Skip to main content

Classification Of Muslim Marriage

 CLASSIFICATION OF MUSLIM MARRIAGES


By: Robin Pandey Date:05/03/2022

A marriage according to Muslim law may be valid (Sahih), Void (Batil) or Irregular (Fasid). According

to Shia law, marriage may only be either valid or void.

(1) Valid (Sahih) Marriage

A marriage which is neither void nor irregular is valid. A marriage which conforms in all respects

with the legal requirements is a valid marriage. A marriage to be valid must satisfy the following

requirements:

(a) There must have been a proposal by one party and its acceptance by the other.

(b) The parties must have capacity to contract marriage i.e. they should be. (i) of sound mind, (ii)

major, and (iii) capable to give consent. If they are minor or lunatic, it should be done through their

guardians.

(c) The consent of parties is free.

(d) Proposal and acceptance must have taken place at one meeting and before two witnesses. The

witnesses must be major and of sound mind. Under Shia law no witness is necessary.

(e) There should be no impediment to marriage whether absolute (on the ground of consanguinity,

affinity, fosterage and polyandry) or relative (directory).

Legal effects of a Valid Marriage

Baillie gives a description of the legal effects of marriage, but the systematic treatment of this point

by Fyzee has been adopted here for convenience. There are nine legal effects flowing from a valid

marriage:

(i) Sexual intercourse becomes lawful and the children born of the union are legitimate;

(i) the wife becomes entitled to her dower

(iii) the wife becomes entitled to maintenance;

(iv) the husband becomes entitled to restrain the wife's movements in a reasonable manner;

(v) mutual rights of inheritance are established;

(vi) the prohibitions regarding marriage due to the rules of affinity come into operation;

(vii) the wife is not entitled to remarry after the death of her husband, or after (vii) the dissolution of

her marriage, without observing iddat;


(viii) where there is an agreement between the parties, entered into either at (vi) the time of the

marriage or subsequent to it, its stipulations will be enforced, insofar as they are consistent with the

provisions or the policy of the law; and

(ix) a woman does not change her status on marriage; she remains subject to her own pre-marital

school of law and neither the husband nor the wife acquires any interest in the property of the other

by reason of marriage.

(2) Void (Batil) Marriage

A void marriage is an unlawful connection which creates no mutual rights and obligations between

the parties. It is a semblance of marriage without the reality with no legal results. A marriage

contracted by parties suffering from absolute incapacity, i.e., prohibition on the grounds of

consanguinity, affinity or 1Osterage, is void. Similarly marriage with a woman who is wite of another,

or remarriage with a divorced wife, without observing the strict rules set tor this occasion, is void.

Shia Law: Under Shia law, following marriages are void:

(a) marriage in violation of absolute incapacity,

(b) marriage with the wife of another person, whose marriage is still subsisting. remarriage with

one's own divorced wife, when there is a legal bar,

(c) marriage prohibited by reason of unlawful conjunction,

(d) marriage prohibited by reason of unlawful conjunction.

(e) marriage with the fifth wife,

(f) marriage during pilgrimage,

(g) marriage with any non-Muslim, and marriage with a woman undergoing iddat.

(h) marriage with a woman undergoing iddat.

Legal effects of void marriage )

(i) It has no legal effect irrespective of whether consummation has taken place or not.

(ii) No rights or obligations like in case of a valid marriage are created between the parties.

(iii) Rights of a Wife: She is not entitled to maintenance and live with her husband. However, if the

marriage has been consummated, she is entitled to dower.

(iv) The parties cannot inherit from one another.

(v) Offspring are illegitimate.

(vi) The parties can separate from each other at any time without divorce and may contract another

marriage lawfully.


(3) Irregular or invalid (Fasid) Marriage

Iregular marriages are recognised only under the Sunni law. The irregular marriage is an incomplete

marriage. If there is any illegality in a marriage which may be removed, the marriage is irregular. As

soon as that illegality or irregularity is removed, such marriage becomes perfectly valid. A marriage

contracted in violation of any of the relative prohibitions, is regarded as irregular marriage because

relative prohibitions are merely temporary which may be removed afterwards. Following marriages

are regarded as irregular marriages: Marriage against the rule of unlawful conjunction.

(a) Marriage against the rule of unlawful conjunction

(b) Marriage with the fifth wife

(c) Marriage without two competent witnesses.

(d) Marriage with a woman who is neither Muslim nor Kitabia.

(e) Marriage with a woman undergoing Iddat.

(f) A marriage with two sisters at the same time.

Legal Effects of an Irregular Marriage

(i) Cohabitation is lawful.

(ii) Children are legitimate and have right to inherit the properties of their parents

(iii) The husband and the wife have no mutual rights of inheritance. That is to say, if the marriage is

irregular and the husband dies, the wife is not entitled to inherit his properties. Similarly, husband

too is not entitled to inherit the properties of the wife.

(iv) The wife is not entitled to dower if the marriage has not been consummated.

(v) Where consummation has taken place, the wife is entitled to get only the specified or the proper

dower, whichever is less.

(vi) If the marriage has not been consummated, the wife is not required to observe any Iddat.

(vii) Where the marriage is consummated, the wife is required to observe an Iddat only of three

monthly courses whether the marriage dissolves by divorce or by death of the husband. After the

death of the husband, the widow need not observe the death-lddat (four months ten days); three

months-lddat is sufficient.

(viii) Irregular marriage is not a perfect union of husband and wife. It is regarded as unholy union. It

is the duty of the Kazi or the Court to separate them and dissolve their marriage. An irregular

marriage may also be terminated by the parties themselves, either before or after consummation

Labels:

Comments

Post a Comment

Popular posts from this blog

Section 58B of The Advocates Act - Special provision relating to certain disciplinary proceedings

 Section 58B The Advocates Act Description (1) As from the 1st day of September, 1963, every proceeding in respect of any disciplinary matter in relation to an existing advocate of a High Court shall, save as provided in the first proviso to sub-section (2), be disposed of by the State Bar Council in relation to that High Court, as if the existing advocate had been enrolled as an advocate on its roll. (2) If immediately before the said date, there is any proceeding in respect of any disciplinary matter in relation to an existing advocate pending before any High Court under the Indian Bar Councils Act, 1926 (38 of 1926), such proceeding shall stand transferred to the State Bar Council in relation to that High Court, as if it were a proceeding pending before the corresponding Bar Council under clause (c) of sub-section (1) of section 56: Provided that where in respect of any such proceeding the High Court has received the finding of a Tribunal constituted under section 11 of the Indian B
Post a Comment
Read more

Case Laws related to Defamation in favour of ClaimantCase Laws related to Defamation in favour of Claimant. TOLLEY Vs, J.S FRY & SONS LTD – (1931) Facts The defendants were owners of chocolate manufacturing company. They advertised their products with a caricature of the claimant, who was a prominent amateur golfer, showing him with the defendants’ chocolate in his pocket while playing golf. The advertisement compared the excellence of the chocolate to the excellence of the claimant’s drive. The claimant did not consent to or knew about the advertisement. Issue The claimant alleged that the advertisement suggested that he agreed to his portrait being used for commercial purposes and for financial gain. He further claimed that the use of his image made him look like someone who prostituted his reputation for advertising purposes and was thus unworthy of his status. At trial, several golfers gave evidence to the effect that if an amateur sold himself for advertisement, he no longer maintained his amateur status and might be asked to resign from his respective club. Furthermore, there was evidence that the possible adverse effects of the caricature on the claimant’s reputation were brought to the defendants’ attention. The trial judge found that the caricature could have a defamatory meaning. The jury then found in favor of the claimant. Held The House of Lords held that in the circumstances of this case – as explained by the facts – the caricature was capable of constituting defamation. In other words, the publication could have the meaning alleged by the claimant. The Lords also ordered a new trial limited to the assessment of damages. NEWSTEAD V LANDON EXPRESS NEWSPAPER LTD, (1939) Facts: A newspaper published a defamatory article about Harold Newstead. However, another person with this name brought an action in libel. He claimed that the article had been misunderstood as leading to him. The defendant newspaper recognised that they published the article. Also, they denied that they had the intention of being defamatory of him. Consequently, the claimant argued that the newspaper was under a duty. The duty was to give a clear and complete description of the correct person. Moreover, the claimant argued that the defendants were in breach of the duty. Issues: The issue in Newstead v London Express Newspaper, was if the reasonable persons would have understood the words complained of to refer to the plaintiff. Held: The Court of Appeal stated that in accordance with the current law on libel, liability for libel does not depend on the intention of the defamer; but on the fact of the defamation. Accordingly, a reasonable man, in this case a newspaper publisher, must be aware of the possibility of individuals with the same name and must assume that the words published will be read by a reasonable man with reasonable care.

  Case Laws related to Defamation in favour of Claimant.  TOLLEY  Vs,  J.S FRY & SONS LTD – (1931) Facts The defendants were owners of chocolate manufacturing company. They advertised their products with a caricature of the claimant, who was a prominent amateur golfer, showing him with the defendants’ chocolate in his pocket while playing golf. The advertisement compared the excellence of the chocolate to the excellence of the claimant’s drive. The claimant did not consent to or knew about the advertisement.   Issue The claimant alleged that the advertisement suggested that he agreed to his portrait being used for commercial purposes and for financial gain. He further claimed that the use of his image made him look like someone who prostituted his reputation for advertising purposes and was thus unworthy of his status. At trial, several golfers gave evidence to the effect that if an amateur sold himself for advertisement, he no longer maintained his amateur status and might be aske
1 comment
Read more

Rules as to delivery of goods

                             Rules as to delivery of goods Section 2(2) of Sale of Goods Act defines ‘delivery’ as a ‘voluntary transfer of possession from one person to another.’ Thus, if the transfer of goods is not voluntary and is taken by theft, by fraud, or by force, then there is no ‘delivery. Moreover, the ‘delivery’ should have the effect of putting the goods in possession of the buyer. The essence of the delivery is a voluntary transfer of possession of goods from one person to another. There is no delivery of goods where they are obtained at pistol point or theft. 1. Mode of Delivery: According to Section 33, delivery of goods sold may be made by doing anything which the parties agree shall be treated as delivery or which has the effect of putting the goods in the possession of the buyer or of any person authorized to hold them on his behalf. Delivery of goods may be actual, symbolic or constructive. 2. Expenses of Delivery: According to Section 36(5), unless otherwise agree
Post a Comment
Read more