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ESSENTIALS OF A VALID MUSLIM MARRIAGE
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INTRODUCTION TO MUSLIM MARRIAGE

• The very foundation of the family and society is
  the marriage. It confers on parties, the status
  of husband and wife and gives rise to certain
  rights and obligations and of legitimacy of their
  children.
• In Muhammadan Law, marriage is regarded as Civil
  Contract. Nikah is an Arabic term, which
  literally means the union of two sexes.
• Abdur Rahim says- The Muhammadan jurist regard
  the institution of marriage as partaking both of
  the nature of ibbadat or devotional acts and
  muamalat or dealings among men.
• 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.

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• Mulla defined Nikah as a contract which has for
  its object, the procreation and legalizing of
  children.
• Justice Mahmood in Abdul Khadir v. Salima 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.
• Justice Mitter in Saburannissa v. Sabdu Sheikh
  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.

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ESSENTIALS OF A VALID (SAHIH) MARRIAGE

• A Muslim marriage (Nikah) to be valid, the
  following conditions are to be satisfied
• Civil Contract A Muslim marriage is purely a
  civil contract.
• There should be a PROPOSAL(Ijab) made by or on
  behalf of one of the parties to the marriage, and
  an ACCEPTANCE(Qabool) of the proposal by or on
  behalf of the other party.
• The proposal and acceptance must both be
  EXPRESSED AT ONCE MEETING. The acceptance must be
  corresponding to what is being offered. The
  marriage must be effectively immediate.
• The parties must be COMPETENT. The two parties
  must be legally competent i.e. they must be sane
  and adult.
• There must be two male or one male two female
  WITNESSES, who must be sane and adult Mahomedan
  present hearing during the marriage proposal
  and acceptance.
• The consent of the parties or of their guardians
  must be a FREE CONSENT.

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PROPOSAL ACCEPTANCE

• Under the Muslim law for the validity of a
  marriage there must be a proposal and acceptance
  at the same meeting. The proposal and acceptance
  must both be expressed at one meeting a proposal
  made at one meeting and acceptance made at
  another meeting does not make a valid Muslim
  marriage.
• Under the Sunni law- The proposal and acceptance
  must be made in the presence of two male Muslims
  who are of sound mind and have attained puberty
  or one male and two female witnesses who are
  sane, adult and Muslim.
• Under the Shia law - Witnesses are not necessary
  at the time of marriage.The proposal and
  acceptance need not be made in writing. Where the
  offer and acceptance are reduced into writing,
  the document is called Nikah nama or Kabin-nama.
• The proposal made by or on behalf of one of the
  parties to the marriage, and an acceptance of the
  proposal by or on behalf of female witnesses, who
  must be sane and adult Muslim.

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CAPACITY FOR MARRIAGE

• The parties to the marriage must be competent to
  marry. In Muslim Law, a person, who is sane
  (sound mind) and has attained puberty is
  competent to marry. The person, who has not
  attained puberty is a minor. The age of puberty
  for both a boy and girl is 15years.
• Under Shia Law, in the case of males, puberty is
  presumed to be attained at the age of 15years but
  in case of females it is 9years.
• Those persons, who are not of sound mind, i.e.,
  are lunatics or who have not attained puberty
  i.e., are minors, can be contracted in marriage
  by their respective guardians. But after the
  children become Baligh or the insane become sane,
  they can endorse or abrogate the marriage.
• Minority is of two kinds (i) age of discretion
  (Saghir) and (ii) Puberty (Bulugh).

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OPTION OF PUBERTY (KHYAR-UL-BULUGH)

• In Muslim Law, a person, who is sane and has
  attained the age of puberty is competent to
  marry. The age of puberty is the age at which a
  person becomes capable of performing sexual
  intercourse and procreation of children.
• In Muslim Law, a person, who has not attained the
  age of puberty is a minor. The age of puberty for
  both a boy and girl is 15years.
• If a boy or girl, without attaining puberty is
  given in marriage, the boy or girl can repudiate
  the marriage after attaining the age of
  puberty/majority.
• This right is known as the Option of Puberty or
  Khayr-ul-bulugh. This right shall be exercised
  within a reasonable time. In case of a boy(i.e.,
  minor husband) it should be exercised before the
  ratification of the marriage by payment of the
  Dower or Mahr. (Mahr is an amount of cash or
  property paid by the bridegroom (husband) to the
  parents of the bride (wife) at the time of
  marriage or later, in consideration for the
  marriage) or by cohabitation.

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• When a minor has been contracted in marriage by
  the father or paternal grandfather, such marriage
  cannot be repudiated unless such father or
  grandfather acted fraudulently or negligently
• According to Sec. 2 of the Dissolution of Muslim
  Marriage Act, 1939, a Muslim wife is entitled to
  the dissolution of her marriage if she proves
  that the marriage has not been consummated or the
  marriage took place before she attained the age
  of 15 years or she has repudiated the marriage
  before attaining the age of 18 years. Mere
  repudiation does not render dissolution of the
  marriage. The dissolution must be confirmed by a
  competent court.

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FREE CONSENT

• The marriage to be valid, the parties must be
  freely consented to. If the consent is obtained
  by force or fraud, it is no consent and the
  marriage is not valid.
• It is a general law among all sects that in case
  of an adult woman consent must come from her.
  Without her consent, consent of her father,
  grandfather etc., only is not sufficient, though
  in some cases permission to marry may be obtained
  from father or grandfather, wherever it was
  possible.
• In order to validate the marriage of a boy or
  girl who has not attained the age of puberty, the
  consent of the legal guardian is necessary. The
  marriage of a minor girl without the consent of
  her guardian is void.

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• Under Hanafi law if the consent is obtained by
  fraud or compulsion, the marriage would be valid
  but only irregular and not void. Suppression of
  certain facts by any of the contracting parties
  have been held to amount to fraud.
• Under Shia and Shafi law, such marriages where
  consent was obtained through fraud or compulsion
  are void. A Shia adult (attained majority) woman
  should obtain permission of her father or
  grandfather to marry, although she may be looking
  after her own affairs.

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ABSENCE OF IMPEDIMENTS

• Under Muslim Law, marriage under certain
  circumstances is prohibited or not permitted. The
  prohibitions can be classified into two classes
• A) ABSOLUTE PROHIBITION
• Prohibited degrees of relationship Under the
  Muslim law marriage between persons who come
  within the blood relationship, or certain other
  relationship is prohibited. The prohibited
  relationships are the following
• Consanguinity  Consanguinity means blood
  relationship and a prohibits a man from marrying
  the following females
• 1. His mother or grandmother (however high so
  ever)2. His daughter or granddaughter (how low
  so ever)

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• 3. His sister whether full blood half blood or
  uterine blood4. His niece or great niece (how
  low so ever)5. His aunt (fathers sister or
  mothers sister)or great aunt (how high so ever)
• A marriage with a woman who comes within the
  relationship of consanguinity is absolutely void.
  Children born out of that wed-lock are
  illegitimate.
• Affinity  A man is prohibited from marrying
  certain female relatives due to nearness of
  relationship. A man is prohibited from marrying
• 1. His wife's mother grandmother (however high so
  ever)2. His wife's daughter or granddaughter
  (how low so ever)3. His father's wife or
  paternal grandfather's wife (how high so ever)4.
  Wife of one's own son or son's son or daughter's
  son (how low so ever)
• A marriage with a woman comes within the
  relationship by affinity is void. 

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• Fosterage It means the milk relationship. When a
  child is breast-fed/suckled by a woman other than
  its own mother, she becomes the foster mother of
  the child. A man is prohibited from marrying
  certain persons having foster relationship.
• Polyandry Polyandry means marrying more than one
  husband. Polyandry is a form of polygamy in which
  a woman is having more than one husband at the
  same time. Under Muslim law Polyandry is
  prohibited and a married woman cannot marry
  second time so long as the first marriage
  subsists and the husband is alive. If a woman
  violated this prohibition and contracted a second
  marriage ,the marriage is void and the woman is
  liable to be punished for bigamy under section
  494 of the Indian Penal Code.

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• B) RELATIVE PROHIBITION
• Under Muslim law marriage between persons who
  came within the blood relationship or certain
  other relationship is prohibited, the prohibited
  relation ship are as following -
•  Unlawful conjunction
• A man is prohibited from marrying two wives at
  the same time if they are related to each other
  by consanguinity, affinity or fosterage.
• Marrying a fifth wife (Polygamy) 
• 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.
• Absence of proper witnesses
• Under the Sunni law, at least two males 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 witness is irregular.

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• Under the Shia law the presence of witnesses is
  not necessary. The marriage is contracted by the
  spouses themselves or their guardians in private
  are held valid. The absence of witnesses does not
  render the marriage void but only invalid.
•  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 the female is
  supposed to remain in seclusion following divorce
  or death of husband. The period of Iddat is
  prescribed as under
• In case termination marriage by divorce- three
  lunar months or three menstrual courses.
• In case of widow, four months and 10days .
• 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.

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• Differences of religion (Marriage with
  Non-Muslim) 
• In Shias, marriage with Non Muslim is Void.
• In Sunni,

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CASE LAW

• AMINA HASSAN KOYA CASE
• Validity of marriage in case where wife is
  pregnant before marriage
• A girl child was born out of the marriage, Wife
  filed a case of divorce demanding maintenance.
• Husband denied maintenance questioning the
  validity of marriage saying that the wife
  concealed the fact that she was pregnant before
  the marriage
• It was proved that husband knew about the
  pregnancy of wife before the marriage, Thus
  marriage was not considered invalid.

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• RASIDA KHATUN VS SK. ISLAM
• Proposal and acceptance
• The petitioner wife and respondent husband
  started cohabiting with each other on the
  assurance to marry by respondent, a male child
  was born.
• When husband denied to treat her as wife she
  filed a case
• Her case was dismissed because there was only
  assurance to marry and only assurance does not
  make her a legally married women.

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