Marriage in Muslim Law

Marriage in Pre-Islamic Arabia

The following types of marriages were prevalent in pre-islamic Arabia:

1. A form of marriage in which a man asks another for the hand of the latter’s ward or
daughter, and then marries her by giving her a dower. This form has been sanctioned
and approved by islam too.
2. A man desiring a noble offspring would say to his wife: “send for so and so (naming a
famous man) and have intercourse with him”. The husband would then keep away from
her society until she had conceived by the man indicated and would only return to her
when the pregnancy became apparent.
3. Several men, less than ten, used to go to a woman and have sexual connection with her.
If she conceived and gave birth to a child, she would send for them, and they would be
all bound to come, and then she would say : “ you know what has happened. I have now
brought forth a child. O so and so (naming whomsoever of them she chose), this is your
son”. The person to whom the child was ascribed was bound to accept its paternity.
4. There were prostitutes who used to fix at the doors of their tents a flag. If a woman of
this class gave birth to a child, the men who frequented her tent would be called and
physionomists used to decide to whom the child belonged.

Islam rejected all but the first form of marriage.

Definition

1. Hedaya- Nikah in its primitive sense, means carnal conjunction. Some have said that it
signifies conjunction generally. In the language of law, it implies a particular contract
used for the purpose of legalizing generation.
2. Ameer Ali- Marriage is an institution ordained for the protection of society, and in order
that human being smay guard themselves from foulness and unchastity.
3. Mahmood J.:Marriage among Muhammadans is not a sacrament but purely a civil
contract.
4. Abdur Rahim: The Muhammadan jurists regardd the institution of marriage as partaking
both of the nature of ibadat or devotional acts and muamlat or dealings among men.

Nature

In the case of Abdul Kadir v Salima, Mahmood J describes the nature of muslim marriage as:

“Marriage among the Muhammadans is not a sacrament, but a purely civil contract; and though
it is solemnized 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.”

Justice Mahmood has been accused of neglecting the religious aspect of marriage. Seen from a
religious angle, muslim marriage is an ibadat (devotional act). The prophet is reported to have
said that marriage is essential for every physically fit muslim who could afford it. The following
traditions highlight the religious aspect of marriage:

“He who marries completes half of his religion, it now rests with him to complete the other half
by leading a virtuous life in constant fear of god”

“There are three persons whom the almighty himself has undertaken to help- First, he who seeks
to buy his freedom; second, he who marries with a view to secure his chastity; and third, he who
fights in the cause of God”.

The prophet is reported by some of the writers to say that marriage is equal to jehad; it is sinful
not to contract a marriage; it is a sunnah and it is obligatory on those who are physically fit.

Seen in this context, muslim marriage ceases to look as a purely civil contract or a means only
to procreate children. In the words of Ballie, “marriage is for the solace of life”. In the words of
Ameer Ali, Marriageis for the protection of society and in order that human beings may guard
themselves from foulness and unchastity”. According to Al-Ghazali, marriage is a means of
attaining nearness to god.

In the case of Anis begum v Mohd Istafa, Sulaiman C.J observed: “ Marriage in islam is not
regarded as a mere civil contract, but a religious sacrament too”.

In siraj Mohammed khan v yasin khan, it was held that marriage in islam is sacrosanct contract
and it is regared as a solemn occasion in life.

In noor mohammad v mohammad jijaddin , the court emphasized on the religious sanctity of
the marriage among muslims.

Tahir mahmood has criticized the judgement in the case of Abdul Kadir v salima. He is of the
view that marriage among muslims is a solemn pact (mithaq-e-ghalid) which in law takes the
form of a contract(aqd). He says that there is a popular misconception that no religious
significance or social solemnity attaches to a muslim marriage and that it is a mere civil
contract. This he says is not true. Quran does not treat marriage as an ordinary contract.
Prophet describes marriage as his sunnat and those who know the socio religious significance
as recognized by muslims can well understand what marriage means to a follower of islam. As
a matter of fact, it is the only form of marriage that is contractual and non-ceremonial.
Marriage itself as a concept is not merely a contract.

Formalities/ essentials of a valid Marriage:

Marriage may be constituted without any ceremonial, there are no special rites, no officiants,
no irksome formalities. Nevertheless, following conditions are necessary:

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

2. Acceptance by the other party.
3. Presence of two witnesses where the parties are hanafis; no witnesses are required if
the parties are shias.
4. The words with which the marriage is contracted must be clear and unambiguous.
5. The proposal and acceptance must both be expressed in one and the same meeting.

Thus the essential conditions of a valid marriage may be summarized as follows: “Ijab(offer),
qubul(acceptance), baligh(adult age or puberty), Rashid (sound mind and not majnun or non-
compos mentis), parties- i.e groom and bride, or when minors- their guardians, two witnesses
(in Hanafi Law, not Shia Law), and same meeting (that is at one session complete). The
completion of this contract which commences with proposal or demand in arriage and ends
with the consent is called aqd.”

Legal Effects of a Valid Marriage:

There are nine legal effects flowing from a valid marriage:

1. Sexual intercourse becomes lawful and the children born out of the union are
legitimate.
2. The wife becomes entitled to her dower.
3. The wife becomes entitled to maintenance.
4. The husband becomes entitled to restrain the wife’s movements in a reasonable
manner.
5. Mutual Rights of inheritance are established.
6. The prohibitions regarding marriage due to the rules of affinity come into operation.
7. the wife is not entitled to remarry after the death of her husband, or after the
dissolution of marriage, without observing iddat.
8. Where there is an agreement between the parties, entered into either at the time of
marriage or subsequent to it, its stipulations will be enforced, insofar as they are
consistent with the provisions or the policy of the law.
9. Neither the husband nor the wife acquires any interest in the property of other by
reason of marriage.
Prohibitions to marry

Tyabji gives the following nine grounds on which muslims are prohibited from intermarrying
with each other:

1. Consanguinity: A muslim is prohibited to marry-

a. His own ascendants or descendants;
b. His father’s or mother’s descendants;
c. The sisters or brothers of any ascendant;
2. Affinity: Its unlawful for a muslim to marry-
a. Ascendants or descendants of his wife;
b. The wife of any ascendant or descendant.
3. Fosterage: A child is called the foster child of the woman who not being the child’s
mother, has nursed the child whilist it was under two years of age. The woman is called
the foster mother. Muslim law prohibits marriage within certain limits of fosterage. E.g a
man cannot marry his foster mother or foster sister.
4. Unlawful conjunction- It may be because of two things- Number or Relationship
between co-wives.
a. Number: A muslim man can marry any number of wives not exceeding four; but
a muslim woman can marry only one husband. If she marries a second husband,
she may be punished under s494 of IPC.
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 sexes. In the leading case of Aizunnisa Khatoon v. Karimunnissa
Khatoon, the Calcutta High court held that such unions were void. However, the
high courts of Bombay , madras, Lahore, and the Chief Court of Oudh declared
them to be merely irregular.
5. 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 objct 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. A marriage dissolved by death is 4 months and 10 days or if the woman is
pregnant, till delivery, whichever is longer.
b. A marriage consummated and dissolved by divorce is 3 menstrual cycles, or till
delivery in case of pregnancy.
6. 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
d. The woman observes iddat.
7. Difference of relgion: Under Hanafi Law, a man may marry a Muslim woman or kitabiya(
woman practicing a revealed religion- applies to Jews and Christians), but a muslim
woman cannot marry anyone except a muslim. Under Shia law no muslim can marry a
non- muslim trough nikah but a male can contract a muta marriage with a kitabiya.
8. Supervening illegality: If one of the parties to a marriage becomes a fire-worshipper or
an idolator or the husband becomes a Christian, then the marriage becomes invalid by
supervenient prohibition.
9. Pilgrimage: Under the Ithna Ashari and Shafi Law, a man who has gone to perform
Haj(pilgrimage) and has entered the sacred enclave of Kaba after putting on the
pilgrim’s dress(ahram) may not enter into a contract of marriage.

Restitution of conjugal rights

The leading case on this point is Moonshe Buzloor Ruheem v Shamsoonisa Begum. It was
observed in this case if either party to a marriage contract has withdrawn from the society of
the other without any valid reason, or has neglected to perform the marital obligations, the
aggrieved party may bring a suit in a civil court for the restitution of conjugal rights. This right
however is not absolute. There are a number of valid defences available to a wife in a suit for
restitution of conjugal rights. The wife may prove that:

1. It is unsafe for her to live with her husband because of his cruelty;
2. The husband grossly neglects the performance of the marital obligations;
3. The marriage is irregular; or the husband has been made an outcaste by his community.

I. The defence of cruelty: The actions of the husband which amount to cruelty are:
a. Actual violence of such character as to endanger the personal health and safety
of the wife, or creates a reasonable apprehension of such violence.
b. A treatment, falling short of actual violence, but such as to jeopardize health or
sanity of the wife;
c. False charges of immorality and adultery and throwing insults on the wife;
d. Charging with adultery, once striking, using abusive language, stripping house of
furniture and charging wife with theft;
 e. Husband’s second marriage, if the court feels that the circumstances are such as
to make it inequitable for the court to compel the first wife to live with him.
II. The neglect of matrimonial obligations: Abdur rahim says that the wife has a right
corresponding to that of the husband to demand the fulfillment of marital duties
towards her. This includes proper accommodation separate from the husband’s
relations and to be maintained in a way suitable to his own means and the position in
life of both. She is further entitled to the payment of her dower. If the marriage has not
been consummated, then all the authorities on Muslim Law agree that the wife may
validly refuse to cohabit, and the restitution of conjugal rights may be refused unless the
husband pays prompt dower. In Abdul Kadir v Salima, it was held that after
consummation the non payment of prompt dower is no defense for restitution of
conjugal rights. However according to abu hanifa, a woman has a right to refuse
cohabitation even after consummation but this view is not accepted in india and the
same has been helf in Anis Begum v Mohd Istafa.
III. Other Grounds: A demand for restitution of conjugal rights may be rejected if it is
proved that the marriage is irregular or the husband has been made an outcaste by his
community.