Marriage under Mohammedan Law

Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 mandates that matters regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardiaship, gifts, trusts and trust properties, and wakfs (other than chartities and charitable institutions and charitable and religious endowments) the rule of decision in case where the parties are Muslims shall be as per Muslim Personal Law (Shariat).

Marriage is referred to as “Nikah” under Muslim laws. “Nikah” is an Arabic term which means “carnal conjunction or union or the sexes”. Justice Mahmood has expressed the view that Nikah is civil contract upon completion of which, by proposal and acceptance, all the rights and obligations that it creates, arise immediately and simultaneously. Unlike marriages among Hindus, it is not a sacrament but a contract. For Muslims Nikah or marriage is a civil contract made between two persons of opposite sex with a view to mutual enjoyment and procreation and legalizing children.

Q. What are the essential requirements of Nikah or marriage?

A. For solemnization of a valid Nikah or marriage following are the essential requirements:-
  • A Muslim marriage requires proposal (Ijab) from one party and acceptance (Qubul) from the other as is required for a contract.
  • Ijab & Qubul (declaration and acceptance) should be made at each other’s presence by concerned parties in presence of their agents and must be completed in one meeting. The proposal and acceptance should be made then and there.
  • Competency of parties: Capacity to marry depends on three factors
    1. Understanding: a lunatic is competent to marry
    2. Puberty: Marriage of a person below seven years is illegal, between age-groups of seven and fifteen years it can be contracted by the guardian on behalf of the minor and after 15 years of age a person who is not a lunatic is free to contract the Nikah.
    3. Free will and consent of both the parties
    4. Before witnesses: The proposal and accetance is to made before atleast 2 male witnesses or one male witness and two female witnesses
    5. No legal disability-prohibited degrees: parties to the marriage should not be within prohibited degrees, as it would make the marriage unlawful.

Q. Is the presence of witnesses necessary during proposal and acceptance for both Shia and Sunni?

A. Presence of witnesses is necessary only for Sunnis. It is not sine qua non for Shias.

Q. Does absence of witnesses render the marriage void?

A. The absence of witnesses does not render the marriage void altogether but only voidable.

Q. What are the prohibited degrees within which marriage is prohibited under Muslim laws?

A. The prohibition among the parties may be of two kinds; Absolute prohibition may be classified in three categories
  • Consanguinity: refers to blood relationship and a man cannot marry the following;
    1. his mother or grandmother however high so ever
    2. his daughter or granddaughter howlowsoever
    3. his sister whether full blood half blood or uterine blood
    4. his niece or great niece howlowsoever
    5. his aunt or great aunt howhigsoever
  • Affinity: refers to particular relationships which do not arise from blood relationships. A man cannot marry the following;
    1. his wife's mother grandmother however highsoever
    2. his wife's daughter or grandaughter howlowsoever
    3. his father's wife or paternal grandfather's wife howhigsoever
    4. wife of one's own son or son's son or daughter's son howlowsoever
  • Fosterage: Foster relationship arises between two persons so connected through suckling milk at the breast of one woman. The effect is that a man not only prohited from marrying his own sister but also his foster sister. Shias place consanguinity and fosterage in the same footing however Sunnis do not follow the same.
  • Relative prohibition: arises from a cause which renders a marriage invalid but the momemt it is removed the prohibition also ends and the marriage becomes lawful. Following are the kinds of relative prohibition;
  • Period of Iddat: Iddat is the period during which a woman whose marriage has been dissolved or husband has died has to live in seclusion and abstain from marrying another husband. A muslim marriage continues even after the divorce or death of a woman's husband. The purpose behind that is to correctly ascertain whether she is pregnant by earlier husband or not and to prevent confusion as to 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
  • Parties to the marriage of different religion: A Muslim woman cannot marry a non-Muslim man and marriage between them is considered void. But if the husband turns into a Muslim then the marriage will become valid. A Muslim man is allowed to marry another Muslim woman only if she not a idol-worshipper or fire- worshipper, i.e., A Muslim man cannot marry a Hindu or a Parsi but he can marry a Christian or Jew.
  • More than four wives is not permissible- Mohammedan law permits polygamy with a restriction of maximum four wives, but it is not a vested right nor a obligatory right for a Mohammedan to marry four wives. If a man takes a fifth wife then such marriage is unlawful but becomes lawful if atleast one of the wives is divorced.

Q. What are the mutual rights and duties of husband and wife after Nikah?

A. . Rights of a husband and duties of his wife;
  • Wife is bound to allow her husband to have sexual intercourse with her, keeping in mind and giving due regard to her health, decency and place.
  • She is bound to observe strict conjugal fidelity
  • She shall live in the house of her husband observe purdah if necessary
  • She has to obey her husband's lawful commands
Rights of a wife and corresponding duties of her husband
  • Wife is entitled to get dower and she can refuse cohabitation , if it is not paid.
  • She is entitled to maintenance with due consideration to the husband's capacity
  • She is entitled to equal treatment and separate sleeping apartment, if there are more than one wife
  • She can refuse to live with her husband if he starts idol worship

Q. Is marriage with a sick man which is likely to be fatal invalid?

A. It is invalid but if such marriage is consummated then it becomes valid.

Q. What is Mutta marriage?

A. Mutta marriage is a kind of temporary marriage recognised by Shia School of Mohammedan law. The term Mutta means 'enjoyment' or 'use'. The marriage is contracted for a fixed period on payment of dower. The period of marriage can be for a day, month or even a year.

Q. Can a Muslim woman take a second husband while her first husband is alive and their Nikah is subsisting?

A. No. If a Muslim woman does so she will guilty of bigamy under Section. 494 of Indian Penal Code.

Q. What is dower or Mahr?

A. Mahr or dower is a consideration for conjugal intercourse with one's wife for the period during which marriage subsists. As per Ameer Ali it is a consideration for wife's sole and exclusive use. The main object of dower is to place a check on the capricious use of divorce on the part of the husband.