This article is written by Indra Priyadarshini, a law student from Alliance University, Bangalore. This article discusses about concept of marriage and its classification under the Muslim law.
A Muslim marriage is also called as a ‘Nikah’. According to the Hedaya, Nikah refers to a contract which has been entered into for the sole purpose of procreation and legitimization of children. There is a certain process that has to be followed in order to have a valid Muslim marriage. First, the would-be wife has to authorize a relative to accept the marriage proposal on her behalf. Thereafter, the Qazi will ask the would-be husband to make an offer if he is interested. The amount of dower and its nature should also be specified while making the offer. Then the relative authorized by the would-be wife has to accept this offer on her behalf. It has to be made clear and unambiguous to both the parties that they are entering into a marriage and the identities of the parties should also be mutually revealed. The offer (also called ‘Ijab’) when accepted (also referred to as ‘Qubool’) forms the ‘Ijab-i-qubool’, which is the ‘Aqd’ i.e. the Marriage Contract. This is the basic process of contracting nikah under the Muslim law.
Nature of Muslim Marriage
Nikah is in the nature of a contract. It consists of the following essential components which are similar to that of a contract:
- Majority of the parties
- Valid consent
- Offer and Acceptance
From this it can be seen that the process of Muslim Nikah is essentially a contractual process. The requirement that there should be no ambiguity in marriage, that ‘nikanama’ (marriage contract) should be signed, the requirement of dower as a consideration, and free consent of parties are all what makes the process a contact at least in procedure.
The issue is whether Nikah can be equated with a pure commercial contract. There are some major differences between a Muslim marriage contract and a purely commercial contract:
- Contract by a minor is void. Whereas a guardian can contract the marriage of a minor. Such marriage will be valid unless the minor on attaining majority avoids the marriage.
- Dower is considered to be a natural legal incident of marriage. It is regarded as a mark of respect to the bride. Thus, it cannot be equated to a consideration for the marriage contract as it has other purposes.
- In a nikah, maintenance will apply even without any express agreement upon it. But maintenance is not necessary in a contract.
- In contract, the doctrine of frustration and novation will apply. Whereas both of those are not applicable to nikah. The only exception is that, doctrine of frustration can be applied in cases of irretrievable breakdown of marriage.
- A nikah is permanent whereas a contract may be temporary or permanent in nature. But in case of muta marriage of shia’s, the marriage contract is temporary.
- Unlike in contract, the concept of damages for a breach of contract is not applicable in case of Nikah directly. In cases of dissolution of marriage, the concept of maintenance and restitution are somewhat similar to damages, but they cannot be said to be damages in the same sense as understood in a contract.
In the case of Anis Begum v. Mohammed. Istifa, the Allahabad High Court stated that nikah is not a pure civil contract rather it has hot some socio-religious dimensions as well.
Essentials of Nikah
As already seen above, the basic requirements for a Muslim marriage are similar to that of a commercial contract. Apart from those 4, there are other essential components of a nikah:
- Nikah has to be performed in the same sitting- the offer and the acceptance of a marriage proposal has to be made in a single transaction when the parties are present together. However, nikah can also be concluded via telephone or internet in case one of the parties are not present. But in this case as well, the acceptance and offer has to be made in the same transaction. The main requirement is that there should be no gap between offer and acceptance, so as to make the offer stale.
- Presence of witness- as per the Shia law, there is no need of witnesses to be present at the time of marriage. Under the Sunni law, 2 witnesses have to be present during the marriage i.e., 2 male witnesses or 1 male and 2 female witnesses. If there are no witnesses then the Sunni nikah we be considered as irregular.
- The marriage agreement should not be ambiguous or unclear.
- The parties to the marriage have to be of sound mind. In case they are of unsound mind, the marriage has to be performed during lucid intervals of sanity.
- The parties should be of majority, i.e., the age of puberty. The age of puberty various accordingly:
- A person greater than or equal to 15 years- Bulugh
- A child less than 7 years- Saghir
- A child between 7 to 15 years- Sariri.
- Free consent of parties- if the nikah was conducted based on coercion or force then it will be regarded to be void in all Muslim sects except for Hanafi Sunni.
- If the nikah was fraudulently conducted then it becomes a voidable marriage unless it is consummated after the discovery of fraud.
- Nikah under mistake of fact will be considered as a void marriage.
- The parties have to sign the marriage contract i.e., nikahnama.
Classification of Muslim Marriage
There are mainly 4 kinds of nikah:
- Sahih- it refers to a valid marriage. When the marriage is performed by following all the legal requirements and there are no prohibitions affecting the parties, then the nikah will be correct or sahih. The prohibitions can be permanent or temporary. If they are permanent then the marriage will become void and in case of temporary prohibitions, the marriage becomes irregular. The following are the effects of a valid marriage:
- Sexual intercourse becomes lawful and children born of the union are legitimate.
- The wife becomes entitled to her dower and maintenance.
- Establishment of mutual rights of inheritance.
- Without observing the iddat period, the wife cannot remarry after death of her husband, or after dissolution of marriage.
- Any prenuptial agreements or agreements made subsequent to marriage will become enforceable as long as they are not against public policy or any legal provisions.
- The wife does not change her status on marriage. She remains subject to her own pre-marital school of law
- Neither the husband nor the wife acquires any interest in the property of the other by reason of marriage, but they can inherit from each other after death.
- Batil- it refers to a void marriage. In a void marriage, no rights and obligations are created and children born out of such union are considered to be illegitimate. Marriages that are prohibited under the rules of affinity, blood relationship, or fosterage are considered to be void. Even a woman remarrying without completing her iddat period results in a void marriage.
- Fasid- it refers to irregular marriages. If a marriage is performed by missing out some formality, or the existence of an impediment which can be rectified, a marriage becomes irregular. But the irregularity is not permanent and can be rectified. Therefore, the marriage does not become void. It can be made valid once the prohibitions are rectified. A Sunni marriage performed without witnesses, a marriage with a woman without the guardian’s consent when such consent is necessary, marriage with a fifth wife, etc., are all examples of fasid.
- Muta marriage- ‘muta’ literally means ‘enjoyment use’. It is a marriage for a fixed period of time and it is for pleasure. Thus, it is also known as temporary marriage. Muta marriage is not recognised by any school of Muslim Law in India except the Ithna Ashari or Shai School. A muta marriage is considered to be valid if the term and the dower are fixed. In case the term is fixed, but the dower is not specified, then the contract becomes void. Furthermore, if the dower is specified and the term is not fixed, the contract, though void as Muta, may operate as a ‘permanent’ marriage. The legal effects of such nikah are as follows:
- There is no mutual rights of inheritance between the parties.
- The children born out of such union are legitimate and can inherit from both parents.
- In cases where cohabitation commences in muta, but there is no evidence as to the term and cohabitation continues, it is presumed that muta marriage continued during the whole period of cohabitation. Children are legitimate and can inherit from both parents.
- If there is no evidence of the term, but cohabitation continues after the expiry of term, it is presumed that the term was extended.
- On expiry of the term, the muta marriage gets dissolved ipso facto.
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