Conditions requisite for Muslim Marriage
Muslim law is branch of civil law in regard to family matters of Muslims. The word Muslim is derived from Islam. Muslim law is called Sharia in Arabic.
Origin of Muslim law:
Muslim law is believed to have been originated from divine. The divine i.e. Allah
communicated It to the Prophet Mohammad who prescribed them in Quran.
Later, disciples of Prophet Mohammad have refined and polished these principles. Sharia means path to be followed.
Who is Muslim?
- Muslim by birth
- Muslim by conversion
Muslim by birth:
1. Believes in one God
2. Mohammad is the prophet of God
By conversion :
1. Person who profess Islam
2. Formal ceremony of conversion
Marriage in Muslim law:
Under Muslim law marriage is not considered a sacrament but a civil contract. The purpose of marriage is legalizing sexual intercourse and procreation of children.
Kinds of marriages under Muslim law:
- Permanent marriage
- Temporary (Muta) marriage
Permanent marriage : When two persons marry with no intention to dissolve it.
Temporary marriage : It is recognised by only Shia Muslims and Ithana Asharis.
Muta marriage: Muta marriage is usually called temporary marriage. It is an ancient Arabic custom in which a Shia male may contract a muta marriage with the women (Muslim, Christian, Jew or fireworshipper), but a Shia women may make contract only with Muslim male.
- In this kind of marriage the period of cohabitation should be fixed.
- Dower should be specified.
- If period is not specified it should be considered permanent union.
- Children born out of muta marriage are legetimate.
Classification of marriage in Muslim law:
- Sahih (Valid)
- Batil (Void)
- Fasid (Irregular)
Sahih marriage : Sexual intercourse is valid, women is entitled to both dower and
Batil marriage: No rights and obligations exist between the parties.
Fasid marriage: There is no marriage because of some conditions unfulfilled but can be regularized in certain conditions.
Requirements of valid Muslim marriage:
- Offer and Acceptance
- Presence of witnesses
- Capacity of the parties
- Free consent
- No legal disabilities
Offer and Acceptance:
Marriage in Islamic law is a contract that is concluded by offer made by one party and
acceptance by other. Offer and Acceptance must be at the same meeting. Neither writing nor
any religious ceremony is essential.
Under Sunni law, proposal and acceptance must be made in the presence of two male muslims or one male and two female witnesses who are sane, adult and muslims. Absence of witness make marriage voidable.
Under Shia Law, witnesses are not necessary at the time of marriage. When offer and acceptance is reduced into writing, the document is called Nikaah- nama or Kabin- nama.
Presence of witnesses
Hanafi, Shafi and Hanabi schools require 2 male or 1 male + 2 females.
Maliki and Ithna ,presence is recommended but not mandatory.
Capacity of Parties:
Who is of sound mind ,
Attained puberty (15 years)
however Child Marriage Restraint Act prescribes 21 year for male and 18 year for female.
If there is no free consent a Muslim marriage is void. If consent is obtained by force or fraud will be invalid. The person who has been defrauded can repudiate marriage.
No Legal disability:
Under Muslim law, marriage under certain circumstances is prohibited and not permitted.
- Absolute Prohibition (Void)
- Relative Prohibition (Not void but irregular)
1. Prohibited degrees of relationship
Consanguinty (blood relation)
Affinity (near relationship)
Fosterage (milk relationship)
Marrying more than one male.
- Unlawful conjunction i.e. marrying two wives at the same time (one cannot marry wife's sister while she is alive)
- Marrying fifth wife (can marry 4 wives but fifth marriage becomes irregular)
- Absence of proper witnesses (2 male or 1 male + 2 females)
- Difference of religion (male can marry Muslim,Christian or Jew and none else. Female cannot marry non muslim)
- Marriage during Iddat (time period to ensure she is not pregnant by earlier husband).
Important Facts :
- A Muslim marrying or registered under Special Marriage Act cannot marry a second wife during lifetime of other spouse.
- The period of Iddat is prescribed as : Termination by divorce- three months or three menstrual courses . In case of widow- 4 months,10 days. Women who is pregnant- till delivery.
- 5th marriage can be made valid after death or divorce of any one of four wives of earlier marriage.
Abdul Ahad vs Shah Begum, AIR 1997 J K 22’
In this case the J&K High Court held that it is a settled principle of law in Islam that once the girl becomes major she has the absolute right to contract the marriage and this right cannot be exercise by anyone else including the father of girl.
Right to Privacy.
Right to privacy is a fundamental right inherent under Article 21 of Indian Constitution i.e. Right to life and personal liberty. It is a recognized human right under Article 12 of Universal Declaration of Human Rights,1948. Indian Supreme court recognised this right as fundamental right in the case of Puttaswamy v. Union of India, 2017.