In pre-Islam Arabia, the laws were affirmative towards men and biased against women. Women are refused their basic rights meanwhile men were always considered at the high-level. Women were treated as slaves, and were not given any rights and were completely dependant on men for sustenance. It was Seer Mohammad who brought out some changes in the position of women. Seer Mohammad placed women on the status of almost perfect equality with men in terms of all legal powers and functions. After marriage, women do not evade their individuality, she remains a separate member of the community.
Therefore, Muslim perception of marriage differs from Hindu perception of marriage according to which marriage is not merely a civil contract but also a holy sacrament. İn Muslim marriage, everyone has to marry to fulfil one’s desire to propagate a child legally. Living relationships have been partially approved in India. It is still very difficult for the Supreme Court to constitutionally invalidate this form of marriage. In the modern-era, muta marriage under Muslim law seems to be the equivalent of prostitution. It is presumed that the marriage being a contract, Muta marriage is supreme in living relationships.
Marriage (nikah) is defined to be a contract that has the object of propagation and the legitimizing of children. Marriage according to the Mahomedan law, is not a holy sacrament but a civil contract. All rights and duties which created arise immediately and is not dependent on any condition paradigm like the payment of dower to wife by the husband.
Ashabah says “Marriage is a contract underlying a permanent relationship based on mutual consent on the part of a man and woman. “
Case Law: Shoharat Singh v. Jafri Begum
In this case, the Privy Council said that marriage under Muslim law is a religious ceremony.
The virtue attached to the institution of marriage in the Islamic system has neither been comprised nor sufficiently appreciated by outsiders. Marriage in Islam is perceived as the basis of society. It is a contract but also a sacred contract.
Marriage as an establishment leads to the upliftment of man and is a means for the continuation of the human race. The motive of Muslim marriage is to protect the society from foulness and lewdness. It has also been said that marriage is a holy sacrament, which means that it is an act of Ibadat or worship. Thus, marriage according to Muslim law, is a contract for the purpose of ratification of intercourse, propagation of children, and the regulation of social life in the interest of society by creating:
- The rights and duties between the parties itself, and
- Between each of them and the children born from the union.
Capacity for marriage
- Every Mahomedan of sound mind, who has accomplished puberty may enter into the contract of marriage.
- A lunatic or minor who has not reached puberty can also be validly contracted in marriage by their appropriate guardian.
- A marriage of a Mahomedan who is of sound mind and also has reached puberty is void if it is brought about without his consent.
Essential of a valid marriage
- There should be a valid proposal by one party saying “Izab” and acceptance by another by saying “Qubul”.
- The proposal and acceptance must be given at the same meeting.
- Every Muslim who is of a sound mind and has reached puberty (i.e., 15 years of age) is considered competent to enter in a contract of marriage. Thus, those parties are competent to marry.
- There must be free consent to marry without any duress, coercion, fraud, or undue influence.
- There should be no legal obstruction to the marriage of the parties.
- The proposal and acceptance must be made in the presence of two males or one male and two female witnesses who are adults and Muslims, under the Sunni law.
- Witnesses are not required at the time of marriage in Shia law.
Adam v. Mammad
In this case, the girl’s father had given his consent, and the daughter had withheld hers. Thus, no valid marriage had taken place. So, the judge upheld that consent is a must for the validity of a marriage.
Yusuf v. Sowramma
In this case, the learned Judge J. V. R Krishna Iyer stated that there is a common misconception that no religious consequences or social solemnity are attached to Muslim marriage and that it is merely a civil contract. However, there is no definite argument put forward by the judge and neither has he gone deep into the principles of Shariah.
Following are the reasons to state that Muslim marriage is not only a contract:
- It cannot be made contingent on a future event.
- İt cannot be for a limited time except a muta marriage.
- The wife is not authorized to divorce her husband or to live with a third person if a part of the dower remains unpaid.
Classification of marriages
Muslims are divided into two denominations – Shia and Sunni. Sunni law is based on the validity of a marriage classified into the following kinds:
- Sahih (valid marriage),
- Batil (void marriage) and
- Fasid (irregular or invalid marriage).
Therefore, Shia law does not acknowledge or recognise an irregular marriage and treats marriages to be either void or valid.
Sahih (valid marriage)
A marriage which fulfils all the conditions of a valid marriage as prescribed is considered to be valid. A valid marriage gives rise to the following legal consequences:
- The parties obtain the status of husband and wife due to which sexual intercourse between them becomes legal.
- Both parties have the right to legacy.
- The wife gets the right to maintenance and the right to live with her husband.
- The wife also has the right of getting mahr or dower from her husband.
- The wife is under the responsibility to be loyal and duteous.
- The marriage institute injunction of marriage due to analogy on both sides., for example, the husband cannot marry the wife’s sister.
- The husband has the power of reasonable punishment and rectification against the wife if she is not faithful or duteous.
- The children born out of that marriage are considered to be legitimate.
- The husband has the right to confine the movement of the wife for a valid reason.
Void marriage (Batil)
A marriage in violation of prescribed legal conditions is called a batil or a void marriage. It is void-ab-initio i.e., it is void from its establishment and does not create any legal rights and duties on the parties. İn this, the wife is not permitted to claim maintenance but can claim mahr if the marriage has been consummated. The children born out of that marriage are considered to be illegitimate. In such a marriage, the parties can move out of the relationship at any time.
Irregular marriage (Fasid)
A marriage in violation of partial or qualified legal obstruction is considered to be an irregular marriage. Marriages under Sunni law are considered to be irregular under Shia law. An irregular marriage has no legal effect before completion. After completion, it gives rise to some obligations such as; the wife has to perform Iddat on the dissolution of marriage due to divorce or death of the husband. The children of an irregular marriage are legitimate and have the right to inherit the property.
Muta marriage is an interim agreement for a limited period on which both the parties have agreed for the marriage. İt can be for a day, a month, or a year. However, if no such limit is expressed then the marriage is considered to be permanent. In such a marriage, the interim husband and wife can renew the contract but the husband must pay the amount to the bride. The husband has the right to revoke the marriage because of his superior position in the relationship while the women can refuse to have sexual intercourse with him or even leave him.
Marriage is a religious duty of every Muslim and it is taken into consideration to be a moral safeguard and a social need. Marriages in Muslim law has the nature of a civil contract since marriage is necessary for the legitimacy of the child. When marriage is done in accordance with the norms, it creates various rights and duties on both the parties. In Islam, marriage is neither a contract nor a holy marriage, it is a combination of both.
- Difference between the Shia and Sunni law.
- Why it is said that Muslim marriage is a contract?
- Why muta marriage in our society is considered as an illegal marriage?
- If a marriage is accomplished by force, then can any one of the parties make it void after marriage?
- Why is it necessary to say “Qubul” or “Izab” in Muslim marriage?