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Lecture 2
Marriage under Muslim Law
What is Marriage
Arabic word "Nikah" and in Law "Marriage"
Ameer Ali defines marriage as institution ordained for the protection of society, and
in order that human beings may guard themselves from foulness and unchastity'.
Soharat Singh vs. Jafari Begum the Privy Council said Nikah under Muslim law is a
religious ceremony.
Justice Mahmood "Marriage among Mohammedan is not a sacrament, but purely a
civil contract (Abdul Khadir Vs Salima, 1886)
C.J. Sir Shah Suleman held marriage not only a civil contract but a religious sacrament
too (Anis Begum v. Mohammad Istafa, 1933)
Essentials of a Valid Muslim Marriage
The following conditions are the essentials of a Valid Muslim Marriage.
1. Proposal (Ijab) and Acceptance (Qubul)
2. Capacity of Parties
3. No Legal Disability
Proposal (Ijab) and Acceptance (Qubul)
Declaration or offer on the one side and acceptance by the other.
• The proposal and acceptance must be in one meeting
• The words must indicate with reasonable certainty that a marriage has been
contracted
• Presence of witnesses. (2 male or 1 male 2 female)
• The parties must be acting under their free will and consent.
Capacity of Parties
Every Muslim of sound mind who has attained majority can enter into a contract of
marriage. The majority and puberty are one and the same under Muslim Law.
Presumption of attaining the age of puberty is 15.
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On behalf of the minor’s marriage consent may be given by the guardians.
Option of Puberty: If the Muslim is married during his minority with the consent of
the guardian, the minor has a right to repudiate such marriage on attaining majority.
Sec. 2(vii)
No Legal Disability
• It means the existence of certain circumstances under with marriage is not permitted.
1. Absolute Incapacity
2. Relative Incapacity
3. Prohibition Incapacity
4. Directory Incapacity
Absolute Incapacity
• Consanguinity (Qurabat): - Relationship by Blood: A Muslim is prohibited
from marrying persons who are connected by blood. Exp. His mother, his
daughter, his sister, his niece, his aunts etc.
• Affinity (Mushaarat): - Relationship by Marriage
• Fosterage (Riza): - A Muslim male should not marry his foster mother, or her
daughter or his foster sister.

Relative Incapacity
1. Unlawful Conjunction
2. Polygamy or Marrying a fifth wife
3. Absence of Proper Witness
4. Difference of Religion
• Sunni male + Sunni Female and Kitabiya = Valid
• Sunni male idolatress and Fire worship = Irregular
• Shia Male + Sunni or Shia Female = Valid
• Shia Male + Kitabiya, idolatress and Fire worship = Void
5. Women undergoing Iddat: 3 months (Divorce) or 4 months 10 day (Death) or Until
delivery of Child (Pregnency)
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Prohibitive Incapacity
1. Polyandry: Having more than one husband
2. Muslim women marrying a non-Muslim i.e. Kitabiya or fire worship

Directory Incapacity
1. Marrying a woman who is already pregnant by her former husband
2. Re-marrying with her own wife after divorce without fulfilling condition (Halala)
3. Marriage during pilgrimage
4. Marriage with sick man.

Kinds of Marriage Under Sunni/Shia

Under Sunni Law Under Shia Law
Valid (Sahih) Valid (Sahih)
Void (Batil) Void (Batil)
Irregular (Fasid) Temporary (Muta)

Valid Marriage
When all the legal requirements are fulfilled and there are no prohibitions affecting
the parties, then the marriage is Valid or 'Sahih'.
Essentials of Valid Marriage:
1. Proposal (Ijab) and Acceptance (Qubul):
a. Offer on the one side and acceptance by the other at one meeting with free consent
b. Presence of witnesses. (2 male or I male 2 female) (Sunni).
2. Capacity of Parties: Attained the age of puberty, sound mind and capable of giving
free consent.
3. No Legal Disability: No absolute and prohibitive, relative and directive incapacity.
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Effects of a valid marriage
The cohabitation between the husband and the wife becomes lawful.
The children born out of a valid marriage are legitimate and they have right to inherit
their parent's properties.
Mutual rights of inheritance between husband and wife are established.
Prohibited relationship for purposes of marriage is created between the husband and
wife.
The wife's right to claim dower is fully established just after the completion of
marriage.
Wife right of maintenance from her husband with immediate effect.
After the dissolution of the marriage, the widow or the divorced wife is under an
obligation to observe the Iddat.

Irregular Marriage (Only Sunni)

Due to lack of some formality, or the existence of an impediment which can be
rectified, a marriage becomes irregular.
A marriage contracted by parties suffering from prohibitive, relative and directive
incapacity.
However, this irregularity is not permanent in nature and can be removed.
Grounds of Irregular Marriage
1. Polygamy or Marrying a fifth wife
2. Absence of Proper Witness (Sunni)
3. Difference of Religion
• Sunni male marry with idolatress and fire worship
4. Unlawful Conjunction
5. Marriage by unauthorized person
6. Women undergoing Iddat: 3 lunar month (Divorce) or 4 lunar month 10 day (Death)
or until delivery of child
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When Fasid Marriage can be Regularised
FASID (IRREGULAR) REGULARISED (Become Valid)

Marriage in the absence of a witnesses. By consummation.

A marriage with a woman who is Marriage after birth of the child.

pregnant by her former husband.
Marriage without free consent: By ratification with free consent
(a) of the parties to the marriage, if (a) by the party concerned or
major; or (b) by the guardian during minority or
(b) of the guardian, if minor has not by the minor after attaining majority.
attained majority.
Where marriage is contracted in a state
By ratification after recovery
of intoxication. consciousness.
Marriage with a person of a differentIrregularity is removed when the wife
religion. converted to Islam, Christian or Jewish
religion; or the husband adopts Islam
faith.
Marriage by a person who has already By death or divorce of any wife
four wives. reducing the number to four.
Marriage with a woman undergoing Irregularity cease to exist on the expiry
Iddat of the period of Iddat.
Marriage where it is prohibited by By the termination of the marriage
reason of unlawful conjunction. which creates the prohibition

Effects of a Irregular Marriage

• Before Consummation
• Like as a void marriage.
• After Consummation
• Wife has to observe Iddat
• Entitled to dower
• Children will be considered as legitimate and entitled to inheritance
• The parties must be separated by the court.
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Void Marriage
A marriage which has no legal effect is called void marriage. Such as
1. Marriage with a woman prohibited by reason of Consanguinity, affinity or
fosterage.
2. Marriage with a woman who is a wife of another. (Polyandry)
3. Remarry with a divorced wife when the legal bar exists. (Halala)
Effects: No right and obligation between the parties.
One cannot inherit the property of other but if marriage is consummated the wife is
entitled to get dower.
Child will be considered as illegitimate.
Parties can separate without divorce and contract another marriage.

Muta Marriage
The Shia law (Ithana Asharia School) recognizes this kind of marriage.
Muta- Enjoyment or use
It is a kind of temporary marriage for a fixed period of time on specific dower.
A Shia male can marry with Muslim, Christian, Jewish or a fire worship woman.
A Shia female cannot marry with non-muslim.

Essentials of Muta Marriage

1. Fixed Period
2. Specific Dower
3. Limitation of number of wives does not apply on Muta
4. Party must attain the age of puberty
5 Other Condition required for valid marriage
Shohrat Singh v. Jafri Bibi: No minimum time duration. If no period is mentioned
the marriage is treated as permanent.
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Legal Effects
1. Cohabitation become legal
2. Children are legitimate and get right of inheritance.
3. Parties have no right of inheritance from each other
4. If marriage consummated Full Dower/If not Half Dower
5. No concept of divorce/ Marriage dissolve on day fixed. (Hiba-i- Muddat)
6. parties can leave each other mutually.
7. No maintenance after dissolution. But can claim u/s 125 CrPC.
8. Wife required to undergo Iddat. But when there is no cohabitation, Iddat is not
required.

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