MUSLIM LAW

MARRIAGE

CHARACTER OF MARRIAGE IN ISLAM

 The most important of the restrictive regulations of Islam are those relating to marriage, which institution is, in fact, the basic principle of human civilization. The Arabic word for marriage is nikah, which originally means aqd or uniting. Marriage in Islam is a sacred contract, which every Muslim must enter into, unless there are special reasons why he should not. Thus in the Holy Quaran it is said "And marry those among you who are single and those who are fit among your male slaves and yours female staves if they are needy. Allah makes them free from want out of His grace and Allah is Ample-giving. Knowing. And let those who do not find a match keep cahaste until Allah makes them free from want out of His grace" (24 32, 33). In another verse, marriage-relationship is given the same importance as blood relationship "And He it is who has created man from water, then He has made for him blood relationship and marriage-relationship" (25 24).

MARRIAGE, HOW EFFECTED

Declaration and acceptance, or, in other words, proposal and consent in the same meeting, are the essential of marriage.
  1. In law, 'Declaration' signifies the speech, which first proceeds from one of the two contracting parties, and consent the speech that proceeds from the other in reply to the declaration or proposal.
  2. The declaration and acceptance mast be expressed at one meeting (majlis) and if there be a change in the meeting as for instance, if both parties being present, one of them should make a declaration, and the other should then rise form the meeting before the acceptance, or should take to some other occupations which would occasion a change of the meeting, there is no contract, In like manner, when one of the parties is absent, there is no contract.

REQUISITES OF MARRIAGE

 The principal conditions or requisites of marriage are, that both the contracting parties be sane or discreet adult and free they should together hear the words of each other; at the female should give her consent; that the declarations and acceptance should take place at one and the same melting; that the acceptance be not discrepant with or from the declaration that the man and woman to be married be known, ie, identified; that they be equal to each other that there be witnesses to the contract and that the woman be a fitting subject.

WITNESSES

 Shahadut, or the presence of witnesses, which, all the Learned are agreed, is requisite to the legality of marriage. This condition is peculiar to marriage, which is not contracted without the presence of witnesses, contrary to the case of other contracts, where their presence is required, not for contracting, but only with a view to manifestation before the judge. There are three requisites to the competency of witnesses, viz, sanity, puberty, and Islam or possession of faith. Hence marriage is not contracted in the presence of insane persons, or of minors, or of infidels, when the marriage is between Musalmans. The marriage, where both parties are Masatmans, cannot be contracted but in the presence of two male witnesses, or one man and two women who are sane, adult.

RESTRICTIONS AND PROHIBITIONS ON MARRIAGE

 Before embarking on a discussion on the subject with reference to standard works including Hidayah and Fatwa Alamgiri, we must go to the root, namely the holy Quran. The Quaran says: Forbidden to you are your
  1. mothers
  2. and your daughters
  3. and your sisters
  4. and your paternal aunts
  5. and your maternal aunts
  6. brother's daughters
  7. and sister's daughters
  8. and your mothers that have suckled you
  9. and your foster sister
  10. and mothers of your wives
  11. and your step daughters who are in your guardianship born of your wives to whom you have gone in, but if you have not gone in to them, there is no blame on you
  12. and the wives of your sons who are of your own loins
  13. and that you should have two sisters together except what has already passed
  14. and all married women except those whom your right hands possess. (4 23)
    15. Marriage with a kitabi woman is legal but it is unlawful to marry a Majusi woman.
Consequently, Musalamans may espouse Christians, Jews, and persons believing one God.

LEGAL DISABILITY TO MARRIAGE

(Asbab-ut-tahrim)

The restrictive rules or prohibitions in respect of marriage may be described as follows:
  1. Absolute prohibitions arise from:
    1. Consanguinity,
    2. Affinity, and
    3. Fosterage.
  2. Relative prohibitions arise from
    1. Unlawful Conjunction,
    2. Polygamy,
    3. Woman undergoing Iddat.
    4. Difference of religion, and
    5. Absence of proper witnesses.
  3. Prohibitive prohibitions arise from
    1. Polyandry, and
    2. Marriage with non-Muslim.
  4. Directory prohibitions arise from
    1. Marrying a woman enciente,
    2. Divorce,
    3. Marriage during pilgrimage, and
    4. Supervenient illegality.

CHRISTIAN MARRIAGE

Act XV of 1872.

A marriage between a Muslim male and a Christian woman must be celebrated in Bangladesh in accordance with the provisions of the Christian Marriage Act XV of 1872. Section 4 states of the Act that the Act is applicable if one of both of the parties is or are Christians, and a marriage not solemnized under this Act is void. Section 5 enumerates the persons by whom such marriages must be solemnized under the Act. The last Section 88 of the Act stands thus and deserves attention Nothing in this Act shall be deemed Invalidate any marriage which the personal law applicable to either of the parties forbids him or her to enter into" It invalidates marriages within prohibited degrees, and it is also clear that a Muslim woman cannot contract a valid marriage with a Christian male in this form. The act does not, in the least, alter the Muslim law as not the mutual rights of a Muslim husband and his Christian wife.

KINDS OF MARRIAGE IN SUNNI LAW

 Three kinds of Marriages:--The contract of marriage according to the Sunni jurists is either:
  1. Sahih, i.e Valid.
  2. Batil, i.e., Void.
  3. Fasid, i.e., Irregular.

Valid marriage-Definition

Valid marriage is that which is absolutely in accordance with the law and is not tainted with any defect whatsoever.

Consequences of a valid Marriage

A valid marriage results in the following consequences
  1. The wife is entitled to maintenance,
  2. The wife is entitled to dower which was agreed between the parties at the time of the marriage or subsequently. If no dower was fixed then she becomes entitled to Mehr Mithal, i.e Proper Dower.
  3. The parties are entitled to the company of each other and to have sexual intercourse with due regard to health, decency, time and place.
  4. It creates between each one of them and certain relatives of the other partner a prohibited degree of relationship.
  5. The legitimacy of the issue of the union is assumed unless repudiated by Lion before a court of competent jurisdiction.
  6. The husband can guide the movements of the wife and exercise a reasonable control over her activities.

Void Marriage

Batil or void marriage is one which is against perpetual and absolute prohibition and is, therefore, unlawful in itself and void ab initio. Thus marriage with a sister, mother or any other woman prohibited on ground of consanguinity, affinity or fosterage is void.

Effect of Void Marriage

The void marriage is no marriage in the eye of law and establishes no rights or duties between man and woman. The issue of such a marriage is generally considered to be illegitimate.

Fasid or Irregular Marriage

Fasid or irregular marriage is that which is not inherently bad or unlawful but is unlawful' for something else" at where the obstacle to inter-marriage is temporary or relative or where the irregularity arises out of a defect in procedure of making the marriage contract. Thus the following marriages are irregular:
  1. A marriage with a woman without the consent of her guardian when such consent is considered necessary.
  2. A marriage contracted without the required and necessary number of witnesses.
  3. A marriage within the period of Iddat.
  4. A marriage with a fifth wife in the presence of four
  5. A marriage prohibited on account of difference of religion.
  6. A marriage in disregard of the prohibition about unlawful conjunction. For instance, marriage with the sister of a wife.
  7. A marriage with a woman who is pregnant when the pregnahcy was not caused by adultery or fornication.

Effect of an Irregular (Fasid) Marriage

  1. An irregular marriage is not looked upon with approval by law. It is the duty of Qadi, if the matter is brought to his notice, to separate the couple. Civil Courts may now use the power of the Qadi in a proper case.
  2. The marriage can be terminated by either of the party at any time without the consent of the other.
  3. The wife is not entitled to maintenance.
  4. If an irregular marriage is consummated then the wife is entitled to dower, specified or proper whichever is the less.
  5. The wife is bound to observe Iddat if the dissolution lakes place after consummation.
  6. Prohibition on account of affinity is established only after consummation.
  7. The issue of the marriage is legitimate and inherits both the parents.
  8. The marriage does not create mutual rights of inheritance between the husband and the wife.

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