Detail of MARRIAGE (NIKAH)

MARRIAGE (NIKAH)

MARRIAGE (NIKAH)

Nature of Muslim marriage

Marriage among Muhammadans is not a sacrament, but purely a civil contract; and through it is solemnised generally with recitation of certain verses from the Koran, yet the Muhammadan Law does not positively prescribe any service peculiar to the occasion. That it is a civil contract is manifest from the various ways and circumstances in and under which marriages are contracted or presumed to have been contracted. And though a civil contract, it is not positively prescribed to be reduced to writing, but the validity and operation of the whole are made to depend upon the declaration or proposal of the one, and the acceptance or consent of the other of the contracting parties, or of their natural and legal guardians before competent and sufficient witnesses; as also upon the restrictions imposed, and certain of the conditions required to be abided by according to the peculiarity of the case.

     Dower, under the Muhammadan Law, is a sum of money or other property promised by the husband to be paid or delivered to the wife in consideration of the marriage.

    Muslim marriage is considered to be an ibadat (devotional act). Furthermore, Muslim marriage is not merely a civil contract, because. -

a)     unlike civil contracts, it cannot be made contingent on a future event; and

b)     unlike civil contracts, it cannot be for a limited time (Muta marriage is an exception and not a rule).

Though both the parties of the marriage are required to be accompanied by their respective parents relations or acquaintances, the verification as to existence of free consent, particularly from the bride by the Kazi, independently, assumes significance, in view of the fact that the marriage under Muslim Law is more a contract, than a ceremony. It is the duty of the Kazi to ensure that there does not exist any surviving marriage with the bride and that the bridegroom does not have more wives than three at the time of the proposed marriage. Once satisfied about the above conditions, he has no option but to perform the rituals of marriage. Thus, at law, marriage is a civil contract, at religion it is not a sacramental performance, but at social custom it is imbibed with some religious traits.

Formalities of a valid marriage

The following conditions are necessary for a valid marriage:

        i.    Offer on the part of one party to the marriage.

      ii.    Acceptance by the other party.

     iii.    Presence of two witnesses where the parties are Hanafis; no witnesses are required if parties are Shias.

     iv.    The words with which the marriage is contracted must be clear and unambiguous.

       v.    The proposal and acceptance must both be expressed in one and the same meeting.

If the cohabitation is continuous and prolonged, the man and woman may be treated as husband and wife. The same presumption will also be there in the case where the man acknowledges the woman as his wife, or the child born of the union as legitimate. But where impediments of a nature which render a valid marriage between the parties as impossible, are present, no presumption of marriage may arise. Thus, where the woman is non-Kitabiya, related to the man within the prohibited degrees of relationship, the wife of another person, and so on, she cannot be presumed to be the wife.

Legal effects of a valid marriage

There are nine legal effects flowing from a valid marriage

        i.         Sexual intercourse becomes lawful and the children born of the union are legitimate;

      ii.         the wife becomes entitled to her dower;

     iii.         the wife becomes entitled to maintenance;

     iv.         the husband becomes entitled to restrain the wife's movements in a reasonable manner;

       v.         mutual rights of inheritance are established;

     vi.         the prohibitions regarding marriage due to the rules of affinity come into operation;

    vii.         the wife is not entitled to remarry after the death of her husband, or after the dissolution of her marriage, without observing iddat;

  viii.         where there is an agreement between the parties, entered into either at the time of the marriage or subsequent to it, its stipulations will be enforced, insofar as they are consistent with the provisions or the policy of the law; and

     ix.         neither the husband nor the wife acquires any interest in the property of the other by reason of marriage.

Classification of marriages

Marriages may be either valid, void, and irregular.

      (i) Valid.- A valid marriage is one which confirms in all respects with the legal requirements, and there should be no prohibition affecting the parties. When all the legal conditions are fulfilled, the marriage is called Sahih or "correct", that is, a marriage in which no prohibitions affect the parties. Prohibitions may be either permanent or temporary. If they are permanent, the marriage is void, if temporary, it is irregular.

    (ii) Void.- A marriage which has no legal results is termed as void. A marriage forbidden by the rules of blood relationship, affinity or fosterage is void. Similarly, a marriage with the wife of another, or remarriage with a divorced wife, is void.

     Legal effects of a void marriage. - A Batil or void marriage is an unlawful connection which creates no mutual rights and obligations between the parties. Being no marriage at all, the Muslim woman can have it declared void at any time and the man can create no hindrance against her action. The woman gets no right to dower. If either party dies during the period of this union, the other acquires no right of inheritance. Neither can enforce any martial obligations against the other, e.g., the man cannot compel the woman to submit to his company. The children of such marriage are not legitimate. But if they have consummated the marriage, the woman would be entitled to her dower (mahr-ul-misl).    

   (iii) Irregular. - A marriage may be either lawful or unlawful. Unlawfulness may be either absolute or relative. If the unlawfulness is absolute, the marriage is void. If it is relative, it is an irregular marriage.

   The following are irregular marriages:

a)     A marriage without witnesses;

b)     A marriage with a woman undergoing iddat;

c)     A marriage prohibited by reason of difference of religion;

d)     A marriage with two sisters, at the same time, and

e)     A marriage with a fifth wife.

In Shia Law, all the above irregular marriages are treated as void, because Shia Law does not recognise the distinction between irregular and void marriages.

     The issues of an irregular marriage are treated as legitimate and are entitled to inherit. But there are no rights of inheritance between the husband and the wife. The wife is entitled to dower if the marriage is consummated, and has to observe Iddat for three courses. The irregular marriages may be made regular by removing the impeding irregularity, which must not be of a permanent nature. Marriages contracted within the relationship of consanguinity, affinity and fosterage cannot be validated. Similarly, marriage with a woman whose husband is living would not become valid even after the death of the first husband, because the marriage is void ab initio. Other types of marriages may, of course, be validated by removing the temporary irregularity.

     Muta marriages.- The marriage dissolves of itself, on the expiration of the term of marriage. If no time limit is expressed, the marriage is presumed to be permanent. The number of wives that can be taken into Muta marriage is unlimited. The ceiling of four wives does not apply here. The amount of dower must be specified in the contract of Muta otherwise the agreement is void. The child born of a Muta marriage is legitimate and capable of inheriting from the father. But, in the absence of an express agreement, neither party to a Muta  is entitled to inherit from the other. Maintenance is not due to the Muta wife unless it has expressly been agreed upon.

    Essential requirements of Muta.- From the above we can see that (a) period and (b) dower are the two main conditions of Muta. As to (a) period.- Muta being a temporary marriage in essence, it is necessary that the Muta contract must specific the period of the enjoyment. The fixed period can again be extended by a new contract. It can also be presumed to be extended unless disproved. As to (b) dower; being a short-term contract, the element of dower is rightly emphasised. The dower must be specified, otherwise the contract is void. The wife's right to dower arises as soon as the marriage is consummated. She can claim the whole amount. But if she chooses to abandon the husband before the end of the fixed period, she must suffer a proportionate cut in the dower.

Prohibitions to marry in certain cases

Muslims are prohibited from intermarrying with each other on the following grounds:

    (i) Consanguinity. - A Muslim is prohibited to marry. -

a)     his own ascendants or descendants;

b)     his father's or mother's descendants; and

c)     the sisters or brothers of any ascendant.

  (ii) Affinity. - It is unlawful for a Muslim to marry. -

a)     ascendants or descendants of his wife; and

b)     the wife of any ascendant or descendant.

 (iii) Fosterage.- A child is called the "foster-child" of the woman who not being the child's mother, has nursed the child whilst it was under two years of age. Muslim Law prohibits marriage within certain limits of fosterage. A man may not, for instance, marry his foster-mother or his foster-sister.

  (iv) Unlawful conjunction - It may be because of two things:. 

a)     Number. - Muslim male may marry any number of wives not exceeding four; but a Muslim woman can marry only one husband, if she marries with a second husband, she may be punished under Section 494, Indian Penal Code.

b)     Relationship between co-wives. - A man is forbidden to have two wives at the same time, so related with each other by consanguinity, affinity or fosterage, that they could not have lawfully intermarried with each other if they had been of different could not have lawfully intermarried with each other if they had been of different sexes. From the above it comes out clearly, for instance, that it is unlawful to marry two sisters at the same time, or to marry the sister of the wife during the wife's lifetime.

     (v) Iddat. - A widow, a divorced woman or a woman who is pregnant by illicit intercourse are prohibited from remarrying or marrying during the period of Iddat. The object of Iddat is to ascertain whether the woman is pregnant or not and to ascertain the paternity of the child. The period of iddat in case of (a) the marriage dissolved by death is 4 months and 10 days or, if the woman is pregnant, till delivery, whichever is longer; and (b) the marriage is consummated and dissolved by divorce, it is three courses, or till delivery in case of pregnancy.

   (vi) Divorce.- After the husband has pronounced three talaks against his wife, their marriage is irrevocably dissolved, and they are prohibited from remarrying each other unless and until (a) the woman is lawfully married to a second husband, (b) her marriage with her second husband is actually consummated, (c) it has been lawfully dissolved, and (d) the woman observes iddat.

  (vii) Difference of religion. - A man may marry a Muslim woman or a Kitabiya, but a Muslim woman cannot marry anyone except a Muslim. A Muslim, therefore, cannot marry an idolatress or a fire-worshipper; and a Muslim woman cannot marry even a Kitabi. Among the Shias, however, no one can marry a non-Muslim in the nikah form, but the male can contract a Muta marriage with a Kitabiya (including a fire-worshipper).

Guardianship in marriage

The guardianship in marriage belongs, in the first place, to the usubah (agnates) in the order of inheritance; the more remote being excluded by the nearer. Failing usubah (agnates), very near uterine and then distant kindred relative who may inherit from a minor boy or girl, has the power of giving him or her in the marriage. Sultan or ruler is next, and then the judge, and a person appointed by him. During minority of a girl only the rightful guardian (Wali Jayaz) who is either father or grandfather (that is father's father) could give (the girl) in marriage. On attaining puberty if she denies and repudiates the marriage, she is within her rights to do it. Guardians for marriage cannot be appointed by will. The authority of guardian to give his ward in marriage ceases when the ward attains the age of majority.

   A marriage contracted by the minor himself is voidable at his option on his attaining the age of puberty. It would be immaterial whether his guardian had approved of the marriage or not, provided that marriages approved by father or agnatic grandfather are not voidable. The option lasts till the minor comes to know that he has such a right and a reasonable time thereafter. The reasonability of time will depend on the subjective of the court.

Option of puberty (Khyar-ul-bulugh)

When a minor is married by his lawful guardian, other than the father or paternal grandfather, such a marriage can be repudiated by the minor on attaining the age of puberty. Such an option vesting in a minor is called the "option of puberty". The option of puberty is lost if a female does not exercise it immediately after attaining puberty, or on being informed of marriage if she was not aware of it. In case of a male, however, the right continues until he has ratified the marriage either expressly or impliedly (for instance, by cohabitation or by payment of dower).

   If a minor's marriage was contracted by the father's father, such a marriage cannot be cancelled by the minor on attaining puberty, unless it is proved that:

   (i) the marriage has been fraudulently or negligently contracted; or

  (ii) an improper dower has been fixed; or

  (iii) the other partner is not equal (in status, etc.) to the minor.