Muslim Marriage Meaning of Marriage

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Muslim Marriage Meaning of Marriage

• Marriage literally means living together or union
  of the sexes. The Arabic term of marriage is
  'Nikah'.

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Definition of MarriageThe Holly Quran
describes, in Chapter 4, verse 21- "Marriage is a
sacred covenant between a man and woman."

• According to Baillee, "Marriage is a contract for
  the purpose of legalizing sexual intercourse, the
  procreation and legitimation of children and the
  regulation of social life in the interest of the
  society

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Nature of Muslim Marriage

• marriage is purely a civil contract while others
  say that it's a religious sacrament in nature
• According to Asaf A. A. Fyzee, the institution
  of marriage has got three aspects- legal, social
  and religious -
• In its legal aspect it has legalized sexual
• intercourse and procreation of children. In
  its
• legal sense marriage is a contract.
• 2. In the social aspect it has given woman higher
  
• status.
• 3. In the religious aspect it is a mean for the
• continuation of the human race

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Purely a civil contract Case law

• Abdul Kadir vs Salima Bibi (1886),Marriage among
  Mohammedan is not a sacrament but purely a civil
  contract, and thoroughly solemnized generally
  with recitation of ' certain verses from the
  Quran

• Khurshid Bibi vs Muhammad Amin, PLD (1967)
• Justice S.A. Rahman says- "Marriage among
  Muslims isn't a sacrament but in the nature of a
  civil contract. Such a contract undoubtedly has
  spiritual and moral overtones and undertones but
  legally, in essence, it remains a contract
  between the parties which can be subject of
  dissolution for good cause."

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Marriage is a religious sacrament in nature

• On the other hand 'Nikah' is a religious
  institution and denominated by the prophet as his
  Sunnah. The Prophet said- "Man marries for their
  piety or their property, or their beauty but you
  should marry for piety."
• Thus marriage partex-the nature of ibadat and
  muamalat - in substance Muslim marriage is a
  contract but as a sanctioned,a religious
  contract. The main aim of marriage under Islam,
  is to protect the society from foulness and
  unchastity and to continue the human race
  moreover
• it confess full status to wife and children.'

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Essential Requisites of a Marriage

• Offer/ Ijab/ Declaration / Proposal on the part
  of one. (either oral or written)
• Acceptance or Kabul on the part of other The
  acceptance or the proposal also should be made by
  or on behalf of other
• The words conveying proposal and acceptance must
  be uttered in each other's presence or in the
  presence of their agents. ( Mst. Zainaba VS Abdul
  Rahman, Air 1945 )
• Marriage must be solemnized before sufficient
  witness, that is
• two male or
• two female and one male (in Hanafi Law
  but not in Shia Law)
• 4. The words with which the marriage is
  contracted must be clear and unambiguous. No
  promise to marry at some future time.
• 5. Where there is marriage there is dower, it
  may be implied or expressed but dower should be
  there
• 6. The parties should be competent to marry. A
  Muslim who is of sound mind, capable to give free
  consent and who has attained the age of puberty
  may enter in to a contract of marriage

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What is puberty

• Puberty means the age at which a person becomes
  capable of performing sexual intercourse and
  procreating children. Puberty and majority are in
  the Muslim Law one and the same.
• Majority is presumed among the Hanafis on the
  completion of the fifteen years, in the case of
  both male and female unless there is any evidence
  to show that puberty was attained earlier
• But under MFLO, 1961 age of puberty was declared
  to be sixteen. Of course it's a question of fact
  in each case, and girl may attain the age of
  puberty even earlier
• Under the Child Marriage Restraint Act, 1929 ,
  marriage of males under 2 1 and females less than
  18 years is is a child marriage and punishable
  offence

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Option of puberty

• If a Muslim minor has been married during
  minority by a guardian, the minor has the right
  on attaining puberty/majority to repudiate such
  marriage. This is called Khiyar-al-bulugh, the
  option of puberty. Such a minor may be given
  marriage either-
• (1) by the father or grandfather (2) or by any
  other guardian.
• In old law if the marriage of a minor had been
  contracted by his or her guardian he/she had no
  right to repudiate the marriage after attaining
  the age of puberty. This disability has been
  removed by the dissolution of Muslim Marriages
  Act, 1939.

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• 7. The proposal and acceptance must be expressed
  at one meeting
• In order to be a valid marriage it must be
  registered. According to section 3 of the
  Marriage and Divorce registration) Act, 1974,
  registration of marriage is compulsory and
  non-registration has been made punishable. But
  non-registration doesn't render a validly
  solemnized marriage invalid.
• It's necessary that parties should be Muslim.
• 10.There must not be any legal disability or bar
  to the union on the ground of consanguinity,
  affmity and fosterage.
• 11.Three- is no need of rituals in Muslim
  Marriage
• 12. Presence of Qazi

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Forms of Marriage

• 1. Sahi (valid)
• 2. Fasid (irregular)
• 3. Batil (void)
• Sahi or valid marriage A valid marriage is one
  which conforms in all respects with the legal
  requirements and there should be no restriction
  affecting the parties.

• Effect of a sahi /valid marriage
• It legalizes the sexual intercourse and
  procreation and legitimation of children.
• . Wife is entitled to dower and maintenance
• 3. The wife is not entitled to remarry without
  observing iddat when the marriage is dissolved
  either by death of the husband or divorce
• 4. Mutual rights of inheritance are established.

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What is iddat

• Iddat is a period during which a woman is
  prohibited from marrying again after the
  dissolution of her earlier marriage by divorce or
  death of the husband. The restriction is imposed
  to ascertain whether she is pregnant by the
  husband, so as to avoid confusion of the
  parentage.
• If the marriage is dissolved by divorce, the
  duration of iddat is three months and if she is
  pregnant till delivery.
• If the marriage is dissolved by death of the
  husband the duration of iddat is four months and
  ten days and if the widow is pregnant till
  delivery.

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Fasid or irregular marriage

• Restrictions or prohibitions as to marriage may
  be either permanent or temporary. If they are
  temporary the marriage is irregular. However such
  a marriage can be made valid by removing the
  prohibitions for which the marriage is unlawful.
• The following marriages are regarded as irregular
  marriages
• 1. A marriage without witness
• 2. A marriage with a fifth wife of a person
  haviiig four wives
• 3. A marriage with a women undergoing iddat
• 4. A marriage prohibited by difference of
  religion
• 5. A marriage contrary to the rules of unlawful
  conjunction, i.e., a marriage of unlawful
  conjunction is that in which a man may not have
  two wives at the same who are related to each
  other by consanguinity, affinity or fosterage,
  for example, two sisters, auny niece etc.

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Legal effects of a irregular marriage

• If the marriage hasn't been consummated has no
  legal effect and the wife isn't entitled to
  dower.
• Neither divorce nor the intervention of the court
  is necessary in an irregular marriage. One of
  them may say' I have relinquished you'.
• If the marriage has been consummated wife is
  entitled to dower specified or unspecified which
  ever is less. Such a marriage may be terminated
  by a single declaration on either side. The wife
  has to observe iddat for three months after
  divorce or death of the husband.
• She is not entitled to maintenance during iddat.
• The children of such a marriage are legitimate
  and entitled to share of their paternal property.
  
• But an irregular marriage though consummated
  doesn't create mutual rights of inheritance
  between the husband and wife.

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Void (Batil) Marriage

• Restrictions or prohibitions as to marriage may
  be either permanent or temporary. If they are
  permanent the marriage is void and such a
  marriage has no legal result.
• A marriage forbidden by the rules of blood
  relationship, affmity or fosterage is void.

• Legal effect of void marriage
• A Void marriage is of no legal effect either
  before or after consummation.
• It doesn't create any rights and obligations
  between the parties.
• The wife is not entitled to maintenance.
• One cannot inherit from other.
• The offspring of a void marriage are
  illegitimate.
• The parties may separate from each other at any
  time without divorce and may contract another
  marriage lawfully. .

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Prohibitions to marry in certain cases

• The prohibitions may be classified as follows
• 1. Absolute incapacity
• or prohibition
• 2. Relative incapacity
• or prohibition

• Absolute (permanent) incapacity or prohibition
  to marry arises from
• a. consanguinity
• b. affinity
• c. fosterage

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Consanguinity

• Consanguinity Consanguinity means blood
  relationship and bars a man from marrying
• his mother or grandmother how high so ever
• his daughter or grand daughter how low so ever
• his sister whether full, consanguine or uterine
• his niece or great niece how low so ever
• his aunt (mother's sister, father's sister) how
  high so ever
• A marriage with a woman prohibited by reason of
  consanguinity is void. The children from such
  marriage are illegitimate.

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Affinity

• Affinity A man is prohibited from marrying
  certain relations by affmity, such as
• his wife's mother or grand-mother how high so
  ever
• his wife's daughter or grand-daughter how low so
  ever
• wife of his father or paternal grand-father how
  high so ever 4 wife of his son or son's or
  daughter's son how low so ever
• A marriage with a woman prohibited by reason of
  affmity is void.

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Fosterage

• Fosterage When a child under the age of two
  years has been suckled by a woman other than its
  own mother, the woman becomes the foster mother
  of the child. A man may not, for instance, marry
  his foster mothert IP her daughter. or his
  foster sister.

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Relative (temporary) incapacity or prohibition

• Relative incapacity may arise from
• 1. Unlawful conjunction
• 2. Polygamy or marrying with a fifth Polyandry
• 3. Absence of proper witnesses
• 4. Differences of religion
• 5. Woman undergoing iddat

• Unlawful Conjunction -marrying two women so
  related to each other by consanguinity, affmity
  or fosterage.Thus a Muslim can't marry two
  sisters, or an aunt or her niece. This bar may
  however be removed by divorcing his first wife or
  when she is dead.
• Polygamy or marrying with a fifth wife Polyandry
  -more than one husband
• Absence of proper witnesses
• Woman undergoing iddat

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• Differences of religion- A Sunni male can marry a
  Muslim female of any School. Thus Muslims
  belonging "to different Schools e.g. Shiite or
  Sunnite, Hanafi or Shafli may intermarry freely
  with one another.
• A Sunni male can marry a Kitabia, i.e., a woman
  who believes in a revealed religion possessing a
  Divine Book e.g., Christianity, Judaism etc. But
  he can't marry a fire-worshipper and if does so
  the marriage will be irregular in Sunnj Law.
• Again a Muslim female can't marry a man who is
  non-Muslim whether he is a Kitabia (Christian, or
  a Jew) or an Idolater or a fire- worshipper and
  such a marriage is irregularar under Sunni Law.
  Thus a marriage between a Muslim female and a
  non-Muslim male is irregular.
• The above irregular marriages don't affect the
  legitimacy of the offspring because the husband
  or wife may at any time change his\her religion
  and thus validates the marriage.

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Presumption of marriage

• When question arises about the existence of a
  marriage, it has to be proved by direct evidence.
  Sometimes direct evidence isn't available as a
  Muslim marriage doesn't require any formality or
  ceremony. In the case of absence of direct
  evidence, the marriage may be inferred from the
  circumstances. This is called presumption of
  marriage.

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A marriage may be presumed from the following
circumstances and conducts-

• 1. A prolonged and continuous cohabitation as
  husband and wife. Mere cohabitation will not be
  sufficient. It must fulfill the following
  conditions
• a. The cohabitation must be a prolonged one.
• b. The parties must have been cohabiting as
  husband and wife.
• c. they shouldn't come within prohibited degree.
• d. The woman shouldn't be a prostitute or a
  concubine
• From the recognition of the relation of the
  husband and wife, by friends and neighbors etc.
• 3. From the acknowledgement by the husband of the
  wife
• 4. From the acknowledgement by the man of the
  children resulting from such union with woman as
  legitimate husband of the wife

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Thank you for being with me

• Further clarification
• Contact during counseling hour

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Polygamy (Sec-6, MFLO,1961)

• (1) No man, during the subsistence of an
  existing marriage, shall except with the previous
  permission in writing of the Arbitration Council,
  contract another marriage, nor shall any such
  marriage contracted without such permission be
  registered under this Ordinance.(2) An
  application for permission under Sub-section (1)
  shall be submitted to the Chairman in the
  prescribed manner together with the prescribed
  fee, and shall state reasons for the proposed
  marriage, and whether the consent of existing
  wife or wives has been obtained thereto.(3) On
  receipt of the application under Sub-section (3),
  Chairman shall ask the applicant and his existing
  wife or wives each to nominate a representative,
  and the Arbitration Council so constituted may,
  if satisfied that the proposed marriage is
  necessary and just, grant, subject to such
  condition if any, as may be deemed fit, the
  permission applied for.

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• (4) In deciding the application the Arbitration
  Council shall record its reasons for the decision
  and any party may, in the prescribed manner,
  within the prescribed period, and on payment of
  the prescribed fee, prefer an application for
  revision, to the Collector concerned and his
  decision shall be final and shall not be called
  in question in any Court.(5) Any man who
  contracts another marriage without the permission
  of the Arbitration Council shall,(a) pay
  immediately the entire amount of the dower
  whether prompt or deferred, due to the existing
  wife or wives, which amount, if not so paid,
  shall be recoverable as arrears of land revenue
  and(b) on conviction upon complaint be
  punishable with the simple imprisonment which may
  extend to one year, or with fine which may extend
  to five thousand rupees, or with both.