Marriage|Types Of Marriage|It's Nature|Case laws.
What is marriage.
Marriage under Muslim law is different from that of Hindus or any other, as under Muslim law marriage is a form of contract, and hence essential ingredients to constitute a marriage are also different. In legal terminology, it refers to a specific contract used to legalise generation. Muslim marriage has always been regarded as a contract that legalises procreation to bear offspring.
Nature of Muslim Marriage
The institution of family is founded on the principle of marriage. Marriage i.e. Nikah in Islam is considered as a sacred bond between man and woman. This bond emerges as a result of aqd, an agreement between the parties which is divinely directed' and legally enforceable. The question of the nature of marriage among Muslims has often been discussed in the sweeping sense considering it either a form of contract only or merely a sacramental pact or religious sacrament. For example, in Abdul Kadir v. Salima' while comparing marriage contract with the contract of sale, it was laid down by Justice Mahmood that 'marriage among Muhammadans is not a sacrament, but purely a civil contract'. In Khurshid Bibi v Mohd Amin' the Supreme Court of Pakistan laid down that 'among Muslims, marriage is not a sacrament, but is in the nature of civil contracts. Such a contract undoubtedly, has spiritual and moral overtones and undertones, but legally in essence, it remains a contract between the parties...' Similarly in Hasina Bano v. Alam Noor the Court made an observation that unlike Hindu Marriage, which is a sacrament, Nikah is a permanent and an unconditional civil contract which Comes into immediate effect made between two persons of opposite sexes with a view to mutual enjoyment and procreation and the legalizing of children. On the other hand, in Anis Begum v. Mohammad Istafa Shah Sulaiman Justice held that marriage among Muslims is not regarded merely as a civil contract but a religious sacrament too.
Legally speaking, Nikah in Islam creates immediate mutual rights and obligations between the parties towards each other and both the parties can enforce these rights and obligations against each other in the court of law if needed. As long as the mutual rights and duties which arise out of nikah, are fulfilled, it hardly matters whether a marriage be regarded as a contract or a sacrament. The focus on one aspect while ignoring another has undermined the significance and essence of nikah. Legally and juristically the Muslim marriage is a contract and not a sacrament." In Islamic sense, however, it is not possible to separate the legal sense from the religion. Law and religion (the ology) are inextricable in Islam. Fundamentally, the legality flows from the religious sources and doctrines. In a genete sense, the approach has been adopted to favour the e contractual aspect of marriage in preference to a sacramental aspect of it. This approach emerged in the backdrop of the industrial revolution; mass migration from rural to urban areas in search of jobs, increasing number of working women, feminist's movements, increasing discrimination against women and more importantly the deprivation of the rights of women. It is to be noted that ordinarily the contracts made under the laws of contract are commercial in nature and are based on material benefits in the form of goods and consideration (price) which are legally recognized and enforced. There is no doubt that in Islam, marriage resembles with contract to a certain extent as it contains the essentials of contract like offer, acceptance, and free consent. Free consent is at the core of Muslim marriage and this in fact makes it resemblance with the contract. However, to think of Muslim marriage as a contract like the contracts made under the laws of contract has created a lot of misunderstandings and has undermined the spirit of Muslim marriage.
Comparing contract of marriage with the contract of sale of goods is grossly misunderstood concept. It demeans the status of woman and revives the position of woman back to the days of pre-Islamic era of discrimination and injustice when the women were considered not more than chattel or goods to be sold. If this sort of contractual notion is appreciated, then there would remain no difference between a valid marriage like nikah and consensual relation with the woman of easy virtue because, like any other agreement that also involves the offer, acceptance, free consent consideration. But such agreements are not enforceable as they are against the public policy and has been held void under Law of contract in India. Similarly, contracts under the law of contract do not put any legal bar of prohibited degree, fosterage or affinity while as Muslim marriage is barred by such prohibitions. It is a religious significance in the nikah, which differentiates it from the immoral relation. This sort of contractual notion of marriage has turned marriage into merchandise, a purely material affair devoid of love, affection, need and care. It has given rise to the individual oriented approach where both the parties are merely focusing on their respective rights and claims. It can be easily witnessed in our societies that how marriages are increasingly becoming a 'mercantile affair'.
Muslim Marriage is to be seen and understood as the combination of both contractual and sacramental aspects as has been rightly put as a combination of ibadat (devotional act) and muamlat (social dealing)." It is indeed an agreement having many similarities with a civil contract, but not purely a civil contract. It is a sacred union of two opposite sexes. Resembling with elements of contract does not mean that Muslim marriage is purely a civil contract. Even if it is accepted that Muslim marriage is a civil contract, still it qualifies to become a sacrament because the fulfillment of contracts has sacramental and high religious value in Islam. There are many Quranic and Sunnah directives which emphasize on fulfilling the promises and contracts made for each other.
Classification of Muslim Marriage.
Muslim Marriage may be classified as under:
1. Valid Marriage
A marriage is sahih i.e., which fulfills in all respects the essentials of marriage with regard to legal requirements. A marriage which is neither void nor irregular is a valid marriage.The legal essentials of valid marriage are as under:
Offer and Acceptance:
The proposal for marriage is initiated by one party and acceptance is ther. This is called ijab-qabool. Offer can come from either of the two and acceptance is to be made by another. There should be proposal, i.e. declaration 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. The words must indicate with reasonable certainty that a marriage has heen contracted. There must be no ambiguity. The usual form of the proposal is I have married myself to you' and the acceptance being 'I have accepted. The promise to marry at some future time is no marriage.
Essentials of offer and acceptance
The actual basis of Nikah in Islam is only offer and Acceptance. However, to constitute a valid Nikah the offer and acceptance is not an ordinary one, but shall be clothed by the following features (or essentials):
a) No Legal disability:
There should be no legal disability or legal bar involved between the union of the parties while making offer and acceptance. It is the foremost requirement. Legal disability means the existence of certain circumstances under which marriage is not permitted. The legal disability which is absolute in nature is consanguinity i.e. blood relationship, affinity and fosterage. E.g. a person cannot marry his mother, his wife's mother, his foster sister. The absolute legal disabilities render marriage as void abinito.
b) Competence:
The parties to a marriage must have the capacity of entering to a contract. In other words, they must be competent of marry, i.e. they must be of sound mind and attained the age of puberty. The parties must be able to understand the nature of their actions. In other words they should know and understand that what is the meaning of their offer and acceptance and what effects it will result in. If either of them is non-composmentis i.e. insane, the marriage is void. Puberty means the age at which a person becomes capable of performing martial intercourse and procreating children. The age of majority is based upon age of puberty in Islam.
c) Free will and consent:
The parties who are making offers and acceptance must be acting under their free will and consent. There should be no compulsion, undue influence or fraud on either of the parties. In case of the minors who have not yet attained the age of puberty, the consent of their legal guardians is must. Such a marriage, although valid, is capable of being repudiated by using the option of puberty.
d) One meeting:
The offer and acceptance must be completed in one place in meeting and acceptance one meeting. A proposal made at one at another does not constitute a valid marriage. In other words, verbally the contract must be completed in one and the same time and place i.e. in one meeting.
e) Witnesses:
The offer and acceptance must be done in presence of two male witnesses or one male and two female witnesses who are competent i.e. sane and majority. Under Shia law witnesses are not necessary at the time of marriage.
f) Agreement to pay dower:
In order to constitute the valid marriage, there must be the promise of dower moving from the husband in favour of the wife at the time of offer and acceptance. It is to be noted that actual payment of dower is not the essential of marriage, but agreed to pay dower is essential. It is this agreement which decides the nature of dower like specified, prompt, deferred etc.
Legal Effects of Valid Marriage:
The legal effects or the legal results which arise from a valid marriage are:
1. Martial intercourse becomes lawful and the children born out of such union are legitimate;
2. The wife becomes entitled to her dower. This means she can claim dower from her husband as and when she likes. She has a right to refuse cohabitation if prompt dower is not paid.
3. The wife becomes entitled to maintenance and residence. This means a husband is bound to pay her the maintenance and wife has legal remedy available to recover the same. It is to be noted that filing a case for Seeking maintenance does not ipso facto" dissolve the marriage and marriage remains intact.
4. The husband becomes entitled to restrain her wife's movement in a reasonable manner. For example, a wife needs to seek permission from the husband to go outside of the matrimonial home for some work, or for visiting parents. Wite comes under an obligation to be faithful and obedient to the husband; to give him lawful access; to obey his legal commands.
6. The wife is under obligation to reside in the matrimonial home with her husband. are established between them;
7. The inheritance rights both can inherit from each other in case of each other's
death if the marriage was in subsistence that point of time.
8. The prohibitions regarding marriage due to the rules at affinity come into operation. For example a husband cannot marry the wife's mother or sister or daughter.
Similarly a wife cannot marry the husband's father or SOn.
9. The wife needs to complete the iddat period for remarriage in case of death of her husband or dissolution of marriage.
I0. Neither the husband nor the wife acquires any interest in the property of another by reason of marriage.
11. The husband is under obligation to treat her wife in a just manner with respect and affection, and the wife is under obligation to keep obedience and faithfulness to him.
12. If both the parties have entered into any agreement at the time of Nikah, its stipulations will be enforced if they are consistent with the provisions of law. A Muslims wife is entitled at the time of marriage, or subsequently, to make a contract with her husband. Some of the legal stipulations enforceable in the court of law are:
- The husband shall not contract a second marriage during the existence or continuance of the first; however, some of the Shia jurists do not consider it as valid condition.
- That the husband shall not remove the wife from the conjugal domicile without her consent;
- That the husband shall not absent himself from the conjugal domicile beyond a certain a specified time;
- That the husband and wife shall live in a specified place;
- That a certain portion of the dower shall be paid at once or within a stated period and the remainder on the dissolution of the contract by death or divorce;
- That the husband shall pay the wife a fixed maintenance,
- That he shall maintain the children of the wife by a former husband,
- That he shall not prevent her from receiving the visits of her relations whenever she likes."
- That he shall not compel her for any kind of employment for which she has to leave her home.
2. Void Marriage
A marriage is baatil contracted by parties suffering from absolute legal disabilities i.e. absolute impediment on the grounds of consanguinity, affinity and fosterage. These are no marriages at all and have no legal effects whatsoever. Similarly the marriage with the wife of another man whose marriage is still subsisting is void marriage or the marriage with a divorced wife when the legal bar still exists is void. A void marriage is an unlawful connection which produces no mutual rights and obligations between the parties. " The issues born out of void marriage are illegitimate.
Allah says in the Quran:
"Prohibited to you (for marriage) are your mothers, your daughters, your sisters, your father's sisters, your mother's sisters, your brother's daughters, your sister's daughters, your foster mothers who nursed you, your fooster sisters through nursing, your wives' mothers, and your step daughters under your guardianship born of your wives unto whom you have gone in. But if you have not gone in unto them there is no sin upon you. And also prohibited are the wives of your sons who are of your own loins, and that you take in marriage two sisters simultaneously, except for what has already occurred. Indeed Allah is ever Forgiving and Merciful.
3. Irregular Marriage
A marriage is fasid when it is contracted by the parties suffering from relative impediments or temporary incapacities i.e. those impediments which can be removed. These are invalid marriages which can become valid once the impediment is removed. However, if the impediment continues to be so, then such marriage is invalid and irregular. In these marriages the illegality springs from an accidental circumstance such as the absence of witness. It is to be noted that the early lawyers, in describing unions of either kind, i.e. void and irregular, often called them both as baatil or used the term batil (null) and fasid (invalid) indiscriminately. In the Hedaya and Fatawai Kazi Khan the term batil is sometimes employed in respect of both classes of marriage. In later times a sharp distinction came to be recognized between marriages which were radically illegal (i.e. void) and those which were illegal from some accidental temporary circumstance. In void case the marriage could Or case not under any circumstance be contracted; in irregular there is no bar to the connection if the circumstance which made it unlawful for the time did not exist. Inaya, one of the foremost commentators on the Hedaya laid down that void unions are unlawful in themselves and irregular unions are unlawful for something else. In the first intercourse is unlawful in itself while in second intercourse is unlawful for 'something else' i.e. some extraneous and accidental cause,' Some grounds which make the marriage irregular (fasid) are;
- Marriages without witnesses;
- Marriages with a fifth wife while four marriages are in subsistence:
- Marriage with a woman undergoing iddat;
- Marriage with two sisters simultaneously;
- Marriage, contrary to the rules of unlawful conjunction;
- Marriage prohibited by reason of difference of religion.
The effects of an irregular marriage or invalid marriage under Sunni law are:
but
- It is the duty of the qazi to separate the spouses, the spouses may themselves terminate the union at any time. Neither divorce nor the intervention of the court is necessary.
- If the consummation has taken place, then the wife is entitled to specified or proper dower whichever is less;
- The wife must observe iddat for three courses both on death or divorce, but she is not entitled to maintenance during iddat;
- No mutual rights of inheritance are created between the husband and the wife;
- Children born are treated as legitimate and are entitled to a share of the inheritance.
The Shia law does not recognize irregular marriages, but only valid and void marriages. Those marriages which are irregular under Sunni law are regarded as void marriages under Shia law. Therefore, under Shia law, there is no distinction between void and irregular one. However, under Shia law, a marriage contracted without witnesses is valid, it is not void. Under Sunnà law, it is irregular.
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