance and offer:
Both the civil contract and sacrament supporters agree that offer and acceptance takes place
between both the parties which is the one of the basic essential of the valid contract.
The offer (in a past and present tense) and acceptance from both parties.
Consideration:
The peoples who consider marriage is a civil contract they considers Haq Maher (Dower) as a
consideration which is given by husband to wife because of her acceptance.
But according to the other scholars and peoples who considered marriage as a sacrament they do
not consider Maher as a consideration, for them Maher has different concepts example, maher
considered as a value of man and as a mark of respect which is given by husband in the respect
of women and if Maher is consideration than it may be seeing like that women is bound to
perform her duties because man is paying to her for this which is not acceptable in Islam
Free consent:
The supporters of marriage as a civil contract argue that in the absence of wali if marriage take
place than it is also consider valid marriage and marriage is mere a civil contract which every
person done by his free will and is the type of contract which has its object the legalization of
children and reproduction.
But if we consider marriage as a sacrament than the argument is that In Islam Prophet (PBUH)
describe marriage as his Sunnah (tradition and way of the Prophet Muhammad PBUH) and said:
‘Whoever did not follow my sunnah so he is not my follower”
“He who marries completes the other half religion; it now rests with him to complete the other
half by leading a virtuous life in constant fear of God” [Al-Tirmidhi 3096]
“There are three persons whom the Almighty himself has undertaken to help..First, he who seeks
to buy his freedom; second, he who marries with a view to secure his chastity; and third, he who
fights in the cause of God”
So the purpose of mentioning these words is that if marriage is just a civil contract than Prophet
(PBUH) never emphasize on it in these terms. So the Muslims are bound to be married if they
want to become the followers of The Prophet (PBUH) and for the Muslims marriage is a
religious duty not only a civil contract. .
And the concept of the free will regards the matters of wali is still debatable because in different
schools of thoughts the permission from wali is important from the side of female and according
to Hanafi school without the permission of wali and in the absence of wali marriage is still valid
means the permission of wali is not as such important.
Other Areas
Today in Pakistan and also in India judges still consider the Mulla’s knowledge of Islamic law
and quote his views that marriage in Islam is not the permanent relation as in Christianity and
both husband and wife take divorce, khula and dissolve their marriage whenever they want. But
on the other hand marriage never deal by any ‘breach of contract’ term there no concept of
breach of marriage contract and the section 73 and74 of the contract act 1872 shall not
considered in dissolution of marriage, divorce and khula cases. And the gifts exchanged by bride
and groom and salamis cannot be recovered by law.
Conclusion:
So after a discussion I concluded that marriage under Islamic law is a civil contract because it
fulfill the essential conditions of contract, example offer and acceptance, consideration (if love
and affection from the other side is consider as a consideration) and free consent. Like Justice
Mahmood said “Marriage among the Muhammadans is not a sacrament, but purely a civil
contract”
And on the other hand from Islamic religious point of view marriage is a devotional act and as
the position of marriage in Islam is also describe by Quran that marriage is “sacred covenant”
means in Islam the Quran says marriage is ‘holy agreement”.

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Muslim Marriage

“Is a civil contract or a sacrament”

Civil Contract V Sacrament

‘Whoever did not follow my sunnah so he is not my follower”

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