Project on Family Law I FYLLB SEM II

Muslim Marriage are Sacrament or Contract

SUBMITTED BY
Pratik Tukaram Godage

DIV -A; ROLL NO – 22

SUBMITTED TO
Table of Contents

1. Introduction...............................................................3
2. Definition of Nikah....................................................3
3. Muslim Marriage: Contract or Sacrament.............4
4. Conclusion..................................................................5
1. Introduction
Marriage is considered as an important phase of human race since a very long time. As birth
has been considered a medium for continuing the family, the concept of marriage has been
the only legal ways of sexual contact between a man and a woman. This concept gradually
grew up and this consideration of wife as property, made the way for marriage by consent,
subject to dowry. This was a phase where in the women were completely made dependent
on their husbands and were not provided with any right of inheritance. However, the
beginning of Prophet Mohammad gave rise to a new ideas and conceptions of marriage. The
marriage among Muslim is thus considered as a contract which makes it different from
Hindu marriage.1

2. Definition of Marriage
Marriage also termed as “Nikah” in Arabic is defined as the union of the sexes and legally
this term means ‘marriage’.2 It means to unite, and it cannot be affected except by the
pillar ruku emanating from ahl, one who is competent to contract and with reference
to mahl, fit subject to marriage. It is thus defined as Sunnat Muwakiddah3.

Dr. Jang is of the view 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.”4

Nikah is an institution legalized for manifold objects such as preservation of species, the
fixing of descent, restraining men from debauchery, the encouragement of chastity, the
promotion of love and union between the husband and wife, and of mutual help in earning
livelihood.5

A Muslim husband and wife who follow the teachings of the Holy Quran should always be a
source of comfort for each other. Their relationship should reach far above that of mere
sexual enjoyment and should reach the stage of cordial friendship accompanied by mutual
benevolence.6

1
The State Of Bombay v. Narasu Appa Mali, AIR 1952 Bom 84
2
Vincent J. Cornell, Voices of life: family, home, and society (Praeger Publishers Inc, Westport, United States, 2006), P. 59–
60.
3
Sunnat Muwakiddah means “The person who complies with it, is rewarded in the next world, and he who does not commits a
sin”
4
Dr. M.U.S. Jang, Dissertation on the Development of Muslim Law in British India, (The Juvenile Press, Allahabad, 1932), P-
2.
5
Dr. M.U.S. Jang, Dissertation on the Development of Muslim Law in British India, supra, P-2.
6
Zulfiqar Ali Khan, Marriage and its Objectives in Islam, https://zulfiqarlegal.blogspot.com/2012/01/marrige-and-its-
objectives-in-islam.html.
3. Muslim Marriage: Contract or Sacrament
The jurists of Muslim consider marriage a civil contract and a religious duty as well.
According to several authors of Anglo-Muhammadam, marriage is not a sacrament but a
civil contract where all rights and obligations which it creates arise immediately and
simultaneously on completion by proposal and acceptance. These authors basis the modern
conception of marriage or due to singular characteristics of Muslim Matrimonial Law have
defined the Muslim marriage as a civil contract.7

These authors consider it as a civil contract considering it has a similar features that of a
contract i.e. A marriage is initiated via a proposal (ijab) from the initiator and acceptance
(qubul) from the acceptor. The term marriage can also be changed within legal limitations
as per individuals’ scenario.8 Marriage also required free consent from both the parties and
sound mind. The marriage can be dissolved through the provision of talaq. Though it is
solemnised generally with the recitation of certain verses from the Quran, yet the
Muhammadan law does not positively prescribe any service peculiar to the occasion.9

Second view of the same is, marriage is not a civil contract but a sacrament tool. This view
is equally supported by judiciary system.10 Considering the religious aspects in Muslim
marriage is an ibadat (devotional act) or ‘muamalat’ i.e. dealing with men.

In the legal case of Amina v. Koye11, it was observed that:

“We feel that we are not wrong if we say that there is an unfounded popular belief that no
religious significance or social solemnity attaches to a Muslim marriage and it is merely a
civil contract pure and simple.”

Basis the in-depth analysis, it was identified that marriage has a close similarities with a
civil contract there are dissimilarities too. Like a couple cannot be in a marriage for a
limited time (muta marriage, under which Shia male may get into contract of a temporary
marriage with any other female of Muhammadam, Jew, Christian or any female who
worships fire is an exception) 12. Also like a civil contract, couple cannot get into agreement
for future events. Additionally, it does not find its similarities with a contract that of a sales
as , in a Muslim marriage the women receives the dowry and if we consider this as a
contract then it would nothing but marketing her personality in return of mehr or the dowry
7
J. Mahmood, Abdul Kadir v. Salima, (1886) 8 All. 149; See also, Shama Charan Sircar, The Mohammedan Law: Being a
Digest of the Law Applicable Especially to Sunnis in India, Tagore Lectures, 1873
8
Aqil Ahmad, Mohammedan Law, (21st ed. Central Law Agency, Allahabad, 2004), P-109.
9
Abdul Kadir v. Salima, supra, P-112.
10
Anis Begum v. Mohammad Istafa, (1933) 55 APP 743.
11
1985 CriLJ 1996.
12
Section 206B, Mohamedan Law, Sir Dinshaw Fardunji Mulla, Principles of Mohamedan Law (12th ed., The Eastern Law
House, Calcutta, 1944).
 which is contradicting the principles of natural justice, for no one is entitled to sell his
personality.

4. Conclusion
So, this topic can be concluded by saying that Marriage in Islam is neither a civil contract
not it as sacrament. It contains the mixture of both the aspects. The transition from
sacramental indissolubility to its treatment as a civil institution is considered as modern
conception and a logical development of Anglo Muslim law. Marriage is thereby nothing
but a consent union of a male and female. The concept that threw light on marriage as a
contract only represent few aspects of Muslim marriage. This may lead an ignorance of its
religious aspects and importance which are been carried since ancient times.