Acknowledgment

I would like to take this incentive to convey gratitude to Ms. Shunezi Shaikh , my family law - 1
professor, and Mr.Rajesh P. Wankhede, our law school principal, provided me with the amazing
chance to do this project on the topic Marriages under Muslim law , which also assisted me in
doing a great deal of research and learning about so many new things. I am extremely grateful to
them.

Second, I'd like to thank all the people for their assistance in completing this project in such a
short period of time. It was only because of them that I was able to develop my project and make
it a fun and rewarding experience. I'm doing this project not only for the grades, but also to
expand my knowledge.
 SR.NO INDEX PAGE.NO

01 INTRODUCTION 02

02 MARRIAGE UNDER MUSLIM LAW 04

03 NATURE OF MUSLIM MARRIAGE 06

04 ESSENTIALS OF VALID MARRIAGE 07

05 CLASSIFICATION OF MUSLIM MARRIAGE 09

06 REGISTRATION OF MARRIAGE 14

07 CONCLUSION 15

08 BIBLIOGRAPHY 17

1
INTRODUCTION

In India, the term Muslim law applies to the personal matters concerning that section of the
Indian society composed of people following Islam. Hence the Muslim personal law governs the
institutions of marriage and divorce, adoption, succession and charity in the Indian Islamic
community.

Uniform Civil Code as the term itself suggests aims to codify the currently existing diverse
communal laws into single overriding legislation in accordance with the fundamental principles
enshrined in the Indian Constitution. However, the introduction of the code is fraught with
several difficulties as these differences that are currently in vogue originate in the religious
statutes and several sections of the society especially the minority communities feel that it will
eventually turn out to be a guise under which they will be subjected to the majority communities
norms.1

This probability for the development of potential friction between one community and the
mainstream society is especially pronounced in the Muslim world, where a unique codified
judicial system which evolved out of the special Social-cultural norms and religious beliefs of
the community, unlike their compatriots belonging to other religious groups. This endemic
judicial system is popularly known as the Sharia law which is the governing legislation in most
of those countries who has made Islam their state religion such as Afghanistan Pakistan and
Saudi Arabia.

Though Islam is considered monolithic religion divisions exist on the basis of several sub
sectarian practices. The most widely known of such a division Is between the Schools of Shia
and Sunni. Correspondingly, the Islamic law as practiced in these communities exhibits subtle
variations.2

1
Mulla; LexisNexis: Butterworths Publications, Islamic Law

2
Aqil Ahmad; Mohammedan Law

2
 1. Sunni School
There are four authorities for Islamic law according to the Sunni School of thought which are :
● The Quran
● Haadis or Sunnat
● Ijma
● Qiyas

2. Shia School
In the Shia school, the authorities of law are the Quran, Hadith and the dictums of Imams. They
did not accept the Sunni view of considering Qiyas as an acceptable source of law. Besides, the
Shias do not support those Haadis compilations which emanate from households not related by
blood to the prophet himself. Thus, they follow only compilations such as AL-Kafi, and Tahdhib
-UL-Abham as most authentic of all collections.

3
MARRIAGE UNDER MUSLIM LAW
Muslims are broadly divided into two major sects Shias and Sunnis and there are four schools of
thought under Muslim law, Hanafi, Hamabil, Maliki, and Shafi. Out of these four, the Hanafi
school is dominant in India. Due to these different sects and schools of thought, there are
different types of marriages and divorce that are accepted in Muslim society. Different types of
marriages are Muta marriage, Sahih (valid) marriage, Batil (void) marriage, Fasid (irregular)
marriage.

According to Ameer Ali (political and social reformer and scholar of Islam), marriage is
necessary for the protection of society. It is an organization that protects society from foulness
and unchastity. According to Abdur Rahim(Indian jurist), marriage is an institution that partakes
in both the nature of devotional arts (ibadat) and dealing among men (Mumlat). Thus, under
Muslim law marriage is a solemn pact that gives validity to the intimate relationships between
men and women and legitimises children born out of that wedlock.

Meaning and Definitions of the term Marriage

The etymological meaning of the term Marriage. According to dictionary of Islam is as:
"The celebration of the marriage contract (Urs), Persian (Shadi), marriage is enjoined upon every
Muslim, and celibacy is frequently condemned by Mohammed and "Nikah" is defined as :
"A word which, in its literal sense signifies conjunctions, but which is in the language of law
implies the marriage contract".

Other definitions :

According to Tayyab Ji :
"Marriage brings about a relation based on and arising from a permanent contract for intercours,e
and procreation of children, between a man and woman, who after being married, become
husband and wife".'

4
Dr. Jung is of opinion that :
"Marriage though essentially a contract is also a devotional act; its object are right of enjoyment
and procreation of children and regulation of social life in the interest of society.''

Similarly in view of Abdur Rahim:

"The Mohammadan jurists regard the institution of marriage as partaking both of the nature of
ibadat or devotional act and in Muamalat or dealings among men".

In Shoharat Singh v. Jafri Begum, In this case, the Privy Council said that marriage under
Muslim law is a religious ceremony.

The virtue attached to the institution of marriage in the Islamic system has neither been
compromised nor sufficiently appreciated by outsiders. Marriage in Islam is perceived as the
basis of society. It is a contract but also a sacred contract.

Marriage as an establishment leads to the upliftment of man and is a means for the continuation
of the human race. The motive of Muslim marriage is to protect the society from foulness and
lewdness. It has also been said that marriage is a holy sacrament, which means that it is an act of
Ibadat or worship. Thus, marriage according to Muslim law, is a contract for the purpose of
ratification of intercourse, propagation of children, and the regulation of social life in the interest
of society by creating:

● The rights and duties between the parties itself, and

● Between each of them and the children born from the union.

5
NATURE OF MARRIAGE

The nature of marriage under Muslim law is the same as a civil contract. It is entered into by
both the parties by their free volition. In its formation it also takes the form of contract as there is
offer and acceptance between the parties, giving the same right to husband and wife. But during
the dissolution of marriage, the husband is given more rights than the wife as they are considered
superior to women due to the patriarchal notion that men are physically and intellectually
superior to women. Though generally marriage under Muslim law is considered a civil contract,
some people also treat it as a religious sacrament.

In the case of Abdul Kadir vs Salima, it was observed that the character of Muslim marriage is
similar to that of a civil contract, as like civil contract marriage under Muslim law requires of
offer (Ijab) from one side and acceptance (Qubul) from another side, which must be out of the
free will, without any coercion, undue influence and fraud on the part of both the parties. In case
of both the parties being minor, they have the right to either set aside or follow the terms of
marriage. When they become major, as it is in the case of a contract, unless and until it is
opposed to public policy it is right of the parties to enter into antenuptial/prenuptial agreement,
though it is not socially acceptable there is also a provision for breach of contract of marriage.
However, there is a constant debate regarding the nature of marriage, some consider it as purely a
civil contract while others consider it as a religious sacrament. Chief Justice Sir Shah Suleman,
in the case of Anis Begum vs Muhammad Istafa, gave a more balanced view about this
unending debate by stating that marriage under Muslim law is both civil contract and religious
sacrament.

6
ESSENTIAL CONDITIONS OF VALID MARRIAGE
There are some important essential for the muslim marriage which are as follows.

1. Proposal and acceptance : In Muslim Marriage there must be proposal or offer ( ijab )

by one party and acceptance of the same as ( qubul ) by another party . For a valid

muslim marriage proposal and acceptance should be carried out at the same meeting . If

an offer is made at one meeting and acceptance of the offer is done in a second meeting

then it will not be considered as valid.

2. Competency : In Muslim Marriage the parties must be capable like a contract . The

parties must be attained the age of puberty but if a minor and not attain the age of puberty

the consent of the guardian is required to make the marriage lawful . Muslim is

considered to have attained the age of puberty at 15 year’s . At the time of marriage the

parties must be of sound mind . And Parties must be muslim .

3. Consideration ( Mehr ) : Consideration or mehr is important elements in Muslim

Marriage . Mehr means the amount of money or other property which a bride groom has

to give to the bride as a consideration of marriage . Its main objective is to offer the bride

a sense of financial security during and after the marriage .

4. Free consent : For a valid muslim marriage there must be free consent of the parties . If

the consent taken by coercion , fraud , misrepresentation , mistake , undue influence then

that marriage is considered as a void .

5. No legal disability : Under the the muslim marriage there are some Relationship in

which is prohibited to marriage .

Consanguinity : Consanguinity refers to blood Relationship in which a muslim man is restricted

from marriage the following women - his mother or grand mother ,his daughter or grand
daughter ,his sister, his niece, his aunt or great aunt. A marriage with women prohibited under
the consanguinity relationship is void.

7
Affinity : Any marriage with few relative is also prohibited in Muslim, his wife mother’s or
grand mother, his wife daughter, his father wife’s, his son’s wife’s. A marriage with women
prohibited under affinity is void.

Witness : There must be Marriage done with proper and competent witnesses . Under the Shia
law presence of witness is not essential and marriage without witness is considered as valid .
Under the sunni law, the presence of a witness is essential . At least one male and two female
witnesses should be present and that witness should be major and sound mind .

8
CLASSIFICATION OF MUSLIM MARRIAGE

Marriage, in Mohammedan culture, has always been considered as a social necessity. There are
several kinds of marriage under Islamic law. Marriage in Islam is considered to be a social
contract. The husband and the wife and their respective families enter into an agreement whereby
the husband’s family pays an amount of money called the (mehr) to the girl and her family and in
return, the girl agrees to marry the boy. Therefore, this is a social arrangement which is called
nikah in Islam.3

There are two sets of Muslims all over the world divided by their beliefs and traditions, viz.
Sunni Muslims and Shia Muslims. Marriages in both the sects are conducted in different ways
with different traditions and customs and because of which there are several forms of marriage
under Islamic law. Moreover, as aforementioned, Islamic marriages are social contracts and
legally binding upon the parties. Hence, since this is a contract, it is classified accordingly. 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

1. SAHIH NIKAH (VALID MARRIAGE)

The term sahih is an Urdu term for the word ‘correct’ or ‘valid’ and as already explained,
nikah means marriage. When all the essential conditions of a Muslim marriage are duly
fulfilled, it is called a sahih nikah or valid marriage. It means if two Muslim persons (one
being the man and other a woman) enter into an agreement by way of offer and
acceptance and the groom has paid the mehr for the marriage to the bride, it is a valid

https://en.wikipedia.org/wiki/Muslim_personal_law#:~:text=All%20the%20Muslims%20in%20India,inheritance%20and%20charities%
20among%20Muslims.

9
 marriage. There are certain social and legal implications of a valid marriage which can be
enlisted hereunder as follows:
● The spouses become legally married owing to which they can legally consummate
their marriage.
● Due to the marriage, the parties acquire the rights of inheritance over the
properties which can be inherited.
● Although, the Muslim law does not allow maintenance to the fie in case of a
divorce because it is believed that the dower paid at the time of marriage is
sufficient for her well-being. Nevertheless, the Supreme Court has made it clear
that after a valid marriage, the wife has the right to alimony and maintenance for
her and the children.
● The right to maintenance is an independent right beside the right to receive the
promised dower.
● The spouses have to be loyal and faithful to each other. However, a Muslim man
is allowed to commit polygamy, so it is only the wife who needs to be loyal to the
man after the marriage.
● The Quran allows a man to reprimand or chastise his wife by reasonable means if
the wife is disobedient or disloyal towards him.
● The kids, if any, who are born due to the consummation of a sahih marriage are
considered to be legitimate children.
● In case of the wife being a widow or being divorced by her husband, she is
obliged under the Muslim law to perform the ritual of Iddat under which the wife
cannot remarry any other person before a period of 90 days from the date of death
of the husband expires. This is to ensure that the woman was not pregnant at the
time of the husband’s death4
.
2. BATIL NIKAH (VOID MARRIAGE)

According to the Indian Contract Act, 1872, an agreement which is not legally
enforceable is a void agreement. Similarly, an agreement between a prospective bride and

4
https://www.indiacode.nic.in/bitstream/123456789/2303/1/A1937-26.pdf

10
 a groom which does not meet all the essential conditions of a Muslim marriage is a void
agreement and any marriage that takes place in furtherance of a void agreement is called
a void marriage or Batil nikah.
In Munshi v. Mst. Alam Bibi, the court observed that when there is a permanent or
perpetual prohibition from marriage due to non-adherence of a condition, it is void
marriage.
When one or more of the prerequisites to a valid marriage mentioned above are not
fulfilled by the spouses before marriage, the marriage is void and not binding. The
following are certain situations in which a Muslim marriage is void.
● When a marriage takes place between persons who are absolutely incapable.
● When a person married to the wife of another man when the marriage of the lady
was subsisting.
● Marrying more than four wives. In such a case, the fifth marriage and so on
becomes void.
● Marriage with a Non-Muslim.5

In Tanjela Bibi v. Bajrul Sheikh, the court held that a marriage with a woman who is pregnant
from before the marriage is void.

The above-mentioned list is mere examples and not an exhaustive list of void marriages. The
essential social and legal implications of void marriage are:
● The marriage is void-ab-initio, i.e. void from the very first day of the marriage even if the
marriage is consummated.
● A void marriage does entitle the parties to any legal right or bestow any legal duties upon
them.
● If the marriage turns out to be void, the right to receive maintenance after divorce is lost.
● The kids, if any, born from the consummation of a void marriage are considered
illegitimate and have no right of succession or inheritance.

https://www.lawyersclubindia.com/articles/marriage-under-muslim-law-13977.asp#:~:text=A%20Sahih%2
0Nikah%2C%20or%20legitimate,Mehr%2C%20the%20 marriage%20is%20legitimate.

11
 ● The spouses are not required to obtain a decree of divorce in case of void marriages.
They can simply part without any legal formalities.6

3. FASID NIKAH (IRREGULAR MARRIAGE)

In Ata Mohammed. v. Saiqul Bibi7, it was observed that when a marriage is temporarily
prohibited and not certainly restricted it is merely irregular or fasid and not void. An irregular
marriage has several aspects involved and various points of view. Irregular marriages exist only
in case of Sunni Muslims whereas an irregular marriage, under Shia law, is void marriage. When
a marriage is conducted by violating certain or partial conditions of a valid marriage, it is called
an irregular marriage. The best instance of an irregular marriage is the marriage between a
Muslim and a Christian or a Jew. In general, an irregular marriage is a voidable marriage and not
void-ab-initio. If the irregularity can be removed from an irregular marriage, the marriage
becomes valid when it is removed. So, if a Muslim man of Sunni sect marries a Jewish woman
but gets her converted to Islam, the marriage is valid. The social and legal implications of an
irregular marriage depend upon the question of whether the marriage was consummated or not.
These implications are:
● Unless the marriage is consummated, the wife has no right to receive dower from the
husband in the case he divorces her.
● The wife is not bound to follow the rule of iddat, i.e. prohibition from remarriage within
3 months of divorce if the marriage is not consummated.
● The wife has no right to claim maintenance from the husband during the iddat period of
three months.
● If the irregular marriage is consummated and results in the birth of children, the children
will be considered legitimate and shall have all rights of inheritance of properties.

6
AIR 1950 Cal 304
7
7 Ind Cas 820

12
4. MUTA MARRIAGE

Muta marriage is the fourth kind of marriage that occurs only in Shia Muslims and not
Sunni sect of Muslims. To understand this marriage, it is essential to know the
background of this marriage. Most of the Arabian countries such as Abu Dhabi, Dubai,
etc. have Shia set of Muslims. The people usually called the Sheikhs were involved in the
business of oil-producing, refining and exporting. Due to business agreements, they were
required to travel far places and stay there for several days or even months. During this
period, the Sheikhs required to fulfil their sexual needs and desires but, however, Islam
does not allow cohabitation with any woman other than a person’s own wife. Therefore,
the Sheikhs used to marry the women for a temporary period till they were in that town
and at the time of leaving, they got divorced and the dower was paid as the consideration
for marrying. This concept of marriage was recognized in Muslim personal law by the
Shia sect and is called Muta marriage. Muta marriage is a temporary marriage between a
Shia Muslim man and a woman of Islam, Jew or Christian religion for a fixed period of
time and in return of the payment of a fixed amount of dower at the time of divorce. The
time period and the dower must be informed and accepted by the bride as well. This
marriage is not followed in Sunni Muslims which consider marriage to be a permanent
union and not a temporary affair.

13
REGISTRATION OF MARRIAGE UNDER MUSLIM LAW

Registration of marriage in Muslims is compulsory and mandatory, as a Muslim marriage is

treated as a civil contract. According to section 3 of Muslim Marriages Registration Act 1981-
“Every marriage contracted between Muslims after the commencement of this Act, shall be
registered as hereinafter provided, within thirty days from the conclusion of the Nikah
Ceremony”. Nikahnama is a type of legal document in Muslim marriages which contains the
essential conditions/details of the marriage.

According to this act, a Nikahnama contains:

1. Place of marriage (with sufficient particulars to locate the Place.)

a. Full name of the bridegroom
b. Age
c. Address
d. Full name of bridegroom’s father
e. Whether father is alive or dead
f. Civil condition of the bridegroom at the time of marriage whether – Unmarried
Widower Divorced Married, and if so, how many wives are alive
g. Signature or thumb impression of the bridegroom/Vakil/ Guardian according as the
Nikah was performed in person by the bridegroom or through his Vakil or Guardian
h. Full name of Nikah-Khan (that is the person conducting the Nikah Ceremony.)
i. Signature of the Nikah-Khan (i.e person conducting the Nikah Ceremony with date.)
j. Amount of dower fixed
k. Manner of payment of dower
l. Name of witnesses with parentage, residence and address8

8
https://www.lawctopus.com/academike/marriage-under-muslim-law/

14
CONCLUSION
Islam considers marriage a very serious commitment; it has prescribed certain measures to make
the marital bond as permanent as humanly possible. The parties must strive to meet the
conditions of proper age, general capability, free consent, honorable intentions and judicious
discretion. When the parties enter into a marital contract, the intention must be clear to make the
bond permanent, free from casual and temporary designations. For this reason, trial marriage,
contract marriage and all marriages that appear experimental, casual or temporary are forbidden
in Islam. To insist on the permanent character of marriage does not mean that the marital contract
is absolutely indissoluble. Islam is a religion with well balanced, well integrated system. This is
quite clear in the case of marriage which Islam regards as neither a sacrament nor a simple civil
contract. Rather, Marriage in Islam is something unique with very special features of both
sacramental and contractual nature. The Islamic course is one of equitable and realistic
moderation. The marriage contract should be taken as a serious, permanent bond. But if it does
not work well for any valid reason, it may be terminated in kindness and full honor with equity
and respect.9

The notion of Muta marriage can be evidently seen in our country. In India, temporary marriage
is not recognized, although there exists few who contract Muta marriage but such marriages are
not enforceable in court. Hyderabad is considered to be the epicenter of the practice where
marriage can be instituted for a time span as short as one or two days. In a Hyderabad case it was
held that there is no difference between muta for an unspecified period and a muta for life; a
permanent nikah marriage for life can be contracted by the use of word muta also; specification
of the period for which a muta marriage is contracted alone makes a marriage a temporary
marriage for the period specified.10

The practice of Temporary “Muta” marriage is widespread in the modern times and often
arranged by Imams and other Islamic leaders in Europe, America (Shia parts of Dearborn,
Michigan), and in the Middle east. It is commonly the destitute widows and orphaned girls that
are within the clutches of temporary marriage who are often sold to old men. For the women,

9
https://old.amu.ac.in/emp/studym/99998237.pdf
10
https://theindianlaw.in/muslim-marriage-its-nature/

15
there is no desire or pleasure that drives them into such misery; it is the extreme means to pay the
rent and feed themselves and their children. As a result, this arrangement has received
widespread criticism by various countries as it impliedly encouraging legalization of prostitution.

The conflicts over the rights of minority women are best dealt with by creating new
representative bodies which have special provisions to ensure that women are sufficiently
represented. In the Shah Bano case, this would have meant creating a new mechanism to
administer Muslim personal law instead of simply recognizing the Muslim Personal Law Board
as the legitimate representative of the Muslim community. Creating a new mechanism is more
sensitive to the political reality of Muslims in India, which is that they consist of widely
dispersed groups characterized by significant differences. It would also make some provision to
ensure that Muslim women have some access to the institutions which make the rules which
govern their lives.

16
BIBLIOGRAPHY
1. Mulla; LexisNexis: Butterworths Publications, Islamic Law
2. Aqil Ahmad; Mohammedan Law
3. https://kanwarn.wordpress.com/2010/11/25/marriage-under-muslim-law/
4. http://www.scribd.com/doc/22273999/Nature-of-Muslim-Marriage
5. https://en.wikipedia.org/wiki/Muslim_personal_law#:~:text=All%20the%20Muslims%20
in%20India,inheritance%20and%20charities%20among%20Muslims
6. https://www.indiacode.nic.in/bitstream/123456789/2303/1/A1937-26.pdf
7. https://www.lawyersclubindia.com/articles/marriage-under-muslim-law-13977.asp#:~:tex
t=A%20Sahih%20Nikah%2C%20or%20legitimate,Mehr%2C%20the%20
marriage%20is%20legitimate
8. https://www.lawctopus.com/academike/marriage-under-muslim-law/
9. https://old.amu.ac.in/emp/studym/99998237.pdf
10. https://theindianlaw.in/muslim-marriage-its-nature/

CASE LAW
● (1915) 17 BOMLR 13
● AIR 1950 Cal 304
● 7 Ind Cas 820
● (AIR (1997) 3 SCC 573

17