Marriage Under Islamic Law

Marriage under Islamic Law
Lectures 2 & 3
Zubair Abbasi © 2019
Marriage
• Marriage under Islamic law is a contract
entered into between two persons of sound
mind with their consent.
• The Qur’anic verse 4:21 describes marriage as a

firm covenant ‘mithaq ghaliz’.
• It is a recommend act ‘Sunnah/Mandub’, which

may become obligatory ‘fard’ or prohibitory
‘haram’ under certain circumstances.
Definition of Nikah
• Nikah literally means joining together.
• Qur’an 4:28 describes nikah as castle ‘ḥiṣn’ as it

protects spouses from sins.
• The Hidaya described it as a contract for

begetting and legalizing children.
• The Fatawa Alamgiri defined is as a contract

which is intended for the enjoyment of
proprietary rights ‘milk al-mut‘at’.
Formalities for a Marriage Contract
• Like any other contract, a marriage contract should also be witnessed by
two persons (two males or one male and two females), and is also
required to be registered under the Muslim Family Laws Ordinance 1961
(MFLO).
• Classical Islamic law does not require the registration of a marriage for
its validity. Therefore, an unregistered marriage is valid.
• Under Sunni law, a marriage in the absence of witnesses is not void, but
is irregular.
– Imam Malik does not consider the presence of witnesses essential at the time of
marriage for its validity as long as the marriage is duly publicised, eg by beating
of drums.
• According to Shia law, the presence of witnesses is not the essential
requirement of a marriage contract because witnesses are required only
to advertise the marriage.
Registration of Marriage under the MFLO 1961
• Section 5 of the MFLO requires registration of all marriages
whether solemnized by an official Nikah Registrar or anyone
else.
• One Nikah Registrar is licensed in each Ward by the Union
Council to supply the standard form of a Nikahnama.
• An unwritten or unregistered marriage is still valid, though
the persons who violate the requirement of registration are
liable to punishment under section 5 of the MFLO.
• The punishment includes simple imprisonment up to three
months or fine up to one thousand rupees, or both.
• In its Report No. 74 of 2005, the Law and Justice
Commission recommended that the fine should be
increased to ten thousand rupees in order to make it an
effective deterrent.
Presumption of Marriage
Presumption of valid marriage arises in cases of:
i. prolonged and continuous cohabitation as a
husband and a wife;
ii. acknowledgment by a man of the paternity
of a child born to a woman; and
iii. acknowledgment by a man of a woman as
his wife.
Prohibited degrees of Marriage
• Prohibited degree of marriage based on
– blood relations,
– affinity, and
– fosterage
Blood Relations
i. mother or grandmother how high so ever;

ii. daughter or granddaughter how low so ever;
iii. sister (full, uterine and consanguine);
iv. niece or grandniece how low so ever; and
v. aunt or grandaunt (paternal and maternal)
how high so ever.
Affinity to the relations of:
i. a wife (wife’s mother or grandmother,
daughter or granddaughter);
ii. father (his wife and grandfather’s wife how
high so ever); and
iii. son (his wife or his son’s son’s wife or
daughter’s son’s wife how low so ever).
Fosterage
Generally, relations based on fosterage are to be
treated the same way as real relations with the
exception of certain foster relations, such as
sister’s foster-mother, foster-sister’s mother,
foster-son’s sister, or foster-brother’s sister.
Temporary Prohibition
Under certain circumstances, marriage is temporarily prohibited as long as the
legal impediment exists. These circumstances include:
• unlawful conjunction: a man is not allowed to have, at the same time, two
wives who are so related to each other that if either of them had been a male,
they could not have lawfully intermarried eg two sisters, or aunt and niece;
• a married woman until she is divorced or her husband dies and she completes
her iddat period;
• non-kitabiya (Jewish or Christian woman) until she embraces Islam or Judaism
or Christianity. A Muslim woman cannot enter into a valid marriage with a
non-Muslim;
• entering into fifth marriage by a Muslim husband, as a Muslim is allowed to
marry maximum of four wives at a time;
• a man who enters the precincts of Kaba and puts on pilgrimage dress cannot
enter into a marriage contract; and
• a woman who is divorced thrice cannot enter into a valid marriage with her
former husband without an intervening marriage (halala).
Legal Incidents of Marriage
• A valid marriage establishes legal relationship between the

spouses and gives rise to mutual rights and obligations.
• It also confers legitimacy on the children born during the
marriage and obligates the husband to pay dower and
provide maintenance to the wife and children (if there are
any).
• Validly married spouses inherit from each other and from
their children. Legitimate children also inherit from their
validly married parents.
• A void marriage does not create any rights and obligations
between the parties and the offspring of a void marriage
are illegitimate (extra marital).
• An irregular marriage does not have any legal effect before
consummation.
Stipulations in Marriage Contracts
• Pre-nuptial agreements
• Types of stipulations
– Valid: Hanbali school is most flexible by allowing a
wide scope for stipulations. Rights of women are
protected through stipulations.
– Void: contravene the basic purpose of marriage eg
halala marriage
• Legal effect: void the marriage or stipulation is void itself
without affecting the validity of marriage contract
• Default rules of Islamic family law cannot be
altered eg wife’s right to dower and maintenance.
• Breach of stipulations may give wives right to
divorce themselves or get financial compensation.
Outline of the Case Law
1. Nature of Marriage under Islamic Law
2. Validity of Marriage
– 2.1 Consent of the parties for a valid marriage
– 2.2 Consent of the Wali
– 2.3 With whom is marriage valid?
– When is a marriage valid?
– Inter-marriages between Muslim sects
3. Proof of Marriage
3.1 Registration of marriage
3.2 Presumption of marriage based on
continued and prolonged cohabitation
1. Nature of Marriage under Islamic Law
Justice Mahmood argued that a husband’s right to cohabitation
is similar to a buyer’s right. Once a seller delivers the good, the
right to lien on the sold goods for unpaid price is lost. Therefore,
if a wife has consummated her marriage, she could not later
deny the husband’s right to conjugal relations on the ground of
non-payment of dower. She could, however, sue him for its
payment. [Abdul Kadir v Salima (1886) ILR 8 All 149]
Note: misplaced analogy of a marriage contract with a sale of

goods contract. At best marriage could have been described as a
services contract.
Although marriage in Islam is a civil contract, it could not be

equated with ordinary contracts of sale purchase, property
transactions or personal service contracts. [PLJ 2006 Lah 1215]
2. Validity of Marriage
• Legal prohibition based on affinity to the relatives of a wife, called
hurmat e masaharat, is of two kinds: first, marrying the daughter of
one’s wife (step-daughter) and second, marrying the mother of one’s
wife (mother in law).
– In the first case (marriage with step-daughter), there is a condition that the
marriage should have been consummated with the wife and if the marriage is
not consummated, then the marriage with the daughter of one’s wife is lawful.
– In the second case (marrying mother in law), mere occurrence of nikah with the
wife renders the mother of the wife unlawful for marriage and there is no
condition of consummation of marriage with the wife.
• Marriage contracted during iddat period is void. [1992 SCMR 1273]

• Second marriage in contravention of the MFLO is valid. [PLD 1971 Lah
139]
• Betrothal (Mangani) does not constitute any valid contract.
• Consent of a guardian is not required for a marriage of an adult Muslim
female. [Hafiz Abdul Waheed v Asma Jehangir PLD 2004 SC 219]
3. Proof of Marriage
• The alidity of a Nikahnama cannot be challenged if the spouses
admit it as valid.
• A simple statement of the spouses is sufficient to prove the
validity of a marriage.
• Non-registration of marriage does not invalidate it.
• Where the factum of marriage was in serious doubt, non-
registration of marriage might cause some doubt on its existence
and solemnization.
• Presumption of a Muslim marriage can be raised where there is
a prolonged and continuous cohabitation as husband and wife.
• Presumption of a valid marriage as a result of a prolonged and
continuous cohabitation as husband and wife arises even in
cases of prostitutes. [PLD 1989 SC 362]
• What was the justification for the above exception?
Jactitation of Marriage
• It is a false pretense of being married to
someone.
• The other person brings a suit for declaration
and injunction that there is no such marriage
and claimant should be restrained from
making this assertion of marriage.
Restitution of Conjugal Rights
• Spouses may file a suit against each other for the
restitution of conjugal rights to enforce marital
obligations.
• Rule 32, Order XXI, Code of Civil Procedure 1908

provides for the attachment of the defaulter’s
property or detention in civil prison for a term
not exceeding 6 months or both.
• This Rule is not repugnant to the Injunctions of

Islam. PLD 2015 FSC 1 & 4
Questions (1)
1. What is the nature of a marriage contract under

Islamic law? How is it different from other types
of contracts?
2. Is the payment of dower a precondition for a
valid marriage contract? Why or why not?
3. Can special damages be granted for the breach of
a marriage contract? Why or why not?
4. Are pre-nuptial agreements valid under Islamic
law? If yes, to what extent?
5. Are marriages during iddat period and second
marriages without the written consent of the first
wife valid?
Questions (2)
1. Is consent of a guardian (wali) required for the validity of
a marriage of a sui juris Muslim female?
2. Can a minor female, who has not attained the age of
puberty, enter into a valid marriage contract without the
consent of her parents?
3. How is a marriage contract proved before a court of law?
4. What is the impact of non-registration of a marriage
contract upon its validity?
5. When is a continued and prolonged cohabitation
presumed to be a valid marriage? Should this
presumption be applied in cases of prostitutes? Why, or
why not?

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Marriage under Islamic Law

• The Qur’anic verse 4:21 describes marriage as a

• It is a recommend act ‘Sunnah/Mandub’, which

• Qur’an 4:28 describes nikah as castle ‘ḥiṣn’ as it

• The Hidaya described it as a contract for

• The Fatawa Alamgiri defined is as a contract

i. mother or grandmother how high so ever;

• A valid marriage establishes legal relationship between the

Note: misplaced analogy of a marriage contract with a sale of

Although marriage in Islam is a civil contract, it could not be

• Marriage contracted during iddat period is void. [1992 SCMR 1273]

• Rule 32, Order XXI, Code of Civil Procedure 1908

• This Rule is not repugnant to the Injunctions of

1. What is the nature of a marriage contract under

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