NATIONAL LAW UNIVERSITY, JODHPUR

SUMMER SEMESTER

(JULY-NOVEMBER 2017)

CONTRACTS-I

“THE MUSLIM MARRIAGES AS A CONTRACT”

SUBMITTED BY: SUBMITTED TO:

YASHWANTH.J Ms. VIDUSHI PURI

B.A- LL.B, I Semester Assistant professor

Roll number- 1605 Faculty of Law

SHASHVUT YECHURI

B.A-LL.B, I Semester

Roll number- 1580

(PROJECT TOWARDS PARTIAL FULFILLMENT OF SESSMENT IN THE SUBJECT

OF CONTRTACTS)
 Acknowledgment

Upon the completion of this project, we would like to acknowledge the help rendered by various

people. Without them, it would have been extremely difficult for us to bring this endeavour to a

meaningful end.

First and foremost, we would like to express our overwhelming gratitude to our teacher, Ms.

Vidushi Puri, Assistant Professor, Faculty of Law, for her constant support and incessant

encouragement throughout the course of this project.

We would also like to thank the IT Department at National Law University, Jodhpur for providing

all the necessary resources. We are also thankful to the Library Staff for their help and assistance

at all times.

We would be failing in our duties if we forgo this opportunity to thank our friends, colleagues and

our parents who have been a constant source of encouragement and the real driving force behind

this work.

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 Table of Contents

Index of Cases……………………………………………………………………………………4

Introduction………………………………………………………………………………………5

A. Definition ......................................................................................................................... 5

B. Marriage – Pre Islamic Position ....................................................................................... 7

I. Capacity of Marriage .............................................................................................................. 7

II. ESSENTIALS FOR A MARRIAGE UNDER MUSLIM LAW ............................................ 8

III. Classification of Marriage.................................................................................................... 9

IV. Kinds Of Marriage ............................................................................................................... 9

1. Regular Marriage - Being a civil contract, the validity of a Muslim marriage depends
upon the conclusion of the marriage contract. ........................................................................ 9

2. Mut’A Marriage - The word ‘Mut’a’ literally means ‘enjoyment, use’ and in its legal
context it may be rendered, according to Heffening, a ‘marriage for pleasure’. .................. 10

V. Composites of Marriage ........................................................................................................ 11

3. JUDICIAL INTERPRETATION ............................Error! Bookmark not defined.12

Conclusion……………………………………………………………………………………….17

Bibliography……………………………………………………………………………………..18

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 INDEX OF CASES

Kunnath Adrm v. Janab R.P Mammad AIR 1990(2) Civil L.J Ker. 357. ..................................... 17

Mahbooban Bibi v. Md. Ammeruddin AIR 1929 Pat. 207. .......................................................... 17

Naffi-un-Nissa v. Mirza Mumtaz AIR 1922 All. 1363. ................................................................ 16

Sahabi Bibi v Kamaruddin .............................................................................................................. 9

Shoharat Singh v. Jafri Begum ................................................................................................. 8, 11

Sibi Ahmad v. Amina Khatoon AIR 1929 All. 18. ....................................................................... 17

Syed V. Rajmaa, 1977 AP. 152 .................................................................................................... 11

Szhechter v. Szechter 1970 3 All E.R. .......................................................................................... 17

Abdul Kadir v. Salima, 1886 .......................................................................................................... 8

Abdul Kadir vs. Salima ([1886] 8 All. 149) ................................................................................. 14

Abdul Latif v. Niyaz Ahmad (1939) 31 All. 343 .......................................................................... 16

Abdul Nabi v. Syed Azmat Hussain AIR 1935 Nag. 123. ............................................................ 15

Hasan Kulfi v. Jounga AIR 1928 Mad. 1285................................................................................ 16

ILR (1886) 8 ALL 149 .................................................................................................................... 8

Rainaba v Abdul Rahman AIR 1945 51. ...................................................................................... 15

Sahabi Bibi v Kamaruddin 15 CWN 991 ..................................................................................... 10

Sayed Mohiuddin v. Khadija (1939) 41 Bom. LR 1020 ............................................................... 16

Shoharat Singh v Musammat Jafri Bibi (1915) 17 BOMLR 13 ................................................... 11

Shoharat Singh v. Jafri Begum, (1914) 17 Bom LR 13 .................................................................. 8

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 Introduction

A socially recognized union between two persons, through which rights and obligations are

established; not only in between the persons but also any resulting biological or adopted children,

is called matrimony or a marriage. The definition of marriage varies not only between cultures

or religions, but also within them throughout their histories, evolving to both expand or contract

in what is encompassed, but typically it is principally an institution in which interpersonal

relationships, usually sexual, are acknowledged or sanctioned. A marriage, broadly, can be defined

as a cultural universal.

The relationship of sexes in pre-Islamic Arabia was in an uncertain state. Regular form of marriage

in the sense we understand today was rare. Such types of sexual unions were prevalent which one

may loosely refer to as prostitution, adultery and polyandry.

In Islam, polygamy is allowed while polyandry is not, with the specific limitation that a man can

have no more than four legal wives at any one time and an unlimited number of female slaves as

concubines, with the requirement that the man is able and willing to partition his time and wealth

equally among the respective wives.

A. Definition

“Marriage among Mohammedans is not a sacrament , but purely a civil contact, though

solemnized generally with recitation of certain verses from the Quran, yet the Mohammedan law

doesn’t positively prescribe any service peculiar to the occasion” – Mahmood .J

“Marriage is an institution ordained for the protection of the society, and in order that human

beings may guard themselves from foulness and un-chastity” –Ameer Ali

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Marriage (nikah) is defined to be a contract which has for its object the procreation and the

legalizing of children.1

Mahmood, J. describes the nature of Muslim marriage as “a civil contract upon completion of

which by proposal and by acceptance all the rights and obligations which it creates, arise

immediately and simultaneously”.2

In Shoharat Singh v. Jafri Begum3, the Privy Council said that nikah (marriage) under the Muslim

law is a religious ceremony.

Marriage according to the Mohammedan law is not a sacrament but a civil contract, all rights and

obligations it creates arise immediately and, are not dependent on any condition precedent such as

the payment of dower by husband to a wife. 4

It is still a matter of doubt whether Muslim marriage is a civil contract or an Ibadat & Muamlat

(ritualistic ceremony). While discussing the various definitions it’s quite a big problem to say

which one is the most appropriate, in my opinion although the essentials of a contract is fulfilled

yet marriage can never be said to be a contract because marriage always creates a bondage between

the emotions and thinking of two person. The nature of Muslim marriage in modern times is most

aptly described in the case of Abdul Kadir v Salima5.

1
Hedaya p.25, Bailie p. 4

2
S.R. Myneni, Muslim Law and other Personal Laws (3rd edn, Asia Law House, Hyderabad )
3
Shoharat Singh v. Jafri Begum, (1914) 17 Bom LR 13
4
Abdul Kadir v. Salima, 1886.
5
ILR (1886) 8 ALL 149.

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Abdur Rahim’s definition of marriage is perhaps the balanced. As per Rahim, the institution of

marriage is to be regarded as “partaking both of the nature ibadat (devotional acts) and muamlat

(dealings amongst men)”.

B. Marriage – Pre Islamic Position

Before the birth of Islam there were several traditions in Arab. These traditions were having several

unethical processes like:-

1. Buying of girl from parents by paying a sum of money.

2. Temporary marriages.

3. Marriage with two real sisters simultaneously.

4. Freeness of giving up and again accepting women.

These unethical traditions of the society needed to be abolished; Islam did it and brought a drastic

change in the concept of marriage.

I. Capacity of Marriage

 Every Mohammedan of sound mind, who has attained puberty, may enter into the contract

of marriage.

 Their respective guardians may validly contract lunatics and minors who have not attained

puberty in marriage.6

 A marriage of a Mohammedan, who is of sound mind and has attained puberty, is void, if

it is brought about without his consent.

6
The Child Marriage Restraint Act 1929

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 II. ESSENTIALS FOR A MARRIAGE UNDER MUSLIM LAW

 Ijab (proposal) – The marriage should be proposed by or on behalf of either party there

to.

 Qubul (acceptance) – The proposal should be accepted by or on behalf of the other party.

 Form of Ijab and Qubul – Both ijab and qubul must be in definite words so as to result

into a complete and the proposal and acceptance must both be expressed at once.

 Wilayat (guardianship) – Where legally the consent of a wali is essential, the ijab or qubul

as the case may be should be made by the guardian. In all other cases a wali may do so on

behalf and with the consent of the party concerned.7

 Vakalat (representation) – Adults can make the ijab or qubul either personally or through

an adult and sane vakil (representative). Guardians of minors have the option of naming

the representatives.

 Shahabat (witness) – Except, if the parties are Isna Ashari (The Twelvers), the ijab and

qubul should be made in the presence and hearing of at least two adult muslim witnesses.

One of these may be replaced by two women.

 Majlis- I – wahid (single sitting) – The ijab and qubul should be made in the same sitting

signifying continuity of transaction8, this can be approved and followed with the help of

Aklemannesa v Mohd. Halem9 and Sahabi Bibi v Kamaruddin10.

7
K. Abubukker v. V. Marakkar AIR 1970 Ker. 277
8
Sir Ronald Wilson in his digest on Anglo-Muslim Law, 6th edn, sec 24, p 100 (quoted in Manzar Saeed , Muslim
Law In India (9th edn, Orient Publishing Company, 2009) p 80)
9
ILR 31 Cal 849
10
Sahabi Bibi v Kamaruddin 15 CWN 991 (cited in Manzar Saeed , Muslim Law In India (9th edn, Orient Publishing
Company, 2009) 80)

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III. Classification of Marriage

Marriages under Muslim law are divided into three categories.

 Valid marriage (sahi): marriages which do not violate any of the absolute/temporary

prohibitions.

 Void marriage (batil): marriages prohibited by the Quran, which violate the prohibitions of

consanguinity, affinity and fosterage.

 Irregular marriage (fasid): marriages which are not valid nor void per se. Marriages

violative of such relative prohibitions which may be subsequently corrected. Shia law does

not identify such a third kind of marriage.

IV. Kinds Of Marriage

1. Regular Marriage - Being a civil contract, the validity of a Muslim marriage depends

upon the conclusion of the marriage contract. Muslim law does not insist upon any

particular form of marriage.11 If there is a proposal from one side, and its acceptance on

the other side, a valid marriage will come into existence, provided that the other conditions

of marriage are fulfilled. No writing is necessary. Even the presence of witness is not

necessary (the sunnis do insist on the presence of two competent witnesses). There is only

one form of marriage called nikah.

Essentials-

11
Yusuf v. Sowramma AIR 1971 Ker 261

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  There should be a proposal made by or on behalf of one of the parties to the marriage, and

an acceptance of the proposal by or on behalf of the other party12.

 The proposal and acceptance must both be expressed at once meeting. The parties must be

competent. There must be two male or one male & two female witnesses, who must be

sane and adult Mohammedan present & hearing during the marriage proposal and

acceptance.

 The parties must be competent.

 Neither writing nor any religious ceremony is needed.13

2. Mut’A Marriage - The word ‘Mut’a’ literally means ‘enjoyment, use’ and in its legal

context it may be rendered, according to Heffening, a ‘marriage for pleasure’.14It is a

marriage for a fixed period, for a certain reward paid to the woman. This union gave rise

to no mutual rights and obligations. The man entering the tent had of course, to pay the

entrance money. The man could get out of the tent whenever he wanted and the woman

could throw him out whenever she chose , if any child was born of such a union , it belonged

to the woman. As regards the subject, a man may contract a Mut’a with a Muslim,

Christian, Jewish or a Fire-worshipping woman. 15

A man may contract Mut’a with any

number of women.16 Where the period is for life, Nikah marriage will result.17

Essentials-

 The period of cohabitation should be fixed.

12
Bailee’s digest on mohammed law, part 1, pp 11-12
13
Shoharat Singh v Musammat Jafri Bibi (1915) 17 BOMLR 13
14
Munshi v Alam Bibi, AIR 1932 Lah 280 at 281
15
Syed V. Rajmaa, 1977 AP. 152.
16
Mulla §269 (4)(b)
17
Shahzada Qanum V. Fakher Jahan, AIR 1953 Hyd. 6.

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  Dower should be fixed.

 If dower specified, term not specified, it could amount to permanent or regular marriage.

 If term fixed dower not specified, it amounts to void marriage.

V. Composites of Marriage

Mahr- Mahr is the consideration for the contract of marriage between the parties. It may be in the

form of money and/or goods given by the Bridegroom to the Bride in consideration for the

marriage. It is an essential element of Muslim marriage and is exclusively reserved for the use of

the female partner. Payment of Mahr could be immediate (prompt), or deferred.

a. Mu‘ajjal (Immediate/Prompt) - This means the total amount of Mahr payable by the

Husband at the time of signing of marriage contract.

b. Mu’wajjal (Deferred)- This means the portion of the Mahr which is payable to the wife at

a specified point in the marriage or at the time of dissolution of the marriage through

divorce or death of the husband.

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Witness- According to Islamic law, a witness should be sane, adult and reliable. This requirement

is gender/faith neutral. Hence, the Muslim Marriage Certificate requires to be witnessed by ‘two

adult witnesses of good character’ – Two men can be the witness or One man and two women can

be the witness but only women cannot be the witness.

Divorce - According to Islamic law, marriage is the most sacred commitment in life between two

adults of opposite sex. It attempts to save it wherever possible. As a consequence divorce is

regarded by Allah as the most ‘hated thing’. However, breakdown in marriage does take place for

a variety of reasons. If the divorce is initiated by husband he has to pay the woman any Mahr that

remains unpaid. If the divorce is initiated by the wife and the husband is found to be at fault by the

arbiters she does not lose her Mahr. But if she cannot prove his fault, she has to return to her

husband whatever Mahr amount she has already received. If the wife initiates the divorce without

any grounds, this is called ‘khula’ and she must return whatever the husband has given her in

consideration for the marriage.

Legal Disability - It means the existence of certain circumstances under which marriage is not

permitted. There is absolute prohibition of marriage in case or relationship of consanguinity. In

this case the situation is such that the relationship has grown up of the person through his/her father

or mother on the ascending side, or through his or her own on the descending side. Marriage among

the persons associated by affinity, such as through the wife is not permitted.

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VI. Judicial Interpretations

Juristically speaking marriage is a contract and not a sacrament. The judgment given by Justice

Mahmood, the first Indian judge of the Allahabad High Court in Abdul Qadir v. Salima18. This

case is one of the most important cases in which the institution of marriage which constitutes the

foundation of personal, family and community relations, is the backbone of the social system in

an Islamic society. This case from the classical pronouncements which has acquired so great

reputation that even into orbiter dicta carry the legal sanctity of ratio decidendi. Justice Mahmood’s

observations on the nature of marriage have won universal recognition not only of various High

Courts but also of the Privy Council and the Supreme Court.

Justice Mahmood supports his view from the text of Kanz, the Kifayah and Inayah which says that

“marriage is a contract which has for its object the right of enjoyment or procreation of children.

But it was also instituted for the solace of life and is one of the prime or original necessaries of

man… The pillars of marriage, as of other contracts are Ijab-o-Kubool, or declaration and

acceptance. Apart from this the learned judge does not put forward an argument in favor of

marriage as Civil Contract.

It is not disputed that marriage is a contract and to this extent Justice Mahmood is correct. They

only subject of dispute is whether marriage is purely a civil contract or sacrament. Sacrament in

this context means ‘holy order’, ‘sacred obligation’, ‘matrimony and extreme function’ and

‘solemn oath’. A modest attempt shall be made to examine the true nature of marriage in this

chapter with case analysis.

18
Abdul Kadir vs. Salima ([1886] 8 All. 149)

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In order to understand the real nature of marriage, we have to consider its aims and objects. Besides

this, we must also examine as to what are injunctions of Quran, the sunnah of prophet Mohammad

and his preaching in this respect.

1. Ceremonies in Marriage

In Rainaba v. Abdul Rahman19, it was held that Betrothal is not known to the system of marriage

under Muslim law.

In Abdul Nabi v. Syed Azmat Hussain20, only one ceremony that is Nikah is known to

Mohammedan law for unity a husband and wife. In Mst. Ghulam Kubra v. Mohd. Shafi further

says that no religious ceremonies are required under Muslim law but some formalities are,

however, usually performed in marriage under Mohammedan law.

2. Capacity for marriage

The parties to the marriage must have capacity of entering into a contract. In other words, they

must be competent to marry. Muslim who is of sound mind and who has attained puberty may

enter into a contract of marriage.

In Munshi v. Alam Bibi21, every Mohammedan woman who had attained puberty even though she

is under fifteen years of age can go for marriage freely.

19
Rainaba v Abdul Rahman AIR 1945 51.
20
Abdul Nabi v. Syed Azmat Hussain AIR 1935 Nag. 123.
21
Munshi v Alam Bibi, AIR 1932 Lah 280 at 281

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Free will and consent

The parties contracting a marriage must be acting under their free will and consent. The consent

should be without fear or undue influence or fraud. In the case of boy or girl who has not attained

the age of puberty, the marriage is not valid unless legal guardians consented to it. The consent

maybe expressed or implied. In Hasan Kulfi v. Jounga22, free consent in the case of an adult person

is not only essential for a valid marriage but is absolutely necessary.

In Sayed Mohiuddin v. Khadija23, marriage solemnized with Shafei girl, who had attained puberty

was performed by her father against her consent, the court held that the marriage was void. In

Abdul Latif v. Niyaz Ahmad24, a marriage brought about by a fraudulent misrepresentation is

invalid unless ratified, where consent to the marriage has not been obtained, consummation against

the will of women will not validate the marriage.

In Naffi-un-Nissa v. Mirza Mumtaz25, a marriage contracted by a woman after attaining puberty,

her consent is only important for the marriage and no other person’s consent or advice is necessary.

In Munshi v. Alam Bibi, every Mohammedan woman who has attained puberty even though she

is under fifteen years of age is free to marry.

According to Hanafi law, contracts of marriage even under compulsion or after and the acceptance

even if pronounced without any intention to affect a marriage, are valid. This peculiar rule of

Hanafi law is based upon the following tradition: "Apostle of God said!" these are three things

which whether done in joke or earnest, shall be considered as series and effectual. One marriage,

22
Hasan Kulfi v. Jounga AIR 1928 Mad. 1285
23
Sayed Mohiuddin v. Khadija (1939) 41 Bom. LR 1020
24
Abdul Latif v. Niyaz Ahmad (1939) 31 All. 343
25
Naffi-un-Nissa v. Mirza Mumtaz AIR 1922 All. 1363.

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second divorce and third the taking back. “The other three schools of Sunni law and the Shia

school holds contrary opinions. According to these schools, marriage under compulsion is not

valid.

In Sibi Ahmad v. Amina Khatoon26, marriage solemnized by a girl must be with her free consent.

A marriage without the consent of the parties is not valid.

In Mahbooban Bibi v. Md. Ammeruddin27, if marriage solemnized on the basis of illegal

conditions it will become void.

In Kunnath Adrm v. Janab R.P Mammad28. In this case, marriage solemnized by the parties on the

basis of their marriage agreement with their own conditions.

In Szhechter v. Szechter29, when the consent of a party to solemnization of marriage is obtained

by force or as it is sometimes said by coercion or duress, it is obvious that there is an absence of

consent. IN a recent decision in England it was observed that in order for the impediment of duress

to vitiate otherwise valid marriage it must be proved that one of the parties hitherto has been

overborne by genuine and reasonably held fear caused by threat or immediate danger, for which

the party itself is not responsible, to life, limb or property, so that the constraint destroys the reality

of consent to ordinary wedlock.

26
Sibi Ahmad v. Amina Khatoon AIR 1929 All. 18.
27
Mahbooban Bibi v. Md. Ammeruddin AIR 1929 Pat. 207.
28
Kunnath Adrm v. Janab R.P Mammad AIR 1990(2) Civil L.J Ker. 357.
29
Szhechter v. Szechter 1970 3 All E.R.

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 CONCLUSION

Marriage under Muslim law is purely a non-divine affair. The entire institution of marriage is

extremely rational. Certain provisions such as prohibition during iddat (in order to ascertain

paternity) speak volumes about the impeccable analysis put behind the framing of such

customs/laws. By according marriage status of a contract like arrangement, Islam has managed to

do away with such complexities which are characteristic of a “divine” marriage based on ‘sanskar’.

Human beings, at some stages of the development of the institution of marriage have attached

some sanctity – some going to the extent of calling it a sacrament, a permanent union, just as

Hindus and Christians did – to marriage and to that extent a Muslim marriage, too, maybe called

an ibadat but the most remarkable feature of Muslim jurisprudence is, that even at the beginning

of the development of their juristic thought, they squarely considered the marriage essentially as a

civil contract – a concept which developed in the western world fully only after the industrial

revolution. That of the two partners to a marriage, it accorded dominant position to the husband,

was but natural at the stage in the development of human society which was starkly patriarchal.

Thus it is submitted that in its formation the Muslim marriage is essentially a contact though in its

dissolution the dominant position of the husband is recognized.

On the basis of Juristic opinion we can easily conclude, that marriage is simply a civil contract

under Muslim Law. It fulfills all the conditions of a contract-proposal and acceptance, free consent

and consideration.

Bibliography

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 Bailee’s digest on mohammed law, part 1.

 S.R. Myneni, Muslim Law and other Personal Laws (3rd edn, Asia Law House, Hyderabad)

 Sir Ronald Wilson in his digest on Anglo-Muslim Law, 6th edn, sec 24, p 100 (quoted in

Manzar Saeed , Muslim Law In India (9th edn, Orient Publishing Company, 2009) p 80).

 Paras Diwan, Family Law, 9th ed. Allahabad Law Agency.

 Mulla, Muslim Law, 9th ed. LexisNexisButterworths.

Statutes Referred

 The Indian Constitution

 Muslim Laws

 The Civil Procedure Code

 The Specific Relief Act, 1963.

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