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The Muslim marriage in India is governed by uncodified or unwritten set of rules, the interpretation of this readings of the rules were said to be derived from the Holy Quran. These personal laws do not have a particular legislation, they are said to be derived by relying on the observations by various jurists.
A marriage is a cultural, legal matrimony between two individuals entering a personal relationship with their mutual consent, the tradition of marriage differs from one religion/ sect based on their geographical location. Considering, the marriage according to Christians and Hindus is a permanent union or a sacrament between two individuals devotionally. Whereas, the Islamic laws for the marriage, on the other hand, is a devotional act also known as ‘ibadat’ where two parties enter into a contract with their mutual consent or by their own will is referred to as ‘Nikah’ which in Arabic means an intercourse or a sexual intercourse, the term which is mentioned in Quran solely refers to a contract of marriage. In other words, Nikah or a marriage is a social or a Civil contract which consists of varied and wide duties and responsibilities entered with a view for legalisation and procreation of children. Marriage under the Islam is an obligation or religious duty on every individual belonging to the same faith. According to Sir Wilson a marriage or a Muslim marriage is a contract which legalises a sexual intercourse and the procreation of children.
Equality among the individuals
The equality among individuals was provided or could be observed from the last sermon (Khutabul Wada) of Prophet Muhammad which were mentioned in all of the books of ‘Hadith’ where he delivered the message stating –
“All mankind is from Adam and Eve. An Arab has no superiority over a non-Arab nor a non- Arab has any superiority over an Arab; also, a white has no superiority over a black nor a black has any superiority over white except by piety and good action. Learn that every Muslim is a brother to every Muslim and that the Muslim constitute one brotherhood. Nothing shall be legitimate to a Muslim which belongs to a fellow Muslim unless it was given freely and willingly. Do not, therefore, do injustice to yourselves.
Remember, one day you will appear before God (The Creator) and you will answer for your deeds. So beware, do not stray from the path of righteousness after I am gone.”
This implies that the Arabs are not inferior or superior to non-Arabs (vice versa) and white people are not superior or inferior to the blacks (vice-versa). According to him all mankind is from Adam and Eve. Through which it could be drawn that the Islam believed in the equality among the individuals especially in the current day scenario if pointed between women and men.
Generally viewing from the perspective of a female, even today a girl during the time of fixing her marriage by her parents she does not get to have a say in her marriage due to their conservative nature. According to both Hadith and Quran which provide the girl to have a right to choose her husband, where the girl in most cases will be forcefully married without her choice. Considering the essentials of a marriage, the important one is that there should be capacity of the parties entering into the union or simply that he/ she are able or in a position to afford it under the Muslim law, and if both the parties are willing and are of the capacity to afford the union, the women or someone on her behalf should be giving the acceptance of marriage the same applies to the man. Here, the person who is on behalf of the women agreeing the proposal is to be authorized by her to put forth the acceptance of the obligation of the marriage and to proceed with the marriage with two witnesses available. The marriage is said to be complete after it is taken to the Kazi or Qazi who reads parts of Quran to solemnize the marriage between the parties. The part which should be stressed upon here from the above observation is ‘the acceptance of the woman by her own will or choice which could be put forth by someone on her behalf’ not the acceptance by the person him/herself without the girl’s choice or say in her own marriage. Viewing from the legal perspective a marriage under a Muslim law is a contract rather than a sacrament, considering the case where the judgment held by Justice Mahmood who was the Allahabad High Court’s first judge where he put forth the nature of the marriage under the Muslim law according to him the marriage is a custom or a tradition which constitutes the foundation of family, community and personal relationship between the people this is considered to be the backbone of the Islamic society with such a social system. This judgment by Justice Mahmood acquired great reputation not only in the state level High Courts but from the Supreme Court to the Privy Council.
Considering the dower and dowry, it is important to note that the two dower and dowry are different terms, the dowry is something which is demanded by the family of the bride or the groom himself, this is the gift which is demanded from the groom side on the name of the bride and after the marriage is solemnized it usually is claimed or is considered as their (the groom’s or the husband’s) own. Whereas the dower on the other hand is something which is negotiated at the time of framing the contract by both the parties under the union, it could also be considered as the gift given by the husband to honour his wife. It could be stated that the dower is given for the purpose of welfare of the women in the marriage which provides financial assistance to them after or during the period of their marriage.
One aspect which could be drawn from the view of various writers like Mulla, MacNaughten, British Judges, where for the judgment several cases were referred and even the Maulvis stated that the bigamous marriages under the Muslim law were legally as well as socially recognised. On the other hand, by analysing from the primary source of Islamic law which is Quran, prohibits the act of bigamy as the man in the union cannot treat the both wives or more than two (under the polygamy) equally. The bigamous marriages in ancient days permitted especially during the time of war which would sometimes leave wives widowed or their children parentless or orphaned along their wives. In situations such, during that time so as to support, protect and maintain their property along the both wife and children this practise of bigamy was allowed but the equality in this case among the women or the wives of the men was emphasised.
Background of the Muslim Law
The Muslim Law also known as Sharia or Islamic Law is believed to be derived from the divine origin, where the divine himself has communicated the law to Prophet Mohammed through Archangel Gabriel, after which the revelations were articulated in the Holy Quran. The Quran is considered to be the direct words of the God himself to regulate human conduct, whereas the Hadith is considered to be the indirect words of God. The Muslim Law was observed to be established or developed after the death of Prophet Mohammed. The Muslim Family Law in India is observed to be codified and uncodified i.e., a part of the Muslim Family Law is codified, which consists of the laws related to women’s right to divorce her husband (1939) and women’s right to seek maintenance after divorce (1989), the other part of the law consisting of the uncodified laws such as polygamy, mehr, adoption, restrictions on men’s right to oral unilateral divorce, custody of children. Thus, the laws which are not codified or are uncodified could be interpreted as the case may be by the courts, lawyers, qazis, judges, muftis etc. from the case laws or from the unwritten Sharia or Muslim Law based on the case or the matter concerned. A person born as a Muslim shall continue to be Muslim until he renounces his religion, and the person who is a Muslim should acknowledge that there is one God and Muhammed is his Prophet or is the messenger of God (Rasool) where in Arabic Islam basically stands for the ‘Submission to the will of God’.
The Marriage under the Muslim Law is considered to be purely a civil contract not a sacrament by few jurists as the marriage under the Muslim law has the same characteristics as that of the civil contract, whereas the others consider it to be both sacrament in contrast with the civil contract or simply it is a sacrament in the form of civil contract. Justice Mahmood through a judgment under the case of Abdul Kadir v. Salima observed that marriage under Mohammedans is not a sacrament but purely a civil contract by viewing at the procedural aspects of the marriage or Nikah as to how it takes place and what goes in the marriage which brings the category of it to be a civil contract, and there was an analogy drawn by him (Justice Mahmood) based on the aspect of consideration in the marriage where he stated that Dower (the dower amount is given or promised to the bride based on various aspects such as income of the groom, educational qualifications of the groom, societal status of the bride and decided by the both families or the bride and the groom) under the Mohammedan Law is a form of sum or the other property promised by the husband to be delivered or paid to the wife in consideration of the marriage. Hence, through which it was concluded by Justice Mahmood that marriage under Muslim or Mohammedan Law is a civil contract not a sacrament.
Whereas, in the case of Shohrat Singh v. Jafri Begum on deciding as to what is the nature of the marriage under Muslim Law the Privy Council clearly put forth or stated that marriage or Nikah under Muslim Law is a religious ceremony this was considered as to the facts based on the procedure or viewing how a marriage is solemnised under the Muslim Law because it was contended by various other jurists i.e., at the time of marriage or Nikah there are many religious procedures or step taking place for a marriage to be solemnised. Hence the court held that the marriage under the Muslim law is more of a sacrament as comparatively that of the civil contract. Further, the observations made by a Muslim scholar Abdul Rahim as to the marriage under Muslim law he states that the Nikah or marriage under Islam is both the blend of civil contract and a religious sacrament or he simply put forth his view on observing the procedure that a Muslim marriage is a religious sacrament in the form of civil contract.
On observing through the tradition put forth by Prophet Muhammad was ‘marriage is my sunnah and the one who is not performing it is not among us or is not a follower of mine’, which could be implied that a marriage is said to be a mandatory requirement or essential part of the life of a Muslim individual, so it was concluded by jurists or scholars that the marriage under Islam is not merely a civil contract as mentioned by Prophet himself through his traditions that there is no monkery in Islam, one should live a life the way everyone is living and then only one can achieve and lead a virtuous life. Accordingly, viewing from the religious perspective a marriage or Nikah is an institution or union of the parties leading to the continuance of human race by procreation and upliftment of a man or an individual in the society. Another tradition of Prophet Muhammad which states “He who marries, completes half of his religion, it is now rests with him to complete the other half by leading a virtuous life in constant fear of God”. The Prophet further states that “Nikah is our precept. Those of you who are unmarried are the unworthy amongst you and those who die unmarried are the most unworthy of the dead”. It could be understood through which is that every individual or every Muslim individual practising Islam of submitting to the will of God should marry in order to attain a virtuous and complete their half religion, there is no monkery in Islam, it clearly is implies by the traditions provided by Prophet Muhammad that marriage or Nikah under Islam or Muslim Family Law is a mandate on the part of every Muslim.
The marriage or Nikah in the Pre-Islamic Arabia means or implies as the relation between a woman and a man established or solemnised on certain grounds or terms. It was observed during the respective period women were treated as possessions or chattels as that of her own family or after marriage by her husband or husband’s family. It is due to the Prophet Muhammad the position of women in the history has changed comparatively.
Concept of Dower
The Muslim Family Law for women provides a protection from their husband after the dissolution or her divorce. It could be stated that the Muslim Law is the only law, comparatively from all the other legal systems which provide such right or assurance for a women’s safety after the dissolution of her marriage. The term Dower is different to that of the term dowery, the dower or mehr is the amount or property provided to the wife from her husband in consideration of marriage and this amount is fixed during the time of solemnising the marriage between the parties, whereas the dowery is the amount or a material objects provided by the bride’s family to that of the groom’s. The mahr or dower under Islamic law is not only the amount paid by the husband for the maintenance of his wife in future but is regarded as a token of respect on his part for his wife. Abdur Rahim he states that a mehr or dower is an amount which is paid from a husband to his wife as a token of respect towards her and every Muslim woman is entiltled for the same. Also, in the case or Mohammad Ahmed Khan v. Shah Bano Begum, the Supreme Court stated in regard with the dower or mehr amount that, the mehr is not a consideration paid to the wife during solemnising a marriage but is an obligation imposed on the husband as a mark of respect he has towards his wife and therefore is not an amount which is payable by the husband to his wife during divorce.
In the case of Abdul Kadir v. Salima, Justice Mahmood gives the description as to what a dower is or the importance of dower in the Muslim marriage, by focusing on the procedural aspects of the marriage or Nikah under the Islamic law according to him the marriage brings in the category of a civil contract, where he draws a analogy by dealing with the aspects of consideration where he states that the mehr or dower under the Islamic or Mohammedan Law is a form of sum or the other property promised by the husband which is to be paid or delivered to the wife as a consideration for the marriage.
The dower or mehr under the Muslim Law is considered to be an integral or an important part of the Muslim marriage, the dower is usually fixed by the parties into the union during the time of marriage or the specified amount or mutually agreed mount in the contract, and the amount fixed by the mutual agreement of both the parties is referred to as the specified dower. Whereas, if the amount of dower is not fixed by the parties into the union the court gets to determine the amount which the husband is to pay his wife, this is referred to as the proper dower. The specified dower under the law is further divided into two sub classifications which are the prompt dower and the deferred dower. The prompt dower is the dower which is to be paid by the husband immediately before or after the marriage if the wife demands for the amount, the deferred dower on the other is paid after the dissolution of the marriage or at the time of divorce by that of the husband to his wife, if the amount agreed as a dower which is not paid by the husband the wife under which has a right to claim for the amount as the dower amount in the case acts as a debt on the part of the husband which should be paid to his wife and she has the right to take the possession or anything of her husband until he pays her the agreed amount. Generally, the amount which is agreed to be paid by the husband to his wife or the type of the dower they are willing to agree upon is usually fixed during the time of marriage in the contract or the Kabin- Namah.
The concept of equality within the scope of marriage under the Muslim law, is different to that of the other laws especially to that of the laws pertaining to marriage. The Muslim law is the only law which provides protection to the women after she is getting out of a marriage or if the marriage is being dissolved. As observed from the Quran and other references the Muslim women from the start was never said to be treated as an inferior to that of the men in the society or were not taught to be seen as an object either i.e. due to Prophet Muhammad the women in the society are not treated with inferiority rather they are treated with respect, though there are certain rights which only men in the law can exercise such as the bigamy, talaq etc. The women gets to have certain right the men doesn’t in the marriage especially to that pertaining to her maintenance, a security of her future and the children if born out of the union, a women who is a widow could be considered to be married to any man who is willing to provide her equally to that of his other wife if her has any. If compared to other forms of personal laws respectively pertaining to that of the women, the first thing looked into such personal laws or could be highlighted is the fact that Islam provides them the security of any future dangers which no other law offers such a security for a woman in the society. Only thing which could be pointed out is that the law is comparatively on another level as compared to that of the same issue morally, when the women in question is considered, it was not specifically mentioned by Muslim personal laws or any laws relatively to treat women in equally or with difference, but viewing from a moral perspective women stall are considered as inferiors to that of the men in the society. On the other hand other thing which could be considered is the same sex marriages or simply the homosexual relations among the individuals could be that the law or even Quran did not mention the rejection of such a marriage or relationship among the people belonging to the same gender which could most importantly observed from the story which could be considered was the Sodom and Gomorrah, where in the city the people or the inhabitants are observed to have demanding the access to sexual intercourse with the messengers sent by the God himself to Prophet Lut (or Lot). It could simply be stated that the society might not be the developed areas, but the areas which are under- developed or simply the rural areas or simply the people at large who view things from the ancient or traditional perspectives. A change or hiding individuals due to them being women or homosexuals or who are considered or viewed as inferior to the other but the change in attitudes and mind-set of the people, the equality among the people is only when differences such are covered or concealed.
As observed the Muslim Law or the sources of the Muslim law talk about the equality among the individuals especially among the Muslims themselves, through the last sermon provided by the Prophet Muhammad during his pilgrimage to Haj, it was stated by him that no one is to be treated as the superiors or no one is considered to be inferiors all are to be equally viewed without any discrimination. The same could be considered to that of the women or the homosexuals or any individuals of the society who are viewed as the inferiors to that of the others, be it women, homosexuals, or individuals with lower financial status in the society. It could simply be stated that the observations of certain laws or ancient texts provided or the interpretation of those are out of the context comparatively, not only under the respective faith but the religions existing on whole in Indian especially are viewed with different views. The laws which were contradicting a family or their views are eliminated according to the individuals interests, or say if the traditions, culture or the beliefs are considered to be ancient or are followed by their ancestors are considered to be followed or imposing on individuals even if the views or changes in the society have been changed, especially such superstitious beliefs or ancient cultures or traditions are mostly observed in the areas which are not developed i.e., the rural areas or where the knowledge in certain spheres among the individuals is not as developed as the urban areas. The lack of knowledge or the lack of the development in the rural areas could be due to the lack of facilities to explore the changes made. Therefore, the attitudes or the change in views among the individuals is the only way one could be treated without discrimination in the society, or the change in the superstitious beliefs among the individuals by providing a minimal knowledge in the matters concerning. As, the change is important all over the country, not just the parts of the country which would help every person or the citizen of the country to live freely without any specific limitation.
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BY G. N. V. N. S. GAMYA SREE | SYMBIOBIS LAW SCHOOL, HYDERABAD