Origin and Development, Sources of Muslim Law, Schools of Muslim Law, Application of Muslim Law, Conversion

The origins of Muslim law can be traced back to the 7th century CE in Arabia, specifically with the revelation of the
Quran to Prophet Muhammad (570–632 CE). As a religious system, Islam emerged as a monotheistic faith in the cities of
Mecca and Medina, where it introduced a comprehensive framework of legal and ethical principles aimed at governing
all aspects of personal and communal life.
Social Reforms
Muhammad initiated a series of significant social reforms in Medina to create a more equitable society. These reforms
were particularly significant in the context of the pre-Islamic Arabian society, marked by social inequalities and
oppressive practices. In this society, the rich and powerful often exploited the poor and vulnerable, and women and
orphans had few rights and protections. The pre-Islamic Arabian society was characterised by tribalism, where loyalty to
one's tribe often precedes the principles of justice and equality. Muhammad's reforms actively promoted the principles
of equality among all individuals, regardless of their social status or tribal affiliation. One of his key reforms was
prohibiting usury (lending money at unreasonably high interest rates), which aimed to protect the vulnerable from
economic exploitation. Additionally, he sought to support people experiencing poverty through various charitable
initiatives and social safety nets, ensuring their needs were met. Muhammad also took a strong stance against
oppressive practices such as female infanticide, which was prevalent in pre-Islamic Arabia. He championed the rights of
women and orphans, establishing legal protections that gave them rights over inheritance and autonomy in various
aspects of life. These social reforms, rooted in Islamic principles of justice and equality, significantly influenced the
development of Muslim law.
Battles and Triumphs
Conflict with Mecca - The conflict between the Muslims and the Quraysh tribe of Mecca escalated over time, leading to
several critical battles defining the early Islamic community. The Battle of Badr in 624 CE marked a significant turning
point, where the Muslims achieved a decisive victory despite being outnumbered and under-resourced. This success
bolstered the morale of the Muslim community. In 625 CE, the Battle of Uhud followed, where Muslims faced a setback.
However, this battle, despite the loss, provided valuable lessons in unity and resilience, strengthening the resolve of the
early Muslim community. The Battle of the Trench in 627 CE, in which the Muslims successfully defended Medina against
a coalition of Quraysh and their allies, demonstrated their strategic capabilities and deepened their resolve.
Treaty of Hudaybiyyah- In 628 CE, recognising the need for a diplomatic solution to the ongoing hostilities, Muhammad
signed the Treaty of Hudaybiyyah with the Quraysh. This treaty established a temporary truce, allowing Muslims to
conduct a pilgrimage to Mecca the following year. Importantly, it created a foundation for peaceful interactions,
enabling the spread of Islam without the immediate threat of conflict. This period of relative peace facilitated further
dialogue and allowed more people to learn about and embrace the teachings of Islam.
Conquest of Mecca- The bloodless conquest of Mecca in 630 CE was a landmark event in Islamic history. Muhammad led
a large army of followers into the city, where he was met with little resistance. Demonstrating remarkable
statesmanship, he forgave many of his former adversaries and declared an amnesty, fostering a spirit of reconciliation.
He then cleaned the Kaaba, the sacred sanctuary in Mecca, of idols, reaffirming its status as the house of monotheism
and a pivotal site for Islamic worship.
Teachings and Legacy
Universal Message- Muhammad's teachings were rooted in the principles of universal brotherhood, justice, and mercy.
The Farewell Sermon, delivered during his last pilgrimage in 632 CE, is a robust encapsulation of his ideals. In this
sermon, he emphasised the importance of treating others with respect and fairness and advocating for equality. He also
urged his followers to honour and respect women, highlighting their essential roles in society and familial structures.
Furthermore, he called for adherence to the Quran and Sunnah, which serve as guiding principles for the Muslim
community.
Expansion of Islam—By Muhammad's death in 632 CE, Islam had expanded significantly across the Arabian Peninsula,
transforming the social and political landscapes of the region. After his passing, his companions continued to uphold and
spread his teachings, leading to a remarkable expansion of Islam across three continents within the following century.
This expansion introduced new cultures to Islamic teachings and facilitated the exchange of knowledge and ideas that
enriched the global civilization.
Muhammad was known for his kindness, forgiveness, and empathy toward the weak and oppressed. He was dedicated
to uplifting marginalised individuals and ensuring justice. As a leader, he balanced spiritual and temporal duties,
fostering a harmonious society guided by divine principles while interacting with diverse communities. Despite his
status, Muhammad lived a humble life, performing household chores, engaging with people from all backgrounds, and
avoiding arrogance. His life exemplifies integrity, resilience, and compassion, offering insights into governance and
morality. For over 1.8 billion Muslims, Muhammad remains a spiritual guide and role model whose teachings shape their
daily lives and ethical values.
Development of Muslim Law
Muslim law underwent significant development during and after the lifetime of the Prophet. The evolution can be
categorised into various phases:
The Prophetic Era(610-632CE)
Throughout this era, the Quran served as a vital source of legal instruction, complemented by the Prophet's role as a key
figure in the judicial process. With divine revelations guiding him, the Prophet took on the responsibilities of a judge and
arbitrator, skillfully navigating and resolving disputes with a blend of spiritual insight and practical wisdom. His decisions
reflected both the sacred teachings of the Quran and an understanding of the societal context, ensuring justice was
served in accordance with divine principles.
The Rashidun caliphate(632-661CE)
In the wake of the Prophet Muhammad's death, the leadership of the nascent Muslim community fell to the first four
caliphs: Abu Bakr, Umar, Uthman, and Ali. These early leaders played a pivotal role in upholding and interpreting Islamic
law, ensuring it remained relevant as the community expanded rapidly. As their collective experiences and the diverse
challenges they faced grew, they recognised the necessity of adapting legal principles to meet the evolving needs of
their followers. One significant development during this period was the establishment of Ijma, a consensus among
scholars. This framework became a cornerstone of legal evolution, enabling learned individuals to address new issues
that emerged within the community collaboratively. The process of Ijma fostered unity and consistency in legal
interpretation, solidifying a foundation for governance and social justice in the growing Islamic civilisation.
The Umayyad and abbasid caliphates (661-1258CE)
During the reigns of the Umayyad and Abbasid dynasties, Muslim law evolved into a comprehensive and organised legal
framework. This period marked a significant turning point, as the necessity for codification and standardisation gave rise
to the four principal Sunni schools of jurisprudence: Hanafi, Maliki, Shafi'i, and Hanbali. Each of these schools embarked
on its unique journey of interpretation, meticulously analysing the foundational principles of Islam. This scholarly
endeavour enriched the legal landscape and fostered a vibrant diversity in Islamic legal thought, reflecting the broader
Muslim
Compilation of Islamic law
Notable scholars such as Abu Hanifa, Imam Malik, Imam Shafi’i, and Ahmad ibn Hanbal laid the foundation for the
schools of jurisprudence. Their works addressed issues ranging from family law to criminal justice, forming the core of
Islamic legal traditionscommunity's varying cultural contexts and philosophical insights.
Spread of Muslim law
As Islam gradually extended its reach across various continents, the principles of Muslim law began to intertwine with a
rich tapestry of diverse cultures and legal systems. In regions such as Persia, India, and North Africa, the law maintained
its core tenets and embraced and assimilated local customs and traditions. This dynamic interaction resulted in a unique
legal landscape where the cultural nuances of each area enriched Islamic law. The introduction of Fiqh, or Islamic
jurisprudence, played a pivotal role in this adaptation process, enabling scholars to interpret and modify the rules to suit
different socio-political contexts. As a result, the application of Muslim law became flexible and relevant, reflecting the
complexities of the societies in which it was implemented.
Development in modern era
The advent of colonialism and modern nation-states brought significant changes to Muslim law. These developments
include
Codification and Reform
During the 19th and 20th centuries, many Muslim-majority countries embarked on a significant journey to codify Islamic
laws in a bid to harmonise them with contemporary legal frameworks. A notable example of this process was the
introduction of the Majalla in the Ottoman Empire, which served as a comprehensive civil code that aimed to modernise
legal practices. Similarly, Egypt undertook a series of ambitious reforms in personal law, setting important precedents
for legal modernisation across the region. These efforts reflected a broader trend of adapting traditional Islamic
principles to meet the demands and complexities of modern governance and society.
Personal Laws
In the modern era, Islamic law, often referred to as Sharia, plays a significant role in governing various aspects of
personal and family life for Muslims, particularly in areas such as marriage, divorce, inheritance, and child custody.
Maintaining these Islamic personal laws in numerous countries worldwide has been a deliberate choice, allowing them
to coexist alongside secular legal frameworks that handle civil and criminal issues. This dual legal system reflects a blend
of cultural, religious, and contemporary legal principles, providing a unique approach to personal law that respects
tradition while navigating the complexities of modern society.
The emergence of Islamic finance
Islamic principles have significantly influenced the development of financial systems, leading to the establishment of
Islamic banking and finance. These systems operate in accordance with Shari'ah, the Islamic legal framework, which
emphasises ethical considerations in economic transactions.
Challenges and Debates
Contemporary Muslim societies encounter the complex challenge of harmonising long-standing Islamic principles with
modern values such as gender equality and human rights. This tension has sparked active discussions and reform efforts
to reinterpreter Islamic law to better align with these evolving societal norms. Key areas of debate include practices like
polygamy, the distribution of inheritance, and various aspects of criminal justice, all of which are being examined
through a lens that seeks to balance tradition with the demands of the present day. These ongoing dialogues reflect the
dynamic nature of Islamic jurisprudence and its ability to adapt to the realities of contemporary life.
Muslim law in India
Muslim law has a profound and lasting influence in India, rooted in the historical governance of Islamic rulers over the
subcontinent. A pivotal piece of legislation, the Shariat Act of 1937, formally recognises the application of Islamic
personal law to Muslims, governing crucial aspects of life such as marriage, inheritance, and charitable giving.Indian
courts are responsible for interpreting Muslim law, drawing from the Quran and Hadith's sacred texts, and establishing
legal precedents. This interpretative process often results in a rich blending of religious tenets and secular legal
principles, allowing for a nuanced approach to the complexities of personal matters within the Muslim community.

Sources of Muslim Law

Sources of Muslim law is classify into two categories that is primary sources and secondary sources.

Primary Sources
Primary sources are those on which Muslim law relied on. These sources are the foundation of Muslim law. Primary
sources of Muslim law are:

Quran
Sunnat
Ijma
Qiyas

1. Quran
Muslim law is founded upon Al-Quran which is believed by the muslamans to have existed from eternity, subsisting in
very essence of god. The word Quran has been derived from the Arabic word Quarra which means to read. The Quran is,
Al-furqan i.e., one showing truth from falsehood and right from wrong. The word Quran which is the ‘divine
communication' and revelation to the prophet of Islam is the first source of Muslim law.

Quran is a primary source of Muslim law, in point of time as well as in importance. The Islamic religion and Islamic
society owes its birth to the word of Quran. It is a paramount source of Muslim law in point of importance because it
contains the very word of god and it is foundation upon which the very structure of Islam rests Quran regulates
individual; social, secular, and spiritual life of Muslims.

It contains the very words of god as communicated to prophet mohammad through angel Gabriel. It was given to the
world in fragmentary forms, extending over a period of 23 years. It originally had for its objects repealing objectionable
customs, such as, usury, unlimited polygamy and gambling, etc., and effecting social reforms, such as raising the legal
status of women and equitable division of the matters of inheritance and succession.

The Quran can be no way altered or changed, thus, even the courts of law have no authority to change the apparent
meaning of the verses as it does have an earthly origin. This view was held in Aga Mohammad Jaffer v. koolsom Beebee
(1895). But whenever the Quran was silent on any particular matter, guidance was taken from the ‘sunnat'.

2. Sunnat
The word sunna means the trodden path & as this meaning shows it denotes some kind of practices and precedent. It is
belief of Muslim that revelations were two kinds- manifest (zahir) and internal (batin). Manifest revelation is
communication which is made by angel Gabriel under the direction of god to Mohammad in the very words of god.
Quran is composed of manifest revelations.
Internal revelation is opinions of the prophet which is delivered from time to time on questions that happened to be
raised before him. Sunna means the model behavior of the prophet. The narrations of what the prophet said, did or
tacitly allowed is called hadis or traditions. The traditions, however, were not reduced to writing during lifetime of
Mohammad. They have been preserved as traditions handed down from generation to generation by authorized
persons. The importance of hadith as an important source of Muslim law has been laid down in the Quran itself.
Kinds Of Traditions: The Traditions Are Of Two Kinds:
1. Sunnat
2. Ahadis

These two have been classified into the following three classes on the basis of mode or manner in which it has actually
originated:

Sunnat-ul-fail i.e., Traditions about which prophet did himself.

Sunnat-ul-qaul i.e., Traditions about which he enjoined by words.
Sunnat –ul-tuqrir i.e., The things done in his presence without his disapproval.
The three class of Ahadisare:
Alhadis -i-mutwair i.e., Traditions that are of public and universal propriety and are held as absolutely authentic. In such
hadis the chain is complete.
Ahadis -i-mashhoor i.e., Traditions which known to a majority of people, do not possess the character of universal
propriety.
Ahadis-i-wahid i.e., Traditions which depend on isolated individuals.
Thus two sources, namely, the Quran and Sunna may thus be said to form the fundamental roots of Islamic law.
3. Ijma
It was equally binding on the people to act on a principle (not contrary to the Quran or hadis ) which had been
established by agreement among highly qualified legal scholars of any generations.
Ijma has been defined by Sir Abdul Rahim as agreement of the jurists among the followers of Prophet Mohammad in a
particular question of law. The validity of ijma, as containing a binding precedent, is based upon a hadis of the prophet
which says that god will not allow His people to agree on an error. Ijma thus become a source of law. According to the
classical theory, failing Quran and traditions, and consensus of opinion amongst the companions of the prophet is
recognized as the best guide of law. Thus it is the third source of law, both in point of time and importance.

The authority of ijma as a source of Muslim law is also founded on Quranand Hadith. The law is something living &
changing. The aim of law is to fulfill the needs of the society. The principle of ijma is based upon the text i.e. god will not
allow His people to agree on an error and whatever Muslims hold to be good is good before god. Muslims religion does
not admit the possibility of further revelation after the death of the prophet, the principle of ijma is the only authority
for legislation in the present Muslims system.
Kinds Of Ijma
Ijma is of three kinds:
Ijma of the companions of the prophet – is the consensual opinion of companion which is universally acceptable,
throughout the Muslim world and is unrepealable.
Ijma of jurists- is the consensual opinion of jurists which is believed that its best ijma after ijma of companions. All the
jurists should sit together and discussed the reasoning, and majority of the jurists is of the view that unanimity to form
ijma.
Ijma of the people – is the opinion of Muslim population as a whole may have any importance but in actual practice
ijma of Muslim public had no value with regard to legal matters but in matters related to religion, prayer and other
observances have more value attached to it.
Ijma cannot be confined to any particular period or country. It is completed when the jurists, after due deliberation,
come to a finding .it cannot be questioned or challenged by any individual jurist. Ijma of one age may be reversed or
modified by the ijma of the same or subsequent age.
4) Qiyas
This is a last primary source of Muslim law. Qiyas means reasoning by analogy from above 3 sources i.e., Quran, Sunna
and Ijma. In Qiyas rules are deduced by the exercise of reason.
Qiyas may be defined as a process of deduction by which the law of the text is applied to cases, which though not
covered by the languages are governed by reason of text. Thus, it should be noted that Qiyas does not purport to create
a new law, but merely to apply old established principles to new circumstances.
Conditions of Validity of Qiyas:
The original source from which Qiyas is deduced must be capable of being extended, that is it should not be of any
special nature.
The original order of the Quran or hadith to which the process of Qiyas is applied should not have been abrogated or
repealed.
The result of Qiyas should not be inconsistent with any other verse of Quran or any established Sunna.
Qiyas should be applied to ascertain a point of law and not to determine the meanings of words used.
The deduction must not be such as to involve a change in the law embodied in the text.
Thus it can be said that Qiyas is weak source of law and rules analogically deduced do not rank so high as authority, as
those laid down by Quran and Hadith or by consensus of opinion (ijma).the reason is that with respect to analogical
deductions one cannot be certain that they are what the law giver intended. Such deduction always rest upon the
application of human resources which always are liable to err
Secondary Sources
These sources are not basic sources of Muslim law but the supplementary sources of Muslim law. The secondary sources
of Muslim law are:
Urf or Custom
Judicial decision
Legislation
Equity, Justice, & Good conscience

Urf or Custom
Before the emergence of Islam in Arabia , customs were the basis of entire social life, religion, morality, trade and
commerce. Custom has not been recognized as a source of law in a Muslim law. However, it cannot be denied that
custom has always been given a place under Muslim law, if it is in conformity with Muslim law. For example, prophet
mohammad never repeal the whole of the pre-Islamic customary law of Arabia. In various matter of Muslim law, custom
play a significant role when the matter is relating to their:
agricultural land;
testamentary succession among certain communities; and
 charities other than wakf, because these matters have not been included in the section 2 of Shariat Act,1937. Custom
influenced the growth and formation of shariah in several ways:
A number of texts, particularly traditions are based upon usages.
A part of the shariah based upon tacit or silent approval of the prophet comprises many of Arab customs.
Imam malik says that the customary conduct of the citizen of medina was a sufficient ijma to be relied upon in the
absence of other texts.
Pre- Condition Of Valid Custom
Custom must be territorial.
It must be existing from memorable time i.e. ancient.
It must be continuous and certain and invariable.
Custom should not oppose the public policies.
Custom must not in contravention of Quran and Ijma.
Judicial Decision
These includes the decisions of privy council, the supreme court & high court of India, Judges explain what law is. These
decisions are regarded as precedents for future cases. Judicial decision is one of the distinguish characteristic of English
law. In India, the plan of Warren Hastings of 1772 made provision that it was only judiciary which introduced new set
rules in personal laws of Hindus and Muslims.
There are number of judicial decisions which have given new dimension to Muslim law:
In Maini Bibi v. Choudhry Vakil Ahmad, the privy council held that a widow possesses the right to retain the property of
her husband till her dower money was paid
In Bai Tahira v. Ali Hussain, the Supreme Court gave a new line of approach to the law of maintenance. The Supreme
Court held that a woman will be entitled for maintenance under section 125 of criminal procedure code even though she
has received a lump-sum amount under her customary law. A similar view also taken in Shah Bano's case.
It may be concluded therefore, that to some extent, the courts in India have tried to modify the rules of Muslim personal
law as applied in India. Unless overruled or negative by some legislative enactment, these rules through the decisions,
continue to be a source of Muslim law.
Justice, equity and good conscience
The doctrine of equity, justice & good conscience is regarded as one of the source of Muslim law. Abu Hanifa, the
founder of hanafi sect of Sunni, expounded the principle that rule of law based on analogy could be set aside at the
option of the judge on a liberal construction or juristic preference to meet the requirements of a particular case. These
principles of Muslim law are known as Istihsan or juristic equity. Istihsan literally means approbation and may be
translated as liberal construction or juristic preference.
This term was used by great jurist Abu Hanifa to express the libert that he assumed of laying down the law, which in his
discretion, the special circumstances required, rather than law which analogy indicated. Several areas of Muslim were
modified so as to meet the changing conditions in India.
Legislation
In India, Muslims are also governed by the various legislation passed either by the parliament or by state legislature. The
following are the examples of legislation in India.
The usurious loans act, 1918
Religious toleration act
Freedom of religion act, 1850
The mussalman wakf validating act, 1930
The shariat act, 1937
Dissolution of Muslim marriage act, 1939
These acts have considerably affected, supplemented and modified the Muslim law. In 1986 an act i.e. Muslim Woman
(Protection of Rights on Divorce) Act, 1986 to provide separate law in respect of divorced Muslim women was enacted
by Indian parliament. According to the need of time and circumstances Indian legislature enacted the law to fulfill the
need.

Schools of Muslim
Sunni Schools
In Sunni sect, there are four major schools of Muslim law which are as follows:

1. Hanafi School (699 AD – 767 AD):

‘Hanafi School’ is the first and the most popular schools in Muslim law.
Before being named ‘Hanafi’, this school was known as ‘Kufa School’ which was based on the name of the city of Koofa
in Iraq.
Later, this school was renamed ‘Hanafi School’ based on the name of its founder ‘Abu Hanafi’.
The founder of this school was ‘Imam Abu Hanifa’. He had two most important disciples:
Abu Yusuf
Imam Muhammad.
In India, most of the Muslims follow ‘Hanafi school’. This school was followed in China, Pakistan, Afghanistan, Turkey as
well. Among the entire Muslim population around the world, the followers of this school are one third.
They followed a simple methodology and were amongst the most popular and prevalent schools.
They did not rely much on the prophet’s hadiths until they were proved to be true beyond a reasonable doubt. They
relied very much on Qiyas. They even extended ‘Ijma’ and gave preference to ‘Isthiasan’.
This school was believed to be stricter than other schools in lifting traditions.
Also, in the application of the law, Abu Hanifa believed that it is important to rely on usages and local authorities.
2. Maliki School (711 AD – 795 AD):

‘Imam Malik’ was the founder of this school. This school gets its name from Malik-bin-Anas. He was the ‘Mufti of
Madina’.
During his period the ‘Kufa’ was considered as the capital of Muslim ‘Khaleefa’ where ‘Imam Abu Haneefa’ and his
disciples flourished with ‘Hanafi’ Schools.
People of ‘Madina’ also followed a certain way of ‘Islam’, this way was also followed by the ‘Maliki School’ and accepted
the practices of the people of ‘Medina’ and the sayings of the companions of the prophet.
They followed ‘Qiyas’ only when the ‘Quran’ or ‘Sunnat’ were silent on that particular matter. They also followed the
‘Public Interest’ –Al-masalih, al- mursalah.
The pupils of ‘Iman Malik’ were ‘Imam Muhan’ and ‘Imam Shafi’.
This school was popularly followed in North Africa, Morocco, Spain, Algeria, Tanzania, etc.
3. Shafi School (767 AD – 820 AD):

Imam Muhammad Ibn Idris Ash-Shafi was the founder of this school. He was the student of Imam Malik of Madina
Then he started working with the disciples of ‘Imam Abu Haneefa’ and went to ‘Kufa’.
He concluded the ideas and the theories of ‘Hanafi School’ and ‘Maliki School’ in a friendly manner.
The ‘Imam Shafi’ was considered as one of the greatest jurists of Islam. He created the classical theory of the Shafi’s
Islamic Jurisprudence.
The followers followed all four sources and rejected the public interest methodology followed by the ‘Maliki school’ and
were also not in favor of ‘Isthiasan’.
He was the first person to collect ‘Sources of Law’.
Their teachings were popular in Lebanon, Syria, Egypt, and some parts of Iraq, Pakistan, Iran, Yaman, and India as well.
4. Hanbali School (780 AD – 855 AD):

‘Ahmad bin Hanbal’ was the founder of the ‘Hanbali School’ of Islamic Jurisprudence.
They were strict regarding the traditions of the ‘Prophet’ and strictly confirmed to the principle of Hadiths.
Their methodology depended on the Quran, Ijma, and Sunnat.
They followed ‘Qiyas’ only when they believed it to be necessary. They were dominant in Saudi Arabia mostly.
Shia Schools
Shia Sect is considered as the minority in the ‘Muslim’ world. They enjoy the political power only in Iran though they
don’t have the majority in that state also. As per Shia Sect, there are three schools of law:
1. Ithna-Ashari:

These schools are based on the followings of ‘Ithna-Ashari’ laws. The followers of these schools are mostly found in Iraq
and Iran.
In India too, the majority of ‘Shia Muslim’ follow the principles of the Ithna-Ashari School.
They are considered political quietists. This school is considered as the most dominant school of the ‘Shia Muslims’.
The Ja’fari Fiqh of the ‘Shias’ in most cases is indistinguishable from one or more of the four Sunni madhahib, except
mutah is considered as a lawful marriage.
The people who follow the ‘Ithna Asharis’ school believe that the last of the Imams disappeared and will be returning as
Mehdi (Messiah).
2.The Ismailis:
The school of ‘Ismailis’ accepted only seven ‘Imams’ and were hence known as the ‘Seveners’. Their origin could be
traced to Egypt. There are two groups of them namely:
The Kohojas or Eastern Isamilis who were believed to be followers of ‘Aga Khan’ who was the 49th Imam in the line of
the prophet.
Western Ismailis popularly called ‘Bohoras’ who were divided among the ‘Sulaymanis and Daudis’. They prevailed in
Central Asia, East Africa, Arabia, Pakistan, Syria, and Iran.
3. Zaidya:

Imam Zaid founded this school.

The followers of this school believed that ‘Imam’ should be based on election, so the succession in this school is through
the election. They believed ‘Imam’ to be above all and considered him as a ‘right guide’.
The followers of this school are not found in India but are maximum in number in South Arabia. This sect of the ‘Shia
school’ is the most dominant among all in ‘Yemen’.
The followers of these schools are considered political activists. They often reject the ‘Twelver Shia’ school philosophies.

The sections of the act are provided as follows:

1. Section 1, which talks about the short heading and scope.
2. Section 2, which covers the personal law application to the Muslim community.
3. Section 3 talks about the power to create a declaration.
4. Section 4 mentions the power of making rules.
5. Section 6 enlists the provision of some Acts that have been repealed.
Title and extent of the Act
As per Section 1(1) of the Act, the short title given to the Act is "Muslim Personal Law (Shariat) Application Act, 1937,"
which was enacted on 7th October, 1937. It extends to the whole of India, and there are no exceptions to the same, as
per Section 1(2) of the Act.
Application of the Act
Section 2 of the Act of 1937 mentions the personal law application to the Muslim community. This section highlights ten
subjects within its ambit, which are
1. "Intestate Succession"
2. Dissolution of marriage, which includes every kind of divorce, namely talaq, illa, zihar, lian, khula, and mubrat,
3. Maintenance,
4. Dower,
5. The special property belonging to the females,
6. Marriage,
7. Guardianship,
8. Gift,
9. Trust, and it's associated properties;
10. Wakf".
For interpreting this section, two important statements written in this section need to be seen, which are as follows:
1. "Notwithstanding any customs or usage to the contrary", and
2. "Shall be the Muslim Personal Law(Shariat)".
These two statements are complementary to each other, and one loses its meaning in the absence of the other. It calls
for a harmonious construction between the prevalent custom and the law of the land, which has been adopted by this
law to give importance to both of them. Before highlighting the aim of this section, it is important to discuss the reason
behind the enactment of such a section in the Act. As already discussed, the underlying principle of this Act is the
elimination of the governing role of religious and customary laws by means of legislative enactment to avoid an increase
in discriminatory laws. This Act aimed at achieving such goals. Section 2 provides for this reason behind the formulation
of the Act and mandates the application of the Muslim Personal Law (Shariat) to the Muslim community. This mandatory
nature binds the Indian Courts to refer only Muslim law if any dispute arises in the subject matter provided under this
Section. Also, Section 2 does not include "adoption, legacies, and wills,"and the courts are not bound to apply Muslim
law in these cases.
However, this section has its own loophole, which is mentioned in the provision itself. Section 2 specifically excludes
agricultural land from its ambit, thereby reinforcing the inheritance customs that excluded females from being given the
inherited agricultural land, and this shows that women are continuing to be deprived of their legitimate share of
agricultural lands as was mentioned under the Islamic law. The female heirs remained shadowed, and the male heirs
continued enjoying their inherited share of agricultural land. This exclusion from the overall scope of the Act has created
a barrier within the Act from achieving its objective. Thus, the replacement of customs with legislative enactment has no
role to play since the major purpose of the Act has been nullified or its ambit has been restricted.
Declaration making power
Section 3 of the act mentions the power to make a declaration regarding the disirability of a Muslim individual to be
governed by this law. In order to utilise this power, three conditions should be satisfied as provided under this section,
which are as follows:
1. An individual should be a Muslim,
2. He should be a component (as per section 11 of Indian contract Act, 1872) for entering into a contract; and
3. He should be an Indian resident.
All the above mention condition have to be fulfilled for exerciseing the power given under section 3 of Muslim personal
law (Shariat) Act,1937. As we know who can I will of the power, it is now crucial to understand the consequence of using
it. This section at tool for answering the mobility of the previous section, i.e., section 2 of this act. It provides that an
individual, after full feeling the condition of the provision, can we declare his desired to take advantage of the provision,
followed by section 2, which will be applicable to the declarant of such benefit along with all his minor children and their
descendants.
Section 3 of the act includes a few subjects that section 2 did not talk about. The include "will, legacies, and adoption,".
The provision provides discretion to the courts to apply Muslim Law in such areas only if an using Muslim individual
wants to be governed by the provision of the act of 1937 as for the remaining 10 subjects given under section 2 of the
Act. Muslim has to make such a declaration in a prescribed from before the prescrib authority will be covered by the
procedure given section under 3 (2) insection for of the act 1937. Section 3 provides the power to make a declaration to
a Muslim person to be governed by the Muslim Law, in the absence of such a declaration, this provision gives an indirect
power to the courts to not be bound by such a low while dealing with any matter in dispute under section 2 and 3.
Power of the state governments to make rules under the Act
This section give the power to make rules according to the provisions and the objective of the act to the state
governments.
This provision along with the above-discussed provisions of section 3 of the Act, governs the procedure to be followed
by a Muslim to make a declaration as per section 3 (1). The state government have the power to decide about the
prescribing authority and the fees that have to be paid before such authority can be granted for the filing of the
declarations. It is to be noted that the act is a central law, and at the time of its enactment, it could not be made
specifically for the states. Thus, this act is flexible enough to incorporate the rule making power of the state government
as per the needs of the Muslims of that particular state, but not by defeating the purpose of this act.
Repeals under the Muslim personal law (Shariat) Act, 1937
Section 6 mention that "certain provisions of a few statutes that appear to be inconsistent with the provisions of the
shariat act of 1937 have been repealed". These below-mentioned acts gave authority to the courts in India for
implementing Muslim law before the Shariat Act, 1937, was enacted. These acts and their respective provisions are as
follows:
1. Section 26 of Bombay regulation IV of 1827;
2. Section 16 of the Madras civil courts Act, 1873 (3 of 1873);
3. Section 3 of the oudh laws act 1876 (18 of 1876);
4. Section 5 of the Punjab laws at 1872 (5 of 1872);
5. Section 5 of the central provisions laws Act 1875 (20 of 1875); and
6. Section 4 of the Ajmer laws regulation, 1877 (Regulation. 3 of 1877).
Is the Muslim personal law at unchangeable
There has always been controversy surrounding the Shariat Act. It has been evident in various instance where the issue
relating to the protection of women's right as a fundamental right conflicted with religious rights and customs. In the
landmark case of Shah Banu Begum, a 62 year old women field a sweet claimbing alimony from her former husband. The
apex court off held her right to claim alimony, but this judgement was opposed by the whole Muslim community, as they
considered the same to be against the Quran. The Shariat Law has remained static, what the supreme court has
continuously tried to upload the rights of the citizens, as has happened in this case. The case of Shayara Bano, wherein
the age-old practice of talaq-e-bidat was made unconstitutional, is also a great example of the same. The Shariat no
states that the state must not interfere in the personal matters of Muslim, for which the Shariat law has already been
enacted. It has further been contended buy a few that since personal laws do not fall under the definition of the 'laws'
under article 13 of the constitution, the validity of any personal law can never be challenged as going against
fundamental rights.
Instead of an omnibus approach, the government can bring such separate subjects as marriage, divorce, adoption,
succession, and maintenance into a uniform civil code for all citizens. There should be a qualification of all personal law
with the aim of bringing all prejudices to the forefont and testing them on the basis of fundamental rights as provided
under the constitution.
Concept of Marriage (Nikah), Nature of Muslim Marriage, Essentials of a Valid Marriage,
Formalities of Marriage, Kinds of marriage.
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.
Marriage acts as an outlet for sexual needs & regulates it so one doesn’t become slave to his/her desires. It is a social
need because through marriage, families are established and the families are the fundamental entity of our society.
Furthermore marriage is the only legitimate or halal way to indulge in intimacy between a man and woman.
Islamic marriage although permits polygamy but it completely prohibits polyandry. Polygamy though permitted was
guarded by several conditions by Prophet but these conditions are not obeyed by the Muslims into.

Marriage:-Pre Islamic Position

Before the birth of Islam there were several traditions in Arab. These traditions were having several unethical processes
like:-
(i) Buying of girl from parents by paying a sum of money.
(ii) Temporary marriages.
(iii) Marriage with two real sisters simultaneously.
(iv) 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.
According to Imams Abu Hanifa, Ahmad ibn Hanbal & Malik ibn Anas, marriage in Islam is recommendatory, however in
certain individuals it becomes Wajib or obligatory. Imam Shafi considers it to Nafl or Mubah (preferable). The general
opinion is that if a person , male or female fears that if he/she does not marry they will commit fornication, then
marriage becomes Wajib. However, one should not marry if he does not possess the means to maintain a wife and
future family or if he has no sex drive or if dislikes children, or if he feels marriage will seriously affect his religious
obligations.
Prophet said:-
When a man marries he has fulfilled half of his religion, so let him fear Allah regarding the remaining half.
This very wording of Prophet marks the importance of marriage, thus it could be well concluded that marriage in Islam is
must.
The general conditions for marriage under Islam are as follows:-
(i) Every Mahomedan of sound mind and having attained puberty can marry. Where there is no proof or evidence of
puberty the age of puberty is fifteen years.
(ii) A minor and insane (lunatic) who have not attained puberty can be validly contracted in marriage by their respective
guardians.
(iii) Consent of party is must. A marriage of a Mahomedan who is of sound mind and has attained puberty, is void, if
there is no consent.

Nature of Muslim Marriage

Muslim marriage, a sacred institution in Islam, has been a subject of profound contemplation and debate within the
Islamic legal tradition. Divergent views exist regarding its nature, with some scholars portraying it as a purely civil
contract and others emphasising its religious sacramental essence.
This article explores the multifaceted nature of Muslim marriage, delving into its contractual aspects, legal foundations
and the spiritual significance that intertwines with the social fabric of Islamic societies.
Contractual Nature of Muslim Marriage
The nature of Muslim marriage is considered a contract.
The dimensions related to the contractual nature of Muslim Marriage are:
Consent and Proposal
One of the key resemblances between Muslim marriage and a civil contract lies in the requirement of free and
mutual consent. The marriage contract, initiated by a proposal (Ijab) from one party and acceptance (Qubul)
from the other, mirrors the essential elements of a contractual agreement. This underscores the importance
of voluntariness and the absence of coercion in the establishment of a marital union.
Capacity and Guardianship
Similar to contractual agreements, the capacity of the parties involved is crucial. In the case of minors, a
guardian may enter into a marriage contract on their behalf. However, Islamic jurisprudence allows the minor
to annul the contract upon reaching the age of puberty, adding a layer of legal protection to the vulnerable.
Ante-Nuptial and Post-Nuptial Agreements
The flexibility inherent in Islamic law is reflected in the permissibility of ante-nuptial and post-nuptial
agreements. Parties entering into a Muslim marriage can tailor the contractual terms to their specific
circumstances, aligning with the principle of contractual freedom within legal bounds.
Modification of Terms
The malleability of the marriage contract within legal limits distinguishes it from a rigid sacrament. Islamic jurisprudence
allows for the alteration of terms to accommodate the changing needs and dynamics of the marital relationship,
resembling the adaptability found in contractual agreements.
Breach of Contract
While discouraged, the provision for the breach of a marriage contract adds a contractual nature to Muslim marriage.
This aspect acknowledges the reality that marriages may face challenges and legal mechanisms exist for the resolution of
such issues, akin to contractual dispute resolution.
Legal Foundations on Contractual Nature of Muslim Marriage
The assertion by some scholars, including Justice Mahmood, that nature of Muslim marriage is fundamentally a civil
contract and is based on the observable similarities with contractual agreements. In Abdul Kadir vs Salima (1886), Justice
Mahmood emphasised the civil nature of Muslim marriage, highlighting its dependence on the declaration, acceptance
and the presence of witnesses.
Justice Mahmood cautioned against equating Dower (Mahr) in Muslim marriage with consideration in civil contracts.
Dower, he emphasised, is a commitment by the husband to provide financial support to the wife, emphasising its
distinct nature from the consideration in contractual agreements.
The Hedaya, a classic Islamic legal manual, acknowledges that the payment of dower is a symbolic gesture of respect for
the woman. It clarifies that while the mention of dower is not essential for the validity of a marriage, its payment reflects
the husband’s commitment and responsibility.
Sacramental and Social Dimensions on Nature of Muslim Marriage
Despite the contractual elements, Muslim marriage is deeply imbued with religious significance. The solemnisation often
involves the recitation of Quranic verses and Islamic principles and ethics guide the process. The spiritual connection
between the couple is considered sacred, elevating the marriage beyond a mere legal contract.
Justice Mahmood, while emphasising the civil nature of Muslim marriage, acknowledged its social aspects. Marriage is a
legal contract and a source of solace and companionship in life. This recognition intertwines the legal and social
dimensions, emphasising the holistic nature of Muslim marriage.

Essentials of Valid Muslim Marriage (Sahih)

The essentials of valid Muslim marriage include free consent from both parties, competency of individuals (major, sound
mind, and Muslims), an offer (proposal or ‘ijab’) and acceptance (‘qubul’) made during the same meeting, and the
presence of competent witnesses.
Dower (‘mahr’) terms must be agreed upon, and the marriage should not violate any prohibitions, such as those related
to close blood relations, affinity, or fosterage. While registration is not obligatory under Islamic law, it is encouraged for
legal recognition.
These essentials of valid Muslim marriage emphasise consent, capacity, and adherence to Islamic guidelines for a valid
marriage.
1. Proposal and Acceptance (Ijab and Qubul)
In a Muslim marriage, a proposal is known as ‘ijab,’ and the acceptance of that proposal is termed ‘qubul.’ It is
imperative that a proposal be made by one party or on their behalf and subsequently accepted by the other party.
Crucially, for a Muslim marriage to be valid, the proposal and acceptance must occur during the same meeting. If the
proposal is made in one meeting and its acceptance takes place in a different meeting, the marriage is not considered
valid.
2. Competency of Parties
The parties entering into the marriage contract must meet specific criteria, which include being (i) of legal age, (ii) of
sound mind, and (iii) Muslims.
i. Major (Legal Age)
Under Muslim law, the age at which a person reaches puberty is considered the legal age for marriage. According to
Hedaya, the age of puberty for females is typically 9 years, while for males, it is 12 years. However, the Privy Council, in
the case of Muhammad Ibrahim v. Atkia Begum & Anr., established that a girl is considered to have reached the age of
puberty if she is either 15 years old or has reached puberty at an earlier age.
The same rule applies to Muslim boys. Thus, unless there is evidence to the contrary, Muslims are generally considered
to have reached the age of puberty at 15 years. Once they attain this age, they can give their own consent, and there is
no need for the consent of their guardians.
ii. Guardians for Minors
If a person is a minor, meaning they have not reached the age of puberty, the consent of their guardian is required to
make the marriage lawful. The individuals recognised as guardians under Muslim law include: (a) Father, (b) Paternal
Grandfather, (c) Brother or any other male member of the father’s family, (d) Mother, and (e) Members of the maternal
relation.
If one guardian is unavailable, the right to consent passes to the next in line according to a specific order of priority. In
the absence of these guardians, a marriage may be contracted by a Qazi or another government authority.
iii. Soundness of Mind
Both parties must be of sound mind at the time of marriage. Individuals who are not of sound mind lack the capacity to
enter into a contract, and their consent, in the eyes of the law, is considered null and void. Unsoundness of mind can
manifest in two forms:
(a) Idiocy, which signifies a complete abnormal state of mind rendering the person incapable of contracting, and
(b) Lunacy, which denotes a curable mental disease. A person deemed a lunatic can enter into a contract during periods
when they exhibit sane behaviour.
iv. Muslim
It is a fundamental requirement that both parties to the marriage must be Muslims, regardless of their sect or sub-sect.
A marriage remains valid even if the parties belong to different sects within Islam, making inter-sect marriages valid.
Free Consent
In Muslim law, the cornerstone of a valid marriage is the free consent of both parties. If consent is obtained through
coercion, fraud, or a mistake of fact, the marriage is deemed invalid and void.
For instance, in the case of Mohiuddin v. Khatijabibi, the Court ruled that a marriage is invalid if it occurs without the
genuine and free consent of the parties involved.
Dower (Mahr)
Dower, known as “mahr,” represents the monetary or property consideration that the groom is obligated to provide to
the bride as part of the marriage contract. Its primary purpose is to ensure the financial security of the bride during and
after the marriage.
In the case of Nasra Begum v. Rizwan Ali, the Allahabad High Court established that the right to dower arises before the
commencement of cohabitation. The Court also held that if the wife is a minor, her guardians can refuse to send her to
her husband until the dower is paid.
If she is already in the husband’s custody, she can be brought back until the dower is settled.
m marriage is considered void if the parties are closely related by blood or fall within prohibited degrees of kinship.
These absolutely prohibited degrees include:
Consanguinity
Prohibits marriage with females related by blood, such as one’s mother or grandmother (regardless of how many
generations removed), daughter or granddaughter, sister (whether by full, half, or uterine blood), niece or great-niece,
and aunt (both paternal and maternal, regardless of how many generations removed).
Marrying a woman within these prohibited degrees of consanguinity results in an invalid marriage, and children born
from such a union are considered illegitimate.
Affinity
Certain close relatives are also prohibited from marriage due to their relationship with one’s spouse. Prohibited
relationships under affinity include one’s wife’s mother or grandmother (regardless of how many generations removed),
wife’s daughter or granddaughter, father’s wife or paternal grandfather’s wife, and son’s wife or descendants’ wives. A
marriage with a woman falling under the prohibited degrees of affinity is void.
Fosterage
Fosterage pertains to relationships established through breastfeeding or suckling. If a woman, other than the child’s
biological mother, breastfeeds or suckles a child under the age of two, she becomes the child’s foster mother.
A man is prohibited from marrying individuals who fall under foster relationships, which include his foster mother or
foster grandmother and the daughter of his foster mother (foster sister).
Sunni law allows for some exceptions to the prohibition on grounds of fosterage, permitting marriages such as sister’s
foster mother, foster-sister’s mother, foster-son’s sister, or foster-brother’s sister. Shia jurists, however, do not
recognise these exceptions and treat consanguinity and fosterage similarly.
Relative Prohibitions
Under Muslim law, certain prohibitions are relative and not absolute. Violating these prohibitions renders a marriage
irregular, but it cannot be declared void. The marriage becomes valid once the irregularities are rectified. The relative
prohibitions are as follows:
1. Unlawful Conjunction
A Muslim man is prohibited from marrying two women who are closely related to each other through consanguinity,
affinity, or fosterage. If their relationship is such that their marriage would have been void (batil) if they were of
opposite sexes, then the marriage is irregular (fasid).
After the termination of one marriage or the death of a wife, the man can marry the other woman. Under Sunni law, a
marriage in violation of unlawful conjunction is considered irregular, while under Shia law, it is considered void (batil).
2. Polygamy
Muslim law permits polygamy but restricts it to a maximum of four wives at a time. If a Muslim man marries a fifth wife
while already having four wives, the marriage is irregular, not void. The fifth marriage can become valid after the death
or termination of one of the four wives.
However, Shia law considers marriage with the fifth wife as void. In India, a Muslim man who has registered his marriage
under The Special Marriage Act, 1954, cannot enter into a second marriage.
3. Absence of Proper Witness
The contracting of a Muslim marriage must be done in the presence of proper and competent witnesses. Under Shia
law, the presence of witnesses is not essential, and marriage without witnesses is considered valid. Parties themselves (if
major) or their guardians can contract the marriage.
Under Sunni law, the presence of witnesses is essential, and a marriage without witnesses is irregular. At least two male
witnesses or one male and two female witnesses should be present, and they must be of legal age, of sound mind, and
Muslim.
4. Difference of Religion
Under Sunni law, a Muslim male is allowed to marry a female who respects the same scriptures, such as Christians,
Parsis, and Jews. However, if he marries an idol or fire worshipper, the marriage is considered irregular.
A Muslim woman is not permitted to marry a non-Muslim man, and if it happens, the marriage is irregular. Under Shia
Law, marriage with a non-Muslim is considered void. While Fyzee holds such marriages as void, Mulla considers them
irregular.
5. Marriage During Iddat
Iddat refers to the waiting period after the death of a woman’s husband or after the termination of her marriage. During
this time, she cannot remarry. The purpose of iddat is to determine if the woman is pregnant, which can affect the
paternity of any child born.
 A divorced woman observes iddat for three months, while a widow observes it for four lunar months and ten days after
her husband’s death. If the woman is pregnant, the iddat period extends until her delivery. Under Sunni law, marriage
during iddat is considered irregular, while under Shia law, it is considered void.
6. Miscellaneous Prohibitions
In Shia law, marriage during pilgrimage is considered void.
Re-marriage between a divorced couple requires a specific procedure, including the woman marrying another
man, her husband voluntarily divorcing her, and her observing iddat. If this procedure is not followed, the
marriage is considered irregular.
Polyandry, where a woman has more than one husband, is not permitted under Muslim law.
Registration of Muslim Marriages
Under Muslim law, marriage registration is not a mandatory requirement. However, several states in India, including
Assam, Punjab, Bengal, Bihar, and Orissa, have enacted laws that facilitate the registration of Muslim marriages. While
registration is not considered an essential element for a valid Muslim marriage, it serves as compelling and authentic
proof of the marriage contract.
The Indian Supreme Court’s ruling in the case of Seema v. Ashwani Kumar emphasised that the registration of marriages
involving Indian citizens, regardless of their religious affiliation, should be carried out in the states where the marriage
ceremony has taken place. This decision highlights the importance of registering marriages for all Indian citizens,
regardless of their religious background, as a means of establishing legal documentation and authentication.
Furthermore, in the case of M. Jainoon v. Amanullah Khan, the Madras High Court made a significant observation.
While confirming that registration of marriage is not obligatory, the court emphasised that it cannot be deemed
prohibited under Muslim personal law. This reaffirms the idea that while registration is not a mandatory requirement, it
is a permissible and beneficial practice that offers legal recognition and credibility to Muslim marriages.

Formalities of Muslim Marriage

The Nikah in Islam is a simple ceremony in which a man and woman declare their oral commitment to each other as
husband and wife. It is a “contract” to which both must consent and it is regarded as an act of worship (ibadah).

Islamic Nikah Rules for Muslims:

There is the Al-Ijab wal-Qubul (offer and acceptance) only, where the Wali (woman’s guardian in marriage) offers the
bride to the groom, who then accepts.

One matrimonial party expresses ‘ijab” willing consent to enter into marriage and the other party expresses “Qubul”
acceptance of the responsibility in the assembly of Nikah ceremony.

Then Wali say: “I give you my daughter/the girl in my guardianship in marriage in accordance to the Islamic Shari’ah in
the presence of the witnesses here with the dowry agreed upon. And Allah is our best witness.”

What does the groom say during Nikah in Arabic

The groom-to-be replies: “I accept marrying your daughter/in your care, giving her name to myself in
accordance with Islamic Shari’ah, in the presence of the witnesses here, and with the agreed-upon dowry. And
Allah is our best witness.”

Thus the Nikah ceremony is complete! Yes, its over in just a few minutes!

Nikah Requirements in Quran

Primary Nikah Requirements in Quran:

1. Mutual (consent) agreement (Ijab-O-Qubul) by the bride and the groom.

2. Legal guardian Wali ( Muslim ) or his representative, wakeel, ” representing “the bride.
3. Two adult and sane Muslim witnesses, (Ash-Shuhud ), 2 males or 1 male and 2 females.
4. Mehr (marriage-gift) to be paid by the groom to the bride either immediately (muajjal) or deferred
(muakhkhar), or a combination of both.

Secondary Nikah Requirements in Islam:

1. Written marriage contract (“Aqd-Nikah”) signed by the bride and the groom and witnessed by the two adult
and sane witnesses.
2. Qadi (State appointed Muslim judge) or Ma’zoon (a responsible person officiating the marriage ceremony)
usually the Imam. (However any trust worthy practicing Muslim can conduct the nikah ceremony, as Islam
does not advocate priesthood.)
3. Khutba-tun-Nikah (sermon) to solemnise or bless the marriage, this includes making Du’aa

The contract is written and signed by the bride and the groom and their two respective witnesses. This written
marriage contract (“Aqd-Nikah) is then announced publicly.

The marriage contract documents are recorded with the Masjid (Mosque) and registered with local
Government, thus fulfilling the civil obligations of the marriage. Without this, the marriage would not be
recognized under the law of the country you reside and the legal rights of the spouse, such as inheritance,
couples and later their children rights would not be valid.

(You will note that it is not essential to have the couple present in the same room during Nikah ceremony, just
so long as the Wali and the Witnesses are there and have witnessed everything and the bride has given her
consent and permission. She may remain silent…. Meaning it’s a Yes! She accepts.

Announcement of the Nikah Ceremony

Islam encourages its followers to announce a marriage and to celebrate this wonderful relationship between a
man and a woman. The Nikah ceremony is also a social activity. The Prophet (PBUH) said: “Declare this
marriage, have it in the masjid and beat the drums.”

However, despite being a religious ceremony, the Nikah does not need to take place in a masjid. That is a
matter of personal choice. However, you will be required to hold a separate civil ceremony. Sometimes, men
and women sit separately at the Nikah ceremony. They may be in a separate room or there may be a partition
between them. Again, this is a matter of preference.

Sermon

The marriage sermon (Khutbah-tun-Nikah) is a way of blessing the marriage and begins by praising
Allah “There is none worthy of worship except Allah and Muhammad is His servant and messenger”, the
Muslim confession of faith, is then declared.

The main body of the sermon comprises three verses from the holy Qur’an and one Hadith: (O mankind! Be
dutiful to your Lord, Who created you from a single person, and from him He created his wife, and from them
both He created many men and women, and fear Allaah through Whom you demand your mutual (rights), and
(do not cut the relations of) the wombs (kinship) Surely, Allaah is Ever an All-Watcher over you).’ [al-Nisaa’
4:1]

(O you who believe! Fear Allaah as He should be feared, and die not except in a state of Islam (as Muslims)
with complete submission to Allaah.)’[Al ‘Imraan 3:102]

(O you who believe! Keep your duty to Allah and fear Him, and speak (always) the truth).’[al-Ahzaab 33:70].”
(Praise be to Allah, we seek His help and His forgiveness. We seek refuge with Allah from the evil of our own
souls and from our bad deeds. Whomsoever Allah guides will never be led astray, and whomsoever Allah
leaves astray, no one can guide. I bear witness that there is no god but Allah, and I bear witness that
Muhammad is His slave and Messenger).

The ceremony draws to a close with Du’aa for the bride and groom, their families, the local Muslim
community and the Muslim community as a whole (ummah).

Haq Mehr (Dower)

It is written in the Qur’an that Mehr (Dower) must form part of the marriage contract. The groom gives Mehr
to his bride as a demonstration of his commitment to her and to providing for her. It can take the form of
money, property or possessions. There is no set amount, although moderation is recommended, and the gift is
agreed between the bride and the groom.

“And give the women their dowries as a free gift, but if they are pleased to offer you any of it accept it with
happiness and with wholesome pleasure.” [Qur’an 4:4]

The groom may pay the Mehr before he marries, at the time of marriage, or at a later date, as agreed with his
bride. The mehr can even be postponed indefinitely. However, it will become payable immediately in the case
of divorce or death. The amount and method of payment is written into a contract, which is signed by the
bride, groom and their witnesses. Following this, the Aqd-Nikah is announced to all who attend the
nikah ceremony.

Traditionally, mehr would reflect the social status of the bride’s family. However, these days, the giving
of mehr is seen mainly as a symbol. No one wants to begin married life burdened with debt and, equally, Islam
does not wish to prevent men from getting married simply because they cannot afford an expensive dowry.

Walima In Islam: The Marriage Banquet

The Wedding Wanquet (Walima) is traditionally held by the groom after the Nikah ceremony has taken place.
It may take place immediately following the Nikah, on the following day, the following week or at a future
date, but the purpose of the banquet is for family and friends to share in the groom’s happiness on the
occasion of his marriage and to give thanks to Allah.

The Prophet Muhammad (PBUH) encouraged Muslims to accept invitations to attend marriage ceremonies
and marriage feasts: “…and the person who refuses to accept an invitation to a marriage feast, verily
disobeys Allah and His Prophet”. [Ahmad & Abu Dawood]

The Walima should not be wildly expensive. Islam emphasizes moderation and it is sensible to keep this in
mind. No one should start their married life with a huge debt, or to burden the families with debt, owing to an
extravagant Walima. It is an occasion to celebrate the happiness of the newlyweds and competing with what
you may have experienced at a friend or relative’s Walima will most likely lead to escalating costs and distract
you from the occasion.

The Prophet (PBUH) said: “The best wedding is that upon which the least trouble and expense is
bestowed.” [Mishkat]

The Walima gives family members and friends the opportunity to congratulate the happy couple. The bride is
congratulated by the women around her and by her family and friends;
The groom receives the congratulations of men. The newlyweds are also presented with gifts. It is believed
that gifts given willingly will strengthen the relationships between people. Therefore, it is important to keep
gifts affordable.

The Prophet (PBUH) said: “Exchange gifts, strengthen your love of one another.” [At-Tirmizi]

You may decide to have Nalima after Nikah ceremony on same, it is ok to do so. Maybe to save time, costs and
travelling. The husband and wife should spend some time together after Nikah..then do the Walima. They do
not need to consummate prior to Walima. This is a wrong concept that some people hold.

Other traditions

Remember these are traditions and a cultural neccessity in certain countries. It is not a requirement in Islam. A
mangni (engagement ceremony) may take place once the couple has accepted each other for marriage. It is
provides an opportunity for the two families to come together and for the couple to exchange rings, if they so
wish. This is not a religious requirement but cultural. Actually in Islam there is no exchange of rings. The outfit
of the bride-to-be is traditionally provided by the groom’s family.
It is traditional, but not a religious requirement for the bride to hold a mendhi ceremony, usually at home,
shortly before the wedding. The groom’s family provides the henna, which is applied to the bride’s hands and
feet. Following the application of mendhi, the bride does not leave the house until the Nikah. Her wedding
clothes are also provided by the groom’s family.

Please note again: It is not a religious requirement for the bride and groom to exchange rings in marriage;
however it has become tradition and culture dictates it. Gold jewelry is acceptable for women only, although
silver rings may be worn by both men or women.

Sunnah Of Wedding Night In Islam

Anticipation of the wedding night can be a cause of wedding day nerves for most Newlyweds, but do try not to
let any apprehension spoil your special day. If you know what is expected on this special night, you can reduce
the feelings of uncertainty.

The Prophet Muhammad (PBUH) has described for us ways in which the Wedding night can be fulfilling and
enjoyable. The Sunnah encourages the groom to place his hands upon his wife’s head and to pray for her.

In the words of the Prophet Muhammad (PBUH): “O Allah, I ask You her goodness, and the goodness of the
inborn dispositions which You have given her, and I solicit Your protection from her evil, and the evil of the
inborn dispositions which You have given her.” [Abu Dawud and Ibn Majah]

It is preferable that the groom leads his wife in two Raka’at (units of prayer) before asking of Allah what they
wish for themselves. The Prophet Muhammad (PBUH) also suggested to say : “O Allah, bless my wife for me,
and bless me for her. O Allah, unite between us in good, and if You separate us, separate us in good.” [Abu
Shaybah]

The groom should treat his bride with kindness and it is the Sunnah to offer her something to eat or drink.
Foreplay is essential: take time to kiss and touch. The Prophet Muhammad (PBUH) said: “One of you should
not fall upon his wife like the way an animal does, let there be a messenger between them.” [Daylami]

Nakedness is allowed and they may look at each other at their free will while having intimacy ..ie sex. But
there is some hadiths, that I posted recently which some scholars said were weak.. regarding nakedness! They
say to preserve modesty, it is preferred if the couple is covered by a sheet, as described by the Prophet
 Muhammad (PBUH) : “Verily Allah is modest and discreet and He likes modesty and discretion.” [Ahmad, At-
Tirmithi and Abu Dawud] (please ref to my post about this)

Take things slowly and gently. Listen to each other and discover what feels good. Like most things in life, sex
gets better with practice, so take comfort in the fact that you will soon discover what your partner likes and
dislikes. When a woman loses her virginity it may be a bit painful and there may be some blood, but this is not
always the case. If you ensure that there has been sufficient foreplay before intercourse, this should make
penetration more comfortable. (This is only meant as a guideline to help those who a seeking reliable
knowledge.)

It is a Sunnah to pray before intercourse: “In the name of Allah. O Allah, keep Satan away from us, and keep
Shaytan away from (the offspring) that which You grant us.” [Bukhari]

You are free to have intercourse in any position you choose (but not allowed by the rear!) and as often as you
choose. After sex, couples are advised to bath or shower (ghusl) or, at the very least, wash themselves with
wudhu.

The Prophet Muhammad (PBUH) also said: “If one of you had intercourse with his wife and then wants to
come to her again, it is better for him to perform wudhu, for it gives him vigor to come again.” [Muslim]

(For information on what is disallowed regarding intercourse, I will leave that for you to find out. However, if
anyone wants to know the marital etiquette. Then please go on to my page and you will find a recent post
about this)

kinds of Muslim marriages

there are four kinds of Muslim marriages: Sahih, Batil and Fasid and muta.
Essentially, a valid marriage must adhere to the specific conditions and ceremonies outlined by the relevant
Muslim sect. A void marriage, also known as a batil marriage under Muslim Law, is considered null and void
primarily due to the presence of certain legal impediments.
An irregular marriage is a marriage that is temporarily invalid and may be deemed valid after the removal of
some irregularities. Muta marriage under Islaminc Law is a type of marriage that is set for a predetermined
duration and is recognised under Muslim Law.
Sahih (valid) marriage
Sahih marriage, also known as Nikah, is the most common kind of marriage under Muslim law. It is considered
the only valid and lawful form of marriage, as it is in accordance with the principles of Islam. In a Sahih
marriage, the parties enter into a permanent and stable union, with the intention of living together as
husband and wife for the rest of their lives.
The marriage is based on mutual consent and the parties are free to negotiate and agree upon the terms and
conditions of the marriage.
Characteristics of Sahih Marriage
Sahih marriage has certain characteristics that distinguish it from other types of Muslim marriage.
 It is a permanent and stable union, which is intended to last for the rest of the parties’ lives.
 It is based on mutual consent and agreement and both parties must freely and voluntarily consent to the
marriage.
 The marriage must be conducted in accordance with the principles of Islam, which include the presence of
witnesses, the payment of a dower (mahr) to the wife and the recitation of certain formulae.
Legal Requirements
 A proposal made by one party and accepted by the other.
 The marriage takes place in front of witnesses. Under Sunni law, the presence of two males or one male and
two females who are sane, adult and Muslim is required. Under Shia law, the presence of witnesses is not
essential at the time of marriage.
 The proposal and acceptance take place in the same meeting.
 The parties are capable of marrying, meaning they should be of sound mind and at the age of puberty.
According to Hedaya, the age of puberty for girls is nine years and for boys is 12 years.
 The parties are capable of giving free consent. In the case of minors or lunatics, the consent of a guardian on
their behalf is admissible.
 There should not be any legal disability, whether absolute (consanguinity, affinity, fosterage) or temporary
(unlawful conjunction, polygamy, absence of proper witnesses, marriage with a woman undergoing iddat,
different religions).
Consequences
After fulfilling all of these conditions, the marriage becomes valid, meaning it gives rise to mutual duties and
obligations that the husband and wife must follow during the course of their marriage. Sexual intercourse
becomes lawful and children born out of a valid marriage are considered legitimate.
The parties become entitled to inherit each other’s property and the wife is entitled to dower and is obligated
to observe iddat in case of dissolution of marriage or death of the husband.
Batil Nikah
A void marriage, also known as a Batil Nikah, is a marriage that fails to meet the necessary conditions for a
valid marriage. In such a marriage, no legal rights or obligations are recognised. The following types of
marriages are considered void:
 Marriages between parties who are closely related by blood.
 Marriages that are prohibited by reason of affinity.
 Marriages with a foster mother or foster sister. Sunni law recognises an exception for marriages with the
foster mother of one’s sister or foster sister’s mother, foster son’s sister or foster brother’s sister.
 Marriages with a woman who is undergoing iddat (the period of waiting after divorce or death of the husband)
under Shia law.
 Marriages with a fifth wife.
 Marriages with someone else’s wife, provided her marriage is still valid.
Consequences
The consequences of a void marriage are that it does not confer any legal obligations or rights on the parties
involved. The wife is not entitled to dower or maintenance and any children born out of the marriage are
considered illegitimate and have no right to inherit property. The parties are not required to follow legal
divorce procedures and can simply separate and marry someone else without any legal formalities.
Fasid Nikah
An irregular marriage, also known as a fasid marriage, is considered an invalid marriage because it does not
fulfil all of the necessary conditions for a valid marriage.
However, this type of marriage in Islam can be converted into a valid marriage by removing the irregularities.
The concept of irregular marriage is recognised only under Sunni law, as Shia law does not offer a middle path
between valid and void marriages.
Under Sunni law, the following marriages may be considered irregular:
 Marriage without witnesses. The parties may remarry in the presence of witnesses to make their marriage
valid.
 Marriage with a fifth wife. It will be valid if the husband divorces one of his four wives and then marries the
fifth one.
 Marriage with a woman in her iddat period. The marriage will be valid if contracted after the expiration of the
iddat period.
If an irregular marriage has been consummated, the wife is entitled to dower and must undergo iddat under
Islamic Law. The children born from such a marriage are legitimate. If the irregular marriage has not been
consummated, the wife is not entitled to dower and the parties can separate without legal formalities.
Temporary Marriage (Muta Marriage)
Muta marriage is a temporary marriage contract that is prevalent in Shia Islam, although it is not recognised
by Sunni Muslims. This kind of Muslim marriage is a fixed-term marriage contract that specifies the length of
the marriage, which can range from a few hours to several years. The marriage is automatically dissolved
when the term of the contract expires, without the need for a formal divorce.
The main significance of Muta marriage is that it provides a way for individuals to engage in a temporary
marital relationship without violating Islamic law. In situations where a permanent marriage is not feasible,
such as when a man is travelling or when a woman is in need of financial support, a temporary marriage can
be a solution.
It is important to note that Muta marriage is not considered equivalent to permanent marriage and the rights
and responsibilities of the parties to a Muta marriage are different from those in a permanent marriage.
Legal Requirements for a Valid Muta Marriage
For a Muta marriage to be valid under Muslim law, certain legal requirements must be met. These include:
Consent: Like all other forms of marriage under Muslim law, the parties to a Muta marriage must have the
capacity to consent to the marriage. This means that they must be of sound mind, free from coercion and
must have reached the age of puberty.
Offer and Acceptance: The marriage contract must be made through an offer and acceptance by the parties
involved. The offer must be made by the man and the acceptance must be made by the woman.
Mahr: The man must pay a fixed amount of money or property to the woman as a gift or dowry. This is known
as the Mahr and it is a mandatory requirement for all kinds of Muslim marriages.
Witnesses: Like in all other types of Muslim marriages, the Muta marriage must be witnessed by two male
witnesses or one male and two female witnesses who are of sound mind and of Muslim faith.
Characteristics
There are some specific characteristics of Muta marriage that distinguish it from other forms of marriage
under Muslim law. These include:
Fixed-term contract: The marriage is for a specified period, which is agreed upon by the parties involved.
No automatic right to inheritance: Unlike permanent marriages, the parties to a Muta marriage do not have
an automatic right to inherit from each other.
No automatic custody of children: The mother does not have an automatic right to the custody of any
children born out of the Muta marriage.
Criticisms and Controversies Surrounding Muta Marriage
Muta marriage is a controversial practice that has been criticised by some Muslim scholars and human rights
groups. Some of the criticisms and controversies surrounding Muta marriage are:
Morality: Critics argue that temporary marriages violate the Islamic concept of morality and decency.
Exploitation: Some critics argue that Muta marriage can be a form of exploitation of vulnerable women,
especially those in need of financial support.
Legal status: Muta marriage is not recognised by the Indian legal system, which means that women in Muta
marriages may not have legal protection if they face abuse or violence.
Impediments to Marriage, Valid Marriage, Void Marriage, Irregular Marriage, Iddat, Registration of Muslim
Marriage

Impediments to a valid marriage

1. Introduction:
Marriage is a civil contract between two persons of the opposite sex which has for its object the procreation
and the legalizing of children. Islamic personal law lays down some prohibitions to a valid marriage on
different grounds. a Muslim can marry a person with whom marriage is allowed under Shariat law. so, there
must be the complete absence of impediments for a valid marriage.
2. Quranic verses:
Alnisa 22-24.
All others are lawful, provided ye seek them in marriage with gifts from your property, desiring Chasity, not
lust, seeing that ye derive benefit from them, give them their dowers at least, as prescribed, but if after a
dower is prescribed, ye mutually agree to vary it, there is no blame on you and God is all-knowing.
3. Meaning of impediment:
Impediment to a valid marriage means to stop a person from marrying a woman or a woman from marrying a
man on the grounds of consanguinity, affinity, or fosterage, on the grounds of consanguinity, affinity, or
fosterage.
4. Kinds of impediment:
I. Permanent:
Perpetual or permanent impediment to a valid marriage arises on account of consanguinity, fosterage, and
affinity. in such a case, the impediment is absolute and eternal.
II. Temporary:
Temporary impediment arises from prohibition in the way of marriage which is not permanent in its nature
and the hindrance is liable to be removed.
5. Various grounds of impediments:
I. Ground of consanguinity:
A man is prohibited from marrying.
1. His mother or his grandmother.
2. His daughter or granddaughter how high so ever.
3. His sister, whether full, consanguine or uterine.
4. His niece or great nice how low so ever.
5. His aunt or great-aunt how high so ever.
Effect.:
A marriage prohibited by reasons of consanguinity is void.
II. Ground of affinity:
A man is prohibited from marrying:
1. His wife, mother or grandmother how high so ever.
2. His wife, daughter, or granddaughter how low so ever.
3. His father, wife, or paternal grandfather how high so ever.
4. The wife of his son or his son, s or daughter son how low so ever.
Effect:
A marriage prohibited by reason of affinity is void.
III. Ground of fosterage:
A man cannot marry this foster mother or his foster sister and the foster mother’s sister all come within the
prohibited degrees.
Exceptions:
A man can marry to
1. Sister's foster mother.
2. Foster sister's mother.
3. Foster's son's sister.
4. Foster brother's sisters.
Effect:
A marriage with a woman. prohibited by reason of fosterage is void.
IV. Ground of unlawful conjunction:
A Muslim may not have at the same time two wives who are so related to each other by consanguinity,
affinity, or fosterage, that if either of them had been made, they could not have lawfully intermarried, as for
instance, two sisters, or aunt and niece.
Effect:
A marriage with a woman prohibited by reason of unlawful conjunction is irregular.
V. Ground of difference of religion:
A Muslim male may contract a valid marriage not only with a Muslim woman, but also with a Kitabia, that is, a
Jewess or a Christian, but not with an idolatress or a fire worshipper. a marriage, however with an idolatress
or a fire worshipper is not void but irregular.
VI. Ground of iddat:
A man cannot marry a woman observing a period of iddat.
Effect:
A marriage contracted with a Mohammedan lady before the expiry of iddat is irregular.
6. Plurality of husband:
It is unlawful for a wife to have more than one husband at the same time. such marriage under Islamic law is
void.
Legal effect:
1. A Muslim woman who marries again in the lifetime of her husband is liable to be punished under the
criminal laws of Islam.
2. The offspring of such marriage can not be acknowledged as legitimate.
3. Essentials of Valid Muslim Marriage (Sahih)
4. The essentials of valid Muslim marriage include free consent from both parties, competency of
individuals (major, sound mind, and Muslims), an offer (proposal or ‘ijab’) and acceptance
(‘qubul’) made during the same meeting, and the presence of competent witnesses.
5. Dower (‘mahr’) terms must be agreed upon, and the marriage should not violate any
prohibitions, such as those related to close blood relations, affinity, or fosterage. While
registration is not obligatory under Islamic law, it is encouraged for legal recognition.
6. These essentials of valid Muslim marriage emphasise consent, capacity, and adherence to
Islamic guidelines for a valid marriage.
7. 1. Proposal and Acceptance (Ijab and Qubul)
8. In a Muslim marriage, a proposal is known as ‘ijab,’ and the acceptance of that proposal is
termed ‘qubul.’ It is imperative that a proposal be made by one party or on their behalf and
subsequently accepted by the other party. Crucially, for a Muslim marriage to be valid, the
proposal and acceptance must occur during the same meeting. If the proposal is made in one
 meeting and its acceptance takes place in a different meeting, the marriage is not considered
valid.
9. 2. Competency of Parties
10. The parties entering into the marriage contract must meet specific criteria, which include being
(i) of legal age, (ii) of sound mind, and (iii) Muslims.
11. i. Major (Legal Age)
12. Under Muslim law, the age at which a person reaches puberty is considered the legal age for
marriage. According to Hedaya, the age of puberty for females is typically 9 years, while for
males, it is 12 years. However, the Privy Council, in the case of Muhammad Ibrahim v. Atkia
Begum & Anr., established that a girl is considered to have reached the age of puberty if she is
either 15 years old or has reached puberty at an earlier age.
13. The same rule applies to Muslim boys. Thus, unless there is evidence to the contrary, Muslims
are generally considered to have reached the age of puberty at 15 years. Once they attain this
age, they can give their own consent, and there is no need for the consent of their guardians.
14. ii. Guardians for Minors
15. If a person is a minor, meaning they have not reached the age of puberty, the consent of their
guardian is required to make the marriage lawful. The individuals recognised as guardians
under Muslim law include: (a) Father, (b) Paternal Grandfather, (c) Brother or any other male
member of the father’s family, (d) Mother, and (e) Members of the maternal relation.
16. If one guardian is unavailable, the right to consent passes to the next in line according to a
specific order of priority. In the absence of these guardians, a marriage may be contracted by a
Qazi or another government authority.
iii. Soundness of Mind
Both parties must be of sound mind at the time of marriage. Individuals who are not of sound mind
lack the capacity to enter into a contract, and their consent, in the eyes of the law, is considered null
and void. Unsoundness of mind can manifest in two forms:
(a) Idiocy, which signifies a complete abnormal state of mind rendering the person incapable of
contracting, and
(b) Lunacy, which denotes a curable mental disease. A person deemed a lunatic can enter into a
contract during periods when they exhibit sane behaviour.
iv. Muslim
It is a fundamental requirement that both parties to the marriage must be Muslims, regardless of
their sect or sub-sect. A marriage remains valid even if the parties belong to different sects within
Islam, making inter-sect marriages valid.
Free Consent
In Muslim law, the cornerstone of a valid marriage is the free consent of both parties. If consent is
obtained through coercion, fraud, or a mistake of fact, the marriage is deemed invalid and void.
For instance, in the case of Mohiuddin v. Khatijabibi, the Court ruled that a marriage is invalid if it
occurs without the genuine and free consent of the parties involved.
Dower (Mahr)
Dower, known as “mahr,” represents the monetary or property consideration that the groom is
obligated to provide to the bride as part of the marriage contract. Its primary purpose is to ensure the
financial security of the bride during and after the marriage.
In the case of Nasra Begum v. Rizwan Ali, the Allahabad High Court established that the right to
dower arises before the commencement of cohabitation. The Court also held that if the wife is a
minor, her guardians can refuse to send her to her husband until the dower is paid.
If she is already in the husband’s custody, she can be brought back until the dower is settled.
Freedom from Legal Disability
Under Muslim law, marriage is prohibited under specific circumstances, categorised as absolute
prohibition, relative prohibition, and miscellaneous prohibition.
Absolute Prohibition
A Muslim marriage is considered void if the parties are closely related by blood or fall within
prohibited degrees of kinship. These absolutely prohibited degrees include:
Consanguinity
Prohibits marriage with females related by blood, such as one’s mother or grandmother (regardless of
how many generations removed), daughter or granddaughter, sister (whether by full, half, or uterine
blood), niece or great-niece, and aunt (both paternal and maternal, regardless of how many
generations removed).
Marrying a woman within these prohibited degrees of consanguinity results in an invalid marriage,
and children born from such a union are considered illegitimate.
Affinity
Certain close relatives are also prohibited from marriage due to their relationship with one’s spouse.
Prohibited relationships under affinity include one’s wife’s mother or grandmother (regardless of how
many generations removed), wife’s daughter or granddaughter, father’s wife or paternal
grandfather’s wife, and son’s wife or descendants’ wives. A marriage with a woman falling under the
prohibited degrees of affinity is void.
Fosterage
Fosterage pertains to relationships established through breastfeeding or suckling. If a woman, other
than the child’s biological mother, breastfeeds or suckles a child under the age of two, she becomes
the child’s foster mother.
A man is prohibited from marrying individuals who fall under foster relationships, which include his
foster mother or foster grandmother and the daughter of his foster mother (foster sister).
Sunni law allows for some exceptions to the prohibition on grounds of fosterage, permitting
marriages such as sister’s foster mother, foster-sister’s mother, foster-son’s sister, or foster-brother’s
sister. Shia jurists, however, do not recognise these exceptions and treat consanguinity and fosterage
similarly.
Relative Prohibitions
Under Muslim law, certain prohibitions are relative and not absolute. Violating these prohibitions
renders a marriage irregular, but it cannot be declared void. The marriage becomes valid once the
irregularities are rectified. The relative prohibitions are as follows:
1. Unlawful Conjunction
 A Muslim man is prohibited from marrying two women who are closely related to each other through
consanguinity, affinity, or fosterage. If their relationship is such that their marriage would have been
void (batil) if they were of opposite sexes, then the marriage is irregular (fasid).
After the termination of one marriage or the death of a wife, the man can marry the other woman.
Under Sunni law, a marriage in violation of unlawful conjunction is considered irregular, while under
Shia law, it is considered void (batil).
2. Polygamy
Muslim law permits polygamy but restricts it to a maximum of four wives at a time. If a Muslim man
marries a fifth wife while already having four wives, the marriage is irregular, not void. The fifth
marriage can become valid after the death or termination of one of the four wives.
However, Shia law considers marriage with the fifth wife as void. In India, a Muslim man who has
registered his marriage under The Special Marriage Act, 1954, cannot enter into a second marriage.
3. Absence of Proper Witness
The contracting of a Muslim marriage must be done in the presence of proper and competent
witnesses. Under Shia law, the presence of witnesses is not essential, and marriage without witnesses
is considered valid. Parties themselves (if major) or their guardians can contract the marriage.
Under Sunni law, the presence of witnesses is essential, and a marriage without witnesses is irregular.
At least two male witnesses or one male and two female witnesses should be present, and they must
be of legal age, of sound mind, and Muslim.
4. Difference of Religion
Under Sunni law, a Muslim male is allowed to marry a female who respects the same scriptures, such
as Christians, Parsis, and Jews. However, if he marries an idol or fire worshipper, the marriage is
considered irregular.
A Muslim woman is not permitted to marry a non-Muslim man, and if it happens, the marriage is
irregular. Under Shia Law, marriage with a non-Muslim is considered void. While Fyzee holds such
marriages as void, Mulla considers them irregular.
5. Marriage During Iddat
Iddat refers to the waiting period after the death of a woman’s husband or after the termination of
her marriage. During this time, she cannot remarry. The purpose of iddat is to determine if the
woman is pregnant, which can affect the paternity of any child born.
A divorced woman observes iddat for three months, while a widow observes it for four lunar months
and ten days after her husband’s death. If the woman is pregnant, the iddat period extends until her
delivery. Under Sunni law, marriage during iddat is considered irregular, while under Shia law, it is
considered void.
6. Miscellaneous Prohibitions
 In Shia law, marriage during pilgrimage is considered void.
 Re-marriage between a divorced couple requires a specific procedure, including the woman marrying
another man, her husband voluntarily divorcing her, and her observing iddat. If this procedure is not
followed, the marriage is considered irregular.
 Polyandry, where a woman has more than one husband, is not permitted under Muslim law.
Registration of Muslim Marriages
Under Muslim law, marriage registration is not a mandatory requirement. However, several states in
India, including Assam, Punjab, Bengal, Bihar, and Orissa, have enacted laws that facilitate the
registration of Muslim marriages. While registration is not considered an essential element for a valid
Muslim marriage, it serves as compelling and authentic proof of the marriage contract.
The Indian Supreme Court’s ruling in the case of Seema v. Ashwani Kumar emphasised that the
registration of marriages involving Indian citizens, regardless of their religious affiliation, should be
carried out in the states where the marriage ceremony has taken place. This decision highlights the
importance of registering marriages for all Indian citizens, regardless of their religious background, as
a means of establishing legal documentation and authentication.
Furthermore, in the case of M. Jainoon v. Amanullah Khan, the Madras High Court made a significant
observation. While confirming that registration of marriage is not obligatory, the court emphasised
that it cannot be deemed prohibited under Muslim personal law. This reaffirms the idea that while
registration is not a mandatory requirement, it is a permissible and beneficial practice that offers legal
recognition and credibility to Muslim marriages.

Void Marriage
Muslim law does not lay down any form of marriage. However through the years, Muslims in
India have themselves adopted various forms in which they can marry. For a Muslim marriage to
be valid it has to comply with the formalities laid down by Muslim law although it is a contract.
On performance of nikah a marital status arises between the parties. A marriage can be legally
performed between the parties possessing full capacity to marry. The general essentials for
marriage under Islam are as follows:- a) Every Mahomedan possessing a sound mind and who
has attained puberty can marry. The general age of puberty is considered to be 15 years if no
proof or evidence of puberty exists. b) A minor and insane (lunatic) who have not attained
puberty can be validly contracted in marriage but only by their respective guardians. c) Consent
of party necessary. A marriage of a Mahomedan who is of sound mind and has attained puberty,
is considered void, if there exists no valid consent or free will. Due to performing of all the
necessary formalities a marriage is a valid marriage and legal consequences of a valid marriage
follow which includes legal sexual intercourse, legitimate children, inheritance rights etc. The
essentials of a valid marriage are that there should be a proposal made by or on behalf of either
of the parties to the marriage, and an acceptance of the proposal by the other party. Thus a
Muslim marriage requires proposal Ijab from one party and acceptance Qubul from the other
side. The proposal and acceptance must both be put forth at once meeting. The acceptance
must be subsequent to what is being offered. The marriage must be effected immediately. The
parties must be competent i.e. they must be sane and adult. Mahomedan, present during the
marriage proposal and acceptance. (Not needed in Shia Law) The women must not be from the
forbidden class. Neither writing nor any religious ceremony is needed but the consent given must
be free consent. Under Muslim law wife’s sect or school does not undergo a change on marriage.
When a marriage is performed in violation of absolute impediments or perpetual impediments
under Sunni law and of all impediments under shia law, the marriage is batil ie. Null and void- ab
initio. Neither can it confer the status of husband and wife on the parties nor the status of
legitimacy on the children. No mutual rights and obligations arise from such marriage. Such
marriages are outcome of forced consent, plurality (keeping of more than one wife) of husband
and also includes marriages that are prohibited on the ground of consanguinity. Consanguinity
means blood relationship and bars a man from marrying: 1. His mother or grandmother no
matter how high in lineage. 2. His daughter or grand-daughter no matter how low in lineage. 3.
His sister whether full, consanguine or uterine, 4. His niece or great niece no matter how low in
lineage. 5. His aunt (fathers sister, mothers sister) or great aunt, no matter how high in lineage
( can be both paternal or maternal).A marriage with a woman which was prohibited by reason of
consanguinity is void. Children from such marriage are considered illegitimate. (d) Marriage
prohibited on the ground of affinity.

Irregular Marriage

Definition

An irregular (fasid ) marriage would, therefore mean neither strictly an irregular marriage nor an invalid
one but a marriage that is disruptive or disturbance of the orderly society as ordained in the matter by God.
A Fasid marriage may be terminated by either party at any time; neither divorce nor the intervention of a
court is necessary. One of them may say I have relinquished you" and the unholy alliance ends. If there has
been consummation, the wife is entitled to dower (Mahar), proper or specified, whichever is lesser and she
must observe Iddat for three courses. While between the wife and husband no right of inheritance is created,
the issues are entitled to share of inheritance. An irregular marriage is a defective marriage, but the defect is
not so fundamental that it can turn the marriage into a void one.

The following marriages have been considered to be irregular under the Muslim Law:

Absence of Witnesses

A marriage contracted without the required and necessary number of witnesses is included in irregular
marriage. A major portion of the Muslim world considers presence of witnesses important but their absence
merely makes a marriage irregular which can be regularized later on.

Prophet (Salalahu alehe wasalum) said

“Announce Your Marriages”

The Muslim marriage law in Pakistan does not specify any number and qualification of witnesses. Generally,
the witnesses should be Muslims.

Number of Wives

A Muslim may have four wives at the same time, but not more. If he marries a fifth wife the marriage is not
void, but merely irregular. If he wants to have fifth wife then he has to divorce one of his four wives .Quran
says

"Marry of the women, who seem good to you, two or three or four; and if ye fear that ye cannot do justice
(to so many) then one (only) or (the captives) that your right hands possess."(4:3)

This verse plainly allows a man to have up to four wives.

Difference of Religion

As regard the difference in religion, a man can marry any Kitabia Woman but a woman cannot
marry anyone except a Muslim. In plain words, a Muslim cannot marry an idolatress or a fire-worshipper. But
if Hindu women enter in Islam then their marriage will be valid. According to Quranic Injunction a Muslim
woman cannot even marry a kitabia man.

Allah says: “Do not marry idolatresses (al mushrikat) till they believe; and certainly a believing maid is better
than an idolatress even though she would please you; and do not marry idolaters (al Mushrikin) till they believe
(hata yuminu), and certainly a believing slave is better than an idolater, even though he would please you.
These invite to the Fire, and Allah invites to the Garden and to forgiveness by His grace, and makes clear His
revelations to mankind so that they may remember.”Qur’an 2:221.

Marriage with woman undergoing Iddat

A marriage with a woman before completion of her iddat is irregular, not void. The Lahore High Court at one
time treated such marriages as void. but in later decision held that such a marriage is irregular and the
children legitimate. “Iddat described as the period during which it is incumbent upon a woman, whose
marriage has been dissolved by divorce or death to remain in seclusion and to abstain from marrying
another husband.

Unlawful Conjunction

A marriage is disregard of the prohibition about unlawful conjunction. For instance, when a man marriage
with the sister of his wife.

Marriage is also irregular in some other circumstances as follows

Marriage with triple divorce. For example a marriage with triple divorced wife without an intervening
marriage.

A marriage with a woman without the consent of her guardian when such consent is considered necessary

Legal Effects of Irregular marriages

As to legitimacy of issue: If any child is born that will be treated legitimate.

As to dower: If consummation takes place then the full dower or fixed dower whichever less shall have to be
paid.
As to validity of sexual cohabitation: Sexual cohabitation is not valid.
As to inheritance: No mutual right to inheritance arises if anyone of them dies.
As to maintenance: No right to maintenance arises.
The wife is bound to observe Iddat if the dissolution lakes place after consummation.
Prohibition on account of affinity is established only after consummation.

It should be noted that marriages that are fasid void sunni law are void under Shia law.