MUSLIM MARRIAGE

(NIKAH)
Muslim marriage has been defined as a civil contract for the purpose of legalizing sexual intercourse
and procreation of children.

Muslim marriage is essentially a contract or a civil ceremony, i.e., an offer made by one party and
accepted by another in the same meeting in the presence of two witness.

Nikah means ‘to tie up together’. It is a wedlock or the mutual relation of husband and wife or the
institution whereby a man and woman are joined in a special kind of social and legal relationship for
the purpose of making a family.
According to Prophet Mohammed ‘there is no celibacy in Islam. Marriage is a religious
duty and is consequently a moral safeguard as well as a social necessity.’ He also said,
‘Marriage is my tradition who so ever keeps away there from is not from amongst me.’

Marriage in Islam has aspects of both ‘ibadah’(worship) of Allah and ‘muamalah’

(transactions between human beings).

In its ‘ibadah’ aspect, marriage is an act pleasing to Allah because it is in accordance with
his commandments that husband and wife love each other and help each other to make
efforts to continue the human race.

In its ‘muamalah’ aspect, marriage being a lawful response to the basic biological instinct
to have sexual intercourse and to procreate children.
 • Hedaya: Marriage is a legal process by which the several

processes and procreation and legitimation of children

between man and woman is perfectly lawful and valid.

• Ameer Ali: Marriage is an organization for the protection

of the society. This is made to protect the society from

foulness and unchastity.

• Abdur Rahim: The Mohammedan priests regard the

DEFINITIONS
institution of marriage as par taking both the nature of
OF NIKAH ‘Ibadat’ or devotional acts and ‘Muamlat’ or dealings
among men.

• Muslim Women (Protection of Rights on Divorce)Act,

1986 – Section 2 states that it is a ‘Solemn Pct’ pr ‘Mithaq-

e-ghalid’ between a man and a woman, soliciting each
others life companionship, which in law takes the form of
a contract or aqd.
• Case – Abdul Kadir vs. Salima (1886)

Justice Mahmood, Judge of Allahabad High Court stated that ‘Marriage according to the Mohamedan law is
not sacrament but a civil contract’.

• Case – Anis Begum vs. Mohammad Istafa Wali Khan (1933)

Sir Shah Sulaiman stated ‘In Islam, marriage is not only a civil contract but also a sacrament.’
 i) Legalisation of sexual intercourse
for the purpose of enjoyment, and
ii) Procreation and legitimation for
OBJECT OF
the purpose of:
MARRIAGE
 Preservation of human race,

 Systematization of domestic and

social life.
 MUSLIM MARRIAGE AS A CONTRACT

• Muslim marriage is a contract and there are no ceremonies required for marriage in Muslim
law , only the conditions for a valid contract of marriage must be fulfilled which are:
i) The parties must have capacity to contract marriage

ii) There should be a proposal

iii) There should be acceptance of the proposal

iv) Free Consent

v) There should be no impediments to the marriage

vi)  consideration (mehr)

vii) Sufficient witnesses (different in shia and sunni).

 KINDS OF MUSLIM MARRIAGE
Sunni Law Shia Law

Valid Void Irregular Valid Void Muta

(Sahih) (Batil) (Fasid) (Sahih) (Batil) (Temporary)
 C O M P E T E N C I E S O F T H E PA RT I E S
• The parties are competent if they are:

a) Of the age of puberty

b) Of sound mind

c) Muslim

Puberty - Consistent with Hedaya, the age of Puberty for female is 9 years and for male it is 12 years. 
 Case - Muhammad Ibrahim vs. Atkia Begum & Anr. (1912)

The Privy Council  held that under Muslim law, a girl is considered to have attained the age of puberty if:

(a) she has attained the age of 15 Years, or

(b) attaining the state of puberty at an earlier age.

The same rule is also applicable to a Muslim Boy. Thus, it can also be said that in absence of any contrary, a Muslim is
considered to have attained the age of puberty at 15 years. After attaining the age of 15, parties can give their own
consent and there is no need of consent of guardians.
• According to the Child Marriage Restraint Act, 1929 marriages of amle under 21 years and females under 18 years are
prevented. So, such marriages will not be declared void but merely lay down certain punishments fpra breach of its
provisions. It is only a punitive act.

• If an individual may be a minor, i.e., not attained the age of puberty, the consent of the guardian is required to form the
wedding lawful. The persons recognized as guardian under Muslim law are:

 Father,

 Paternal Grandfather,

 Brother or the other male member of father's family,

 Mother,

 Maternal uncle, aunt or other maternal relations.

• It passes from one guardian to other, in absence of the previous one, so as of priority. In absence of any of those guardians,
marriage could also be contracted by Qazi or the other Government Authority.

• Under Shia Law, the only guardian for marriage are – father and paternal grandfather. A marriage contracted by any other
guardian must be expressly confirmed by the minor on attaining puberty.
 Sound Mind - Both the parties should be of sound mind. Person of unsound mind has no capacity to enter into a contract and within the
eyes of law his consent is going to be considered as no consent.

• Unsoundness is of two types:

 Idiocy: It refers to an entire abnormal state of mind. Person belonging to the present category are incompetent to contract, and

 Lunacy: It refers to a curable mental illness. A lunatic person can enter into a accept the interval during which he behaves like sane
person

Muslim - The parties to enter into marriage must be a Muslim regardless of their sect or subsect. a wedding is taken into account to be as
inter-sect marriage is both the parties are Muslim belonging to different sect but the wedding is valid.
 Inter-religious marriage – Muslims who are married under the Special Marriage Act, 1954 will be governed by that Act only and they
need not fulfil the essentials laid down by the Muslim Personal Law.

i) Sunni Law – Sunni male has a right to contract a lawful marriage with a Kitabia female (Christian or Jew). A girl is kitabia if she
belongs to a community the origin of which is believed from a heavenly revealed kitab (book). If a Sunni male marries a female who is
neither a Muslim nor Kitabia the marriage is not void. It is merely irregular. The irregularity may be removed after conversion to Islam.

ii) Shia Law – Shia male has no right to contract a marriage with any non-muslim female. A marriage of a Shia man with a Hindu, Jew,
Christian or a fire worshipping woman is void.

iii) A Muslim female, whether Sunni or Shia has no right to enter into the contract or marriage with any non-Muslim male. Such marriages
are void.
 F R E E C O N S E N T O F T H E PA RT I E S
• Consent for the marriage should be free from all forces.

• Where the parties to the marriage are sane and adult, it is their own consent which is required. If one of them is a minor or
an insane, then the consent on his or her behalf will be given by their guardian.

• Except under Hanafi Law, in all schools under the Sunni and Shia Law, a marriage without any free consent from either of
the parties is a void marriage.

• The Hanafi Law even if consent is given under any compulsion it is considered a valid marriage. Three things are
considered as final under the Hanafi Law –

i) Marriage

ii) Divorce

iii) Taking back

FORMALITIES AND CEREMONIES

• Ceremonies are not compulsory under the Shia Law but it is followed under the Sunni Law.

• Witnesses are required to be there during the Nikah under the Sunni Law –

2 male witnesses, if two male witnesses are not there in such a case 1 male witness plus 2
female witnesses have to be present.

• Vakil (an agent or lawyer) to be present from either side who will have to be there to look
over the procedure of the valid nikah.
 ABSENCE OFPROHIBITION AND IMPEDIMENTS

• Two Kinds of Prohibitions or Impediments –

i) Absolute Prohibition

ii) Relative Prohibition

ABSOLUTE PROHIBITION – A married muslim woman cannot have a second marriage during the

lifetime of her husband. A muslim woman can have only one husband at a time.

a) Consanguinity (Relation by Blood) – Tahrim-un-nasab (VOID/BATIL MARRIAGE)

b) Affinity (Relation by Marriage) – Tahrim-al-Musaheret (IRREGULAR/FASID MARRIAGE)

c) Fosterage (Relation by Milk) – Tahrim-al-raza

• CONSANGUINITY – A man cannot marry his –

a) Ascendants – mother, grandmother, how highsoever

b) Descendants – Daughter, grand daughter how lowsoever

c) Sister – full, half or uterine

d) Niece, great niece how lowsoever

e) Aunt, great aunt, how highsoever – paternal or maternal

• AFFINITY - A man cannot marry his –

a) wife’s mother or grandmother, how highsoever

b) Wife’s daughter or granddaughter, how lowsoever, if marriage is consummated

c) Father’s wife or any other ascendant’s wife

d) Son’s or any other lineal descendant’s wife

Rule applicable to woman. A woman cannot marry her daughter’s husband or daughter’s daughter’s husband how

lowsoever.
• FOSTERAGE -

a) Shias – All prohibited relationships arise on basis of consanguinity pr affinity

b) Sunnis – They permit a marriage with following foster relations –

 Marriage of Father of child with the mother of his child’s foster mother

 With her daughter

 Marriage of foster mother with the brother of the child who she has fostered

 Marriage with foster mother of an uncle or aunt.

RELATIVE PROHIBITION – It renders a marriage, either irregular or does not affect its validity at
all.

i) Unlawful conjunction – A man may not have at the same time two wives who are so related to each
other by consanguinity, affinity or fosterage, that if, either had been a male they could not have
lawfully inter-married. Marriage of a Muslim with his wife’s sister during the continuance of the first
union is irregular but not void and the issue of such marriage is legitimate. Under Shia law, a
marriage against the rule of unlawful conjunction is void.

 Case – Chand Patel vs. Bismillah Begum (2008)

Supreme Court held that marriage of Muslim husband with sister of existing wife would be irregualr
and not void and it continues to subsist till terminated in accordance with law. Wife and children of
such marriage are entitled to maintenance under Sec.125 CrPC.
ii) Marriage with fifth wife - Muslim law permits polygamy (Marrying more than one wife ) with a restriction of
maximum four wives. So a Muslim man can have four wives at the same time. If he marries a fifth wife when
he has already four, the marriage is not void, but merely irregular. But the fifth marriage can be made valid
after the death or divorce of any one of the four wives of his earlier marriages. Under the shia law marriage
with the fifth wife is void.
In India no Muslim marrying under or getting his marriage registered under The Special Marriage Act,
1954,can marry a second wife during the lifetime of his spouse.

iii) Marriage with non-muslim - The law with regard to marriage with a non-Muslim is different under Sunni
law and Shia law. Under Sunni law a male can marry a Muslim female or a Kitabia (a person who believes in a
revealed religion possessing a Divine Book viz Christianity and Judaism). A Sunni muslim male can validly
marry a jews or christian female. But he cannot marry an idolatress or a fire-worshiper. A marriage, with an
idolatress or a fire worshiper is merely irregular and not void.

A Muslim woman cannot marry a Kitabia /non-Muslim man. A marriage of a Muslim female with a non-
Muslim male, whether he is a Christian, or a Jew or an idolator or a Fire-Worshiper is not void but irregular.
According to Mulla, a marriage between a Muslim woman and Non-Muslim male is irregular.
 Under Shia Law a marriage with a non-muslim is void. Both the spouses are required to be Muslims. The
marriage of Sunni male with a Shia female is void. A marriage of a Muslim female with a non-Muslim
male, whether he be a Christian, or a Jew or an idolator or a Fire-Worshiper is void under Shia Law. In
India a marriage between a Muslim and a non-Muslim can only take place under The Special Marriage
Act, 1954.If a muslim male marries and registers under the Special Marriage Act, 1954, he cannot marry a
second wife during the subsistence of the first marriage.

iv) Marriage without witnesses - A marriage must be contracted within the presence of proper and
competent witnesses. Under the Sunni law at least two male or one male and two female witnesses must
be present to testify that the contract was properly entered into between the parties. The witnesses must be
of sound mind, adult and Muslim. A marriage without witnesses is irregular. Under the Shia law the
presence of witnesses is not necessary. 
v) Marriage during iddat - Under Muslim law, a woman who is undergoing iddat is prohibited from marrying
during that period. Iddat is the period during which it is incumbent upon a woman, whose marriage has been
dissolved by divorce or death of her husband to remain in seculasion, and to abstain from marrying another
husband. The purpose behind that is to ascertain whether she is pregnant by earlier husband , so as to avoid
confusion of the parentage of the child.

The period of Iddat is prescribed as under:

1.In case termination marriage by divorce- three lunar months or three menstrual courses

2.In case of widow- 4 months and 10 days

3.In case the woman is pregnant - till the delivery

Under Sunni Law a marriage with a woman undergoing Iddat is irregular and not void. Under Shia law a
marriage with a woman who is undergoing Iddat is void.