What is Nikah?
In Arabic, the word ‘Nikah’ (marriage) literally means the union of sexes and in law it means marriage. Chapter IV, Page 8 of the Quran says, “O men fear your Lord, who hath created you out of one man, and out of him hath, created his wife, and from them two hath multiplied many men and women”.
As per Law of Marriage (Compendium of Islamic Law compiled by All India Muslim Personal Law Board), “Marriage is an agreement between a man and a woman, based on the Shariat principles as a result of which mutual sexual relation becomes legitimate, paternity of obligations become enforceable.”[i]
As per Justice Mahmood, “Marriage is a civil contract upon completion of which by proposal and acceptance all the rights and obligations which it creates, arise immediately and simultaneously”.
According to Muslim Law, marriage is not a sacrament but a civil contract. All the rights and obligations it creates arise immediately and are not dependant on any condition precedent such as the payment of dower by a husband to wife. (Abdul Kadir v. Salima)[ii].
An intercourse of a man with a woman who is not his wife is unlawful and absolutely prohibited and their intercourse is termed as zina i.e., fornication or adultery. The offsprings of such intercourse is illegitimate, and cannot be legitimated by acknowledgment.
What are the objectives of Islamic Marriage (as per law)?
A Muslim marriage is a civil contract for the fulfillment of the following objects:
-Promotion of a normal family life
-Legalizing sexual intercourse
-Procreation of legitimate children and increase in family
-The ordering of domestic and social life and the protection of society
-The upbringing of virtuous children
-The discipline of the family and respectability of wife and children
-Guarding the human beings from foulness and unchastity.
According to Section 3 of the Law of Marriage [Compendium of Islamic Laws compiled by All India Muslim Personal Law Board], “The purpose of marriage are perpetuation of human race and attainment of chastity, continence, mutual love, affection and peace”.
What is the ature of Islamic Marriage?
Under Mahomedan law marriage is purely a civil contract. It is essentially an agreement between the parties, the terms whereof depend on the will of the consenting parties. Like other contracts it is constituted by a proposal made by or on behalf of one of the parties to the marriage, and an acceptance of the proposal by or on behalf of the other. Such contract must be accompanied by dower, which is a price paid to the wife for the connubial rights of the husband. Whatever may be the true nature of marriage, it is not a sacrament under Mahommedan law, Fitzgerald observes, “Although a religious duty, marriage is emphatically not a sacrament. There are no sacraments in Islam, nor is it coverture.
Section 4 of the Law of Marriage (Compendium of Islamic Law) compiled by All India Muslim Personal Law Board says, “Marriage is compliance with injunctions of God’s Book and His Prophet’s Sunnat; further it is the source of perpetuation of human race and attainment of chastity due to which human beings are protected against committing what is absolutely prohibited by religion. In the eyes of the Shariat, therefore, marriage is not just a civil contract; it is also worship”.
In Muslim law, marriage assumes the form of a pure civil contract. Like a contract, there must be a proposal and acceptance in one meeting, by the bridegroom and bride. If they are minors, proposal and acceptance must be made by the legal guardians on behalf of them.
The proposal is made by the bridegroom, the proposal is called ‘Ijab’. The proposal consists the amount of dower and is made before two witness and Kazi. The bride or the legal guardian of the bride expresses willingness and acceptance. The acceptance is called ‘Qabool’. When both the parties say yes, then marriage takes place. The Ijab and Qabool must be done at one meeting. The consent of both the parties must be free will, not under undue influence, misrepresentation or coercion. The parties to the marriage must be competent parties i.e, the person is of sound mind and who has attained the puberty. Thus contract of Marriage can be said to be complete unless the contracting parties understand its nature and mutually consent to it.
Muslim marriage has every elements required for a civil contract:
Proposal – Ijab
Acceptance – Qabool
Consideration – Dower
Free Consent
Competency of the Parties
Rules of Marriage As per the Law of Marriage [Compendium of Islamic Laws compiled by All India Muslim Personal Law Board].
The following are the rules of Marriage:
-Different situations arising from the capacity to discharge the obligations resulting from marriage and the apprehension of indulging or not indulging in illegal sex make different also the rules of marriage, details of which follow:
-If a man is capable of providing for the woman’s maintenance and other rights and is sure that if he does not marry he may indulge in illegal sex, it is farz [obligatory] for him to get married,
-If a man is capable of providing for the woman’s maintenance and other rights and is not sure but has a strong apprehension that if he does not marry he might indulge in illegal sex, it will be wajib (essential) for him to get married,
In normal circumstances marriage is a sunnat-e-muakkidah (Prophets Tradition which must be adhered to)
‘Normal circumstances’ means that the man is capable of cohabitation and capacity to provide for maintenance and marital rights, but if he does not marry there is no risk of his indulging in promiscuity, and no risk that in the case of getting married he might for sake faraez (obligatory precepts of Islam) and sunnat-e-muakkidah (Prophet’s Traditions which must be adhered to),
Getting married is Haram (absolutely prohibited) for a man who does not have the capacity to provide for dower, maintenance and marital rights, or is sure due to his temperament that he will be guilty of cruelty and excesses towards the would-be wife,
-If a person is not sure but he has apprehension of meting out cruelty to the would-be wife, getting married is makruh-e-tahrimi (essentially avoidable).
Rules of Shariat for marriage are the same for women as for men, except that for women there is no condition of capacity to provide dower and maintenance (Section 5)[iii].
What are the grounds on which marriage between Muslims are Prohibited?
Prohibited Relationships Law of marriage (Compendium of Islamic Laws compiled by All India Muslim Personal Law Board) provides that:
The woman to whom a man is getting married to must not be prohibited for him either perpetually or temporarily[iv].
The following are the restrictions or limitations to the unfiltered capacity of a Muslim to marry any person of the opposite sex:
Absolute prohibitions
Marriage under this prohibition is void and has the issue illegitimate. Even the doctrine of factum valet cannot cure this.
There are two different situations of marriage being absolutely prohibited:
To be absolutely prohibited for ever – which is called perpetual prohibition; and
prohibition for the time being, limited to specific circumstances or specific time – which is called temporary prohibition [Section 34].
There are three reasons for perpetual prohibition:
-consanguinity,
-affinity;
-fosterage[v]
Relative Prohibitions
The relative prohibitions are not absolute prohibitions and only render the marriage invalid or irregular but not altogether void. They of the following:
-Unlawful conjunction
A Muslim is forbidden to have two wives at the same time so related to each other by consanguinity, affinity and fosterage that if either of them had been a male they would have been prohibited from marrying each other. The reason behind this prohibition is to avoid confusion of kindred. A Muslim cannot contract a valid marriage with his wife’s sister till his first wife is living. This bar may be removed by divorcing his first wife or when she is dead. Such marriage is invalid but the children born of them are legitimate.
-Polygamy [Marrying of fifth wife]
The Muslim law permits polygamy upto four wives. Section 494 of IPC cannot be enforced on Muslim men. It is unlawful for a Mohammadan to have more than four living at a time. Marriage with a fifth wife is invalid but their irregularity may be removed by divorcing one of them.
Woman undergoing Iddat
A Muhammadan marriage is not dissolved for all purposes immediately on death or divorce. Even after such dissolution it continues to be effective for certain purposes during the period of Iddat. ‘Iddat’ means a period during which a wife must wait after the dissolution of her marriage before she can marry again i.e., the period of waiting. Such a marriage, if she marries, would be invalid, not void.
-Difference of religion
In the case of woman
According to Sunni law, a Muslim female can validly marry a Muhammadan alone, if she marries a non-Muslim the marriage is only irregular or invalid and not void. According to the Shia law of Akbari School, both the spouses must be Muslims in order to constitute a valid and lawful marriage.
A Muslim female cannot marry any man who is not a Muslim, whether he is a Kitabi (‘Kitabi’ means a male who believe either in Judaism or Christianity[vi]). Thus a marriage between a Muslim woman and Christian male is invalid. But if he turns a Muslim the marriage will become valid
In the case of man
According to Sunni law, a Muslim male can validly marry a Kitabia (‘Kitabia’ means a female who believe either in Judaism or Christianity[vii]). But if he marries an idolatress (Hindu) or fire worshipper [Parsee], the marriage is invalid and not void for the impediment is removable by conversion to Muslim faith.
According to the Shia law of Akbari School if a Muslim male marries a non-Muhammadan the marriage is unlawful. But a Shia Muhammadan male may contract a valid muta or temporary marriage with a Kitabia or with a fire worshipper.
-Absence of proper witness
The Sunni law lays down that the contract of marriage must be concluded in the presence and hearing of two adult and sane Muslim witnesses. If there is only one male, then two females are required to testify to the contract in place of one male. Marriage performed in the absence of witnesses of the proper number and quality are, therefore, invalid but not void.
Shia law does not require the presence of witness as necessary in any matter regarding marriage.
Prohibitive Prohibitions
-Polyandry:
A married woman cannot contract a second marriage during the existence of the first husband. The Muslim law forbids plurality of husbands although it recognizes polygamy to the extent of four wives at a time. The offsprings of such a marriage is illegitimate and cannot be legitimatized by acknowledgment.
Directory Prohibitions
They may arise from marrying a pregnant woman, remarrying a woman after triple pronouncements, marriage during pilgrimage or marriage with a sick man.
-Marriage with pregnant woman [Marrying a woman enceinte with a child]
It is unlawful to marry a woman who is pregnant by her former husband and if he himself has caused pregnancy before marriage, he can marry her. But where the pregnancy is consequent upon fornication, according to Abu Hanifa, it was lawful for a man to marry a woman though, he must refrain from matrimonial intercourse with her till her delivery and according to Abu Yusuf such a marriage was not valid.
-Remarriage with a divorce
Where a marriage has been dissolved by the pronouncement of divorce three times, re-union is prohibited, but if it is intervened by a consummated marriage with another, the disability is gone when the man had divorced her or died after consummation of the marriage. Under Shia Law, if the intention of the second marriage be to remove the bar of remarrying the first, both the marriages become invalid.
-Marriage during pilgrimage
The Hanafis regard the marriage during pilgrimage as perfectly legal and Hanbalies hold such marriages as invalid. The Shia law places as absolute prohibition on marriage contracted while on pilgrimage within the sacred precincts of Mecca.
-Marriage with Sick man
A marriage with a sick man from disease which is likely to be fatal is invalid. If, however, he recovers and the marriage is consummated it is valid.
Classification of Marriage
Valid (sahih)
A marriage is said to be valid when all of the requirements are fulfilled and there were no prohibitions present.
What are the effects of a valid marriage?
-Lawful cohabitation between the husband and the wife
-The children gain legitimacy and right to inherit their parent’s properties.
-Mutual rights of inheritance between husband and wife gets established. That is to say, after the death of the husband, the wife is entitled to inherit the husband’s properties and vice versa.
– Prohibited relationship for purposes of marriage is created between the husband and wife and each of them is prohibited to marry the relations of the other within prohibited degrees.
-The wife’s right to claim dower gets fully established.
-The wife gets the right of maintenance from her husband with immediate effect.
-After the dissolution of the marriage, the divorced wife is under an obligation to observe the Iddat, during which she cannot remarry.
Void (Batil)
The marriage is void ab initio. It creates no rights or obligations and the children born out of such marriage are illegitimate. A marriage forbidden by the rules of blood relationship, affinity or fosterage is void. Similarly, a marriage with the wife of another man or a marriage with a divorced wife during iddah period is also void.
Irregular (Fasid)
Due to lack of some formalities, or the existence of certain impediments which can be rectified, a marriage can become irregular. However, the irregularity is not permanent and can be removed. Thus, the marriage itself is not completely unlawful. It becomes valid once the prohibitions are rectified. Such marriages are called ‘Fasid’.
-A marriage contracted without required number of witnesses;
-A marriage with women who is observing Iddat.
-A marriage with women without the consent of her guardian when such consent is considered necessary
-A marriage prohibited on the ground of difference of religion
-A marriage with a woman who is pregnant, when the pregnancy was not caused by adultery or fornication.
-A marriage with a 5th wife
Muta marriage
Muta marriage literally means “pleasure marriage”. Muta marriage is a temporary agreement for a limited time period, agreed by both the parties. There is no prescribed minimum or maximum time limit. The marriage gets dissolved itself after the expiration of the decided period, however if no such time limit was expressed or written, the marriage will be presumed as a permanent marriage.
[i] Section 2 of Compendium of Islamic laws : a section-wise compilation of the rules of Shariʻat relating to Muslim personal law ,
https://ia802902.us.archive.org/4/items/MusarhadSimpleFiqh/Compendium.Of.Islamic.Laws.pdf
[ii] (1886) ILR 8 All. 149
[iii] Section 5 of Compendium of Islamic laws
[iv] Section 33 of Compendium of Islamic laws
[v] Section 35 of Compendium of Islamic laws
[vi]https://www.refworld.org/docid/42df6159b.html#:~:text=Kitabi%20means%20a%20male%20who,in%20either%20of%20these%20religions.
[vii] https://www.duhaime.org/Legal-Dictionary/Term/Kitabia
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