Marriage Under Muslim Law

Meaning and Definition of Nikah (Marriage)

Definition of marriage (Nikah)
 The Arabic word nikah (marriage) literally means the union of the sexes and in law this term
means 'marriage'.
 In Baillie's Digest, marriage has been defined to be "a contract for the purpose of legalising
sexual intercourse, and procreation of children".
 In Hedaya it is a defined as Nikah in its primitive sense, means carnal conjunction. Some have
said that if signifies conjunction generally in the language of law it implies a particular contract
used for the purpose of legalising generation.
Marriage
1. Nature & Concept
Juristically, Marriage (nikah) in Islam is a contract and not a sacrament.
Before coming to the law proper, the three aspects of marriage in Islamic law which are necessary to
understand the institution of marriage as a whole-legal, social and religious.
Legal aspect:
Juristically, it is a contract and not a sacrament. Qua contract, it has three characteristics:
(i) there can be no marriage without consent;
(ii) as in a contract, provision is made for its breach, the various kinds of dissolution by act of parties or
by operation of law;
(iii) the terms of a marriage contract are within legal limits capable of being altered to suit individual
cases.
Social aspect:
In its social aspect, three important factors must be remembered:
(i) Islamic law gives to the woman a definitely high social status after marriage:
(ii) restrictions are placed upon the unlimited polygamy of pre-Islamic times and a controlled polygamy
is allowed;
(iii) the Prophet, both by example and precept, encouraged the status of marriage. He positively
enjoined marriage to all those who could afford it; and the well-known saying attributed to the Prophet
"There is no monkery in Islam' expresses his attitude towards celibacy briefly but adequately
Religious aspect
The Quranic injunctions regarding marriage as religious matter.
 Marriage is recognized in Islam as the basis of society. It is a contract, but it is also a sacred
covenant.
 Temporary marriage is forbidden.
 Marriage as an institution leads to the uplift of man and is a means for the continuance of the
human race

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 Marriage partakes of the nature both of ibadat (worship) and muamalat (worldly affairs).
Evolution of Concept of Marriage under Muslim Law
The Muslim Marriage in the Indian constitution is also a devotional act, i.e., ibadat. The Prophet states
that marriage is obligatory (wajib) for every physically fit Muslim.
Marriage, ie., nikah in pre-Islamic Arabia, meant different forms of sex relationship between a man and
a woman established on certain terms.
In pre-Islamic days, women were treated as chattels, and were not given any right of inheritance and
were absolutely dependent.
It was Prophet Mohammad who brought about a complete change in theposition of women. Prophet
Mohammad placed women on a footing ofalmost perfect equality with men in the exercise of all legal
powers andfunctions
Ashabah says "Marriage is a contract underlying a permanent relationship based on mutual consent on
the part of a man and woman". Dr. Jang is of opinion that, "Marriage though essentially a contract is
also a devotional act, its objects are rights of enjoyments and procreation of children and regulation of
social life in interest of society."
Similar is the view of Abdur Rahim, who says: "The Mohammedan jurists regard the institution of
marriage as partaking both of the nature of ibadat or devotional acts and muamalat or dealings among
men."2 The Prophet of Islam is reported to have said:
"Marriage is my Sunnut and those who do not follow this way of life are not my followers" and that-
There is no monkery in Islam.
Sunnat Muwakkida.
A Sunnat Muwakkida is defined, "the person who complies with it, is rewarded in the next world, and
he who does not, commits a sin.
Anis Begum Vs Mohammad Istafa (1933) 55 APP 743, C.J Sir Shah Sulaiman in a leading case states that
Marriage under Muslim Law is not purly a civil contract but a religious sacrement too.
Marriage is not purely a Civil Contract
Justice Mahmood's observation ie, marriage is a civil contract cannot be appreciated only because that
upto some extent marriage resembles with civil contract. After observing minutely it will be found that
besides some similarities there are so many basic differences between the two.
For instance.
Muslim marriage is not merely a civil contract, because:
(i) unlike civil contract, it cannot be made contingent on future event; and
(ii) unlike civil contracts, it cannot be for a limited time (muta marriage is an exception).
(iii) unlike civil contract, the analogy, of lien cannot be applied to a marriage contract.
Secondly, the contract of sale of may be cancelled by unpaid seller.
He may resell the goods by rescinding such contract, whereas in a contract of marriage, the wife is not
entitled to divorce her husband or to remain with a third person if a part of her dower remain unpaid.

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Thirdly, taking into account the view of Justice Mitter that marriage among Muslim is nothing but a
contract for sale of goods-there are buyer and seller in a contract of sale and the subject-matter is
goods, whereas, in a contract of marriage, the wife herself is to receive dower and not her parents
then who is seller and what has been sold.
Let us suppose that woman is seller and woman's personality is the thing to be sold. This is against the
basic principles of natural justice for, no one is entitled to sell his or her personality.
Capacity to Marry
Form and Capacity
The legal incidents of marriage in Islam are remarkable for their extreme simplicity.
"Marriage may be constituted without any ceremonial"; there are no special rites, no proper officianls,
no irksome formalities.
Marriage is legally contracted by a declaration made by one contracting party being followed by a
corresponding acceptance from the other, at the same meeting. The declaration and acceptance may
be made by the parties, or by their agents, if both are competent. In case of legal incompetency, like
minority or unsoundness of mind, the guardians may validly enter into a contract of marriage on
behalf of their wards." As to the form, the following conditions are necessary:
(a) declaration or offer (ijab) on the part of the one;
(b) acceptance (qabul) by the other (or by guardians as the case mabe);
(c) before sufficient witnesses, two, in Hanafi law [in Shia law witnesses are not necessary].
The words must indicate with reasonable certainty that a marriage has been contracted; there must be
no ambiguity, no question of an intention to marry, nor a mere promise to marry at some future time.
As in other contracts, there must be per verba de praesenti-not de futuro
Marriage must be solemnized from 'from the moment of acceptance.
The usual form of proposal is 'I have married myself to you'; the acceptance being 'I have consented.
Or,
An offer may be in the imperative 'marry your daughter to me', and the father accepts in the perfect
tense 'I have consented.’
Capacity
Every Muslim of sound mind who has attained majority can enter into a contract of marriage.
Majority is attained at puberty.
The presumption is that a person attains majority at 15, but the Hedaya lays down that the earliest
period for a boy is 12 years and for a girl 9 years.
The Privy Council in a Shia case says that majority in the case of a girl is attained at the age of 9"
The marriage of minors can be contracted only by their guardians. Such a marriage, although valid, is
capable of being repudiated.
A marriage entered into by a girl while she had not attained puberty was not a marriage in the eye of
the law and was therefore void.
Option of puberty

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If a Muslim minor has been married during minority by a guardian theminor has the right on attaining
majority to repudiate such marriage. Thisis called khiyar al-bulugh, the 'option of puberty.
Such a minor may be given in marriage either by the father or grandfatheror by any other guardian.
Section 2(vii) of the Dissolution of Muslim Marriages Act 1939 fixes fifteenyears as the age of puberty
without any opportunity of rebuttal.
In case of marriage by her guardian girl is allowed to repudiate hermarriage for a period of three years
after she attains the age of fifteen andbefore she attains the age of eighteen.
Option of Puberty by Husband:
A husband, married during minority, has the same right to dissolve his marriage but in his case there is
no statutory period of time within which he must exercise his right. The option can be exercised on his
attaining majority, and payment of dower or cohabitation implies ratification.
Essentials or formal requirements of marriage
Though in the Muslim communities certain social functions and ceremonial rites are performed at the
time of marriage, such functions or rites are not legally necessary. The solemnisation of marriage
requires adherence to certain forms and formulas, which are called the essentials of valid marriage.
Muslim marriage may be solemnized even in the absence of religious priest
Thus, in short, the essentials are as follows
(e) Proposal and acceptance.
(b) Competent parties
(c) No legal disability.
a) Proposal and acceptance-
Marriage like any other contract constituted by ijab-o-qabool, that is by declaration and acceptance.
One party to the marriage must make an offer (ijab) to the other party. Marriage is complete only when
the other party has accepted that offer.
Include Presence of witness, one meeting, Reciprocity between offer and acceptance, free will and
consent.
In Rashida Khatoon v. S.K. Islam AIR 2005 Ori 57
Facts: Man and women cohabit with assurance to marry in future, after sometime had a child. Held
mere cohabitation with future assurance does not constitute the factum of marriage to give status of a
valid marriage to women.
Under Hanafi Law marriage under compulsion is valid whereas under Shia school or not valid
b) Competent parties-
(i) Age of marriage -The parties to a marriage must have the capacity of entering into a contract. In
other words, they must be competent to marry Muslim who is of sound mind and who has attained
puberty may enter into a contract of marriage. The parties must be able to understand the nature of
their act. A marriage contracted by a majnoon (lunatic) is void except when it is contracted in lucid
intervals However, lunatics can be contracted in marriage by their respective guardians.

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(ii) Puberty -Puberty means the age at which a person becomes capable of procreating children.
Puberty and majority are in the Muslim law one and the same. The presumption is that a person attains
majority at the age of 15 but the Hedaya lays down that the earliest period for a boy is 12 years and a
girl 9 years.
Majority is presumed among the Hanafis on the completion of the fifteen years, in the case of both
males and females, unless there is any evidence to show that puberty was attained earlier. In the case
of a Shia female, the age of puberty begins with menstruation.
It has been held by the Privy Council in a Shia case that the age of majority in the case of a girl is
attained at the age of nine years. Muslim law in respect of marriage, dower and divorce has entirely
been left untouched by the provisions of the Indian Majority Act, 1875.
iii) Marriage of minors and guardianship in marriage - It should be noted that marriage of a minor
without the consent of the guardian is invalid unless it is ratified after the attainment of majority. A boy
or girl who has attained puberty is at liberty to marry any one he or she likes and the guardian has no
right to interfere if the match be equal.
Guardianship in marriage (Jabr) The right to contract to give a minor in marriage under Sunni law
belongs successively to the following persons:
1. father,
2 paternal grandfather how highsoever,
3. brother and other male relations on the father's side in the order of inheritance enumerated in the
Table of Residuaries,
4. the mother,
5. the maternal uncle or aunt and other maternal relations without the prohibited degrees; and
6. the State.
Under Shia Law, only the father and the paternal grandfather how highsoever are recognised as
guardians for contracting marriage of minor.
Marriage contracted by an unauthorised person (Akd Fazuli)
This is known as Akd Fazuli and is invalid. Where the marriage of minor was contracted by a remoter
guardian and the nearer one is present and available and such nearer guardian does not give consent
to the marriage, the marriage is void. But if it is ratified by the parties after attaining the age of puberty,
it is valid.
c) No legal disability -
Legal disability means the existence of certain circumstances under which marriage is not permitted.
These prohibitions have been classifed into four classes as follows:
1. Absolute incapacity or prohibition.
2. Relative incapacity or prohibition.
3 Prohibitory incapacity or prohibition.
4. Directory incapacity or prohibition.
1. Absolute incapacity

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Absolute incapacity to marry arises from- (a) Consanguinity, (b) affinity, or (c) fosterage.
(a) Consanguinity (Qurabat). Consanguinity means blood relationship and bars a man from marrying
(A marriage with a woman prohibited by reason of consanguinity is void. Issues from such marriage are
illegitimate)
(i) his mother or grandmother how highsoever,
(ii) his daughter or grand-daughter how lowsoever,
(iii) his sister whether full, consanguine or uterine,
(iv) his niece or great-niece how lowsoever,
(v) his aunt (father's sister, mother's sister) or great aunt, how highsoever, whether paternal or
maternal.
(b) Affinity (Mushaarat) A man is prohibited from marrying:
(1) his wife's mother or grand-mother how highsoever;
(2) his wife's daughter or grand-daughter how lowsoever;
(3) wife of his father or paternal grand-father how highsoever;
(4) wife of his son or son's son or daughter's son how lowsoever.
A marriage with a woman prohibited by reason of affinity is void.
In case (2), marriage with the wife's daughter or grand-daughter is prohibited only if the marriage with
the wife was consummated.
(c) Fosterage (Riza) - When a child under the age of two years has been suckled by a woman other than
its own mother, the woman becomes the foster- mother of the child. A man may not, for instance,
marry his foster-mother or her daughter, or his foster-sister.
Exceptions - Under Sunni Law, there are few exceptions to the general rule of prohibition on the ground
of fosterage and a valid marriage may be contracted with
(1) sister's foster-mother, or. (2) foster-sister's mother, or
(3) foster-son's sister, or (4) foster-brother's sister.
The Shia jurists place fosterage and consanguinity on the same footing and refuse to recognise the
exceptions permitted by the Sunnis. The above mentioned prohibitions on account of 'consanguinity,
affinity or "fosterage are absolute and the marriages contracted in contravention of these rules are
void.
2. Relative incapacity
Relative incapacity springs from cases which render the marriage invalid or irregular only so long as the
cause which creates the bar exist.
The moment it is removed, the incapacity ends and the marriage becomes valid and binding. Thus, it
differs from the case of absolute incapacity/ where the marriage is void ab initio and can never become
valid. For instance, a man is prohibited from marrying more than four wives at a time. His marriage
with the fifth will be invalid or irregular until he divorces one of them. The following are the cases of
relative incapacity.

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(a) Unlawful conjunction.
(b) Polygamy, or marrying a fifth wife.
(c) Absence of proper witnesses.
(d) Differences of religion.
(e) Woman undergoing iddat.
Iddat
Iddat is the period during which it is incumbent upon a woman, whose marriage has been dissolved by
divorce or death of her husband to remain in seclusion and to abstain from marrying another husband.
The most approved definition of Iddat is the term by the completion of which a new marriage is
rendered lawful.
Iddat is described as a period during which a woman is prohibited from marrying again after the
dissolution of her first marriage.
Ameer Ali says that it is "an interval which the woman is bound to observe between the termination, by
death or divorce of one matrimonial alliance and the commencement of another
Under Sunni Law marriage with a woman undergoing Iddat is irregular and not void. But under Shia
Law marriage with a woman who is undergoing Iddat is void
Duration of Iddat
(i) Iddat of widowhood - When a person dies leaving a widow, she is prohibited from marrying before
the expiration of 4 months and 10 days.
(ii) Iddat of pregnant woman - If the widow is pregnant at the death of her husband, the Iddat will not
terminate until delivery or miscarriage. If delivery or its miscarriage comes before 4 months and 10
days the remaining period will have to be observed
(iii) Iddat of Talaq - The period of Iddat in case of Talaq is three courses, if the woman is subject to
menstruation; otherwise three lunar months. If the woman is pregnant at the time of divorce, the Iddat
will not terminate till delivery or abortion.
(iv) Iddat when marriage is irregular If the marriage is irregular and parties have separated before
actual consummation, there is no Iddat. If the consummation has taken place the wife is bound to
observe iddat.
(v) The period of iddat begins from the date of the divorce or death of the husband and not from the
date on which the woman gets the information of the divorce or of the death of the husband.
If she gets the information after the expiry of the specified term she need not observe the required
iddat.
(vi) Where a husband had divorced his wife and has died before the completion of the iddat, the
woman is required to undergo a fresh iddat for four months and ten days from the date of the
husband's death
Rights and Duties when observing Iddat
The following are the rights and duties of the wife observing iddat:
1. If the wife observes iddat, the husband is bound to maintain the wife during the period of iddat. At
present, the Muslim Women (Protection of Rights on Divorce) Act, 1986 will apply.

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2. The wife cannot marry another person until completion of her iddat, and if the husband has four
wives including the divorced one, he cannot marry a fifth one until the completion of iddat of the
divorced wife.
3. The wife becomes entitled to a deferred dower, and if the prompt dower has not been paid, it
becomes immediately payable
3. Prohibitive incapacity It arises in the following cases: (a) Polyandry, and (b) A Muslim woman
marrying a non-Muslim.
(a) Polyandry
Polyandry means the fact of having more than one husband. Polyandry is forbidden in the
Muslim system and a married woman cannot marry second time so long as the first marriage
subsists.2 A Muslim woman marrying in contravention of this rule shall be liable to be punished
under Section 494 of the Indian Penal Code, and the issues from such marriage will be
illegitimate.
(b) Muslim woman marrying a non-Muslim
A marriage of a Muslim female with a non-Muslim male whether he be a Christian, or a Jew or
an Idolater or a fire worshipper is irregular under Sunni Law and void under Shia Law.
4. Directory incapacity
This may arise from: (a) marrying a woman 'enceinte'; (b) prohibition of divorce; (c) marriage during
pilgrimage; (d) marriage with a sickman.
(a) Marrying a woman 'enciente'- It is unlawful to marry a woman who is already pregnant by her
former husband (Ameer Ali).
(b) Prohibition of divorce - When the marriage is dissolved by the pronouncements of divorce three
times, re-union is prohibited except after the lawful marriage of the woman with another man and
then its being dissolved after consummation. Now this rule has become obsolete in the light of the
provisions of the Muslim Women (Protection of Rights on Marriage) Act, 2019
c) Marriage during pilgrimage - Under Shia Law, marriage during pilgrimage is void. The Shafeis, Malikis
and Hanabalis hold marriages within the sacred territory on a pilgrimage to Mecca as irregular but the
Hanafis regard such marriage to be legal as expressed in Fatwa-i- Alamgiri, that it is lawful for a muhrim
and muhrimah to inter-marry while in state of ikram.
(d) Marriage with a sickman - Marriage with a sickman suffering from disease which is likely to be fatal
is invalid. If however, he recovers and the marriage is consummated, it is valid.
Kinds of marriages according to validity.
On the basis of the validity a marriage may be of three kinds under Sunni Law, namely:
1. valid (Sahih);
2. void (Batil);
3. irregular or invalid (Fasid).
Polygamy

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Polygamy being a prohibited practice as per the Indian laws but also the exception to this ban as
Muslim personal laws allows the practice of polygamy.
The verse which allows polygamy was revealed after the battle of Uhud in which many Muslims were
killed, leaving widows and orphans for whom due care was incumbent upon the Muslim survivors.
The translation of the verse is as follows: ‘If you fear that you shall not be able to deal justly with the
orphans, marry women of your choice, two, or three, or four; but if you fear that you shall not be able
to deal justly with them), then (marry) only one’
In the judgment of Khursheed Ahmad Khan v. State Of U.P, (2015) 8 SCC 439 Supreme Court Justices T.S.
Thakur and A.K. Goel that said: What was protected under Article 25 (right to practice and propagate
any religion) was the religious faith and not a practice which may run counter to public order, health or
morality. Polygamy was not an integral part of religion and monogamy was a reform within the power
of the State under Article 25.
Current Developments
In 2000, the United Nations Human Rights Committee reported that polygamy violates the
International Covenant on Civil and Political Rights (ICCPR), citing concerns that the lack of equality of
treatment concerning the right to marry meant that polygamy, restricted to polygyny in practice,
violates the dignity of women and should be outlawed. Specifically, the reports to UN Committees have
noted violations of the ICCPR due to these inequalities and reports to the General Assembly of the UN
have recommended it be outlawed.