Marriage under Muslim Law

Marriage under Islam is a matrimonial relation and an institution which legalizes the conjugal activities between a male and female for the object of procreation of kids, promotion of love, mutual support and creation of families which are considered an essential unit in a society. Just like Hinduism, Islam is also a strong advocate of marriage. However, the Muslim conception of marriage differs from the Hindu conception according to which marriage is not a mere civil contract but a sacrament.

Muslim law has been derived from various codified and uncodified sources like- Quran, Ijma, Qiyas, customs, urf, precedents, equity and various legislations. There are 4 major sunni school of thoughts- hanifa, hamabli, maliki and shafai. These four schools recognize each other’s validity and they have interacted in legal debate over the centuries. In India, Hanifa school of Islamic law is dominant.

Essentials of Muslim Marriage

The general essentials of a Muslim Marriage (Niqah) are:

  • Parties must have capacity to marry.
  • Proposal (ijab) and acceptance (qubool).
  • Free consent of both the parties.
  • A consideration (mehr).
  • No legal Impediment.
  • Sufficient witnesses (different in shia and sunni).

Capacity to Marry 

The following are the general requirements for marriage in Islam:- 

  • Every Mahomedan of sound mind who has reached puberty is eligible to marry. The age of puberty is fifteen years where there is no proof or signs of puberty. 
  • By their parents, a minor and insane (lunatic) who have not reached puberty may be validly married.
  • The consent of the parties is required. If there is no consent, a Mahomedan marriage that is of sound mind and has reached puberty is void.

Classification of Marriage under Sunni Muslims and Shia Muslims

Sunni Muslims and Shia Muslims are two groups of Muslims that are separated by their views and customs all over the world. Since marriages in both sects are performed in various ways, with different rites and customs, Islamic law recognizes different types of marriage.

A Verse from Holy Quran on Marriage 

“And Allah created you from dust, then from a sperm-drop, then from pairs; and no female can conceive or give birth unless she has Allah’s knowledge; no one can be granted a long age, (i.e., bear the burden of) nor is anyone’s age diminished unless it is written in a Book. That must be simple for Allah.” The Holy Quran (35:11).

The classification of marriages under Muslim laws are: 

1. Sahih Nikah (Valid Marriage) 

2. Batil Nikah (Void Marriage) 

3. Fasid Nikah (Irregular Marriage) 

4. Muta Marriage

There are two main schools of Muslim law, namely- Sunnis and Shias. Both are further divided into number of schools but it is considered that majority of Muslims are sunnis and hence, in every suit, it is presumed that the parties are sunnis unless otherwise provided. 

Shias and Sunnis got divided in the dispute concerning the question of Imamat (spiritual leader of Islam), immediately after the death of the Prophet. The Shias had put forward that the office should go according to family succession. The Sunnis on the other hand, supported the election system i.e. election by the Jammat (or the universality of the people) and ultimately chose the Caliph by means of votes. This dispute gave a characteristic complexion to the judicial doctrine of the two schools and hence the difference between the two lies in political events, rather in  law or jurisprudence.

Since then, there has been difference in beliefs and practices of both the schools in respect to many points namely- marriage, dower, divorce, maternity, guardianship, maintenance etc. Hence, there are some key differences in the marriages performed under Shia & Sunni Muslims, some of which are mentioned below:

A marriage according to Muslim Law may be valid (Sahih), Void (Batil) or Irregular (Fasid). According to Shia Law, marriage may only be either valid or void.

Valid (sahih)

When all the legal requirements are fulfilled and there are no prohibitions affecting the parties, then the marriage is correct or ‘sahih’. The prohibitions can be permanent as well as temporary, in case of  permanent prohibitions: the marriage will be void and if the prohibitions are temporary then the marriage is irregular.

Effects of a valid marriage

  •  The cohabitation between the husband and the wife becomes lawful.
  • The children born out of a valid marriage are legitimate and they have right to inherit their parent’s properties.
  • Mutual rights of inheritance between husband and wife are established. That is to say, after the death of the husband, the wife is entitled to inherit the husband’s properties and after the wife’s death, husband may also inherit her properties.
  •  Prohibited relationship for purposes of marriage is created between the husband and wife and each of them is prohibited to marry the relations of the other within prohibited degrees.
  • The wife’s right to claim dower is fully established just after the completion of marriage.
  • The marriage gives to the wife also the right of maintenance from her husband with immediate effect.
  • After the dissolution of the marriage, the widow or the divorced wife is under an obligation to observe the Iddat, during which she cannot remarry.

Void (Batil)

The marriage being void ab initio creates no rights or obligations and the children born out of such marriage are illegitimate. A marriage forbidden by the rules of blood relationship, affinity or fosterage is void. Similarly, a marriage with the wife of another or a divorced wife during iddah period is also void.

Irregular (Fasid)

Due to lack of some formality, or the existence of an impediment which can be rectified, a marriage becomes irregular, However, this irregularity is not permanent in nature and can be removed. Thus, the marriage itself is not unlawful. It can be made valid once the prohibitions are rectified. Marriage in such circumstances or with following prohibitions are called ‘Fasid’.

  1. A marriage contracted without required number of witnesses;
  2. A marriage with women during her Iddat period;
  3. A marriage with women without the consent of her guardian when such consent is considered necessary;
  4. A marriage prohibited on account of difference of religion;
  5. A marriage with a woman who is pregnant, when the pregnancy was not caused by adultery or fornication;
  6. A marriage with a fifth wife.

Muta or Nikah mut’ah

The term literally means “pleasure marriage”. Muta marriage is a temporary agreement for a limited time period, upon which both the parties agreed. There is no prescribed minimum or maximum time limit, it can be for a day, a month or year(s). The marriage dissolves itself after the expiration of the decided period, however if no such time limit was expressed or written, the marriage will be presumed permanent. This type of marriage is seen as prostitution by the Sunni Muslims and thus, is not approved by Sunnis. 

However, it is considered legitimate by the Twelver Shia sect, which is predominant in Iran and constitutes 90% of India’s Shia population. In Iran, the word mut’ah is only from time to time utilized and this practice is called ‘sigah’. This provision distinguishes muta from nikah, which has no time limit. 

No witnesses are required for muta. And just like in any other contract, the woman being a party can lay down conditions for her sexual union throughout this time limit. Her temporary husband must respect these conditions. The marriage automatically dissolves at the end of the stated period. 

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