Saturday, 29 January 2022

Relative incapacity in Muslim law

 Relative incapacity in Muslim law 

There are situations in which the marriage is considered to be irregular as long as the irregularity exist. The moment such defects are removed the marriage becomes valid and binding.

According to the Muslim law it is absolutely necessary that the parties to the marriage or someone on their marriage in presences of witnesses should agree to the marriage at one sitting. The agent of the party to the marriage also known as vakil, takes the permission from the parties concern to authorised them as the agent and explains to the girl the dower amount by then girl signifies her consent in presences of the witness and the vakil, kazi who conveys the message to both and when his offer is accepted by the other party the marriage becomes final and binding.

In case of Rashid Khatoon v. SK. Islam, the Orissa high court held that their was no specified to the offer to marry and only an assurances is given and based on such assurances party start cohabiting that will not give the girl as the wife. 

Such situation are as follows-

Unlawful conjunction

It means that a man marring with two women who are related to each other by consanguinity, affinity, fosterage. However, this bar could be removed by divorcing one of them or when one of them is dead. 

Marring a fifth wife 

Under Shia law marriage with a fifth wife is regular but in Sunni it is considered to be irregular, it can only be removed by divorcing any of the former 4th wife. 

 Absences of proper witness 

In the Sunni law at the time of marriage there should be a witness of 2 male or one male and 2 female witness. Absences of any witness would affect the contractual agreement in its completion process and it will make the marriage irregular, such irregularity can be removed by pronouncing the word ijab or qubool in the presences of any witnesses. 

Differences of religion 

In a Sunni law a man cannot marry an idol worshipper and a fire worshiper. However, if the man does it then marriage is considered to be irregular but in Shia law it is completely void. But a Muslim women cannot marry to any man who is not a Muslim as per the holy Quran completely void.

Women under iddat 

Iddat is a period during which a woman is prohibited from marrying again after the dissolution of her first marriage either due to divorce or death, of the husband. The main objective of iddat is to ensure the parentage of the child to avoid any sort of confusion.

The duration iddat are as follows-:

In case of: 

1)Widow hood - 4 months 2 days

2)Pregnancy: till the delivery of child or her miscarriage. If the delivery or miscarriage happen before or remain periods then the remaining periods shall be the iddat.

3) talak: 3 months

4) If the marriage is irregular and if the marriage has not been consummated then the iddat period is not compulsory.

5) the period of iddat begins from the date of death or divorce from the husband and not from the date when she gets the information. The iddat will be counted from the former date.

If the wife observes iddat the husband is bound to maintain her during the period of iddat under the provision of Muslim law. The Muslim woman + (protection of rights on divorce at 986).

If the husbands have 4 wives’ including the divorced one, he cannot marry from the 5th time until the iddat Period of the divorced wife is over. 


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