S.N.D.T.

Women’s University
Law School
Family Law

Subject:- Critically Analyse Types of Marriages Under Muslim Law

Class :- LLB 2nd Year, (Semester –III)

Name :- Pratiksha Tripal Bhagat

ROLL NO:-4

Submitted to: Ms. Shahjeeda Tajdeen

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 Index
SR. No. Topic Page No
1 Introduction 3

2 Definitions Of Marriage 4
3 The History Of Nikah 5
4 Nature Of Muslim Marriage 6-7
5 Essentials of Marriage 8
6 Legal Requirements for A Marriage Under Muslim Law 9
7 Kinds Of Marriages 10
8 Mut’a Marriage 10-11
9 Essentials Of A Mut’a Marriage 12-13
10 Incidents Of Mut’a Marriage 14
11 Classification Of Marriage 15-19
12 Difference between Hindu and Muslim marriages 20-21
13 Conclusion 22
14 Bibliography 23

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 Introduction
Although in most systems of the world the individual has the freedom to marry or to
remain celebrate, marriage is regarded all over the world as a social institution. Whether
considered as a sacrament or as a contract, marriage, apart from giving rise to certain
mutual rights and obligations, confers the status of husband and wife on the parties and of
the legitimacy of their children.
The fundamental concept of individual liberty and responsibility which is the corner
stone of Muslim jurisprudence is incorporated in the institution of marriage. In Muslim law,
marriage depends upon the free volition of the parties concerned.
Marriage according to Mohemmadans is a civil contract what is necessary is the
agreement between the parties arising out of proposal and its acceptance. Contractual
capacity for purposes of marriage is governed by the Mohemmadan Law itself. According
to that law attainment of puberty confers contractual capacity. It is presumed that on
completion of 15 years of age a person attains puberty. A marriage under the Muslim Law
may be unilaterally put to an end by the husband by pronouncing Talak (Divorce). The
husband and wife may by mutual agreement also put an end to the marriage.
Marriage under Islam is a matrimonial relation and an institution which legalizes the
sexual 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. According many philosophers,
marriage in Islam is a religious duty. Everyone must marry in order to fulfil one’s desire of
procreation of kids legally.
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.

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 Definitions Of Marriage

“Marriage (nikah; zawi the husband; zawaja the wife) is a contract of civil law, and
it shows trace of having developed out of the purchase of the bride; the bridegroom
concludes the contract with the legal guardian (wali) of the bride, and he undertakes to pay
the nuptial gift (mahr sadak) o ‘dower’ …..not to the wali as was customary in the pre-
Islamic period, but to the wife heself” – SCHACHT
“Muslim marriage is a contact for the purpose of legalizing sexual intercourse and
the procreation of the children” – WILSON
“Marriage is an institution ordained for the protection of the society, and in order
that human beings may guard themselves from foulness and unchastity” –Ameer Ali
“Marriage among Mohammadans is not a sacrament , but purely a civil contact,
though solemnized generally with recitation of certain verses from the Quran, yet the
Mohammadan law doesn’t positively prescribe any service peculiar to the occasion” –
Mahmood .J

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 The History Of Nikah
In pre-Islam Arabia, the laws were favorable towards men and discriminatory
against women. Polygamy had to be accounted for in a very few blood relationships like in
marriage with one’s real mother or sister. Marriages were of different kinds and divorce was
simple and easy for men. Women were denied their basic rights since men were always
considered superior. 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 the position of women.
Prophet Mohammad placed a woman on a footing of almost perfect equality with
men in the exercise of all legal powers and functions. Under the Muslim, Law marriage is
considered a civil contract. After the marriage, women do not lose their individuality. She
still remains a distinct member of the community.
The Arabic word ‘Nikah’ (marriage) means “the union of sexes” and in law, this
means “marriage”. The term ‘Nikah’ has been used for marriage under Muslim
law. ‘Nikah’ literally means, “to tie up together”. It implies a particular contract for the
purpose of legalizing generation. Nikah in its primitive sense means carnal conjugation. It is
a matrimonial contract as well as an institution that gives the women a particular and high
status in the society. Nikah was to ensure stability in married life as it bound both the
partners together for an indefinite period and also required the woman to be honored with
the mahr.
Islam, unlike other religions, is a strong advocate of marriage. There is no place for
celibacy in Islam like the Roman Catholic priests and nuns. The Prophet has said, “There is
no Celibacy in Islam.”

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 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, 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
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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, 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, 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 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 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.”

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 A glossary on Tarmizi sets out five objectives of marriage :
i) The restraint of sexual passion
ii) The ordering of domestic life
iii) The increase of the family
iv) The discipline of the same in the care and responsibility of wife and children,
v) The upbringing of virtuous children.
The purpose of marriage are perpetuation of human race and attainment of chastity,
continence, mutual love, affection and peace
The Prophet said – ‘Men marry women for their piety, or their property or their
beauty, but man should marry for piety.

Essentials of Marriage
The essentials of a valid marriage are as follows:-

(i) There should be a proposal made by or on behalf of one of the parties to the marriage,
and an acceptance of the proposal by or on behalf of the other party. A Muslim marriage
requires proposal 'Ijab' from one party and acceptance 'Qubul' from the other side. This
must be done in one sitting.

(ii) The proposal and acceptance must both be expressed at once meeting. The acceptance
must be corresponding to what is being offered. The marriage must be effectively
immediate. If the Wali says I will marry her to you after two months, there is no marriage.

(iii) The parties must be competent. The two parties must be legally competent; i.e. they
must be sane and adult.

(iv) There must be two male or one male & two female witnesses, who must be sane and
adult Mahomedan present & hearing during the marriage proposal and acceptance. (Not
needed in Shia Law)

(v) Neither writing nor any religious ceremony is needed

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 Legal Requirements for A Marriage Under Muslim Law

The Muslim law does not require a ceremonial solemnization of marriage, though
there is nothing in it specifically prohibiting the same. The legal requirements for a
marriage by the muslim law are

 Ijab (proposal) – The marriage should be proposed by or on behalf of either party

there to…
 Qubul (acceptance) – The proposal should be accepted by or on behalf of the other
party.
 Form of Ijab and Qubul – Both ijab and qubul must be in definite words so as to result
into a complete and not an inchoate transaction and must not be conveying a mere
intention or promise to marry.
 Wilayat (guardianship) – Where legally the consent of a wali is essential, the ijab or
qubul as the case may be should be made by the guardian. In all other cases a wali
may do so on behalf and with the consent of the party concerned.
 Vakalat (representation) – Adults can make the ijab or qubul either personally or
through an adult and sane vakil(representative). Guadians of minors have the option of
naming the representatives.
 Shahabat (witness) – Except, if the parties are Isna Ashari, the ijab and qubul should
be made in the presence and hearing of alteast two adult muslim witnesses. One of
these may be replaced by two women.
 Majlis- I – wahid (single sitting) – the ijab and qubul should be made in the same
sitting signifying continuity of transaction.

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 Kinds Of Marriages

Being a civil contract, the validity of a Muslim marriage depends upon the
conclusion of the marriage contract. Muslim law does not insist upon any particular form of
marriage. If there is a proposal from one side, and its acceptance on the other side, a valid
marriage will come into existence, provided that the other conditions of marriage are
fulfilled. No writing is necessary. Even the presence of witness is not necessary (the sunnis
do insist on the presence of two competent witnesses). There is only one form of marriage
called nikah. A normal Muslim marriage is a permanent marriage in the same sense in
which the modern Christian marriage is a permanent union even though the husband enjoys
the power of unilateral termination of marriage at any time, without any cause and without
going to a court of law. But, since, no term is fixed in a normal nikah, the Muslim marriage
is a permanent marriage.
However, the Ithna Ashari law recognizes, as it is commonly, though incorrectly,
called, temporary marriage, known by the name of Mut’a marriage. It would be proper to
call Mut’a marriage as “term marriage”. No other sect of Muslim recognizes the Mut’a
marriage. It should be noticed that even in a Mut’a marriage, there is Nikah. Just like the
Sunnis, the Shias also recognize the regular permanent marriage.
Mut’a Marriage
The word ‘Mut’a’ literally means ‘enjoyment, use’ and in its legal context it may be
rendered, according to Heffening , a ‘marriage for pleasure’. It is a marriage for a fixed
period, for a certain reward paid to the woman. The institution of Mut’a was fairly common
in Arabia both before and at the time of the Prophet. “The believer is only perfect when he
has experienced a Mut’a“, thus observed the Shia theologian Al–Hurr-Al-Amili. It may be
difficult to say that when an Ithna Ashari Muslim enters into a mut’a marriage, he does so
with the view to perfecting his belief.
The fact of the matter is that a Mut’a marriage is a survival of a pre- Islamic Arab
custom whereby the Arab women used to entertain men in their own tents. This union gave
rise to no mutual rights and obligations. The man entering the tent had of course, to pay the
entrance money. The man could get out of the tent whenever he wanted and the woman
could throw him out whenever she chose , if any child was born of such a union , it
belonged to the woman. It seems that later on it developed into a fixed term union on

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payment of some consideration by the man and acquired the name of Mut’a. This pre-
Islamic institution of Mut’a continued to exist for some time even after the advent of Islam
in Arabia. It appears that on account of its widespread prevalence, the fiat of the Prophet too
tolerated it for some time, but ultimately came out against such unions and declared them to
b unlawful. But the institution survived inspite of the Prophet. It was Caliph Omar who
liquidate it ruthlessly. Since the Ithna Ashari do not accept the first three Caliphs (in which
is included Omar), they continued to recognize the Mut’a.

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 Essentials Of A Mut’a Marriage

According to Ithna Ashari law a Mut’a is a marriage for a fixed period of time. It
may be for a day, a month, a year or a term of years. The essentials of such a union are four:
the Form, the Subject, the Period, and the Dower.

 As regards the form, there must be a proper contract: declaration and acceptance are
necessary.
 As regards the subject, a man may contract a Mut’a with a Muslim, Christian, Jewish
or a Fire-worshipping women, but not with the follower of any other religion.
Relations prohibited by affinity are also unlawful in temporary marriage. A man may
contract Mut’a with any number of women.
 As regards the term of Mut’a , this must be specified: else a life-long Mut’a will be
presumed If the original cohabitation commenced with the lawful Mat’a. In Shoharat
singh v Mst. Jafri Bibi it was held that of the “ cohabitation of a man and a woman
commenced with the Mut’a , and there was no evidence as to the term of the
marriage, the proper inference would , in default of evidence to the contrary , be that
the Mut’a continued during the whole period of cohabitation”

In a recent Hyderabad case it was held

 That there is no difference between a Mut’a for an unspecified period and a Mut’a for
life
 That a permanent Nikah for a life can be contracted by the use of the word Mut’a also.
 That specification of the period for which a Mut’a marriage is contracted alone makes
a permanent marriage for life , a temporary Mut’a marriage for the period specified.

 That where the specification of period is omitted, whether intentionally or

unintentionally, a permanent Nikah marriage results, with all the legal incidents of a
Nikah marriage, including the right of inheritance between the contracting parties.

 That where the period is for life, Nikah marriage will result.

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 The learned judge in this case purports to follow the authority of the Jawahi- al-
Kalam , an exhaustive commentary on the Shara I Al – Islam , by Shaykh Muhammad
Hasan Al-Najafi , in six volumes. He says that it is of higher authority than the Shara I Al –
Islam. In view of the remaks of Mahmood and Sulaiman . it is difficult to accept the opinion
of the learned judge. The view which he advocates may, in the circumstances prevailing in
Hydrebad, have some justification: but in so far as it tends to obliterate the well known
distinction between a Mut’a and a Nikah , it is respectfully submitted that the judgement
requires reconsideration. The fixation of a period in the marriage contract destroys the
concept of Nikah as understood in Islamic law. The mere omission to specify the period
may result in a valid Mut’a for life: but to equate a Mut’a for life with a regular Nikah is a
serious step, which inter alia fails to take in cosideration the question of intention.
A Mut’a terminates by the efflux of time or by death. On the expiry of the term, no
divorce is needed, during the period , the husband has no right to divorce the wife , but the
husband may make a “gift of the term” thereby terminate the contract , without the wife’s
consent.
The dower (mahr) is a necessary condition of such a union. If it is not specified, the
agreement is void. Where the marriage is consummated, the wife is entitled to the whole
amount, if not, to half the dower. In case the wife leaves the husband before the expiry of
the term, the husband is entitled to deduct a proportionate pat of the dower 9. On the expiry
of the period, where there has been cohabitation, a short idda two courses is prescribed,
however, there has been no consummation, no idda is necessary.
The issue of the Mut’a union are legitimate and entitled to inherit. In the absence of
a specific agreement, the husband o the wife does not inherit from the other, but if there is
such a stipulation it will be effectual.
A Mut’a wife is not entitled to maintenance, for, according to Shara I al- Islam, ‘the
name of a wife does not in reality apply to a woman contracted in Mut’a

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 Incidents Of Mut’a Marriage

The main incidents of the Mut’a marriage are:

o In a Mut’a marriage, parties have no right to mutual inheritance, even if one of the
parties dies when the Mut’a is subsisting. There is a difference of opinion among the
Shia authorities whether a specific stipulation to the effect in a Mut’a is valid.
o A wife in a Mut’a marriage is not entitled to maintenance. But if in the contract of
marriage, it is specifically stipulated, the wife will be entitled to maintenance during
the whole term, even if the husband chooses not to cohabit with her. In the absence of
such a stipulation the court has the power to grant her maintenance, under section 125
of the code of criminal procedure.11
o If the marriage is not consummated, the wife is entitled to only half of the dower. If
the marriage has been consummated, then the wife is entitled to full dower, even if the
husband does not cohabit with her during the entire term or part of the term. On the
other hand if the wife leaves her husband before the expiry of the term she is entitled
to only a proportionate dower.
o When the marriage has been consummated, the wife is enquired to undergo idaa of
three courses; if there is no consummation of marriage, no idaa is required.
o It seems that in a mut'a marriage the husband has the right to refuse procreation, that is
to say, Izl is allowed, and no permission of the wife is necessary.
o The off spring of mut'a marriage has the status of legitimate children, and is entitled to
inherit the property of both parents in the same manner as the off spring of the
permanent marriage.
o The mut'a marriage comes to an end automatically on the expiry of the term, unless
extended, or on the death of either party. The question of husband’s right of Talak
does not arise. However the parties may terminate the union by mutual consent if the
husband wants to terminate the union earlier, he can do so by making “gift of the
tem” or of any portion of it. This is called Hiba-i-muddat for which the consent of the
wife is not necessary.

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 Classification Of Marriage

All the schools of Sunnis classify marriage into:

 Valid ( Sahih) marriage.

 Void (Batil) marriage.
 Irregular (Fasid) marriage.

The Ithari Ashari school of the Shias does not recognize the irregular marriage and
therefore among them marriages are either valid or void.
 Valid Marriage (Sahih)

A marriage which conforms with all respects of the law is termed sahih, i.e.
“correct”, in regard to legal requirements. For a marriage to be valid it is necessary that
there should be no prohibition affecting the parties. In other words a marriage between the
parties having full capacity to marry with all the necessary formalities is a valid marriage.
Here the word ‘capacity’ is used in a wide sense, which includes all legal requirements of a
valid marriage. If the marriage is sahih then all the consequences of a valid marriage flow
from it.

 Essentials of valid marriage:

For a valid marriage the following conditions should be satisfied:

(A) Capacity to marry:

 The parties14 should have attained puberty or the marriage contract should be entered
into by the guardian in marriage on behalf of the party concerned.
 The parties should be of sound mind otherwise the guardian in marriage should act on
behalf of the person of unsound mind in arranging the marriage contract.
(B) Form of Marriage:
There should be a proposal and its acceptance at one meeting. According to the
Shias witnesses are not necessary but according to Sunis atleast 2 male witnesses or 1 male
and 2 female witnesses are necessary. Where witnesses are necessary they have, of course,
to be sane and adult persons. The absence of witnesses however can only render marriage
irregular and not void.
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 (C) Prohibited Relationships:

The parties should not be within prohibited degrees of relationship. The presence of
any such forbidden relationship is an impediment to marriage. On ground of blood
relationships, that is, consanguinity the following relationships are not suitable for marriage
and make the marriage void.

 Mother and son

 Grandmother (how high-so-ever) and Grandson (how low-so-ever)
 Brother and Sister
 Uncle and niece (how low-so-ever)
 Nephew and aunt (how high-so-ever)

On ground of affinity, the following relations connected though marriage are

prohibited for marriage.

o Wife’s mother or grandmother (how high-so-ever)

o Wife’s daughter or granddaughter (how low-so-ever) (if marriage with wife is
consummated
o Wife of father or paternal ancestor
o Wife of son on son’s son or daughter’s son (how low-so-ever)

Foster age also may give rise to prohibited degrees of relationship. Thus a foster
mother would come under the ban as much as the mother herself.
 The Legal Effects Of A Valid Marriage

In the leading case of Abdul kadir V Salimma, Mahmood. J has discussed the legal
effects of a Muslim marriage:
“the legal effects of marriage are that it legalizes the enjoyment of either of them
(wife and husband) with the other in the manner which in this matter is permitted by the
law; and it subjects the wife to the power of restrain ; that is she becomes prohibited from
going out and appearing in the public; it renders her dower , maintenance, and raiment
obligatory on him; and establishes on both sides the prohibitions of affinity and the rights of
inheritance ; and the obligatoriness of justness between the wives and their rights, and on
her it imposes submission to him when summoned to the couch; and confers on him the
power of correction when she is disobedient or rebellious, and enjoins upon him associating

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 familiarly with her with kindness and courtesy. It renders unlawful the conjunction of two
sisters (wives) and of those who fall under the same category.”
The conception of mutual rights and obligation arising from marriage between the
husband and wife bears in all main features similar to the Roman law and other European
systems.
The legal effects of a valid marriage are summarized as follows:

o Sexual intercourse becomes lawful and the children born of the union are legitimate.
o The wife becomes entitled to her dower (mahr).
o The wife becomes entitled to maintenance.
o The husband is entitled to restrain the wife’s movements in a reasonable manner and to
exercise marital authority.
o Mutual rights of inheritance are established.
o The prohibitions regarding marriage due to the rules of affinity come into operation.
o The wife is not entitled to re-marry after the death of her husband, or after the dissolution of
her marriage, without observing ‘Idda.
o Where there is an agreement between the parties, entered into either at the time of marriage or
subsequent to it, its stipulations will be enforced, in so far as they are not inconsistent with
the provisions or the policy of the law.
o A woman does not change her status on marriage. She remains subject to her own pre-
marital school of law. Neither the husband nor the wife acquires any interest in the property
of the other by reason of marriage.
 Void Marriage (Bati)

When a marriage is performed in violation of absolute impediments or perpetual

impediments, the marriage is batil, null and void and it is considered to be void-ab initio. A
void marriage is no marriage and no legal consequences flow from it. Neither it confers
the status of husband and wife on the parties, nor the status of legitimacy on the children,
nor- mutual rights and obligations arise from such marriage. It is called marriage because
two persons have undergone the necessary formalities of marriage. But since they totally
lack capacity to marry, marriage cannot come in existence between the two. Thus marriages
performed in violation of rules of consanguinity fosterage of affinity or with another’s wife,
are batil marriage. The issue of such a union is illegitimate and law knows no process
whereby the union may be legalized. 15 Similarly, a marriage with the wife of another or re-
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marriage with a divorced wife when the legal bar still exists is void.16 Since the marriage is
void-ab-initio, the parties are free to go their own way. If the wife enters into another
marriage, she will not be guilty of bigamy. Third persons can take a stand and say that the
marriage is void, even though the marriage has not been formally terminated.
 Irregular Mariage (Fasid)

If the impediment of prohibition to marriage is temporary or remedial, then the

marriage performed in violation of such impediments is not void, but as Muslim law gives
call, irregular. An irregular marriage under Muslim law is not same thing as voidable
marriage under English law or Hindu law. A voidable marriage is perfectly valid till it is
avoided, and it can be avoided only by either party to the marriage. No third person can take
a stand on it.
A voidable marriage on its annulment has practically the same consequences as that
of the void marriage. On the other hand irregular marriage is not a valid marriage: nor it is a
void marriage. A fasid marriage is not a valid marriage to begin with, but it can be validated
and made a fully valid marriage by removing the impediment or by remedying the
prohibition. Thus, when a person marries his wife’s sister the marriage is irregular but he
can validate it by pronouncing talak to his wife. Or, when a Sunni male marries an idolater
the marriage is irregular, but, on his wife’s conversion to Islam, the marriage becomes
valid.
An irregular marriage is totally an ineffective marriage before consummation. Either
party to an irregular marriage has a right to terminate it at any time, either before or after
consummation, by just expressing an intention to do so. Any words indicating such an
intention are enough, such as one party may say to another “I have relinquished thee”. If
consummation has taken place in an irregular marriage, then the wife is entitled to dower,
proper or specified whichever is less. The wife is required to perform idda of three courses
on dissolution of marriage, either by divorce, or, by death of the husband. The children of
such marriages are fully legitimate, and have rights of inheritance to the property of both
the parents. The parties to an irregular marriage have no right of mutual inheritance.
A marriage under Muslim law is irregular in the following cases:-
 A marriage performed without witness.
 A marriage performed with a woman undergoing idda.
 A marriage prohibited on an account of difference of religion.

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 A marriage with two sisters, or contrary to the rules of unlawful conjunctions.
 A marriage with a fifth wife.

Since the Ithna Ashari law doen not recognize irregular marriages, a marriage with
no witness is void under that law. But for a Shia marriage no witness is necessary.

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 Difference between Hindu and Muslim marriages
(i) Aims and ideals:
Hindu marriage is a religious sacrament because it is considered to be complete only
when certain religious rites are performed with the accompaniment of the sacred Vedic
hymns. Religious sentiments play a dominant role here. On the other hand Muslim marriage
has nothing to do with religion. It is purely a social contract. Dharma is considered the
primary aim of Hindu marriage followed by “Praja” and “Rati”. A Hindu gets married with
the sole purpose of performing certain religious as well as household duties, while
satisfaction of sexual urge and legalization of children are the main motives of Muslim
marriage.
(ii) Endogamy rules:
The endogamy rules restrict the Hindus to marry within their own caste but among
the Muslims, marriage takes place between kiths and kins.
(iii) Exogamic Rules:
As regards the rule of exogamy, the Muslim community applies it to very near
relatives; who are closely related to one another. But among the Hindus several types
of exogamic rules prevail such as gotra exogamy, praver exogamy and sapinda
exogamy which stipulate that the relatives of seven generations from the paternal
side and five generations from the maternal side can’t marry each others. Therefore
the field for making matrimonial alliances in Hindu society is much more restricted
than it is in the Muslim community.
(iv) Features of the marriage system:
In Muslim marriage, the proposal comes from the boys’ side and it has to be
accepted in the same meeting by the bride in the presence of two witness. They also
practise polygamy and have the consideration of irregular or void marriage. Shia
community approve ‘Muta’ marriage Muslim also emphasize on the capacity of a
person to contract marriage but Hindu law prohibits bigamy and don’t have irregular
or void or no provision for temporary marriage and do not have custom of proposal
and acceptance and they do not believe in the capacity of making contract.

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 (v) Marital Relations:
The Hindu marriage is in-dissoluble and is a permanent bond, which is
believed to last even after death. At present the decision of the court is required for a
dissolution of marriage. On the other hand Muslim male can divorce his wife at his
own will simply by pronouncing talaq. Dissolution of marriages among the Muslims
does not require the intervention of the court.
(vi) Practice of Dower:
In Muslim community we find the custom of dower, paid by the husband to his wife
at the time of marriage or even after in respect of wife and the wife has absolute control
over it. It is totally different from the dowry system of Hindu.
(vii) Nature of Marriage:
Muslim of women observe “Iddat” after dissolution of marriage but Hindus do not
observe “Iddat” for contracting marriage Muslim widow is allowed to remarry after waiting
for the period of “iddat” but in Hindu community though widow remarriage is legally
accepted, in practice it is looked down upon by the Hindu community. Thus it is clear that
Muslim women have not been given equal rights in marital status as the husband has the
rights to marry several women at the same time where as the wife can marry only one man.

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 CONCLUSION
Human beings, at some stages of the development of the institution of marriage have
attached some sanctity – some going to the extent of calling it a sacrament, a permanent
union, just as Hindus and Christians did – to marriage and to that extent a Muslim marriage,
too, maybe called an ibadat but the most remarkable feature of Muslim jurisprudence is,
that even at the beginning of the development of their juristic thought, they squarely
considered the marriage essentially as a civil contract – a concept which developed in the
western world fully only after the industrial revolution. That of the two partners to a
marriage, it accorded dominant position to the husband, was but natural at the stage in the
development of human society which was starkly patriarchal. Thus it is submitted that in its
formation the Muslim marriage is essentially a contact though in its dissolution the
dominant position of the husband is recognized.
After analyzing thoroughly the system of Islamic marriage a reasonable and prudent
way of thinking would always conclude that the Islamic personal law with regards to
marriage and divorce need to be changed a lot so to maintain its status in modern society.
Marriage is a religious duty of every Muslim and it is considered to be a moral safeguard
and a social need. The Prophet has also said Marriage is my tradition whosoever keeps
away there from is not from amongst me. Unlike Hindu where the marriage is a sacrament,
marriages in Muslims have a nature of civil contract. Marriage is necessary for the
legitimization of a child. When the marriage is done in accordance to the prescribed norms
it creates various rights and obligations on both the parties. It appears that Islamic law of
marriage and divorce is not identical to the man made laws which are changed by man
himself moment after moment. It is evident that the position of man and woman in the
social set up of the community, is equal in every respect, but keeping in view the mindset of
both the genders, Islam segregates the rights, duties and functions of both the gender and
then declares their status with regard to family matters. If it is asked that are man and
woman equal in Islamic way of life? There would not be simple positive or negative way of
answer rather, one must scrutinize, examine and inspect closely and thoroughly their
respective rights, duties and functions. And then placing a complete picture in front, it may
be possible to answer the above question. In other societies of the world, the state of affairs
is not in concurrence to Islamic way of life. Those other societies always try to claim that
man and woman are equal in every respect which is not a natural phenomenon.
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 BIBLIOGRAPHY
Books:

1. OUTLINES OF MOHAMADDAN LAW, 4th ed. Oxford India Paperbacks - ASAF A.A.
FYZEE.
2. FAMILY LAW IN INDIA, 9th ed. S.Gogia & Co. -PROF. G.C.V.SUBBARAO

3. FAMILY LAW, 9th ed. Allahabad Law Agency -PARAS DIWAN

4. THE MUSLIM LAW OF INDIA, 3rd ed. Lexis Nexis Butterworths -TAHIR MAHMOOD

5. MUSLIM LAW, 9th ed. Lexis Nexis Butterworths –MULLA

Statutes Referred:

1. The Indian Constitution

2. Muslim Laws

3. The Civil Procedure Code

4. The Specific Relief Act, 1963

Net Sources:

1. en.wikipedia.org

2. www.indiankanoon.org

3. www.moj.gov.jm

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