Muslim Personal Law

Topic#1

Marriage
Question#1

1. Define Marriage. State essential conditions of valid Marriage.

1. INTRODUCTION:
“ Whoever marries a woman in order that he may retain his eyes, Allah put
a blessedness in her for him and in him for her”
(Hadith)
 Central institution around which the whole family life revolves is the
“Marriage”
 Marriage or Nikah is like a civil contract made between two persons
of opposite sexes.
 Marriage is also instituted for the solace of life and is one of the
prime and original necessity of man.
2. MEANING:
i.Literal Meaning:
“Joining Together” or “Wedlock” or “Sacred Knot”
ii.Technical Meaning:
In its technical sense it means “ marriage”
3. DEFINITION:
i.Hedaya:
“ A contract which has for its object the procreation and legalizing of
children”
ii.Baillie:
“ Marriage (Nikah) is a permanent and unconditional civil contract (which
comes into immediate effect) made between two persons of opposite sexes
with the view to mutual enjoyment and protection and legalizing of
children”
4. ACCORDING TO QURAN:
Nikah in Quran has been describe as “Hisn” in Surah AL NISA: 28 which
means a “fort” as it provide social, physical and moral protection in the
couple joined together in wedlock.
5. NATURE OF MUSLIM MARRIAGE:
Anis Begum vs. M. Istafa (1935)
“A marriage is not regarded as a mere civil contract but as a religious
sacrament”
(C.J. M. Suleman)
6. PURPOSE AND OBJECT OF MARRIAGE:
i) Promotion of normal family life
ii) Legalization of sexual relationship
iii) Procreation of Children
iv) Preservation of human Race
v) Regulation of social life
7. WHO IS CAPABLE FOR NIKAH?
i. Sound mind:
Every muslim of sound mind, who has attained puberty may enter into a
contract of marriage.
Concept of wali:
Lunatics and minors who have not attained puberty may be validly
contracted in the marriage by their respective guardian.
ii. Majority:
Sunni Law: For male 12 years and for female 9 years
Shia Law: For male 15 years and for female 9 years
State Law: For male 18 years and for female 16 years
8. ESSENTIALS OF NIKAH:
i. Offer and acceptance (Aijab-o-Qabool):
 The proposal must be from one party and its acceptance from
other side.
 A marriage without consent is voidable.
 The aijab-o-Qabool must be expressed either by parties or
through their agents (Wakeel)
 Sunni Law: They need not to be in particular form.
 Shia Law: Aijab-o-Qabool must be made by use of terms
“Tafweez” or “Nikah” or their grammatical version.
 ii. Competency (Ahliat):
 Parties must be of sound mind
Concept of Wali:
Lunatics and minors (Through their respective guardians)
 Majority
Sunni Law: For male 12 years and for female 9 years
Shia Law: For male 15 years and for female 9 years
State Law: For male 18 years and for female 16 years
iii. Free Consent (Raza):
The parties contracting their marriage must be acting under their free
will and consent and must not be affected by coercion, undue influence etc.
 Hanfi School of Thought: A Nikah under coercion and undue
influence is voidable.
 Other schools of Thought: A Nikah under coercion and undue
influence is void.
M. Imtiaz Vs. State (PLD 1981 FC 308)
“ Federal Shariat Court held that an adult Muslim girl has
every legal right to marry of her own will”

iv. Same Meeting (Majlis):

The proposal and acceptance must be made in one sitting. If proposal
is made at one meeting and acceptance at another meeting, there
will not be a valid marriage.
v. Clear Words:
The words with which the marriage is contracted must be
clear and unambiguous.
vi. Witnesses (Gawaah):
 Hanfi Law: Two male or one male and two females
 Shia Law: Witness not essential
 Shafi Law: Testimony of female is inadmissible
vii. Absence of Prohibitions:
The parties must not be within prohibited degree so related to
eachother as to make the union unlawful. These provisions have been classified
into four classes as follows:
 Absolute Prohibition e.g. Consanguinity, Affinity, Fosterage etc
 Relative Prohibition e.g. Polygamy, unlawful conjunction etc
 Prohibitory prohibition e.g. Polyandry
  Directory Prohibition e.g. Marriage during pilgrimage, prohibition by
divorce etc
viii. Khutba-i-Nikah:
Khutba-i-Nikah given by nikah khawan is also considered as an
essential of a valid marriage.
ix. Written:
Nikah must be written for the sake of proof under Muslim Family
Law Ordinance.
x. Registration:
Nikah must be registered under Sec 5 of MFLO 1961 which
runs as follows:
“Every marriage solemnized under the Muslim Law shall be registered in
accordance with the provisions of this ordinance “
Aftab Ahmad Vs. Judge Family Courts and 3 others
(2009 MLD 962)
“ Marriage solemnized under MFLO,1961 requires its registration but Nikah
doesnot invalid due to its non-registration”
xi. Dower:
Dower in marriage is so essential that even if it is not mentioned at
the time of solemnization of marriage, law will presume it.
9. CONCLUSION:
 Muslim Personal Law
Topic#1

Marriage
Question#2
What is Marriage. Explain the kinds of Marriage (Nikah).

1. INTRODUCTION:
“ Whoever marries a woman in order that he may retain his eyes, Allah put
a blessedness in her for him and in him for her”
(Hadith)
 Central institution around which the whole family life revolves is the
“Marriage”
 Marriage or Nikah is like a civil contract made between two persons
of opposite sexes.
 Marriage is also instituted for the solace of life and is one of the
prime and original necessity of man.
2. MEANING:
i.Literal Meaning:
“Joining Together” or “Wedlock” or “Sacred Knot”
ii.Technical Meaning:
In its technical sense it means “ marriage”
3. DEFINITION:
i.Hedaya:
“ A contract which has for its object the procreation and legalizing of
children”
ii.Baillie:
“ Marriage (Nikah) is a permanent and unconditional civil contract (which
comes into immediate effect) made between two persons of opposite sexes
 with the view to mutual enjoyment and protection and legalizing of
children”
4. ACCORDING TO QURAN:
Nikah in Quran has been describe as “Hisn” in Surah AL NISA: 28 which
means a “fort” as it provide social, physical and moral protection in the
couple joined together in wedlock.
5. NATURE OF MUSLIM MARRIAGE:
Anis Begum vs. M. Istafa (1935)
“A marriage is not regarded as a mere civil contract but as a religious
sacrament”
(C.J. M. Suleman)
6. PURPOSE AND OBJECT OF MARRIAGE:
i) Promotion of normal family life
ii) Legalization of sexual relationship
iii) Procreation of Children
iv) Preservation of human Race
v) Regulation of social life
7. WHO IS CAPABLE FOR NIKAH?
i. Sound mind:
Every muslim of sound mind, who has attained puberty may enter into a
contract of marriage.
Concept of wali:
Lunatics and minors who have not attained puberty may be validly
contracted in the marriage by their respective guardian.
ii. Majority:
Sunni Law: For male 12 years and for female 9 years
Shia Law: For male 15 years and for female 9 years
State Law: For male 18 years and for female 16 years
8. CLASSIFICATION OF MARRIAGE:
A. Sunni Law:
i. Valid Marriage
ii. Void Marriage
iii. Irregular Marriage
B. Shia Law:
i. Valid Marriage
 ii. Void Marriage
iii. Muta Marriage
9. KINDS OF MARRIAGE:
I. Valid Marriage
II. Void Marriage
III. Irregular Marriage
IV. Muta Marriage
A. Valid Marriage:
 Concept:
A valid Marriage is a marriage which is contracted and solemnized
in accordance with all its contribution and condition without any
legal impediement.
 Essentials of valid marriage:
i. i.Proposal and Acceptance
ii. Presence of parties to marriage
iii. Ijab-o-qabool
iv. Competency of parties
v. Free consent
vi. Dower
vii. Presence of witness
viii. No prohibited Degree
 Legal Effects of a valid Marriage:
i. Legalization of sexual intercourse
ii. Entitlement of Dower
iii. Entitlement of Maintenance
iv. Establishment of Inheritance
v. Establishment of husband’s rights and obligations
vi. Establishment of wife’s rights and obligations
vii. Rule of Affinity
viii. Rule of prohibition
ix. Wife to observe Iddat
B. Irregular Marriage:
 Concept:
Irregular marriage is one from which some conditions of a valid
marriage contract is missing. It has a temporary bar which is curable.
  Recognition of Irregular Marriage:
 Shia Concept
Do not accept or recognize any irregular marriage.
 Sunni Concept:
Accept and recognize irregular marriage.
 Circumstances of irregular Marriage:
i. Marriage without witness
ii. Marriage with fifth wife, when four are already there
iii. Marriage with a woman undergoing iddat
iv. Marriage of a muslim woman with a non-muslim
v. Polygamy
vi. Unlawful conjunction
vii. Marriage of a muslim male with non-kitabia woman
 Legal Effects of irregular Marriage:
 Before Consumation:
It will Considered as void and it does not create any
right and duty, in favour of any party.
 After Consumation:
Legitimacy of child
Woman entitled to iddat
Children Right of inheritance
C. Void Marriage:
 Concept:
A void marriage is one which is intrinsically null and void. It has
permanent bar and is not curable.
 Circumstances of void marriage:
 Marriage without consent
 Consanguinity (Marriage with blood relation)
 Affinity (Marriage with relationship due to marriage)
 Fosterage ( Marriage with relationship due to suckling)
 Polyandry
 Legal Effects of void marriage:
 It does not create any right and obligation between the
parties.
 The off springs of void marriage are illegitimate.
D. Muta Marriage:
  Concept:
Muta Marriage is also known as marriage for fixed duration or for
definite period.
 Recognition of Muta Marriage:
 Shia Concept:
Valid marriage
 Sunni Law:
Not Valid Marriage
 Incidents of Muta Marriage:
 A shia male may contract a muta with a Muhammadan or
kitabia woman.
 There is no restriction on number of muta to be contracted by
a person.
 A shia female can only enter into muta with a muhammadan.
 Main Essentials of muta Marriage:
 Muta marriage must be for specific yime period.
 Dower must be paid to woman or specified at the time of
marriage.
 All other essentials of valid marriage.
 Legal Effects of Muta Marriage:
 Legitimacy of children
 No mutual right of inheritance
 Inheritance right of children
 No right of maintenance, unless an express agreement is
there.
10. CONCLUSION:
 Muslim Personal Law
Topic#1

Marriage
Question#3
What is Marriage. Explain the impediments of Nikah.

1. INTRODUCTION:
A marriage is like a civil contract. A muhammadan marriage requires
that there should be no impediment or disability to the marriage.
Impediments are the restrictions imposed by Islamic Law which make a
marriage either void or irregular, depending upon the nature of restriction.
2. MEANING:
i.Literal Meaning:
“Joining Together” or “Wedlock” or “Sacred Knot”
ii.Technical Meaning:
In its technical sense it means “ marriage”
3. DEFINITION:
i.Hedaya:
“ A contract which has for its object the procreation and legalizing of
children”
ii.Baillie:
“ Marriage (Nikah) is a permanent and unconditional civil contract (which
comes into immediate effect) made between two persons of opposite sexes
with the view to mutual enjoyment and protection and legalizing of
children”
4. IMPEDIMENTS TO VALID NIKAH:
I. Meaning:
 By impediment is meant that the parties to marriage must not
be within prohibited degrees or so related to each other as to make
the union unlawful.
II. Quranic Reference:
o “ Do not marry those women whom your father had
married ---except what happened prior to this
commandment. Surely it was shocking, disgusting and an
evil practice”
(AL.NISA: 22)
o “ You are also prohibited to take to wife two sisters (Except
what is already past) nor to marry woman who are already
married”
(AL.NISA: 23-24)
o “The fornicator shall not marry any but a fornicatoress or a
pagan, and likewise to a fornicatoress, none shall marry her
but a fornicator or pagan, such marriges are forbidden to
the believers”
( AL.NOOR:3)
III. Classification of impediments:
 General impediemnts:
a. Permanent impediments
b. Temporary impediments
 According to Ameer Ali:
a. Absolute impediements
b. Relative impediements
c. Prohibitive impediments
d. Directive impediments
A. Permanent Impediments:
These are the impediments which makes the marriage void ab initio
and marriage is not allowed in any case. These include following:
a. Consanguinity:
A man is prohibited from marriage with the following persons:
 His mother or grandfather how high so ever
 His daughter or grand daughter how low so ever
 His sister whether full, consanguine or utrine
  His niece or grand niece how high so ever
 His aunt or grand aunt how high so ever whether maternal or
paternal
Irfana Riaz Vs. State (PLJ 2006 Lah 83)
“ To marry to real sister is void”
b. Affinity (Relationship due to marriage)
A man is prohibited from marriage with the following persons:
 His wife ‘s mother or grandmother how high so ever
 His wife’s daughter or grand daughter how low so ever
 The wife of his son or his son’s daughter how low so ever
c. Fosterage (Relationship due to suckling of Milk):
Whoever is prohibited by consanguinity or affinity is prohibited by
reason of fosterage, except certain foster relations such as:
 Sister’s foster mother
 Foster sister’s mother
 Foster son’s sister
 Foster brother’s sister
 Foster brother’s mother etc
d. Polyandry:
A married woman cannot contract a second marriage during the
lifetime of the husband if she does so, the marriage would be void and
she can be punished u/s 494, PPC
 Legal effects of Permanent Impediments:
Permanent impediments are those which can never be avoided. They
are void ab initio.
B. Temporary Impediments:
These are temporary in nature and as per hanfi jurists these make the
marriage irregular and can be cured. These include following:
a. Polygamy:
The minimum number of wives that a muslim can have at a time is
four. If he marries a fifth wife when he has already four; the marriage is
merely irregular. It can be overcome by divorcing or death of the
previous four wives.
b. Pregnancy:
 Woman cannot marry to any person during her pregnancy until
the birth of the child.
c. Iddat:
A marriage with a woman undergoing iddat of her previous
marriage is not void but irregular and the children is legitimate.
d. Difference of religion:
A muslim male may contract a valid marriage with a kitabia (A jews
or a Christian) but not with an idolaters or a fire worshippers. A muslim
woman cannot contract a valid marriage with a non muslimbut if she
marries non muslim, the marriage is irregular.
“ It is not permissible for muslim women to marry non-muslim men”
(AL.BAQRA: 221)
e. Absence of witness:
According to sunni law, 2 witnesses must be present at the time of
solemnization of marriage, but their absence does not invalidate the
marriage.
f. Unlawful conjunction:
A muslim may not have at the sametime two wives who are so
related in eachother by consanguinity, affinity or fosterage. A marriage
by unlawful conjunction is irregular.
e.g. Two sisters or aunt and niece
g. Prohibition by divorce:
The Islamic law prohibits marriage between a muslim male and
female after the pronouncement of a lawful divorce.
 Legal Effects of Temporary Impediments:
Temporary impediments makes marriage irregular. Irregular
marriage can be converted into valid one if the cause is cured.
5. CONCLUSION: