MUSLIM

MARRIAGE
 INTRODUCTION : DEFINITION;
NATURE
 Marriage, Nikah in pre Islamic Arabia
 Change in the position
 Definition of marriage (nikah)
 “It’s
a contract underlying a permanent relationship
based on mutual consent on the part of a man and
woman”
 “Marriage is my Sunna and those who do not follow this
way of life are not my followers”
 Marriage is not merely a civil contract
 Contingent events
 Cannot be for limited time
 Lien cannot be applied to a marriage contract or cannot
be cancelled like a unpaid seller.
 REQUIREMENTS OF MARRIAGE
 Proposal and acceptance
 Meeting prior to marriage
 Consent for marriage : female and male
 Three witness:
 Sunni: Two males or one male and two females
 Shia: Witnesses are not required
 Explanationabout the dower
 Rashida Khatoon v S. K. Islam AIR 2005 Ori 57
 Assurance of marriage cohabitation is not marriage
 Zainaba v Abdul Rahman AIR 1945 Pesh 51
 No particular form of proposal and acceptance
 Presence
 Khazi Mohd. Abbas Ali v A P Wakf Board AIR 1979 AP 116
 Presence of Kazi and witnesses is must
 Quazi Mohd. Najmuddin Hussain v AP AIR 2005 AP 469
 Kazi’s Act 1880
 REQUIREMENTS OF MARRIAGE
 One meeting
 Conditional acceptance
 Free Will and Consent
 REQUIREMENTS OF MARRIAGE :
COMPETENT PARTIES
 Age of Marriage
 Puberty
 Marriage of Minors and guardianship under
marriage (JABAR)
 GUARDIANSHIP UNDER
MARRIAGE (JABAR)
 Kinds of Guardianship
 Marriage (Jabar)
 Person (Hizanat)
 Property
 Persons entitled to act as guardian
a) Father
b) Father’s father
c) Full brother and other male relations on father’s
side
d) Mother
e) Maternal relations within prohibited degrees
f) The Qazi or the Court
 GUARDIANSHIP UNDER
MARRIAGE (JABAR)
 Guardian for marriage cannot be appointed
by Court
 But Court itself can act as guardian in the
marriage
 Marriage performed by remoter guardian is
void
 Avoiding
a nearer one the validity of the
marriage will depend on rectification and
consent
 Ayub Hasan v Mst Akhtari AIR 1963 All 525
 GUARDIANSHIP UNDER
MARRIAGE (JABAR)
 Option to repudiate the marriage if it is
performed by any other relative other than
father or father’s father after attending puberty
 If marriage is performed by father or father's
father no option of repudiation is available to
unless there is fraud or negligence
 But under the Dissolution of Muslim Marriage
Act, 1939, the right of Muslim female has been
modified
 Marriage performed before puberty
 Marriage has not been enjoyed
 Right of repudiation is between 15 to 18 years of age
 GUARDIANSHIP IN MARRIAGE
(JABAR)
 Testamentary guardians for marriage is not
recognised under Muslim law
 Conversion and guardianship in marriage
 NO LEGAL DISABILITY
1. Absolute incapacity
2. Relative incapacity
3. Prohibitory incapacity
4. Directory incapacity
 1. ABSOLUTE INCAPACITY
a) Consanguinity (Qurabat)
 Means blood relationship & Bars a man from
marrying
1. His mother or grandmother how highsoever
2. His daughter or grand daughter how lowsoever
3. His sister whether full, consanguine or uterine
4. His niece or great niece how lowsoever
5. His aunt (Father’s sister or mother’s sister) or
great aunt, how highsoever
 Marriage with above relationship is void and issues
from such marriage are illegitimate
 1. ABSOLUTE INCAPACITY
b) Affinity (Mushaarat)
 a man is prohibited from marrying
1. His wife’s mother or grand mother how highsoever
2. His wife’s daughter or grand daughter how lowsoever
3. Wife of his father or paternal grand father how
highsoever
4. Wife of his son or son’s son or daughter’s son how
lowsoever
 A marriage with a woman prohibited by reason of
affinity is void
 In case marriage with the wife’s daughter or grand
daughter is prohibited if the marriage with the
wife was consummated
 1. ABSOLUTE INCAPACITY
c) Fosterage (Riza)
 Child under the two years of age suckled by a
woman other than its own mother, the woman
becomes the foster mother of the child.
 A man may not marry his foster mother or her
daughter or his foster sister
 Exceptions under Sunni Law:
 Sister’s foster mother or
 Foster sister’s mother or
 Foster son’s sister or
 Foster brother’s sister
 2. RELATIVE INCAPACITY
a) Unlawful Conjunction
 Marrying two women related to each other by
consanguinity, affinity or fosterage
 Muslim cannot marry two sisters, or an aunt
and her niece
 A Muslim cannot marry with his wife’s sister till
his wife is living
 Under Shia law, a Muslim may marry his wife’s
aunt, but he cannot marry his wife’s niece
without her permission.
 It’s a void marriage under Shia and Sunni law.
 2. RELATIVE INCAPACITY
b) Polygamy or marrying a fifth wife
 Marriage with fifth wife is void
 Muslim woman marrying second husband is
offence under 494 of IPC
c) Absence of proper witnesses
 The witness must be of sound mind, adult and
Muslim
 Shia law, a marriage contracted by the spouses
themselves or their guardians in private are
held valid.
 Presence of witness is not necessary
 2. RELATIVE INCAPACITY
d) Difference of religion
 Sunni
 A Sunni male can marry a Muslim female of any
sect or Kitabia
 Marriage with idol worshiper is irregular in
Sunni but void in Shia
 A Muslim woman cannot marry any man who is
not a Muslim
 Shia
 Marriage with non Muslim is void
 Shia male can contract a Muta marriage with a
Kitabia including a fire worshiper
 2. RELATIVE INCAPACITY
e) Woman Undergoing iddat
 Sunni it is irregular and not void
 Shia it is void
 3. DIRECTORY INCAPACITY
 Marriage with pregnant woman
 Prohibition by Divorce
 Marriage in the territory of pilgrimage
 Marriage with sickman
 KINDS OF MARRIAGES
 Valid (Sahih)
 Void (Batil)
 Marriage in violation with absolute incapacity is
void (Consanguinity, affinity or fosterage)
 With another person’s wife
 Remarriage with one’s own divorced wife
 Unlawful conjunction
 Fifth marriage
 Pilgrimage
 Non Muslim
 Iddat
 KINDS OF MARRIAGES
 Irregular (Batil): Relative of Prohibitory
incapacity
 Only Sunni accepted this concept of batil
marriage
 Without witness
 Fifth wife
 Iddat
 Non Muslim
 Unlawful conjunction
 RIGHTS AND DUTIES
 Mutual rights
 Parties become entitled to inherit one another
 Sexual intercourse is legalised
 Prohibited degrees of relationship are created
between the parties
 Rights of the wife and duties of husband
 Maintenance
 Equal treatment and separate sleeping apartment, in
case there are more than one wife
 Entitled to visit her blood relatives within PD at least
once in year and children from former husband with
reasonable frequency
 Refuse to live with husband if he kept idoal worshiper
 RIGHTS AND DUTIES
 Rights of husband and the duties of wife
 Strictconjugal fidelity
 Bound to allow her husband conjugal union with
her, with due regards to her health, decency,
and place.
 Bound to obey his legal commands
 Bound to reside his house
 Bound to observe iddat on her husband’s death
or divorce
 REMEDIES
 Husband
 Divorce
 Refusal of maintenance
 Civil suit for restitution of conjugal rights
 Wife
 Suit for maintenance
 Refusal to live with her if there is imminent
danger to her life
 Section 125 of CrPC
 All remedies under IPC
 MUTA MARRIAGE
 Temporary marriage
 Origin
 Essentials of Muta Marriage
 Period is fixed
 S A Hussain v Rajamma AIR 1977 AP 152
 Dower should be specified
 No rule of four wives is applicable in this
marriage
 Proper contract is required
 DISTINCTION
 Nikah  Mutha
 Not limited number  Limited number of
of days days
 Socio religious  Sake of pleasure
union  Dower is mandatory
 Dower implied  Residence and
 Residence and Maintenance
Maintenance  Maintenance under
 Maintenance under CrPC only
personal and CrPC  Divorce not
 Divorce recognised required
 IDDAT
 Iddat is described period during which a woman
is prohibited from marrying again after the
dissolution of her first marriage
 Iddat of Widowhood
 4 Months and 10 days
 Iddat of pregnant woman
 Until delivery or miscarriage
 Iddat of talaq
 Three lunar months
 If pregnant then till delivery
 Ifhusband had divorced his wife and died before
completion of the iddat, the woman has to undergo a
fresh iddat of 4 months and 10 days