Q-Define “Nikah” and discuss its nature under Muslim Law.

A- Definition of Marriage
Marriage (nikah) is defined to be a contract which has for its object the procreation
and the legalizing of children.
Contract: Marriage according to the Mahomedan law is not a sacrament but a civil
contract. All rights and obligations it creates arise immediately and, are not
dependent on any condition precedent such as the payment of dower by husband to a
wife.
Ashabah says: “ Marriage is a contract underlying a permanent relationship based on
mutual consent on the part of a man and woman.”
In Shoharat Singh v. Jafri Begum, the Privy Council said that nikah (marriage) under
the Muslim law is a religious ceremony.
The sanctity attached to the institution of marriage in the Islamic system has neither
been comprehended nor sufficiently appreciated by outsiders. Marriage is recognized
in Islam as the basis of society. It is a contract but also a sacred covenant. Marriage
as an institution leads to the uplift of man and is a means for the continuance of the
human race. The main aim of the institution of marriage is to protect society from
foulness and unchastity. It has also been said that marriage is so holy a sacrament,
that in this world it is an act of ibadat or worship, for it preserves mankind free from
pollution.
Thus, marriage according to Muslim Law is a contract for the purposes of legislation of
intercourse, procreation of children and regulation of social life in the interest of
society by creating:
 the rights and duties between the parties themselves, and
 between each of them and the children born from the union.
Capacity of Marriage
 Every Mahomedan of sound mind, who has attained puberty may enter into the
contract of marriage.
 Their respective guardians may validly contract lunatics and minors who have not
attained puberty in marriage. (Sec 270-275)
 A marriage of a Mahomedan, who is of sound mind and has attained puberty, is void if
it is brought about without his consent.
Nature of Muslim Marriage
There is divergence of opinion with regard to the nature of Muslim marriage. Some
jurists are of the opinion that Muslim marriage is purely a civil contract while others
say it is a religious sacrament in nature.
Marriage under Muslim law has similar characteristics as a contract. For instance:
 As marriage requires proposal (Ijab) from one party and acceptance (Qubul) from the
other so is the contract. Moreover, there can be no marriage without free consent and
such consent shouldn’t be obtained by means of fraud, coercion or undue influence.
 Just as in case of contract, entered into by a guardian, on attaining majority, so can a
marriage contract in Muslim law, be set aside by a minor on attaining the age of
puberty.
 The parties to a Muslim marriage may enter into any ante-nuptial or post-nuptial
agreement which is enforceable by law provided it is reasonable and not opposed to
the policy of Islam. As is the case with a contract.
 The terms of a marriage contract may also be altered within legal limits to suit
individual cases.
 Although discouraged both by the Holy Quran and Hadith, yet like any other contract,
there is also provision for the breach of marriage contract.
 Justice Mahmood observed:
“ Marriage among Muhammedans is not a sacrament, but pureply a civil contract; and
though it is solemnized generally with the recitation of certain verses from the Quran,
yet the Muhammedan law doesn’t positively prescribe any service peculiar to the
occasion.”
He described that Muslim marriage was dependent upon declaration or proposal of the
one and the consent or the acceptance of the other of the contracting parties.
From the above observation, Justice Mahmood couldn’t be held to have taken the
view that marriage is nothing but purely a civil contract. As per him the dower in the
Muslim marriage shouldn’t be confused with consideration in the context of civil
contract.
In a lucid and erudite judgment Pareed Pillay, J. of the Kerala High Court, in Adam v.
Mammad[vii], has set out the salient feature of Islamic law of marriage. In the case
before him, he held that where the girl’s father had given his consent, and the
daughter had withheld hers, no valid marriage had taken place. Here the judge cited
J. Mahmood’s classic dicta in Abdul Qadir’s case, and upheld that for the validity of a
marriage, consent is a must.
In Yusuf v. Sowramma[viii], there is a popular misconception by J. V.R. Krishna Iyer
that no religious significance or social solemnity attach to Muslim marriage and it is
merely a civil contract. The learned judge doesn’t put forward any definite argument
and hasn’t gone through the principles of Shariah it is said.
Though sacramental nature of marriage is considered as an orthodox view it is also
supported by the Judiciary. Anis Begum v. Mohammad Istafa,[ix] is a leading case on
the point where C.J Sir Shah Sulaiman has tried to put a more balanced view of the
Muslim marriage by holding it both a civil contract and a religious sacrament.
Taking religious aspect into account Muslim marriage us a devotional act (ibadat). The
Prophet is reported to have said that marriage is essential for every physically fit
Muslim who could afford it.
Muslim marriage is not merely a contract because:
 unlike a civil contract, it cannot be made contingent on future event; and
 unlike civil contracts, it cannot be for a limited time (muta marriage is an exception).
 Unlike a civil contract, the analogy, of lien cannot be applied to a marriage contract.
Secondly, the contract of sale of goods may be canceled 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
his dower remains unpaid.
As per Dr.Jung:
“Marriage though essentially a contract is also a devotional act, its objects are rights
of enjoyment and procreation of children and regulation of social life in the interest of
society.”[x]
CONCLUSION
On the basis of Juristic opinion, we can easily conclude, that marriage is simply a civil
contract under Muslim Law. It fulfills all the conditions of a contract-proposal and
acceptance, free consent and consideration.
But from the religious angle, Muslim marriage is a devotional act. Marriage is not
devoid of all religious and spiritual values. Along with its secular aspect, it also
partakes the elements of a sacred union of two souls means for spiritual ends.
In the Quran and Hadith, spouses are strictly enjoined to love and honor each other.
Enjoyment and showering love and affection by each one has been called a noble act.
Marriage under Islam is sacrament keeping the view of Quranic injunction and
traditions.
In the ultimate analysis, it can be said that the marriage in Islam is neither purely a
civil contract nor a sacrament. It is devoid of none but the blending of the two.