CONTENTS

1. What is marriage?
2.Nature of marriage under Islamic Law
3.Differences between a contract of marriage and a
purely civil contract
4.Formation of a marriage
*Elements and conditions of a valid marriage
*Statutory requirements regarding marriage
 *Provision regarding offer and acceptance
5.Women’s capacity to marry
6.Types of Muslim marriage
7.Legal effects of valid, void and voidable
 WHAT IS MARRIAGE?

Lexical Explanation:
Marriage its genaral Arabic term is “Nikah” which literally
means ‘joining together’ / ‘the union of two sexes”.
Another word used in the Holly Quran “ Hisn” to mean
marriage which literally means-”fort”. This term has
been used to mean marriage in the sense that a marriage
protects individual character from foulness and unchaste
relationship.
 WHAT IS MARRIAGE?

Definition of Marriage Given By Jurists:

Hedaya a famous authentic Hanafi book
“ Nikah in the language of law it implies a particular
contract used for the purpose of legalizing generation”
Abdur Rahim says:-
‘The Mohemmadan jurist regard the institution of marriage
as partaking both of the nature of ibbadat or
devotional acts and muamalat or dealings among
men”
 WHAT IS MARRIAGE?

Mulla defined Nikah as

“a contract which has for its object, the procreation
and legalizing of children.”
According to Ameer Ali-
‘Marriage is an institution ordained for the
protection of the society, and in order that human
beings may guard themselves from foulness and
unchastity”
WHAT IS MARRIAGE?

Judicial Definitions of Marraige:

Justice Mitter in Saburannissa v. Sabdu Sheikh (AIR
1934) observed,
“ The Marriage under Muslim Law is a civil contract and is
like a contract of sale. In the contract of marriage the
wife is the property and dower is the price”
Justice Mahmood in Abdul Khadir v. Salima ILR
(1886) defines a Muslim Marriage as
“a civil contract” , upon the completion of which by
proposal and acceptance, all the rights and obligations,
which it creates arise immediately and simultaneously”
WHAT IS MARRIAGE?
The HCD of Supreme Court of Bangladesh says in Anwar Hussain
vs Momtaz Begum DLR (1999) case-
“ It is recognized on all hands that a marriage between a Muslim male
and muslim female is not a sacramental marriage but a civil
contract”
CHARACTERISTICS OF MUSLIM MARRIAGE:
i) It is an agreement of contractual nature
ii) Only form of approved sex relationship
iii) It legalizes procreation of children
iv) It ensures the excellence of individual character keeping one within
the approved form of sex relationship
v) It acts like a fort that affords protection to the society from
unchastely and as such , it serves a social purpose”
NATURE OF MARRIAGE UNDER
ISLAMIC LAW . IS IT A CIVIL
CONTRACT?

 Muslim Marriage, by some text writers and jurists, is

treated as a mere civil contract and not a sacrament. This
observation seems to be based on the fact that marriage,
under Muslim Law, has similar characteristics as a
contract.
For instance: 1. As marriage requires proposal (Ijab)
from one party and acceptance (Qubul/ Qabool) from the
other so is the contract. Moreover, there can be no
marriage without free consent and such consent should
not be obtained by means of coercion, fraud
NATURE OF MARRIAGE UNDER ISLAMIC
LAW . IS IT A CIVIL CONTRACT? (CONT...)
or undue influence.
2. 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.
There has been a conflict of opinion as to the nature of
Muslim Marriage. Some opine that, Muslim Marriage is
a mere civil contract and not a sacrament, while some
other opine that it is a religious sacrament in nature.
NATURE OF MARRIAGE UNDER ISLAMIC
LAW . IS IT A CIVIL CONTRACT?(CONT…)
 Another view is that marriage is not purely a civil
contract but a religious sacrament too. Anis Begum v/s.
Mohammad Istafa (1993) is a leadingcase on the point
where C.J. Sir Shah Sulaiman has tried to put a more
balanced view of the point.
 The analogy of marriage contract with contract of sale
as pointed out by Justice Mahmood in the leading case of
Abdul Khadir v. Salima, and Justice Mitter in
Saburannissa v. Sabdu Sheikh(AIR 1934) also
emphasizes the contractual aspect of Muslim Marriage.
NATURE OF MARRIAGE UNDER ISLAMIC
LAW . IS IT A CIVIL CONTRACT?
(CONT….)
 The parties to a Muslim Marriage may enter into any
post-nuptial agreement which is enforceable by law
provided it is reasonable and not opposed to policy of
Islam. Same is the case with contract.
NATURE OF MARRIAGE UNDER ISLAMIC LAW
(CONT…)

Muslim marriage is not merely a civil contract, because: i)

Unlike civil contract, it cannot be made contingent on
future event, and Justice Mahmood’s observation i.e.,
marriage is a civil contract cannot be appreciated only
because upto some extent marriage resembles with civil
contract. After observing minutely it will be found that
besides some similarities there are so many basic
differences between the two. For instance.
 DIFFERENCES BETWEEN A CONTRACT OF MARRIAGE
UNDER ISLAMIC LAW AND A PURELY CIVIL CONTRACT
UNDER COMMON LAW

1. As regards Considerations:
No consideration no contract is the principle of Common
Law. Dower is Consideration but not in the commercial
sense of contract. Because, if Dower is treated as
consideration then the question will be ? What is the
husband is getting in lieu of the dower? May be said
that the right to enjoy wife is not tenable in law
,because the right to physical enjoyment is the legal
effect of marriage given by sharia irrespective of dower
. Besides this right is mutual not unilaterally owned by
the husband.
DIFFERENCES BETWEEN A CONTRACT OF
MARRIAGE UNDER ISLAMIC LAW AND A
PURELY CIVIL CONTRACT UNDER COMMON
LAW (CONT…)

2. As regards capacity of the parties:

a civil contract may take place between two legal persons
either natural or artificial. Whereas a marriage can take
place only between two natural legal persons of whom
one is male and the other is female.
3. As regards religious faith:
This is a crucial issue in Muslim marriage. The bridegroom
must be a Muslim while the bride may be a Muslim or
ahl-e-kitab literally means followers of divine books
particularly it means Jews and Christians
DIFFERENCES BETWEEN A CONTRACT OF MARRIAGE UNDER ISLAMIC
LAW AND A PURELY CIVIL CONTRACT UNDER COMMON LAW (CONT…)

4.As regards rights and duties:

Deed of a contract determines rights and duties in a civil
contract ; whereas most of the rights and duties are
unilaterally fixed irrespective of the deed of the marriageby
the sharia
For example: Husband’s obligation to pay dower and
maintenance imposed by Sharia can not be varied even by
inserting a contrary stipulation in the marriage deed.
5.As regards termination:
The parties to a civil contract can terminate a contract subject
to payment of consideration but it happens otherwise in case
of marriage i.i dissolution
 DIFFERENCES BETWEEN A CONTRACT OF MARRIAGE
UNDER ISLAMIC LAW AND A PURELY CIVIL CONTRACT
UNDER COMMON LAW (CONT…)

6.As regards presence of witness:

Presence of witnesses is not compulsory in a civil contract ;
while there can be no marriage without witnesses.
7.As regards Contingency:
There may be a contingent civil contract, but the same is
not true in case of a Muslim marriage.
8. As regards duration of a contract : A civil contract may
be for a specific period but such a stipulation makes a
marriage completely void (Muta exception)
DIFFERENCES BETWEEN A CONTRACT OF MARRIAGE
UNDER ISLAMIC LAW AND A PURELY CIVIL CONTRACT
UNDER COMMON LAW (CONT…)

9. As regards the nature of obligations:

It is optional for a person to enter into a civil contract but It
is mandatory under Islamic law to contract a marriage.
Thus It can be concluded that marriage under Islamic Law
is not a purely a civil contract in the commercial sense of
the law of contract It is a sacred religious contract, which
has both temporal and religious facets. or
In the ultimate analysis it can be said that the marriage in
Islam is neither purely a civil contract nor as a
sacrament. It is devoid of none but the blending of the
two.
 FORMATION OF MARRIAGE
ELEMENTS AND CONDITIONS OF A MARRIAGE

Conditions of a Marriage can be divided into two

Groups:
a)Conditions regarding personal capacity:
b)Conditions regarding form of marriage:
A)CONDITIONS REGARDING PERSONAL CAPACITY:
i) Gender of the parties: same sex marriage is totally prohibited in
Islam
ii) Religious faith of the parties: Bridegroom must be Muslim,
bride may be Muslim or ahl-e- kitabi means (People of the
book)i.e. Muslim, Khristian and Jewish
iii) As to sound mind: In marriage contract, free consent of both the
parties are essential so, the parties must be of sound mind
 FORMATION OF MARRIAGE
ELEMENTS AND CONDITIONS OF A MARRIAGE
(CONT…)

iv) The attainment of majority: In Islamic law not fixed

age, majority is attained naturally when anyone male
or female attains puberty- a natural physical event at
which a person achieves the sexual power, girl when
she begins menstruate, boy when he starts getting night
pollution.
The Child Marriage Restraint Act, 1929- Male 21 and
female -18
v) Regarding prohibited degree:
a)Consanguinity: A Muslim is prohibited to marry
i) his own ascendants or descendants
 FORMATION OF MARRIAGE
ELEMENTS AND CONDITIONS OF A MARRIAGE
(CONT…)
ii) His father’s and mother’s descendants
iii)The sisters or brother of any ascendant.
Illegitimate relationship also create the same prohibition
b)Affinity: It is unlawful for a Muslim to marry
i) ascendants or descendants of his wife
ii) Wife of any ascendants or descendants
Similar prohibition may arise due to fornication
c)Fosterage: foster-child of the women is he who not being the
child’s mother, has nursed the child whilst it was under two
years of age, the women is foster -mother, a man may not marry
foster-mother and foster- sister
FORMATION OF MARRIAGE
ELEMENTS AND CONDITIONS OF A MARRIAGE
(CONT…)

B)CONDITIONS REGARDING FORM OF MARRIAGE:

A) Offer
B)Acceptance
C)Presence of Witnesses
=>Rules regarding offer and acceptance:
 Offer on the part of one party to the marriage and
acceptance by the other party
 Both offer and acceptance must be made in a clear and
unambiguous manner
 They may be oral or written

 They can be made personally or through representative

FORMATION OF MARRIAGE
ELEMENTS AND CONDITIONS OF A MARRIAGE

 As regards the wording of offer and acceptance, it is

preferred that both of them are made in past tense, or one
in past tense and the other in present tense or one in
imperative mood and the other in the past tens in order to
remove any confusion regarding the actual intention of the
parties
 Marriage will not be constituted if that is kept in abeyance
for any future time to come
 They are to be made in the same meeting

 In making both of these, free consent of both the parties

is essential, not under undue influence, misrepresentation
or coercion. Marriage under compulsion is not valid under
Sunni and Shia Schools.
 Rules regarding the witnesses:
 The Prophet (sm) said that a marriage in secret is nothing
but a form of prostitution,
 According to all Sunni Schools except Imam Malek,
Presence of witnesses required,
 According to Malek , due publicity of Marriage is
sufficient
 According to Shia No Witnesses required

 Two male or one male and two female witnesses but

The Muslim Marriage and Divorce Registration Rulse
2009 make the provisions incorporating two options only
 Witness must be sound mind , free muslim, and must be
capable of understanding the formation of marriage, who
are sane and adults should be present. Absence of
witness renders the marriage irregular, but not void.
 STATUTORY REQUIREMENT OF MARRIAGE:

 Registration of Marriage. Is this a condition to the

marriage?
 Section 3 of the Muslim Marriage and Divorce
Registration Act, 1974 reads as follows:
 “ Notwithstanding anything contained in any law ,
custom or usage , every marriage solemnized under
Muslim law shall be registered in accordance with the
provisions of this Act”
 It is erroneous to consider registration as an element of a
marriage . Non-registration is a punishable act for it is a
violation of a statutory obligation
 In the Case of Abdur Rakib (Md) (Shahi) vs. Shertaj
Khatun and Another BLC (2008) considers an
unregistered marriage as valid since it is proved by the
other appropriate evidences
WOMEN’S CAPACITY TO MARRY

 Before the onset of physical puberty , no one –male or

female can contract a marriage except through the
guardian. Once they attains puberty the Imams differed
regarding the capacity to marry
 There is no difference of opinion regarding the full legal
capacity of the adult boy who can contract their marriage
without taking consent from their Guardian
 Similarly it is the unanimous opinion of all jurists that an
adult girl (non-virgin girl who lost her virginity either by
her earlier marriage or illicit intercourse) also can
contract her own marriage without the consent of her
wali
 However, the Jurists differed on the point of contractual
capacity of virgin girls to contract their own marriages.
There are two prominent opinions that prevail among
different schools
i)Women have the full legal capacity:
Consent of Wali is not required it is said in the famous
Hanafi Book “Kanz al Daqaiq” that an adult virgin can
contract her own marriage without the consent of her
wali (Guardian),
 Shia adopted the similar view

ii)Women do not have the full legal capacity: Consent of

Wali is required
 According to Imam Maleki, Shafei and Hanbali, an adult
virgin can not contract for her own marriage .They cited
a Hadith that says “ The non-virgin women is worthier
to organise her affairs than her guardian. As for the
virgin, she must be asked for permission”
CATEGORIES OF MUSLIM MARRIAGE
 There are three types of Marriage:
I)Valid Marriage or Shahi Marriage
II) Irregular Marriage or Fasid Marriage
III) Void Marriage or Batil Marriage
Imam Abu Hanifa Created this irregular categories of
marriage later on supported by the other Sunni jurists
valid marriage is that one which fulfills all essential
conditions of a marriage perfectly
A marriage constituted in violation of an essential conditions is void
Such as a marriage with a person within the prohibited degree
 On the other hand, an Irregular marriage is a defective
marriage. Distinction between irregular marriage and
void marriage sometime become tricky-
 Test to Determine an irregular marriage:
 First test: Perpetual or temporary nature of prohibition: If marry a women
perpetually prohibited is void, temporarily prohibited is irregular such as
marriage during iddat
 Second Test: Certainty test: If uncertainty exists as to the validity and invalidity
then it is irregular .but if certainly invalid is void. this test was introduced by
karamat Hussain J. in Ata Mohd. Vs Saiqul Bibi, AIR (1910)
 Verma, an Indian author of Islamic law , classified an irregular marriage in to
two categories:
 A. Irregular marriage convertible into valid marriage: Marriage without
witness, may be valid by consummation.
 B. Irregular marriage not convertible into valid marriage-
marrying a women who is undergoing iddat for husband’s
death or divorce
 Different instances of Irregular marriage:

 Marriage without witness

 Marriage by unlawful conjunction :two sister together

 Marriage with fifth wife

 Marriage with non Muslims Hindus except ahl--kitab

 Marriage during Iddats

 Marriage with triple divorcee

Process of Regularizing a irregular marriage

Separation, iddat and fresh marriage
 Legal Effects of a Irregular Marriage:
i) As to validity of consummation
ii)As to legitimacy of child
iii)As to Inheritance
iv) As to dower
v)As to prohibition
vi)As to maintenance and other obligations
Legal effects of a valid marriage:
A. Mutual rights and obligations:
i) sexual rights
ii) Legitimacy of children
iii)Marital fidelity and trustworthiness
iv) Right to inheritance
v)No merger of Personality
vi))Other matrimonial conditions
B. Rights of the Husband and Duties of the Wife:
i) Obedience of the wife
ii) Power to control wife’s movment
iii)Living with the Husband
iv)Accompanying the Husband
v)Wife’s duty to perform household services and to nurse the children's
vi) Restitution of conjugal rights
C. Rights of the Wife and Duties of the Husband
i)Financial Obligations
ii)Visiting wife’s parents
Legal effects of Void Marriage:
i) Unlawful creates no mutual rights and obligations
ii)Women gets no right to dower
iii) no right of inheritance
iv)Neither of them can enforce marital obligations
v) the children are not legitimate
 THANK YOU

Any Questions

Sources of Reading
1. Sayed Khalid Rashid’s book

2. Faiz Uddin’s book

Dr. Md. Ekramul Haque’s book