Marriage under Muslim Law is different compared to other marriages as it is more of a contract. Marriage is generally a union of male and female, which gives them social and legal approval to live together and start a family.
Marriage as a Contract
Marriage has different meanings and interpretation in different religions. In Hindus it is considered as a holy union and a sacred relationship, which cannot be broken at will. In Muslims it is considered as a mere contract and can be broken at will. It is quite difficult for a country like India with so many religions and different faiths to have a unanimous marriage law. So each of these many religions, have a separate marriage law. Considering the demands of today, there also exists a law where a person of any religion or caste can get their marriage registered.
Laws of Marriage in India
Marriages in India can be registered under:-
- Hindu Marriage Act – Any person who is Hindu by religion or Sikh, Jain or Buddhist can get his Marriage registered under this. But the marriage should be according to the customs of that particular religion.
- Special Marriage Act – Any person who is an Indian national irrespective of his caste and religion can get his marriage registered under this act.
One of the peculiarities of law is that, in contrast to other marriage laws, ithere is no particular sacred or religious act required as according to Muslim customs and faith, marriage is a contract. Under Muslim law of Marriage, the Nikah Nama i.e. a contract of marriage is a valid document for the marriage to be considered as registered. Nikah, that is the marriage, is a permanent contract which can be made by mutual consent. This consent also needs to be free consent. As in the case of a normal contract, without free consent, the contract can be declared void. Thus, consent is an essential feature.
Essential Features of Marriage under Muslim Law
Marriage being a contract, these essential conditions need to be satisfied to prove a valid marriage:
1. Proposal – It is an essential feature for marriage there needs to be a proposal (Ijab) and acceptance from the other party that is (Qubul). Acceptance from the other party should be with free consent if consent is not free then marriage cannot be solemnized.
2. Contract At Time of Minority – When contract by a parent or guardian is entered for the marriage of minor at the age of her maturity, can be subsequently set aside by the minor in the age of puberty.
3. Ante – Nuptial Conditions – A major feature of Islamic marriage is that parties may enter into a pre contract before marriage as what would happen after divorce or death, rights and duties can be laid prior to it, subject to that the conditions are not opposed to public policy or Islam.
4. Mehr – A certain sum known as Mehr is to be given by bridegroom to the bride as a symbol of gift, or can be said as consideration for the contract. There is a difference between Mehr and Dowry, dowry is considered as immoral practice and a practice opposed to public policy; whereas Mehr is not opposed to public policy as it is the wish of male and even Mehr of rupee 1 is given for just fulfillment of custom.
5. Age of Marriage – As prescribed by the Indian Law age of marriage cannot be below 18 for females and 21 for males, irrespective of religion this has to be followed.
6. Bigamy – Males in Muslim religion has the right or are allowed to do multiple marriages i.e. they can keep multiple wives but to an extent of 4 wives, a 5th wife will subsequently be illegitimate. The same right is not enjoyed by the females of this religion, they can have only one living husband.
7. Parties should not be incompetent – Similar to contract parties should not be unsound of mind, or minor. Also, there should not be absolute incapacity or prohibition. Absolute incapacity or prohibition arises from relations of a man and is of following types:-
Void Marriages in Muslim law
The Nullity of inter faith marriage has been a constant question in India in light of the diversity and communal tensions prevalent in the country(sub-continent). There has even been a recent uproar on this issue in the Hadiya case. In this context it is important to refer to what kind of marriages are void under Muslim Law.
The following kinds of relationships between a man and woman shall make the marriage void:
Consanguinity: Relation which arises from blood relations, relations covered under this are.
- His mother or grandmother
- His daughter or grand daughter
- His sister
- His Niece
- His Aunt or great aunt
Affinity: Relations covered under this are:-
- His wife’s mother or grandmother
- His wife’s daughter or grand daughter
- Wife of his father or parental grand father
- Wife of his son
A marriage with a woman prohibited by this reason is void. And any children from this marriage are also illegitimate.
The Procedure for Marriage
A Nikah or marriage under muslim law, must be conducted as per the set out procedure.
- Marriage in Muslim law, like any other contract, has to be completed by offer and acceptance or as per Muslim law Ijab-o-Qubool. One party has to make an offer to another party that is a job. And there needs to be acceptance by another with free consent that is Cabool.
- According to the Muslim personal law, that prior to the marriage the man or someone on his behalf and women or someone on her behalf should agree in a meeting to marriage and should be witnessed by two Muslim adults.
- The words about proposal and acceptance should be conveyed in each other’s presence or under a presence of their agents i.e. is Vakils.
- Another Major condition is that the transaction or the offer and acceptance should be consequent and in one meeting. An offer at one meeting and acceptance at another does not constitute a valid marriage.
- The Acceptance should not be a conditional one, it should be pure. In accordance with the Sunni Law, the proposal and the acceptance should be witnessed by two males or one male and two females, the witnesses should be of sound mind and should be adults.
- There after a Qazi in front of whom the proposal and acceptance have been made will hence declare the marriage complete and Nikahnama will be generated.
Divorce under Muslim Law
Filing for divorce is quite easy in Muslim law as marriage is a contract similarly this marriage can be broken by the method of Triple Talakh. In this, there is no need for legal proceedings. Just saying the word three times to the spouse is sufficient for divorce. If the Muslims feel the need for legal registeration, they can get it registered freely under Special Marriage Act.
|Matrimonial Law | Muslim Personal Law|
|Laws||Muslim Personal Law (Shariat) Application Act, 1937 | Dissolution Of Muslim Marriages Act, 1939 | Muslim Women Act, 1986|
|Related Articles||Read more about Bigamy|
|Related Links||Shariat and Muslim Personal Law: All your questions answered – At the Indian Express | A short history of Muslim personal law in India – Scroll.in|