Nikah (Muslim Marriage)

Theoretical overview

INTRODUCTION AND DEFINITION

Pre-Islamic Arabia laws were made favorably towards males. Meanwhile, they remained discriminatory towards females. Women did not have independent identity. Nikah literally means to tie up together. It is a matrimonial contract which gives women particularly high status. Islam allows limited Polygamy (4 at a time)

Islam defines marriage as a marital relationship and an institution that legalizes sexual activity between a male and female with the goal of conceiving children, fostering love, providing support to one another, and building families, which are seen as a fundamental social unit.

OBJECT

Unlike Hindu marriages, Muslim marriages do not have sacramental values and not considered to be matrimonial contracts. There are basically two objects related to Muslim marriages.

1. Procreation
2. Pleasure 

The two main goals of marriage in Islam are to create a new generation of healthy, obedient, and morally upright offspring, as well as to ensure a pleasant environment for a husband and wife.

• Procreation

One of the most important purposes of marriage is to continue the lineage. 

It is important to emphasise that the objective is not only to have children who will survive into the following generation.  

• Pleasure 

The desire of men and women for each other is an urge which needs to be fulfilled. If it is left unfulfilled, it will be a source of discord and disruption in society.

NATURE

Many viewpoints exist on the characteristics of Muslim marriage. Muslim marriage is viewed as a religious sacrament by certain jurists, whilst others believe it to be solely a civil contract. Some writers and legal scholars treat Muslim marriage as a mere civil contract rather than a sacrament. This observation seems to be based on the fact that under Islamic law marriage has characteristics similar to a contract. For example:

1. The marriage requires Ijab (proposal) and Qubul (acceptance). 
2. Like contracts entered into by a guardian when they reach the age of majority, under Islamic law, marriage contracts can be terminated by minors who have reached puberty. 
3. The terms of a marriage contract may also be altered within legal limits to suit individual cases.
4. Although discouraged by both the Holy Quran and Hadith, like any other contract, there are provisions to break the marriage contract. 

Another view is that marriage is not a purely civil contract but also a religious sacrament. Taking religious aspects into account Muslim marriage is an Ibadat (meaning a devotional act).

1. It cannot be for a limited time (Muta marriage is an exception).
2. It cannot be made contingent on future events. 

• SOURCES

1. Quran- central religious text
2. Sunnah/ Hadith- Practice of Islamic prophet
3. Ijma- Consensus of Muslim scholars
4. Qiyas- Analogical reasoning to judicial principles from Sunnah and Quran.

• SCHOOLS

1. Hanbali- Saudi Arabia
2. Hanifi (oldest)- Central and South Asia
3. Maliki- Kuwait
4. Shafi- Yemen

• Capacity of a person to get married under Muslim law
• Person should be Muslim
• Should be above the age of puberty (15 years)
• Should be of sound mind
• There should be free consent

TYPES OF NIKAH

1. Valid Marriage- Sahih
2. Irregular Marriage- Fasid
3. Void Marriage- Batil 

Witness required during muslim marriage

• In Shia- not required
• In Sunni- 2 witnesses required (2 male)
• If one male is present then 2 women are required (i.e. total of 3)
• The witness should be muslim, puberty, and should be of sane and sound mind.

Essentials for Validity

There are certain formalities that should be complied with that are required for a valid muslim marriage. If these are not complied with the marriages are either rendered void or irregular.

1. Competency of parties
2. Free consent 
3. Formality
4. Absence of prohibition

COMPETENCY OF PARTIES

1. Age of puberty

For marriage, dower, divorce etc. age of majority is not 18. Age of puberty is considered to be the ideal age for any such marriage related things. Age of puberty is 15 years under Muslim Law.

Hedaya says that age of puberty for girls is 9 years and for boys its 12 years but it is now fixed at 15 years.

2. Soundness of mind

• Both parties should be of sound mind.
• Person of unsound mind has no capacity to enter into a contract.
• Unsoundness of mind is of two types
• Idiocy- complete abnormal state of mind 
• Lunacy- curable mental diseases, contract is possible during sane periods.

3. Muslim

• The parties so entering into the marital contract should be Muslim. Marriage to non-Muslims is different under Shia law and Sunni law
• Under Shia marriage for both male and female is void
• Sunni law- for female she cannot marry a non-Muslim but for males it is valid if the woman is “Kitabia” and irregular if the woman is non-kitabia
• (Kitabia is a person who believes in Christianity or Judaism)
• Special marriage act 1954 allows all forms of marriages.

FREE CONSENT

• If the parties are adult and sane, consent has to be free.
• If the parties are minor or of unsound mind. The consent should be of a guardian.
• If there is a coercion the marriage is considered to be void, consent by fraud is considered voidable.
• Marriage under mistake of fact is also considered void.

FORMALITIES 

Religious formalities are not necessary. Essentials such as Ijab (offer made for marriage by the groom) and Qubul (acceptance of marriage by the bride) must be made and should be accepted on the very same day and should necessarily be made in presence of each other.

Under Sunni law witnesses are required. 

• 2 witnesses required (2 male)
• If one male is present, then 2 women are required (i.e. total of 3)
• The witness should be Muslim, attained the age of puberty, and should be of sane and sound mind.

ABSENCE OF PROHIBITION

There exists freedom to marry if they don’t fall under prohibited relationships.

There exist 2 types of prohibition

1. Absolute prohibition
2. Relative prohibition

ABSOLUTE PROHIBITION

Marriage within blood relations or prohibited degrees turns void. Relationships of 3 forms are not allowed 

1. Consanguinity 

This means when a person is related to another by blood.

For example, ascendants, descendants, real brothers or sisters, uterine brothers or sisters.

2. Affinity

This means the relationship established by marriage.

For example, ascendants or descendants of the husband or wife. (For ex marriage with aunt or uncle)

3. Fosterage

This refers to milk relations. 

This means when the woman who fed the kid milk before they turned 2 years old was someone other than the child’s real mother. For example, A may not marry his foster-mother, or daughter etc.

RELATIVE PROHIBITION

Relative prohibition is not absolute. It is only irregular. 

1. Unlawful conjunction

Muslim man is prohibited to marry a woman who are related to each other by blood. For ex. he cannot marry 2 sisters together, has to divorce one to marry another.

2. Polygamy

Marriage is allowed with 4 women at once. If a 5th marriage takes place, the marriage is considered irregular until he divorces one of them or either of them dies.

3. No proper witness

In Shia, there is no witness required. Under Sunni, it is irregular until witnesses are present. 

4. Marriage to Non-Muslim

Under Shia marriage for both male and female is void. Sunni law- for female she cannot marry a non-Muslim but for males it is valid if the woman is “Kitabia” and irregular if the woman is non-kitabia (Kitabia is a person who believes in Christianity or Judaism)

5. Re-marriage to divorced wife

Re-marriage under Shia is void. for example, W1 (wife), H1 (original husband), H2 (new husband). After divorce W1 has to first marry H2, then has to consummate the marriage, then take divorce, then wait for iddat period to be over then can remarry H1, this becomes an irregular marriage.

LEGAL EFFECTS OF DIFFERENT TYPES OF MARRIAGE

1. Sahih (valid marriage)

• Status of husband and wife
• Legitimate children
• Related by affinity
• Right of inheritance mutual
• Conjugal union
• Maintenance, residence dower
• Iddat to be followed if death or divorce

2. Fasid (irregular marriage)

• No maintenance
• Dower given
• Legitimate children
• No mutual inheritance
• Iddat followed

3. Batil (void marriage)

• No legal effect 
• No rights and effects
• Illegitimate children
• No inheritance
• Customary dower to be given

IDDAT

• Arabic term which literally means counting.
• Under a valid marriage if there has been no consummation of marriage there is no iddat period.
• If there has been consummation of marriage iddat period is followed
• To marry new husband wife has to wait for the period of iddat to be over
• To marry new wife husband has to wait till ex-wife’s iddat period is over

In case of death, only the wife has to follow an iddat period of 4 months and 10 days considered as mourning period. The iddat period is followed either from the date of death or from the date of divorce.

MUTA MARRIAGE

• It is a temporary union.
• This is considered as a marriage for pleasure.
• Under Sunni law, this type of marriage is not considered to be a marriage.
• Under Shia law it is considered to be an irregular form of marriage. Only those under Ithna Ashari Shia school consider this form of marriage.

After 4 wives

• Man can marry as many wives as he wants
• It is a contractual marriage
• Has to break the marriage within agreed period otherwise it becomes valid marriage

Obligations arising out of Marriage – Under classical and statutory law

Mahr is a sum that becomes payable by the husband to the wife on marriage either by agreement between the parties or by operation of law. It may either be prompt (Mu ajjal) or deferred (Mu wajjal). Mahr is a consideration which belongs absolutely to the wife.

Marriage in Muslim Law gives the husband the entire right to divorce his wife. It also permits the husband to have more than one wife. This often results in a desperate situation for women because they are left with no means to support themselves.

Mahr performs the following functions: 

• it imposes a responsibility on the husband as a gesture of respect for the wife.
• to limit the authority of the husband to divorce and polygamy.
• to provide for the wife’s subsistence if the husband divorces her.

Nature of mahr

Mahr is a mandatory prerequisite for a Muslim marriage. As a result, following marriage, the husband is obligated to pay Mahr to the woman. A wife has limitless authority to demand Mahr from her husband.It gives the woman the right to oppose her husband until Mahr is paid. A wife can refuse consummation of marriage until Mahr is paid.

Legal Consequences of Mahr (Rights of wife in case of non-payment of Mahr)

The husband is obligated to pay it to the woman prior to the consummation of the marriage. The woman has the right to refuse cohabitation with the husband until the Mahr is paid. If the dower is delayed, the woman is entitled to it at the dissolution of the marriage, due to divorce or death.

Relevant sections

Section 3 of muslim marriage registration act – Registration of marriages – (1) Every marriage contracted between Muslims after the commencement of this Act, shall be registered as hereinafter provided, within thirty days from the conclusion of the Nikah Ceremony. (2) In the case of each such marriage, the duty of causing it to be registered is hereby imposed upon the following persons concerned in the marriage: –(a)the bridegroom or the person who consented to the marriage on his behalf; (b)the bride or the person who consented to the marriage on her behalf; and the person who conducted the Nikah Ceremony. (3) It shall be the duty of the person specified in sub-section (2) to deliver personally or by registered post a copy of Nikah-Nama or where no Nikah-Nama is written, a copy of memorandum in the form contained in the Schedule duly filled in by the person specified in clause (c) of sub-section (2) to the Sub-Registrar of the Sub-district in which the marriage is contracted. (4) There shall be recorded on every copy of Nikah-Nama or memorandum, as the case may be, the amount of dower prompt and deferred separately also the manner of payment thereof.

Important case laws

Smt Nasra Begum vs Rizwan Ali AIR 1980 – It was held that right to dower precedes cohabitation. Thus, a wife can refuse consummation of marriage until Mahr is paid.

Abdul Kadir vs. Salima (1886) – it was held that Muslim marriage is a contract and not a sacrament.

Anis Begum vs. Mohd. Istafa (1933) – it was held that Muslim marriage is not only a civil contract because it believes in the union of two people by virtue of affection, love, and a sense of togetherness.

Mohiuddin vs. Khatijabibi (1939) – a shafei girl was contracted to marriage by her father against her will and consent.  The Bombay high court declared the marriage void.

Points to remember

• Nikah literally means to tie up together. It is a matrimonial contract which gives women particularly high status. Islam allows limited Polygamy (4 at a time)
• Islam defines marriage as a marital relationship and an institution that legalises sexual activity between a male and female with the goal of conceiving children, fostering love, providing support to one another, and building families, which are seen as a fundamental social unit.
• Muslim marriage is viewed as a religious sacrament by certain jurists, whilst others believe it to be solely a civil contract. 
• Arabic term which literally means counting. Under a valid marriage if there has been no consummation of marriage there is no iddat period. If there has been consummation of marriage iddat period is followed. To marry new husband wife has to wait for the period of iddat to be over. To marry new wife husband has to wait till ex-wife’s iddat period is over
• Muta marriage is a temporary union. This is considered as a marriage for pleasure.Under Sunni law, this type of marriage is not considered to be a marriage. Under Shia law it is considered to be an irregular form of marriage. Only those under Ithna Ashari Shia school consider this form of marriage.