Friday, 28 January 2022

Essentials of a Valid Muslim Marriage - Manav Puri@LexCliq

Essentials of a Valid Muslim Marriage – Manav Puri@LexCliq


Introduction;

In the landmark case of Abdul Kadir v. Salima and A. Mahmood, it was observed that the nature of Muslim marriage is purely understood as a civil contract rather than a sacrament. Based on these observations, we can conclude that the aim of Muslim marriage is to legalize sexual relations and procreation of children between a male and female. The essentials of Muslim marriage are very much similar to that of a Civil Contract, and thus, these are the following essentials of a valid Muslim marriage;


Essentials conditions of a valid Muslim marriage;

  1. Proposal and Acceptance – In a Muslim Marriage, proposal is known as ‘ijab’ and acceptance of the proposal is known as ‘qabul’. A proposal should be made by one party, and it will be concluded when it is accepted by the other party. For a valid marriage, proposal and acceptance should be done in the presence of witnesses who is called as a Vakil, moreover, the proposal and acceptance for the same should be done in one meeting itself. If a proposal is done in one meeting and the acceptance of it is done in another, then it will not be considered as valid. Apart from this, the presence witnesses are essential for a valid marriage, as under Sunni law, there should be 2 female and 1 or 2 male adult and sound mind Muslim witnesses. Where under Shia law, the presence of witnesses is, not necessary, at the time of marriage.


  1. Competency of Parties;

  1. Majority – The privy council had commented on the age of puberty for Muslim marriages, where the girls should be at least 15 years of age, until she reaches her age of puberty, the consent/will of the guardian is needed to carry forward with the marriage, and once she has attained her age of puberty, she has choice of either continuing or cancelling the marriage and this option at puberty is called Khyar-Ul-Bulugh. The persons recognized as guardian under Muslim law are: (a) Father, (b) Paternal Grandfather, (c) Brother or any other male member of father’s family, (d) Mother, (e) Members of Maternal Relation. And if any of these guardians are not present then, the right to carry forward the contract of marriage will be passed on to a Qazi or any other government authority/official. Once the parties have attained their age of puberty, they can freely marry anyone of their choice, and then the consent or interference of their guardian is not needed.


  1. Sound mind – At the time of marriage, both the parties need to be of sound mind/sane. As the person of unsound mind has no capability to enter into a contract, as he will not be able to make a rational judgement of the situation and so, in the eyes of law the consent of the person of unsound mind will be not be considered as valid consent. Unsoundness is categorized into two types;

  • Idiocy: It refers to a full abnormal state of mind. 

  • Lunacy: It refers to a curable mental disease. A lunatic person can enter into a contract, only in the intervals of time when he is of sound mind.


  1. Free consent – For a marriage to be valid free consent of both the parties is a necessary. And if the consent is brought by the ways of coercion, misrepresentation, fraud or mistake of fact, it will be considered as invalid and the marriage will be a void one.


  1. Dower – It is also called to as ‘mahr’. It simply refers to the amount of money or any other properties which a bride groom has the duty to give it to the bride as a consideration of marriage. Its objective is to offer the bride a feeling of financial security and safety within and after the dissolution of marriage. It is an essential part of a valid Muslim marriage, that is signified to the girl after the proposal for the marriage is made.


  1. Free from Legal Disability; 

  1. Absolute Prohibition – A Muslim marriage cannot be contracted if the parties are related to each other by the means of blood or fall in the prohibited degree of relationship and the Marriage becomes void. The absolute prohibited degrees of relationships are as follows;


  • Consanguinity – It refers to a relationship in which a man is prohibited to marry the following females, which are as follows – His mother and grand-mother, Daughter ad grand-daughter, Sister, Niece, great-niece, maternal or paternal Aunt or great-aunt. 


  • Affinity – A marriage which is prohibited due to the reason of closeness of relationship amongst one another. The prohibited relationships are as follows – Wife’s mother or grand-mother, Daughter or grand-daughter, Father’s wife, Son’s daughter or Daughter’s wife, Sons’ Son’s daughter.


  • Fosterage – It refers to a milk relationship. It is a condition in which a female other than the mother, has breastfed or suckled the child under the age of two years, and it is when the female is turned out to be a foster-mother of the child. A man is restricted from marrying the females who are a part of the notion of foster relationship. The prohibited relations include – Foster Mother or grand-mother, foster mother’s daughter.



  1. Relative Prohibition – Under Muslim law, certain prohibited relations are relatively valid and not absolutely void. If marriage violates such prohibitions, it is called an irregular marriage and it can’t be declared as void. The marriage becomes valid, once again as soon as those irregularities are eliminated. Relative prohibitions include as follows;


  • Unlawful Conjunction – A Muslim man is prohibited from marrying 2 different women, if they are related to each other by the means of consanguinity, affinity or fosterage and such relations would be considered as void. After the dissolution of marriage or death of his wife, a marriage can take place with another women. Under Sunni law, the marriage under prohibition of such conditions is recognized as irregular (fasid) but under Shia law, a marriage violating this rule of unlawful conjunction is void. 


  • Polygamy – Muslim laws, allows the practice of polygamy but it is restricted to maximum four wives for a man. A Muslim man can marry only 4 women at a time, but if he marries the fifth one despite of having four wives alive, the marriage turns out to be irregular, under Sunni law, if the man has married 5 times, and the marriage will become valid only after the death or termination of marriage, with one of the four wives. However, the Shia law considers the fifth marriage as void.


  • Absence of Proper witnesses – The marriage must be done in the presence of the proper and competent Muslim witnesses. Under the Shia law, presence of witness is not important and marriage without witnesses will be considered as valid. Under Sunni law, presence of witness is needed, as without them the marriage will be considered as void, either 1 male or 2 males and 2 females Sane, Major, Adult Muslim witnesses should be present at the time of marriage.


  • Difference of Religion – Under the Sunni law, a Muslim male is allowed to marry a female who follows and respects the same scriptures, but if he marries with an idol or a fire worshipper, then the same marriage same is considered to be irregular. A Muslim woman is prohibited from marrying a non-Muslim man and if it happens, the same is considered as irregular. But under the Shia Law, a marriage with non-Muslim is simply considered as void.


  • Marriage during period of Iddat – It is referred to as a period of waiting after the death of her husband or after the dissolution of her marriage, it is period in which she cannot remarry. The objective of the iddat is to know whether the woman is pregnant or not to and this to clear doubts of paternity of any child born after that. A divorced woman has to observe a period of three months whereas a widow has to observe the iddat for four lunar months and ten days after the death of husband. If the woman is pregnant then this period extends up to her delivery. Under Sunni law, marriage during iddat is considered as irregular whereas, under Shia law, it is considered as void.


  1. Miscellaneous Prohibition;

  • Re-marriage between divorced couple – A certain procedure is to be followed, for a re-marriage in which a Muslim female has to perform a valid marriage with another Muslim man. Then her husband needs to willfully give her the divorce. Then the lady needs to follow the period of iddat. After these processes she is now eligible to marry her previous husband. If this procedure is not completed then her marriage will be considered as an irregular one.


  • Polyandry – It refers to a situation in which a woman can have more than one husband, which as a practice is strictly prohibited by the Muslim law.


  1. Registration of Marriage – The registration of a Muslim marriage is not considered to be necessary, but it is just considered as an authentic proof for the married couples, and as stated in one of the cases, that even though not necessary, but this does not mean that the registration of marriage is prohibited under the personal Muslim laws.



Conclusion;

There are different views and opinions with regards to the nature of the Muslim marriage, some are of the opinion that the marriage is completely a type of civil contract, as all the essentials of civil contract are requirements for the Muslim marriage to be valid as well. However, some jurists are of a different opinion with regards to the Holy Quran, under which marriage has been considered as Ibadat, and on the other hand, Prophet Mohammed stated that, any physically, and financially fit Muslim person can marry, as marriage completes the other half of a religion of a particular person, and so he concluded by stating that marriage is not completely a civil contract in nature but a mixture of a Contract and Sacrament.


Author Name – Manav Puri@LexCliq







Essentials of a Valid Muslim Marriage – Manav Puri@LexCliq


Introduction;

In the landmark case of Abdul Kadir v. Salima and A. Mahmood, it was observed that the nature of Muslim marriage is purely understood as a civil contract rather than a sacrament. Based on these observations, we can conclude that the aim of Muslim marriage is to legalize sexual relations and procreation of children between a male and female. The essentials of Muslim marriage are very much similar to that of a Civil Contract, and thus, these are the following essentials of a valid Muslim marriage;


Essentials conditions of a valid Muslim marriage;

  1. Proposal and Acceptance – In a Muslim Marriage, proposal is known as ‘ijab’ and acceptance of the proposal is known as ‘qabul’. A proposal should be made by one party, and it will be concluded when it is accepted by the other party. For a valid marriage, proposal and acceptance should be done in the presence of witnesses who is called as a Vakil, moreover, the proposal and acceptance for the same should be done in one meeting itself. If a proposal is done in one meeting and the acceptance of it is done in another, then it will not be considered as valid. Apart from this, the presence witnesses are essential for a valid marriage, as under Sunni law, there should be 2 female and 1 or 2 male adult and sound mind Muslim witnesses. Where under Shia law, the presence of witnesses is, not necessary, at the time of marriage.


  1. Competency of Parties;

  1. Majority – The privy council had commented on the age of puberty for Muslim marriages, where the girls should be at least 15 years of age, until she reaches her age of puberty, the consent/will of the guardian is needed to carry forward with the marriage, and once she has attained her age of puberty, she has choice of either continuing or cancelling the marriage and this option at puberty is called Khyar-Ul-Bulugh. The persons recognized as guardian under Muslim law are: (a) Father, (b) Paternal Grandfather, (c) Brother or any other male member of father’s family, (d) Mother, (e) Members of Maternal Relation. And if any of these guardians are not present then, the right to carry forward the contract of marriage will be passed on to a Qazi or any other government authority/official. Once the parties have attained their age of puberty, they can freely marry anyone of their choice, and then the consent or interference of their guardian is not needed.


  1. Sound mind – At the time of marriage, both the parties need to be of sound mind/sane. As the person of unsound mind has no capability to enter into a contract, as he will not be able to make a rational judgement of the situation and so, in the eyes of law the consent of the person of unsound mind will be not be considered as valid consent. Unsoundness is categorized into two types;

  • Idiocy: It refers to a full abnormal state of mind. 

  • Lunacy: It refers to a curable mental disease. A lunatic person can enter into a contract, only in the intervals of time when he is of sound mind.


  1. Free consent – For a marriage to be valid free consent of both the parties is a necessary. And if the consent is brought by the ways of coercion, misrepresentation, fraud or mistake of fact, it will be considered as invalid and the marriage will be a void one.


  1. Dower – It is also called to as ‘mahr’. It simply refers to the amount of money or any other properties which a bride groom has the duty to give it to the bride as a consideration of marriage. Its objective is to offer the bride a feeling of financial security and safety within and after the dissolution of marriage. It is an essential part of a valid Muslim marriage, that is signified to the girl after the proposal for the marriage is made.


  1. Free from Legal Disability; 

  1. Absolute Prohibition – A Muslim marriage cannot be contracted if the parties are related to each other by the means of blood or fall in the prohibited degree of relationship and the Marriage becomes void. The absolute prohibited degrees of relationships are as follows;


  • Consanguinity – It refers to a relationship in which a man is prohibited to marry the following females, which are as follows – His mother and grand-mother, Daughter ad grand-daughter, Sister, Niece, great-niece, maternal or paternal Aunt or great-aunt. 


  • Affinity – A marriage which is prohibited due to the reason of closeness of relationship amongst one another. The prohibited relationships are as follows – Wife’s mother or grand-mother, Daughter or grand-daughter, Father’s wife, Son’s daughter or Daughter’s wife, Sons’ Son’s daughter.


  • Fosterage – It refers to a milk relationship. It is a condition in which a female other than the mother, has breastfed or suckled the child under the age of two years, and it is when the female is turned out to be a foster-mother of the child. A man is restricted from marrying the females who are a part of the notion of foster relationship. The prohibited relations include – Foster Mother or grand-mother, foster mother’s daughter.



  1. Relative Prohibition – Under Muslim law, certain prohibited relations are relatively valid and not absolutely void. If marriage violates such prohibitions, it is called an irregular marriage and it can’t be declared as void. The marriage becomes valid, once again as soon as those irregularities are eliminated. Relative prohibitions include as follows;


  • Unlawful Conjunction – A Muslim man is prohibited from marrying 2 different women, if they are related to each other by the means of consanguinity, affinity or fosterage and such relations would be considered as void. After the dissolution of marriage or death of his wife, a marriage can take place with another women. Under Sunni law, the marriage under prohibition of such conditions is recognized as irregular (fasid) but under Shia law, a marriage violating this rule of unlawful conjunction is void. 


  • Polygamy – Muslim laws, allows the practice of polygamy but it is restricted to maximum four wives for a man. A Muslim man can marry only 4 women at a time, but if he marries the fifth one despite of having four wives alive, the marriage turns out to be irregular, under Sunni law, if the man has married 5 times, and the marriage will become valid only after the death or termination of marriage, with one of the four wives. However, the Shia law considers the fifth marriage as void.


  • Absence of Proper witnesses – The marriage must be done in the presence of the proper and competent Muslim witnesses. Under the Shia law, presence of witness is not important and marriage without witnesses will be considered as valid. Under Sunni law, presence of witness is needed, as without them the marriage will be considered as void, either 1 male or 2 males and 2 females Sane, Major, Adult Muslim witnesses should be present at the time of marriage.


  • Difference of Religion – Under the Sunni law, a Muslim male is allowed to marry a female who follows and respects the same scriptures, but if he marries with an idol or a fire worshipper, then the same marriage same is considered to be irregular. A Muslim woman is prohibited from marrying a non-Muslim man and if it happens, the same is considered as irregular. But under the Shia Law, a marriage with non-Muslim is simply considered as void.


  • Marriage during period of Iddat – It is referred to as a period of waiting after the death of her husband or after the dissolution of her marriage, it is period in which she cannot remarry. The objective of the iddat is to know whether the woman is pregnant or not to and this to clear doubts of paternity of any child born after that. A divorced woman has to observe a period of three months whereas a widow has to observe the iddat for four lunar months and ten days after the death of husband. If the woman is pregnant then this period extends up to her delivery. Under Sunni law, marriage during iddat is considered as irregular whereas, under Shia law, it is considered as void.


  1. Miscellaneous Prohibition;

  • Re-marriage between divorced couple – A certain procedure is to be followed, for a re-marriage in which a Muslim female has to perform a valid marriage with another Muslim man. Then her husband needs to willfully give her the divorce. Then the lady needs to follow the period of iddat. After these processes she is now eligible to marry her previous husband. If this procedure is not completed then her marriage will be considered as an irregular one.


  • Polyandry – It refers to a situation in which a woman can have more than one husband, which as a practice is strictly prohibited by the Muslim law.


  1. Registration of Marriage – The registration of a Muslim marriage is not considered to be necessary, but it is just considered as an authentic proof for the married couples, and as stated in one of the cases, that even though not necessary, but this does not mean that the registration of marriage is prohibited under the personal Muslim laws.



Conclusion;

There are different views and opinions with regards to the nature of the Muslim marriage, some are of the opinion that the marriage is completely a type of civil contract, as all the essentials of civil contract are requirements for the Muslim marriage to be valid as well. However, some jurists are of a different opinion with regards to the Holy Quran, under which marriage has been considered as Ibadat, and on the other hand, Prophet Mohammed stated that, any physically, and financially fit Muslim person can marry, as marriage completes the other half of a religion of a particular person, and so he concluded by stating that marriage is not completely a civil contract in nature but a mixture of a Contract and Sacrament.


Author Name – Manav Puri@LexCliq













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