26/04/2018 Muslim Marriage in India

Legal Service India - Muslim Marriage

Muslim Marriage
Written by: Harshit Khare - II year student (B.A.LL.B)-University of Petroleum And Energy Studies
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Preliminary- nikah in pre Islamic Arabia, meant different forms of sex relationship between a man and a woman established on certain terms, in pre Islamic days,
women were treated as chattels, and were not given any right of inheritance and were absolutely dependent. it was prophet mohammad who brought about a
complete change in the position of women.

Definition- The legal contract between a bride and bridegroom as part of an Islamic marriage; the contract of Islamic marriage; Islamic marriage in general.
Nikah is an Arabic term used for marriage. It means "contract". The Quran specifically refers to marriage as "mithaqun Ghalithun,". Which means "a strong
agreement".

The original meaning of the work nikah is the physical relationship between man and woman. It is also used secondarily to refer to the contract of marriage
which makes that relationship lawful.

"A contract that results in the man and woman living with each other and supporting each other within the limits of what has been laid down for them in terms of
rights and obligations."

Ibn Uthaimeen takes an even more comprehensive view of the institution of marriage in his definition of it as:
"It is a mutual contract between a man and a woman whose goal is for each to enjoy the other, become a pious family and a sound society.”

Essential Condition of Nikah

Nikah is based on few conditions. When these conditions are fulfilled, then a man and a woman are proclaimed as husband and wife and can live together and
carry on their marital duties. These are:

Essentials of Marriage
The essentials of a valid marriage are as follows:-
(i) 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 party. A
Muslim marriage requires proposal ‘Ijab’ from one party and acceptance ‘Qubul’ from the other side. This must be done in one sitting.
(ii) The proposal and acceptance must both be expressed at once meeting. The acceptance must be corresponding to what is being offered. The marriage must
be effectively immediate. If the Wali says “ I will marry her to you after two months”, there is no marriage.
(iii) The parties must be competent. The two parties must be legally competent; i.e. they must be sane and adult.
(iv) There must be two male or one male & two female witnesses, who must be sane and adult Mahomedan present & hearing during the marriage proposal and
acceptance. (Not needed in Shia Law)
(v) Neither writing nor any religious ceremony is needed.

Aim and Object of Nikah

Like anything a Muslim does, marriage should only be undertaken after gaining an understanding of all that Allah has prescribed in terms of rights and
obligations as well as gaining an understanding of the wisdom behind this institution. Nearly all peoples and all societies practice marriage in some form, just as
they practice business (buying and selling). Umar ibn Al-Khattab used to expel people from the marketplace in Madina who were not knowledgeable of the fiqh
of buying and selling. Likewise, a Muslim should not engage in something as important as marriage without having understanding of the purpose of marriage in
Islam as well as a comprehensive understanding of the rights and obligations which it brings about.

One of the principles of Islamic Jurisprudence says that: "The default state of all things is lawfulness until some evidence shows otherwise." Based on this, if new
foods are discovered, they are considered lawful, unless there is some specific reason or attribute which would make it forbidden for example if it is causes
intoxication. Relations between men and women do not follow this general principle and in fact are opposite to it. The principle is that: "Relations between men
and women are forbidden until some evidence shows otherwise."

Procreation (Children)
One of the most important purposes of marriage is to continue and increase the population of the Muslims. Clearly, this goal could be achieved without marriage,
but when actions are undertaken in disobedience to Allah, they do not receive the blessing of Allah and the whole society is corrupted. The Prophet said:
"Marry, for I will outnumber the other nations by you on Qiyama."

It should be stressed that the goal is not simply to produce any child that will live in the next generation. It is to produce righteous children who will be obedient to
Allah and who will be a source of reward for their parents after they die. The Prophet will NOT be boasting before the other nations on the day of Qiyama with
children of Muslim parents who left the path of Islam. Thus it is the responsibility of Muslim parents to seek the means of giving their children the training and
education they need not just to grow, but to succeed as Muslims worshipping and obeying Allah. This obligation may include migration[1], establishing of Muslim
communities and schools and other obligations. As the scholars have said in another principle of fiqht:

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"That without which an obligation cannot be fulfilled is itself obligatory."

Pleasure
Islam is the religion of the fitrah[2] - the religion which is consistent with the natural instincts and needs of mankind. It is not like the man-made (of modified)
religions which set unnatural constraints on people whether self-inflicted prohibition of marriage (nuns and monks, etc.), prohibition of divorce or monogamy. Men
are inclined toward women and women are inclined toward men. Marriage is the institution which fulfills this desire and channels it in ways pleasing to Allah Most
High. Allah mentions this attraction:
“The love of the desires for women, sons, ... has been made attractive to people.”

The Messenger of Allah himself made clear that the attraction between the sexes is something natural and not something to be denied or suppressed - only
channelled in the ways pleasing to Allah Most High, saying:
"Women and perfume have been made beloved to me of this world of yours and my peace of mind is in the prayer."

The desire of men and women for each other is an urge which needs to be fulfilled. If it is left unfulfilled, it will be a source of discord and disruption in society.
For this reason, the Prophet ordered all men who are capable of meeting the responsibilities of marriage to do it:
"Whichever of you is capable should marry for it will aid him in lowering his gaze and guarding his body (from sin). As for the one who is not capable, fasting is
his protection."

Nature of Muslim Marriage

The Prophet emphasised the necessity of marriage saying-"To live in marriage is to observe my way. He who turns away from this way is not of me".

Rights & Duties

Mutual Rights and Obligations:
Marriage is a union for life having mutually inclusive benefits and fulfillment for the contracting parties including the following:
# Preservation of chastity and security of gaze
# Companionship inside and outside home
# Emotional and sexual gratification
# Procreation and raising of any children by mutual consultation
# Agreement to live together in a mutually agreed country and establish their matrimonial home therein
# Working collectively towards the socio-economic welfare and stability of the family
# Maintaining their individual property rights but contributing to the welfare of the family according to their capacity
# Maintaining social contacts with family and friends mutually beneficial for the family
# Managing their individual activities/roles inside and outside the home by mutual consultation

Obligations of the husband:

In addition to the mutual duties and obligations, the husband undertakes not to:
# abuse his wife/child(ren) verbally, emotionally, physically, or sexually
# desert/be absent from the marital home for more than 60 days unless by mutual agreement
# withhold economic contribution towards his wife/family
# sexually transmit disease or other transmissible diseases
# misuse /interfere with the wife’s property

Obligations of the Wife:

In addition to the mutual duties and obligations the wife undertakes not to:
# abuse her husband/child(ren) verbally, emotionally, physically, or sexually
# desert/be absent from the marital home for more than 60 days unless by mutual agreement
# sexually transmit disease or other transmissible diseases
# misuse/interfere with the husband’s property

Composites of Marriage In Islam

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.

Full Amount of Mahr: Record the total value of the agreed Mahr, e.g., £5,000 in cash, or xyz weight in gold.
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. Any deferred Mahr that remains unpaid at the time of dissolution becomes a debt against the former
husband’s assets.

Portion of the Mahr paid at the time of marriage: the amount of money and/or goods received as Mahr at the time of marriage. This does not include general gifts
to the bride from the bridegroom and/or his family unless these be expressly included in (a) above as part of the amount of Mahr.

Witnesses-
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
# ONE man and TWO women can be the witness
# ONLY women can not be the witness

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INSANE and MINOR can not 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. these Absolute Incapacity.

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 it is not permitted. Marriage with foster mother and other related through such foster mother is also not permitted.

Consanguinity (qurabat)-it means blood relationships and bars a man from marrying-
Mother or grandmother, Sister, aunt, niece etc.
Affinity (mushaarat)-a man is prohibited from marrying-
mother-in-law, step-grandmother, danghter-in-law, step-granddaughter, etc.
Fosterage (riza)- when a child under the age of two years has been suckled by a woman other than his or her mother,the woman bocomes his foster mother,a
man may not marry his foster mother or her daughter or foster sister.

A man cannot marry his foster mother, nor foster sister, unless the foster brother and sister were nursed by the same mother at intervals widely separated. But a
man may marry the mother of his foster sister, or the foster mother of his sister.

Exception-
# Sister’s foster mother
# Foster-sister’s mother
# Foster-son’s sister
# Foster-brother’s sister

Relative Incapacity
Relative incapacity springs from case which render the marriage irregular only so long as the cause which creaes the bar exist,the moment it is removed,the
incapacity ends and the marriage becomes valid and binding.

Unlawful union
# Marrying a fifth wife
# Marrying a woman undergoing iddat
# Marrying a non-Muslim
# Absence of proper witnesses
# Woman going for a second marriage even after the existence of the first marriage.
# Marrying pregnant women
# Marrying during pilgrimage
# Marrying own divorced wife

Prohibitory Incapacity
It arises in the following cases:
(a) Polyandry- it means the fact of having more than one husband.it is forbidden in the muslim system and a married women cannot marry second time so long
as the first marriage subsists.
(b) Muslim woman marrying a non-muslim- a marriage of a muslim female with a non muslim male made whether he be Christian or jew or an idolater or a fire
worshipper is irregular in nature under sunni law and void under shia law.

Directory Incapacity
# This may arise out of: Marrying a woman “enciente”
# Prohibition of divorce
# Marriage during pilgrimage
# Marriage with a sick man

Aspects of Marriage

Valid Marriage (Sahih)

Under the Muslim law, a valid marriage is that which has been constituted in accordance with the essential conditioned prescribed earlier. It confers upon the
wife; the right of dower, maintenance and residence, imposes on her obligation to be faithful and obedient to her husband, admit sexual intercourse with him and
observe Iddat.

Irregular Marriage (Fasid)

Those marriages which are outcome of failures on part of parties in non fulfillment of prerequisites but then also are marriages; to be terminated by one of the
party is termed to be Irregular marriages. They are outcome of-
(a) A marriage without witness (Not under Shia Law)
(b) Marriage with fifth wife.

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(c) Marriage with a women undergoing Iddat.
(d) Marriage with a fire-worshipper.
(e) Marriage outcome of bar of unlawful conjunction.

An irregular marriage has no legal effect before consummation but when consummated give rise to several rights & obligations.

Void Marriage (Batil)

A marriage which is unlawful from it’s beginning. It does not create any civil rights or obligations between the parties. The offspring of a void marriage is
illegitimate. They are outcome of-
(a) Marriage through forced consent.
(b) Plurality of husband.
(c) Marriage prohibited on the ground of consanguinity.
(d) Marriage prohibited on the ground of affinity.
(e) Marriage prohibited on the ground of fosterage

Iddat
In Islam, iddah or iddat (Arabic: period of waiting) is a period after a divorce, during which a woman may not marry another man. The period is calculated on the
number of menses that a woman has, usually three. Iddah was intended to ensure that the male parent of any offspring produced after the cessation of a nikah
would be known.

Iddat after death of husband[4]-

Qur'an prohibits widows to engage themselves for four (4) lunar months and ten (10) days after the death of their husbands. This is also to ascertain whether a
woman is pregnant or not, since four and a half months is half the length of a normal pregnancy.

Husbands should make a will in favor of their wives for the provision of one year’s residence and maintenance, unless the wives themselves leave the house or
take any other similar step.

The directive of the Qur'an regarding the waiting period of a widow, are as under:
Whoever from amongst you dies and leaves behind wives, the wives will hold themselves [from marriage] for four months and ten days. Then, when they have
expired this period, there is no blame upon you in whatever they do regarding themselves, according to the recognized traditions. And God is fully aware of
whatever you are doing. And there is no blame upon you in proposing [marriage] to these women or in keeping such proposal to yourself - God is aware that you
would mention it to them - but do not make with them any secret commitments, except that you say a noble word to them. However, do not commit the marriage-
contract with them, until the law has reached its prescribed time.

Iddat after divorce[5]

Comparing this waiting period with the one prescribed for a divorced woman (i.e. three menstrual periods of the divorced woman), we see that the waiting period
prescribed for a widow exceeds that, which is prescribed for a divorced woman by at least a month and a half. It is also clear from the stipulations of the Qur'an
that the prescription of the waiting period for a divorced woman is with the basic purpose of ascertaining her condition with reference to pregnancy as well as to
provide the divorcing couple adequate time to review and, if possible, to revise their decision. Thus, in view of the increased prescription of waiting period in the
case of a widow, it seems that the waiting period prescribed for a widow entails other purposes, besides merely ascertaining the woman's position with reference
to pregnancy.

The Muslim jurists and thinkers have generally construed this additional purpose entailed in the prescription of the waiting period for widows to be that of the
widow's 'mourning' her deceased husband. The understanding of the Muslim jurists and thinkers seems to be quite logical and in consonance with sayings
ascribed to the Prophet. However, it seems important to add that the prescription of a specified 'waiting' or 'mourning' period is for the purpose of safeguarding
the woman against defamation, slander and ill-repute in society. It is specifically for this purpose that others are directed against making a 'secret' commitment of
marriage with the widow or deciding about the time and place of the marriage-contract, during the prescribed period. It is reported that Muhammad advised
widows to be extra modest in their appearance and to even refrain from wearing any fragrance, during this period. All these directives and advice seem to point
to the fact that a woman should not only be, but also appear to be in a state of mourning, so that her social circles do not get a chance to say a negative word
about her.

No other restrictions apply to a widow during her waiting period.

Duration of Iddat
The Iddat of divorce commences immediately upon the pronouncement of repudiation and in case of invalid marriage if they are separated voluntarily then from
the time of separation but if the separation is effected by the court then it starts with the issuance of judicial decree. In case of widowhood the period of Iddat
begins with the decease of husband. If the information of divorce or of her husband’s death does not reach the wife until after the expiration of Iddat period, she
is not bound to observe Iddat. The period is considered to have been passed.

Iddat is normally observed in the following manner;

If the marriage is terminated by divorce or in consequence of annulment by the Court, then the Quran has specifically explained the situation in such words,
“women who are divorced shall wait, keeping themselves apart, three (monthly) courses. And it is not lawful for them that they should conceal that which Allah
hath created in their wombs if they are believers in Allah and the last day.” Therefore the divorced woman is bound to observe Iddat for three menstrual cycles
i.e. the period of three complete courses of menstruation.

In the above two cases if the marriage has not been consummated nor any valid retirement has taken place then after the termination of marriage the woman is
not required to observe Iddat.

Iddat of A Pregnant Widow

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In case of pregnancy, the widow is bound to observe the Iddat for a period which ever is the longest. i.e. if the child is born before the period of four months and
ten days then her Iddat is not over with the delivery but she will complete the normal specified period of Iddat (four moths & ten days). If the child is expected to
be born after the specified period, then the Iddat will lost up till the delivery of a child. They consider it binding upon all widows who are pregnant or non
pregnant, so according to their view the fore mentioned period of four months and ten days is the minimum obligatory period for a widow.

Maintenance During Iddat

The husband is under obligation to pay for the wife’s maintenance during her period of Iddat, regardless of its duration. Thus, in the following cases the wife is
entitled to maintenance during Iddat:
When the marriage is dissolved by repudiation, no matter the repudiation was revocable or irrevocable, it was perfect or imperfect.
# When the marriage is dissolved by Lien (oath of imprecation) or by Illa (a vow of continence) or by way of Khula provided she has not renounced her right to
maintenance.
# When the husband on attaining puberty, exercises the right of option and dissolves the marriage.
# When the marriage is dissolved by reason of the inferiority of dower or by reason of the husband’s inequality or his impotency.
When a wife, who is not subject to menstruation, observing Iddat by months becomes subject to menstruation before the completion of specified period. She is
entitled for maintenance in the additional period of Iddat because she is obliged to stay in Iddat for three full monthly courses.
# Widow is not entitled to maintenance even if she is pregnant; almost all the Muslim jurists have the same opinion in this regard.

Judicial Interpretation In Muslim Marriage

In Abdul Kadir vs. Salima[6]
This case was argued before the Full Bench, Mr. Justice Mahmood said that-
In this view of the case the reference cannot, in my opinion be satisfactorily answered without considering, first, the exact nature and effect of marriage under the
Muhammadan law upon the contracting parties; secondly, the exact nature of the liability of the husband to pay the dower; thirdly, the matrimonial rights of the
parties as to conjugal cohabitation; and fourthly, the rules of the general law as to the decree of Court in such cases.

In nawab sadiq ali khan vs. jai kishori[7]

In the case of a shia female, the age of puberty begins with menstruation, it has been held by the privy council in shia case that the age of the majority in the
case of the girl is attained at the age of nine years.

In pooja arya vs. state of UP[8]

Where a muslim girl married a hindu boy, which created a furore in local communities, in cases like this law authorities buy peace at the cost of constitutional
rights and privileges.

Conclusion
After analyzing thoroughly the system of Islamic marriage a reasonable and prudent way of thinking would always conclude that the Islamic personal law with
regards to marriage and divorce need to be changed a lot so to maintain its status in modern society.

Marriage is a religious duty of every Muslim and it is considered to be a moral safeguard and a social need. The Prophet has also said Marriage is my tradition
whosoever keeps away there from is not from amongst me.

Unlike Hindu where the marriage is a sacrament, marriages in Muslims have a nature of civil contract. Marriage is necessary for the legitimization of a child.
When the marriage is done in accordance to the prescribed norms it creates various rights and obligations on both the parties.

It appears that Islamic law of marriage and divorce is not identical to the man made laws which are changed by man himself moment after moment. It is evident
that the position of man and woman in the social set up of the community, is equal in every respect, but keeping in view the mindset of both the genders, Islam
segregates the rights, duties and functions of both the gender and then declares their status with regard to family matters.

If it is asked that are man and woman equal in Islamic way of life? There would not be simple positive or negative way of answer rather, one must scrutinize,
examine and inspect closely and thoroughly their respective rights, duties and functions. And then placing a complete picture in front, it may be possible to
answer the above question. In other societies of the world, the state of affairs is not in concurrence to Islamic way of life. Those other societies always try to
claim that man and woman are equal in every respect which is not a natural phenomenon.

Endnotes:
[1] hijrah
[2] the religion which is consistent with the natural instincts and needs of mankind
[3] Dower-amonut paid by bridegroom to bride
[4] Iddat e wafaat
[5] iddat of Talaaq
[6] (1886) 8 All. 149
[7] (1928) 30 bom. LR 134
[8] AIR 2006 All 60

The author can be reached at: harshit@legalserviceindia.com / ph no: +91-9634007061 / Print This Article

Also Read:
Guardianship Under Muslim Law:
The source of law of guardianship and custody are certain verses in the Koran and a few ahadis. The Koran, the alladis and other authorities on Muslim law
emphatically speak of the guardianship of the property of the minor, the guardianship of the person is a mere inference.

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26/04/2018 Muslim Marriage in India
Custody Under Muslim Law:
The first and foremost right to have the custody of children belongs to the mother and she cannot be deprived of her right so long as she is not found guilty of
misconduct. Mother has the right of custody so long as she is not disqualified.

Maintenance Under Muslim Laws:

Under the "Women (Protection Of- Rights On Divorce) Act, 1986" spells out objective of the Act as "the protection of the rights of Muslim women who have been
divorced by, or have obtained divorce from, their husbands."

Concept of Marriage in Muslim Law:

Islam, unlike other religions is a strong advocate of marriage. There is no place of celibacy in Islam like the Roman Catholic priests & nuns. The Prophet has
said “There is no Celibacy in Islam”.

Cruelty as a Matrimonial offence under Muslim Law:

Cruelty, in marital relationship, is a course of conduct of one spouse which adversely affecting the other. Cruelty may be mental or physical, intentional or
unintentional. If it is physical, it is an issue of fact and degree.

Divorce under Muslim Law

A husband may divorce his wife by repudiating the marriage without giving any reason. Pronouncement of such words which signify his intention to disown the
wife is sufficient.

Sources of Islamic Law:

Various sources of Islamic law are used by Islamic jurisprudence to elucidate the Sharia, the body of Islamic law. The primary sources, accepted universally by
all Muslims, are the Qur'an and Sunnah.

Muslim women's right for dissolution of marriage:

Among almost all the nations of antiquity, divorce was regarded as a natural corollary or marital rights. Romans, Hebrews, Israelis etc. all had divorce in one or
the other form. Even though the provision of divorce was recognized in all religions Islam perhaps the first religion in the world which has expressly recognised
the termination of marriage by way of divorce.
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204 Comments Sort by Top

Add a comment...

Kartik Bagchi · Symbiosis College of Arts & Commerce

The Union Cabinet is all poised to table an amendment to the marriage laws, which, in the event of a divorce, would give the wife an
equal share of not only the property acquired by the husband during or before the marriage, but also his inherited or inheritable
property. This proposed amendment is already creating a furore.
Like · Reply · 10 · 4y

Mallikarjuna Sharma · Hyderabad

That is quite insane proposal. Self-acquired property can be disposed of at will - is the established law and this contradicts it.
Even if elements of social or public interest are there, those should not totally drown the established law. The maintenance
provisions should be made more stringent and adequate by reform but not such divesting of property for a song.
Like · Reply · 2 · 51w

Tukaram Gaude · Accountant at Mahavir plastic ind - corlim goa

hi
Like · Reply · 3 · 4y

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