Mohammedan Law

Unit-2-Marriage (Nikah)
 Marriage (Nikah)
 Definition of Marriage
 The Arabic word Nikah literally means the

union of the sexes and in law this term

means marriage.
 Hedaya-Marriage means carnal conjunction

(bodily union).
 Ameer Ali defines marriage for the protection

of society from foulness and unchastity.

 Justice Mehmood says it is a civil contract.
 Definition of Marriage
 In Baillie’s digest, marriage has been defined
as a contract for the purpose of legalizing
sexual intercourse and procreation of
children. A Muslim marriage should attract all
the incidents of contract. There can be no
marriage without free consent and such
consent should not be obtained by means of
coercion, fraud or undue influence. Under
Muslim law, the marriage is not permanent
and eternal union.
 Marriage (Nikah)
 M.U.S.Jung says marriage is a contract for
enjoyment, procreation of children and
regulation of social life in the interest of
society.

 Abdul Rahim says marriage is a Ibadat or

devotional acts or dealings among men or
muamlat(social matter or issues).
 Nature of Marriage
 Justice Mahmood’s observation-

 Husband’s liability to pay dower.

 Matrimonial rights of husband and wife.

 General rules of interpreting Hanafi Law.

 Nature of Marriage
 Under Muslim law a marriage is a religious
duty as well as a contract. It is a contract
because one party makes an offer of
marriage. The other party may or may not
accept the offer. The consideration is the
dower which the husband is required to pay
to his wife. According to Hamilton, the object
of a marriage is enjoyment and the
procreation of the children.
 Nature of Marriage
 According to a tradition, Prophet of Islam
declared marriage is my sunnat(order) and
those who do not obey it are not my
followers. A Muslim may divorce his wife
whenever he desires. Under Shia law,a
marriage for a fixed period(a day, a month
etc.) is also recognized.
 Conditions for a Valid Marriage
 Both the parties i.e. the bridegroom and bride
should give their consent for marriage. There
must be an offer(Ijab) and
acceptance(Qubul).The parties must be of
sound mind. They must have attained the age
of majority or puberty(Baligh). There should be
at least two witnesses who would personally
enquire from the bride as to whether she is
willing to marry or not. Dower money should
also be explained to her by them. The consent
of the boy is also necessary.
 Essentials of Marriage
 Offer and acceptance must be in the presence
and hearing of two male witnesses(or one male
and two female witnesses) who must be Muslim
of sound mind and major. In shia law, the
witnesses are not necessary. Muslim law does
not prescribe any specific words to be uttered
at the occasion and convey the intention to be
married. Offer and acceptance must be at one
or at the same meeting. A proposal made at
one meeting and an acceptance made at other
meeting does not constitute a valid marriage.
 Essentials of Marriage
 If the parties are major, they must make offer
and acceptance themselves, but for minors
and lunatics guardians can perform this
function. Neither writing nor any religious
ceremony is essential(though a Qazi or Mulla
is usually present on the occasion who recites
certain Quranic Verses).
Shoharat Singh Vs.Jafri Begum 1914
(17) Bom.LR 13
 The Privy council said that marriage is a
religious ceremony and confers on Muslim
woman the full status of a wife and children
born after it are legitimate. It is submitted
here that though a marriage may be a
contract but it is not like other contracts. It is
a permanent relationship which is based on
mutual consent between the two spouses.
The institution of marriage protects the
society from foulness and unchastity.
Bashiran Vs.M.Hussain AIR 1941
Oudh 284
 It was said that the evidence that the wife
gave her consent to the marriage and the
husband agreed to the dower constitutes
sufficient proposal and acceptance.
Habibur Rahman Vs.Majib Khan 1977
Mah.Law Journal (2) 84
 It was said that for a valid marriage it is
necessary that there should be a proposal
made by one party to the marriage or on its
behalf and acceptance by the other party in
the presence and hearing of two males and
one female or one male and two females who
must be sane and adult Muslims.
Jiauddin Ahmad Vs.Anwara Begum
1981 1 GLR 358
 The learned Judge observed that though
marriage under Muslim law is only a civil
contract yet the rights and responsibilities
upon it are of such importance to the welfare
of humanity that a high degree of sanctity is
attached to it. But in spite of the sacredness
of the character of the marriage tie, Islam
recognizes the necessity in exceptional
circumstances of keeping the way open for its
dissolution.
 Types of Marriage
 Valid Marriage(Sahih or True)

 Irregular Marriage(Fasid)

 Void Marriage(Batil)

 Muta Marriage
 Valid Marriage(Sahih or True)
 A marriage performed between the parties
having full capacity to marry with all the
necessary formalities is a valid marriage. The
legal effects of a valid marriage are-Status of
husband and wife conferred. Status of
legitimacy on the children conferred. Mutual
rights of inheritance conferred on the parties.
The husband becomes entitled to restrain the
wife’s movement in a reasonable manner.
 Valid Marriage(Sahih or True)
 Wife acquires the right of maintenance, dower
and residence. Wife becomes bound to allow
conjugal union, obey the commands of her
husband and to observe Iddat.Prohibited
degree of relation created between the
parties. Other rights and obligations arises
as agreed upon the marriage contract.
Gulam Kubra Bibi Vs.Mohd.Shafi
Mohd.Din AIR 1940 Peshwar 4
 In this case a girl aged 17 years was given in
marriage by her grandfather and her consent
was not taken. There was no adult witness to
testify that the consent of girl was duly
obtained. The husband in this case wanted
the restitution of conjugal rights while the
wife said that she was never married to the
petitioner. As the girl was a major and her
consent was necessary, the court held that no
valid marriage had taken place.
Mohiuddin Vs.Khatijabibi 1920
Bom.LR 41
 Where consent to the marriage has not been
obtained, consummation (sexual intercourse)
against the will of the woman will not validate
the marriage.
 Irregular Marriage(Fasid)
Relative prohibitions are those prohibitions the
compliance of which is not mandatory either
irregular or valid or do not affect its validity at
all. Such bars are of temporary nature and can
be got over. An irregular marriage can become
a valid marriage at the volition of the person.
These bars are-
Unlawful conjunction-A man may not have at
the same time two wives who are not so
related by consanguinity, affinity or fosterage.
 Irregular Marriage(Fasid)
 Marrying the fifth wife
 Absence of proper two competent witnesses

(Only under Sunni law)

 Marriage of a Muslim major without his

consent
 Difference of religion
 Marriage with a woman undergoing Iddat
 Rule of Pilgrimage (Marriage not valid under

Shia law but valid under Sunni law)

Chand Patel Vs.Bismillah Begum 2008
1 DLJ 588 SC
 The revisional court held that the personal
law of the parties could not come in the way
of a Muslim to pray for and obtain
maintenance u/s 125 Cr.P.C. since an
obligation is cast upon the appellant herein
to maintain his wife and children till the
marriage between them was declared null and
void by a competent court. The bar of
unlawful conjunction renders a marriage
irregular not void.
Nurul Hassan Vs.M.Hassan AIR 1935
Lah.622
 It was held that in the case of all marriages
which are irregular by reason of any defect
the children become legitimate.
Void Marriage(Batil)(Absolute Bars)
 There is an absolute prohibition for a Muslim to marry a
person who is within his or her prohibited relationship.
Two persons are said to be within prohibited
relationship if they are related to each other by-

 Consanguinity

 Affinity

 Fosterage

 Prohibition of husband marrying another’s wife

Prohibition on the ground of Consanguinity

 A Muslim male is prohibited from marrying

the following blood relations-
 Mother, Grand mother
 Daughter, Grand daughter
 ,Sister(Full, Half, Uterine)
 Niece(Brother’s or Sister’s daughter) or grand

niece(brother’s or sister’s daughter’s

daughter)
 Aunt or great aunt (Paternal or maternal)

(Father’s sister, Mother's sister)

 Prohibition on the ground of Affinity
 Affinity means nearness. It is created through
marriage. A Muslim is prohibited from marrying
certain persons, relationship with whom arises on
account of marriage valid or invalid. These
relations are-

 Ascendants of his wife(Wife’s mother, grand

mother etc.)

 Descendants of his wife(Wife’s daughter or grand

daughter etc.)
 Prohibition on the ground of Affinity
 Wife of any ascendant(Father’s wife, grand
father’s wife)

 Wife of any descendant (Son’s wife, son's

son’s wife or daughter’s son’s wife)

 The ascendants and descendant may be of

any degree. A woman can not marry her
daughter’s husband, daughter’s daughter’s
husband.
Prohibition on the ground of Fosterage
 Where a child under the age of two years has
sucked the milk of any woman other than his
own mother such a woman is called the foster
mother of that child. A Muslim male can not
marry the foster mother, foster sister or
foster mother’s daughter. Now the
prohibition has become outdated because in
most of the families of Indian Muslims this
relationship is now not in practice.
Prohibition of Husband marrying
another’s Wife
 A marriage with a woman who has her
husband alive and who has not been divorced
by him is void (bigamy of wife). Even if a
ground of divorce is available to her under
the Dissolution of Muslim Marriage Act,1939,
She has to prove that ground and obtain a
court’s decree before marrying another
person.
 Effects of Void Marriage
 A void marriage is one which is unlawful in
itself the prohibition against the marriage
being perpetual and absolute. A marriage
with a woman prohibited by reason of
consanguinity, affinity or fosterage is void. A
void marriage is no marriage at all and no
legal consequences flow from it. It is called a
marriage because two persons have
undergone the necessary formalities of
marriage.
 Effects of Void Marriage
 Such marriage confers no right or obligations
(neither dower nor iddat)and the children are
illegitimate. Such marriage can not be validated.
No legal action is necessary to declare such a
marriage as void. Since the marriage is void ab
initio(from the beginning),the parties are free to
go their own way. If the wife enters into another
marriage, she will not be guilty of bigamy. If
such a marriage has been consummated ,the
wife becomes entitled to customary dower only.
Rashid Ahmad Vs.Anisa Khatoon
1931 59 ILR 21
 It was said that a marriage with the wife of
another or remarriage with a divorced wife,
when legal bar still exists is void. In the case
of void marriage, parties have no status of
husband and wife. If one of them or both of
them take another spouse, the offence of
bigamy will not be committed.
Azizunnissa Vs.Karimunissa 1895 2
Cal.130
 It was held that the marriage of a man with
his wife’s sister, his wife being undivorced
and alive was null and void.
 Muta Marriage
 Muta marriage is a kind of temporary
marriage recognized only in the Ithana
Asharia Shia School of Muslim law. The term
Muta implies enjoyment or use. It is a
marriage for pleasure. Muta marriage is a
marriage for fixed period after specifying
dower. It is not recognized in Sunni law
because the marriage contract should not be
restricted in its duration. Under Sunni law a
marriage for a limited period is void.
 Muta Marriage
 The specified period may be a day, a month
or a year or a term of years. A male Shia
Muslim may contract muta marriage with a
Muslim,Christian,Jewesh or a fire worshipping
woman but not with the follower of any other
religion. Muta marriage with a Hindu woman
is void. A female shia is not free to contract
muta marriage with a non Muslim.
 Essentials of Muta Marriage
 Period should be fixed. Some dower should
be specified. The rule about number of wives
to four as in regular marriage does not apply
to Muta marriage. There must be proper
contract in the form of offer and acceptance.
The parties must have attained the age of
puberty and must be of sound mind. The
consent of both the parties must be free.
There must not be any prohibited degree of
relationship between the parties.
 Legal Consequences
 No mutual rights of inheritance between
parties are created. The children born out of
such marriages are legitimate and have the
right of inheritance from both the parents.
The marriage is dissolved on the expiry of
fixed period or by mutual consent or by death
of the either party. Divorce is not recognized
in muta marriage. The husband may if he
likes make a gift of the unexpired period to
the wife which is called Hiba-i-Muddat.
 Legal Consequences
 If the wife leaves the husband before the term, he
may deduct a proportionate part of the dower. If the
marriage is consummated, the wife is entitled to get
full dower, if the marriage is not consummated she
is entitled to half dower. Wife is not entitled to
maintenance under shia law but she may claim
maintenance u/s 125 Cr.P.C.There is no minimum
time for duration of muta marriage. The husband is
not bound to provide residence to the muta wife.
Wife is required to observe iddat in case of death of
her husband for a period of four months and ten
days.
Shahzada Qanum Vs.Fakher Jahan
AIR 1953 Hyd.6
 Where a Muta marriage is contracted for
unspecified period, a Nikah in the form of
permanent marriage will be considered.
Shohrat Singh Vs.Jafri Bibi 1914 17
Bom.LR 13
 It was held that there was presumption in
favour of muta marriage which resulted in a
nikah marriage. If cohabitation commenced in
a muta marriage, where term was not
stipulated, then in default of the evidence,
the marriage would be deemed to have
continued for the entire period of
cohabitation.