The Pre-Requisites of NIKAH ( Muslim Marriage)

    …India is blessed with several world religions and therefore no single world religious establishment can be the counterpart of the secular edifice. Therefore, instead of keeping religion out of politics, we sensibly give equal respect to each religion. However, the question as to what is religion remains the same. [1]

    These are the words of Sir Salman Khurshid (from the book Triple Talaq-Examining faith). Indeed, it is true that India in its lap abodes a number of religions. It is home to people from different religious beliefs. Despite the fact that the majority of its population is Hindu the Constitution makers had tried to instill the feeling of brotherhood among all and stated in the preamble of the Constitution of India that India shall be a secular state. The term secular implies that each religion shall be revered and venerated without any discrimination whatsoever. 

    Out of all the religious faiths is Islam with which we are concerned in this project. It is the power of secularism only that the study of Mohammedan law deriving its roots from Islam is a part of the personal laws which are taught and is also given its due momentousness. 

    Be it any religion, the concept of marriage has its own importance and value. It forms a rock-solid pillar of every religious belief and its study helps in a better understanding and comprehension of a particular religion. Therefore, this project also has marriage as its focal point of the study. 

    To be precise this project deals with the conditions of a valid Muslim marriage. 

    The mode of citation is the bluebook 19th edition.

    OBJECTIVE

    “….The importance of the study of Muslim law can be estimated from the fact that it is applicable to some 15 crore Muslims in India, 12 crores in Pakistan, and 13 crores in Bangladesh. Muslims in some 20 countries of Asia, Africa, and Europe follow Muslim law. In other words, one-sixth of the total world population is following Islam.” [2]

    As pointed out above, the study of Muslim law is inevitable when it comes to dealing with the Personal laws in India. Therefore, the objective of this project is to develop a lucid and clear understanding of the conditions or requisites which render a Muslim marriage valid. 

    RESEARCH METHODOLOGY

    There are various modes through which a person can conduct research and get the required information, data. Mainly there are two research methodologies namely doctrinal and non-doctrinal. The research methodology adopted here is doctrinal. The doctrinal research methodology is concerned with the resources available online, and in the library.

    DEFINITION OF MARRIAGE

    قالَ رَسُولُ اللهِ (صَلَّى اللهُ عَلَيهِ وَآلِهِ وَسَلّمَ): ما بُنِيَ بِناءَ فِي الإِسْلامِ أَحَبُّ

    إِلى اللهِ عَزَّ وَجَلّ مِنَ التَّزْوِيجِ.” [3

    This is an extract taken from the Holy book Quran itself. The literal interpretation of this extract is that The Messenger of Allah (S) has said, “There is no foundation that has been built in Islam more loved by Allah, (The Greatest and Noblest) than marriage.” [4]

    The term marriage is not an eight-letter word. Rather, this term is one of the strongest pillars of family law. Apart from the fact that marriage is a pious union of two individuals, there are certain legal aspects also related to the same. Under Hindu, law marriage is considered to be a semblance of both a contract and a sacrament. But in the Mohammedan law, the position differs.

    “Under Islamic family law, marriage establishes a reciprocity system in which each party is assigned a set of contractual rights that confer a duty toward the other party.” [5]

    Indeed, marriage in Islamic law is considered to be a civil contract between the bride and the groom. 

    In Muslim law, marriage is a kind of contract for the legalization of sexual intercourse and procreation of children. In the case of Abdul Kadir v. Salima marriage was defined as “Marriage among Mohammedans is not a sacrament but purely a civil contract….” [6]

    In the words of Ameer Ali “Marriage is an institution ordained for the protection of society, and in order that human beings may guard themselves against foulness and unchastity”. [7]

    ESSENTIALS OF A VALID MUSLIM MARRIAGE

    For a Muslim marriage to be valid there are certain essentials that are required. Apart from the fact that certain ceremonies are performed at the time of marriage. It is mandatory to fulfill these essentials as otherwise, the marriage may be declared as void or irregular.

    Therefore, the essentials of valid Muslim marriage can be listed below:

    1. PROPOSAL AND ACCEPTANCE.
    2. COMPETENT PARTIES.
    3. NO LEGAL DISABILITY.

    1. PROPOSAL AND ACCEPTANCE

    Since it has been already made clear that the nature of a Muslim marriage is that of a civil contract. The first requirement or essential of a Muslim marriage like any other contract is that of offer and acceptance of the offer. In other words, it is ijab-o-qabool. Where, ijab means offer and qabool , means acceptance of the same. In order to render a contract valid, some lawful consideration has to be made. In the cases of these marriages, the consideration is paid by the husband, which is known as Dowr or Mehr. However, a distinction is to be made clear that when there is no acceptance to marry but a mere assurance to get married in the near future no valid marriage is affected. 

    In the case of Mst. Zainaba v. Abdul Rahman it was held that “There must be no ambiguity, no question of intention to marry, nor a mere promise to marry at some future time,…..”

    In order to have a proper understanding of this essential certain other elements are also to be studied:

    • PRESENCE

    It is essential that both parties must be present when offer and acceptance are made. This is so because there should be consensus-ad-idem for a valid contract. And this consensus can be made only when the parties are well-versed with the terms of the contract. 

    • ONE MEETING

    The next requirement of a valid marriage is that the entire process of offer and acceptance must be completed at the same and one meeting. A proposal made at one meeting and acceptance at the other does not constitute a valid marriage.

    In the case of Rashida khatoon v. S.K. Islam it was held that “The proposal and acceptance must be both expressed at one meeting; a proposal made at one meeting and acceptance made at another does not constitute a valid marriage.”

    • RECIPROCITY

    For a contract to be valid there must be reciprocal promises forming consideration for each other. In the cases of Muslim marriage also, there must be reciprocity and the acceptance should not be conditional. Otherwise, no valid marriage is constituted.

    For example, if A and B want to get married. A offers a sum of Rs. 15,000 as dower but B gives acceptance only on the condition that she is paid Rs. 25,000 as dower then in such case a valid marriage is not constituted.

    • WITNESS

    The fourth element is that some witnesses must be present at the time of marriage. However, there are differences between the Shia law and Sunni law with respect to this element (witness). Under Sunni law, the proposal and acceptance must be made in the presence of two adult males or one adult male and adult two female witnesses who are sane and Muslim. However, the absence of the witness does not render the marriage void but irregular. Under Shia law, there is no requirement of witnesses at the time of marriage. Though when a guardian on behalf of the minor contracts, then two adult witnesses are required.

    In the case of Mst. Ghulam Kubra v. Mohammad Shafi it was laid down that, “According to Mohammedan law it is absolutely necessary that the man or someone on his behalf and the woman or someone on her behalf should agree to the marriage at one meeting and the agreement should be witnessed by two adult witnesses.”

    In the case of Khazi Mohd. Abbas Ali v. Andhra Pradesh Waqf Board it was mentioned that “… persons entering into marriage should consent to such marriage in presence of witnesses”.

    In the case of Rashida khatoon v. S.K. Islam it was mentioned that “It is essential… that there should be 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, in the presence and hearing of two male or one male and two female witnesses, who must be sane and adult Muslims.”

    • FREE WILL AND CONSENT

    The term consent has great importance when it comes to the validity of a contract. Since Muslim marriage is also a civil contract the requirement of free consent cannot be overlooked. Both the contracting parties of marriage should be acting under free will and consent. This consent should not be influenced by undue influence, fraud, coercion, or fear. 

    In the case of Hassan Kutii v. Jainbha it was laid down that “Free consent in case of adult persons is not only essential for a valid marriage but is absolutely necessary.”

    In the case of Abdul Latif v. Niyaz Ahmed, it was laid down that, “A marriage brought about by a fraudulent misrepresentation is invalid unless ratified”.

    • CONSENT UNDER COMPULSION

    As per the principles of Hanafi School, the contracts of marriage are valid even if they are undertaken because of compulsion, or without any intention to affect a marriage. But the other three schools of Sunni law and Shia law are on a different footing with respect to this and as per the principles of these schools, marriage under compulsion is not valid

     2. COMPETENT PARTIES

     In order to understand this a deliberation on the following points is required.

    • AGE OF MARRIAGE

    For a Muslim marriage to be valid the parties are required to be competent as in the case of other contracts. And one of the major elements of the same is that the contracting parties must have attained the requisite age of getting married.

    • PUBERTY

    Puberty is the age group where one attains the ability to perform sexual intercourse and procreation. However, in Muslim law puberty and the majority are considered to be on the same footing. It is presumed that a person attains majority at the age of 15. However, the Hedaya lays down that for boys the age is 12 years and girls it is 9 years. The Hanafis consider 15 years to be the age of puberty for both males and females unless there is evidence that puberty was attained earlier. The Shias consider menarche as the beginning of puberty in the case of females. However, the Muslim law with respect to the competent age of the parties is not hit by the Indian Majority Act, 1875.

    • MARRIAGE OF MINORS AND GUARDIANSHIP IN MARRIAGE

    Since minors are incapable of giving valid consent their consent given in marriage would not be valid. However, they are not barred from not getting married and their respective guardians can give consent on their behalf. 

    In the case of Abdul Kasem v. Mst. Jamila Khanum it was decided that “it should be noted that marriage of a minor without the consent of the guardian invalid unless it is ratified after the attainment of majority. 

    However, consent on behalf of the minor should be given by such a person who is in actual sense a guardian and not a mere wali. One such authority on the same is Abdul Ahad v. Shah Begum. The following persons can give consent on behalf of the minor:

    1. Father,
    2. Paternal grandfather,
    3. Brother and other male relations on the father’s side in the order of inheritance enumerated in the Table of residuary,
    4. The mother,
    5. The maternal uncle or aunt and other maternal relations without the prohibited degrees; and
    6. The state. [8]

    THE CONCEPT OF AKD FAZULI

    When consent to marriage on behalf of a minor is given by a remote guardian and the nearer guardian is present and disagrees with the same then such marriage is void. However, if it is ratified by the parties after attaining the majority it will be valid.

    • OPTION OF PUBERTY (KHYAR-UL-BULUGH)

    This concept implies that a minor on whose behalf the consent was given by a guardian can repudiate or ratify the marriage after attaining majority.

    The old law on the option of puberty was that minors had no right to repudiate the marriage after attaining the age of majority. If, the marriage of the minor had been contracted by the father or grandfather then in those cases the marriage was binding on the minor who could not annul it except in special circumstances. The minor could repudiate that marriage only when the father or the grandfather had contracted fraudulently or negligently.  However, this has been changed and as per the Dissolution of Muslim Marriage Act,1939.

    Under the Dissolution of Muslim Marriage Act,1939 Section 2(7) it is required that:

    1. The marriage took place before the age of 15 years of age.
    2. She repudiated the marriage before attaining the age of 18 years of age.
    3. The marriage has not been consummated.

    TIME OF OPTION BY THE FEMALE

    It is a well-established principle that if a girl wants to exercise her right of repudiation she must do so immediately when she attains puberty. There should be no reasonable delay. But if she is unaware of her right then this right may prolong until she becomes aware of the same. In Fatwa-i-Alamgiri it is laid down that, “when a woman attains puberty and enquires the name of her husband or the amount of the specified dower, or salutes the witness, the option of puberty is extinguished.” [9]

    This option also extinguishes if the after attaining puberty she permits the marriage to be consummated. However, the mere fact of consummation does not extinguish the right. This consummation must have taken place with the wife’s consent.

    Revision of Women’s Legal Age for Marriage

     

    In the case of Allah Diwaya v. Kammon Mai the concept of the option of puberty was further explained, “ In the case of a girl married during minority, she is entitled to dissolution of her marriage if she proves that she was given in marriage by her father or other guardians; that the marriage took place before she attained the age of 15; that she repudiated the marriage before she attained the age of 18; and that the marriage has not been consummated”. [10]

    TIME OF OPTION OF PUBERTY BY MALE

    A male also has the same right of option as available with the female. He can ratify the marriage after attaining puberty by:

    1. Express declaration.
    2. Payment of dower.
    3. Cohabitation.

      3. NO LEGAL DISABILITY

    The third essential of marriage is that there should be no legal disability. The term legal disability implies that there should be no prohibitions. These prohibitions have been classified into the following categories:

    • ABSOLUTE INCAPACITY OR PROHIBITION

    Absolute incapacity arises from the following:

    a) Consanguinity, b) affinity, c) fosterage.

    I. CONSANGUINITY: The term consanguinity implies that a person is debarred from marrying persons in his blood relationship. This involves the following individuals:

    • Mother or grandmother how high howsoever.
    • Daughter or granddaughter how lowsoever.
    • Sister whether full, consanguine, or uterine.
    • Niece or great-niece how lowsoever
    • Aunt (father’s sister, mother’s sister), or great aunt, how highsoever, whether paternal or maternal.

    Such marriages are void and children from such marriage are void.

    II. AFFINITY: A person is prohibited from marrying the following persons:

    • His wife’s mother or grandmother how highsoever.
    • His wife’s daughter or grand-daughter how lowsoever.
    • Wife of his father or paternal grand-father how highsoever.
    • Wife of his son or son’s son or daughter’s son how lowsoever.

    III. FOSTERAGE: When a child under the age of two years has been fed milk by a woman other than his own mother, then such a lady becomes his foster mother. Then in those cases, a person may not marry his foster-mother or her daughter, foster-sister.

    • RELATIVE INCAPACITY

    Relative incapacity springs from cases that render the marriage invalid only so long as the cause which creates the bar exists. The moment it is removed, the incapacity ends and the marriage becomes valid and binding.[11] There are certain cases where marriage is invalid because of relative incapacity:

    I. UNLAWFUL CONJUNCTION: This implies that a man marries two women who are related to each other by consanguinity, affinity, or fosterage.

    In the case of Azizunnissa v. Karimunissa, it was laid down that, the marriage of a man with his wife’s sister, his wife being alive was null and void.

    II. POLYGAMY OR MARRYING A FIFTH WIFE: In Mohammedan law, a person can have only four at a time and not more than that. If he marries a fifth woman then, such a marriage is invalid however this marriage can be validated by divorcing any one of the wives.

    III. ABSENCE OF PROPER WITNESS: In the case of Sunnis absence of proper witness will render the marriage invalid but it is not void. In the case of Shias presence of witnesses is not necessary.

    IV. DIFFERENCE OF RELIGION: A Muslim man cannot marry an idol worshipper or fire worshipper. This marriage under Sunni law is irregular but under Shia law it is void.

    V. WOMAN UNDERGOING IDDAT: Under Sunni law marriage with a woman undergoing iddat is irregular and not void. But under Shia law such marriage is void.

    • PROHIBITIVE INCAPACITY

    It arises in the following cases:

    I. Polyandry: Polyandry means having more than one husband. The woman in such a case will be liable for bigamy under Section 494 I.P.C.

    II. Muslim woman marrying a Non-Muslim man: It is irregular under Sunni law and void under Shia law.

    • DIRECTORY INCAPACITY

    This may arise in the following cases:

    I. Marrying a woman ‘enceinte’: It is unlawful to marry a woman who is pregnant by her former husband.

    II. Prohibition of divorce.

    III. Marriage during a pilgrimage.

    IV. Marriage with a sick man.

    CONCLUSION

    “وَأَنْكِحُوا الْأَيَامَىٰ مِنْكُمْ وَالصَّالِحِينَ مِنْ عِبَادِكُمْ وَإِمَائِكُمْ ۚ إِنْ يَكُونُوا فُقَرَاءَ

    يُغْنِهِم اللَّهُ مِنْ فَضْلِهِ ۗ وَاللَّهُ وَاسِعٌ عَلِيمٌ”

    This extract from the Quran means, “Marry the single people from among you and the righteous slaves and slave-girls. If you are poor, Allah (SWT) will make you rich through His favor; and Allah (SWT) is Bountiful, All-Knowing.” (Surah 24, Verse 32) [12]

    By concluding this project, it can be said that marriage is one of the essential components of Muslim law. The Quranic verses speak volumes of the fact that the concept of marriage is being accorded the position of importance and value. There are various rules and principles governing marriage in Muslim law. However, the focal point of this project was the essentials that are required in order to make a marriage valid.

    Muslim law governing the concept of marriage has provided various instances where one can see the protection of rights of Muslim females and minors. Some of them are; the option of puberty, the importance of consent, payment of dower, age of marriage, etc. However, there are certain provisions which restrict the right of females in comparison to males such as; the females cannot marry more than a husband, while the males can have more than one wives, females are not allowed to marry a non-Muslim while the Muslim male can marry non-Muslim females subject to certain restrictions.

    Therefore, it can be said that Muslim law on marriage governs the rules and principles pertaining to marriage and is necessary in order to ensure a peaceful and harmonious relationship between spouses.

    Endnotes 

    1. Salman Khurshid, Triple Talaq 1 (OUP Publishers 2018)
    2. V.P. Bharatiya, Muslim Law 1 (5th ed., EBC 2018).
    3. Saleem Bhumji, Marriage in the Quran and  Sunnah of Prophet(s) (Oct. 1, 2019, 8:00 am) http://www.Islam.org.html
    4. Ibid.
    5. Pascale Fournier, Muslim marriage in Western Courts 4 (Ashgate Publishing Ltd. 2012).
    6. Mulla, Principles Of Mahomedan Law 259 (22nd ed., Lexis Nexis 2017).
    7. Asaf A.A. Fyzee, Outlines of Muhammadan law 70 (5th ed., Oxford university press 2008) (1949).
    8. Aqil Ahmed, Mohammedan Law 122 (26th ed., Central law agency 2016) (1992).
    9. Ibid.
    10. Ibid.
    11. Ibid.
    12. Ibid.

    Mollshree Pareek | Himachal Pradesh National Law University

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