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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

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