NMIMS, SCHOOL OF LAW, BANGALORE
Muslim Marriages as Contracts in India
SUBMITTED BY:
VEDANSH TRIPATHI
81011219029
BA LLB BATCH (2019-24)
SUBMITTED TO:
Mr. PRITAM GHOSH
ASSISTANT PROFESSOR OF LAW
SCHOOL OF LAW
NMIMS, BANGALORE
CONTENT
1. Muslim Marriages as Contracts- A Brief Intro………….………………………3
• Classification of Marriage………………………3
• Valid
• Void
• Irregular
• Niqah mut’ah
• Registration of Marriage under Muslim Law…….4
2. Essentials of a valid Muslim Marriage as per existing Indian Laws…………….4
3. Rights and Liabilities of Spouses………………………………………………..7
4. Maintenance of Divorced women under Muslim Personal Law………………...8
5. Case Laws ……………………………………….………………………………9
• Shah Bano Case
• Danial Latifi Judgement
6. Conclusion……………………………………………………………..……….11
1. Muslim Marriages (Niqah) as Contract- A Brief Intro
In pre-Islamic Arabia, Niqah meant different types of sexual relations between a man and a
woman formed on certain terms, women were regarded as chattels in pre-Islamic days, and no
right of inheritance was granted and was utterly dependent. It was the prophet Mohammad who
brought about a total change in women's roles. Nikah is a term used for marriage in Arabic. It
implies "contract" In particular, the Quran refers to marriage as "mithaqun Ghalithun," which
means a strong agreement"
Classification of Marriage
The classification of Muslim marriage1 is as-
Valid (Sahih)
When all the legal conditions are met and the parties have no restrictions, then the marriage is
correct or 'saheeh'. In the case of permanent prohibitions, the prohibitions can be both permanent
and temporary: the marriage will be invalid, and if the prohibitions are temporary, then the
marriage will be irregular.
Void (Batil)
No rights or duties are established by marriage being void ab initio, and the children born from
such marriage are illegitimate. A marriage prohibited by the laws of partnership with blood,
affinity or fostering is void. Similarly, a marriage during the Iddah era with the wife of another
or a divorced wife is also invalid.
Irregular (Fasid)
A marriage becomes irregular due to the absence of any formality or the presence of an
impediment that can be rectified, but this irregularity is not permanent in nature and can be
eliminated. The marriage itself is not, however, unlawful. After the restrictions are rectified, it
can be made legitimate. Marriage is called 'Fasid' under certain cases or with the following
prohibitions.
Muta or Niqah mut’ah
1
https://www.legalbites.in/classification-of-marriages-under-the-muslim-personal-laws/
The word literally means "union of pleasure". Muta marriage is a temporary arrangement for a
fixed period of time agreed by the two parties. There is no minimum or maximum time period
recommended, it may be for a day, month or year. After the expiry of the agreed period, the
marriage dissolves itself, but if no other time limit has been expressed or written, the marriage
will be presumed permanent. This form of marriage is considered by the Sunni Muslims as
prostitution, and is therefore not accepted by the Sunnis.
Registration of Muslim Marriages
Marriage registration is compulsory and compulsory for Muslims2, as a civil contract is
considered as a Muslim marriage. "According to Section 3 of the 1981 Muslim Marriages
Registration Act, "All marriages concluded between Muslims after the beginning of this Act
shall be registered as given below, within thirty days of the completion of the Nikah Ceremony.
In Muslim marriages, Nikahnama is a form of legal document that contains the essential
conditions/details of the marriage.3
2. Essentials of a valid Muslim Marriage as per existing Indian Laws
The essentials of a valid Muslim Marriage or Niqah are-
• Parties must have capacity to marry.
• Proposal (ijab) and acceptance (qubool).
• Free consent of both the parties.
• A consideration (mehr).
• No legal Impediment.
• Sufficient witnesses
Proposal and Acceptance
The proposal is referred to as 'ijab' in a Muslim marriage and the approval of the same as 'qubul'.
A proposal should be made by or on behalf of one party, and the other party should support the
same proposal. Proposals and acceptances should be carried out at the same meeting for a legal
2
https://lawcommissionofindia.nic.in/reports/Report270.pdf
3
https://blog.ipleaders.in/marriage-under-muslim-law/
Muslim marriage. If a suggestion is made at one meeting and the proposal is approved at the
second meeting, it is not deemed to be legitimate.
Competency of Parties
The parties should be
• Major
• Of Sound Mind
• Muslims
The age when a person reaches puberty is considered the age of puberty for the purposes of
Muslim marriage. The age of puberty for females is 9 years, according to Hedaya, and 12 years
for males. In the case of Muhammad Ibrahim v. Atkia Begum & Anr4, the Privy Council held5
that a girl is deemed to have reached the age of puberty under Muslim law if she has reached the
age of 15 years or has reached the state of puberty at an earlier age. A Muslim boy is also subject
to the same statute. Therefore, it can also be said that a Muslim is deemed to have reached the
age of puberty at 15 years, in the absence of any opposite. Parties may give their own consent
after reaching the age of 15 and there is no need for consent from guardians.
If a person is a minor, that is, has not reached the age of puberty, the guardian's permission is
necessary to make the marriage legal. The persons recognized under Muslim law as guardians
are: father, paternal grandfather, brother or any other male father's family member, mother,
maternal relationship members. The right transfers from one guardian to the other in order of
priority, in the absence of the previous one. Marriage can be contracted by Qazi or some other
government authority in the absence of any of those guardians.
Both parties should be of sound mind at the time of the marriage. There is no right to enter into a
contract for a person of unsound mind and his consent would be treated as no consent in the eyes
of law. Unsoundness consists of two kinds:
(a) Idiocytic: This refers to a completely abnormal state of mind. Individuals belonging to this
group are inexperienced and unwilling to contract and
4
16 Ind Cas 597
5
https://www.lawyerservices.in/Muhammad-Ibrahim-Rashid-Versus-Atkia-Begum-1912-07-30
(b) Lunatic: It refers to a mental disorder that is curable. In the time period in which he acts like
a sane person, a lunatic person may enter into a contract.
Regardless of their sect or sub-sect, the parties to enter into marriage must be Muslim. A
marriage is considered to be inter-sect marriage since both parties belong to different sects and
are Muslim, but the marriage is legitimate.
Dower (Mehr)
It is known as 'mahr'. It refers to the amount of money or other property that as a marriage
consideration, a bride groom has to give to the bride. The goal is to give a sense of financial
security to the bride within and after the termination of the marriage. The Allahabad High Court
held that the right to mahr comes into being before cohabitation in the case of Nasra Begum v.
Rizwan Ali6. The Court also concluded that if the wife is a minor, her guardians may refuse to
send her husband unless the dower is paid, and if she is in the custody of the husband, she may
be returned as well.
Free Consent
Free consent from the parties for a legal marriage is a must. If consent is obtained by force,
deceit or error of fact, it is deemed to be null and the marriage is deemed to be void. The Court
held that a marriage is void in the case of Mohiuddin v. Khatijabibi7 if it is held without the
parties' free consent.
Witness
A witness should be sane, adult and credible, according to Islamic law. Gender/faith neutral is
the main requirement here. Therefore, two adult witnesses of good character have to be
witnessed by the Muslim Marriage Certificate. Two men can be the witness or one man two
women. Women alone cannot be a witness.
Legal Disability
6
AIR 1980 ALL. 198
7
41 BOM L.R. 1020.
This indicates the existence of such situations under which marriage is not allowed. What an
utter inability. In the event or partnership of consanguinity, there is an absolute prohibition of
marriage. In this case, the condition is such that the relationship of the child has grown up on the
ascending side through his /her father or mother or on the descending side on his or her own.
Marriage is not permitted among individuals linked by affinity, such as through the wife. It is
also not allowed to marry foster mothers and those linked to them by such foster mothers.
3. Rights and Liabilities of Spouses
Mutual Rights and Duties:
Love is a marriage for life with mutually inclusive advantages and fulfillment, including the
following for the contracting parties8:
• Protection of chastity and security of contemplation
• Within and outside the home
• Companionship
• Sexual and emotional pleasure
• Procreation and raising by joint consultation of any infant
• Decision to live in a mutually agreed country together and set up their marital home
therein
• Working together for the family's socio-economic prosperity and peace
• Preserving their individual property rights but contributing according to their capacity to
the welfare of the family
• Maintaining social relations with friends and relatives that are mutually beneficial to the
family
• Through joint consultation, handling their individual activities/roles within and outside
the home
Husband's Obligations:
In addition to the shared duties and responsibilities, the husband undertakes not to:
8
http://www.legalserviceindia.com/article/l418-Muslim-Marriage.html
• verbally, mentally, physically, or sexually harass his wife/child(ren)
• desert/be absent for more than 60 days from the marital home except by mutual consent
• withhold financial contributions to his wife/family
• Sexually transmitted illnesses or other communicable diseases
• misuse /interfere with the property of the wife
Wife's Obligations:
The wife undertakes not to in addition to the joint responsibilities and commitments to:
• mentally, emotionally, physically or sexually harass her husband/child(ren)
• desert/be absent for more than 60 days from the marital home except by mutual consent
• Sexually transmitted illnesses or other communicable diseases
• misuse/interfere with the property of the husband
4. Maintenance of Divorced women under Muslim Personal Law
A husband is obliged to keep his wife and family under Muslim law and the term maintenance
means the sum he is liable to pay for the same. The word used under Muslim Law for
maintenance is called nafaqa and it includes food, raiment and accommodation, despite the fact
that she has means to keep herself; the wife is entitled to husband maintenance. In addition, the
marriage contract may provide for the payment by the husband of special allowances and in the
presence of such allowances, the husband's duty is to pay such allowances to the wife9. These
allowances are called kharch-e-pandan, mewa khore, guzara, etc. As a privilege, this can be
asserted. The three sources from which such rights are derived are:
1. Muslim Personal law.
2. Section 125, CrPC
3. The Muslim Women (Protection of Rights on Divorce) Act, 1986.
Conflict of Muslim Personal Law with Sec 125 of CrPC
9
https://lawctopus.com/clatalogue/maintenance-under-muslim-law/
A woman is entitled to maintenance only until the end of the Iddat period, under Muslim
Personal Rule. Iddat is the time when the parties' co-habitation ends, the couples will stand
separated upon the expiry of iddat. The period of iddat consists of three menstrual cycles or three
lunar months, which will extend the period of iddat until the time of delivery in the case of
pregnant women. Therefore, we can see a clear dispute, since iddat time is not acknowledged by
CrPC and maintenance goes beyond the same. In Mohammed Haneefa v. Mariam Bi10, the Court
claimed that the former will prevail in the event of a dispute between personal law and the CrPC.
The Supreme Court supported this stance in Saira Bano v A.M Abdul Gafoor11. This created a
great deal of uncertainty in the legislature. Section 127(3)(b) was introduced to address this
dilemma, in which if a divorced woman receives a sum according to the community's customary
or personal rules, the magistrate will cancel any order for maintenance in her favor.
5. Case Laws and various Judicial Decisions
Mohd Ahmad Khan vs. Shah Bano Begum (The Shah Bano Case)12:-
In the present situation, a 62-year-old woman was divorced and maintenance was subsequently
refused. She did not remarry. She was awarded maintenance of Rs 25 per month by her husband
when she transferred to the court of the Judicial Magistrate at Indore under section 125 of the
CrPC and demanded maintenance of Rs 500 per month. Aggrieved by the low sum, she filed a
petition for revision before the High Court of Madhya Pradesh, which entitled her to a monthly
maintenance of Rs 179.20. The husband appealed to the Supreme Court against this decision, his
main claim being that because the separation had taken place, she had ceased to be his wife, and
he was not obliged to pay her maintenance under Muslim rule. Also, because during the Iddat
time he had paid the Dower fee, the wife was not entitled to any maintenance.
The Supreme Court rejected the appeal and upheld the High Court's ruling. The Supreme Court
clarified this judgment by stating that section 125 of the CrPC is a secular statute, even if there is
a disagreement, and thus extends to all women, irrespective of their religion. It further claimed
that in the event of a dispute, the CrPC should prevail over Muslim Personal Rule.
10
AIR 1969 Mad 414
11
AIR 1987 SC 1103
12
AIR 1985 SC 945
Aftermath and post Shah Bano case Developments
Under pressure from Islamist parties, the Rajeev Gandhi government decided to annul the
judgment and passed the Muslim Women (Protection of Rights on Divorce) Act, 1986 in an
attempt to do the same. This act became one of the most contentious laws enacted. Sections
3(1)(a) and 4(1) are the relevant provisions of that act, which state that the former husband must
have a rational and fair supply and maintenance during the time of iddat and that if she is unable
to maintain herself after the period of iddat, she can demand maintenance from her relatives and
if they are unable to pay, she can claim from the Wakf Board in accordance with S.4(2).
Danial Latifi vs. Union of India13:-
In this case, a writ was filed under Article 32 questioning the constitutional validity of the
Muslim Women's (Protection of Rights on Divorce) Act, 1986, status Post Enactment.
The statutory validity of the Act was upheld in this case and an interpretation of the provisions of
the Act was issued. The court concluded that on the one hand, Articles 14, 15 and 21 are not
violated by the Act and thus are not ultra vires.
The following interpretations were made by the court. First by reading the sense of the word
used under section 3(1)(a) of the Act read with the words - fair and rational, the court concluded
that being fair and reasonable, the maintenance should exceed the duration of iddat but must be
rendered within the period of iddat. Such maintenance rendered during the period of iddat should
be for its entire future, which is also the time after the period of iddat expires. Consequently, the
responsibility of the husband is not limited to the IDDAT period. Therefore, this Act is not in
violation of CrPC section 125.
The judgment of Daniel Latifi essentially resurrected the concepts settled in the case of Shah
Bano that the husband's duty to hold his wife does not end with the time of iddat. It clarified,
however this theory, not as contravening the Act enacted as a result of the case of Shah Bano, as
a commentary on that Act.
13
AIR 2001 SC 3958
Post Latifi Judgment status:
The Act is therefore compliant with section 125 of the CrPC, and there is therefore no space for
dispute. The condition of the statute, therefore, is that the provisions of the Act ultimately
originate from the concepts set out in the case of Shah Bano. So far the same has not been
changed, and issues relating to the preservation of Muslim women after marriage dissolution
continue to be controlled.
6. Conclusion
A rational and cautious way of thinking, after extensively studying the Islamic marriage
structure, will often conclude that the Islamic personal law about marriage and divorce needs to
be modified a lot in order to preserve its place in modern society. Marriage is every Muslim's
religious obligation and it is considered a spiritual safeguard and a social need. Marriages in
Muslims have a civil contract nature, unlike Hindu marriages where marriage is a sacrament.
Marriage establishes different rights and responsibilities for both parties when it is carried out in
compliance with the specified norms. If it is asked, in the Islamic way of life, that man and
woman are equal? Rather, there would be no clear positive or negative response, but their
respective rights, duties and roles should be scrutinized, checked and inspected carefully and
thoroughly. And it may be possible to answer the above question by putting a full image in front
of us. The state of affairs in other cultures around the world does not adhere to the Islamic way
of life!
