Sunday 31 March 2013

Marriage (nikah) under Muslim Law

Essentials of marriage

(1)    Proposal and acceptance- marriage becomes complete only when the other party accepts the offer. Essentials- the words conveying proposal and acceptance must be uttered in each other’s presence or in the presence of their agents who are called vakils. The transaction should be completed at one meeting. There must be reciprocity between offer and acceptance. Acceptance must be unconditional. Sunni law requires presence of two male witnesses[1] while there is no such requirement under shia law. There should be free will and consent.

(2)    Competent parties- muslim who is of sound marriage and has attained puberty can enter into marriage. Puberty is the age at which a person can perform sexual intercourse and have children. Guardian’s consent is required in case of marriage of minors, however, the person on attaining puberty has option to repudiate or confirm marriage (khayar-ul-bulugh[2]).

Option of puberty can be exercised by the male by express declaration, payment of dower or cohabitation.

If the option of repudiation is taken, marriage ceases to be marriage. The option can be exercised before attaining the age of 18 years, provided that the marriage has not been consummated.

Age and marriage:

Saghir: age less than 7 years, marriage void

Sariri: between 7 and 15 years, guardian can give consent in marriage. His own free consent is not valid.

Bulugh: over 15 years of age, can give consent in marriage.

(3)    No legal disability-

(a)    Absolute incapacity or prohibition

(i)                  Consanguinity (qurabat)- blood relations- mother, grandmother, daughter, grand daughter, sister(full, consanguine, uterine), niece, grand niece, aunt or grand aunt.

(ii)                Affinity (mushaarat)- wife’s mother or grandmother, daughter or granddaughter, father’s wife, grandfather’s wife, wife of son or grandson.

(iii)               Fosterage (riza)-foster mother or her daughter or foster sister. However, under sunni law, a man can marry his sister’s foster mother, foster sister’s mother, foster son’s sister or foster brother’s sister.

(b)   Relative incapacity

(i)                  Unlawful conjunction- marrying two women so closely related that they could not have intermarried had they been of opposite sexes[3].

(ii)                Polygamy or marrying a fifth wife

(iii)               Absence of proper witnesses (only in sunni law)

(iv)              Difference of religion- sunni male can marry any kitabia

(v)                Woman undergoing iddat

(c)    Prohibitory incapacity

(i)                  Polyandry

(ii)                Muslim woman marrying a non Muslim

(d)   Directory incapacity

(i)                  Marrying a pregnant woman

(ii)                Prohibition of divorce

(iii)               Marriage during pilgrimage

(iv)              Marriage with a sick man

 

Void, invalid and valid marriages

Valid marriage-essential conditions:

(i)                  Proposal and acceptance

(ii)                Free consent

(iii)               Proposal and acceptance must take place at single meeting in front of proper witnesses.

(iv)              Soundness of mind, majority and capacity to give consent

(v)                There should be no impediment to marriage

Void (batil) marriage- there are no legal effects of such marriages and the children born are illegitimate. Void marriages under shia law:-

(i)                  Marriage in violation of absolute incapacity

(ii)                Marriage with wife of another person during that marriage

(iii)               Marriage with one’s own divorced wife during legal bar

(iv)              Marriage prohibited by unlawful conjunction

(v)                Marriage with fifth wife

(vi)              Marriage during pilgrimage

(vii)             Marriage with non muslim

(viii)           Marriage with a woman undergoing iddat

Irregular or invalid (fasid) marriage- (only under sunni law)

(i)                  Marriage contracted without witnesses

(ii)                Marriage with fifth wife

(iii)               Marriage with woman undergoing iddat

(iv)              Marriage with non scriptural woman

(v)                Marriage by an unauthorized person

(vi)              Marriage contrary to the rules of unlawful conjunction

Effect of irregular marriage

Before consummation- there is no legal effect and wife is not entitled to dower

After consummation- wife has to observe iddat, she is entitled to prompt dower and maintenance during her iddat.

Rights and duties of husband and wife under valid marriage

(a)    Mutual rights and duties

(i)                  Inheritance right

(ii)                Sexual intercourse

(iii)               Prohibited degrees of relationship created

(iv)              Lawful conditions between them become binding on them

(b)   Rights of wife and duties of husband

(i)                  Maintenance

(ii)                Equal treatment and separate sleeping apartment in case there are more than one wives

(iii)               Dower

(iv)              Entitled to visit and be visited by her blood relations

(v)                Refuse to live with husband if he keeps an idol worshipping concubine in same house and claim maintenance

(vi)              Entitled to use an apartment from which she may exclude all persons except her husband

(c)    Rights of husband and duties of wife

(i)                  She is bound to observe strict conjugal fidelity

(ii)                She is bound to allow her husband conjugal union

(iii)               She is bound to obey his legal commands

(iv)              She is bound to reside in his house and observe purdah if necessary

(v)                She is bound to observe iddat on divorce or husband’s death

Presumption of marriage

(1)    Presumption of prolonged and continuous cohabitation

(2)    Recognition of the relation by family, friends and neighbours

(3)    Acknowledgement by the husband of wife

(4)    Acknowledgement by man that the children are legitimate

Restitution of conjugal rights

When a man brings a suit of restitution of conjugal rights, the wife can challenge it on the following grounds:

(1)    Validity of marriage

(2)    Cruelty

(3)    False charge of adultery

(4)    Non-payment of prompt dower

(5)    Ex communication

(6)    Agreements

(7)    Lian and zihar

(8)    Apostacy

(9)    Repudiation of marriage

(10)Impotency of husband

(11)Non-Payment of dower money

Muta marriage (only under shia school)- Muta marriage is a temporary marriage contracted for a fixed period of time.
Essential conditions:

(1)    Period is fixed

(2)    Mahr must be fixed

(3)    Rule of four wives does not operate

(4)    There must be a proper contract, declaration and acceptance

Legal incidents:

(1)    No mutual rights and inheritance

(2)    Children legitimate

(3)    Marriage dissolved on expiry of term

(4)    Divorce not recognized

(5)    If marriage is consummated, wife entitled to full dower, otherwise half dower

(6)    Wife not entitled to maintenance

(7)    There is no minimum duration

(8)    There is no limit to number of wives

(9)    Husband not bound to provide private residence

(10)Iddat of death 4 months 10 days, extended in case of pregnancy. If no cohabitation, iddat is not necessary.

Difference between shia and sunni marriage

(1)    Under sunni law, proposal and acceptance need not be in any particular form, specific terms in shia law

(2)    Marriage under compulsion valid under sunni law, void under shia

(3)    Witnesses essential under sunni law, not in shia law

(4)    Muslim male can marry kitabia under sunni law, not in shia law

(5)    Marriage during pilgrimage valid under sunni law, void under shia law

(6)    Muta not permissible under sunni law, allowed in shia law

(7)    Valid retirement[4] recognized in sunni law, not in shia law

 


[1] 2 male witnesses or 1 male and 2 female witnesses
[2] Khyar-ul-bulugh is known as option of puberty. In cases of consent in marriage given by guardian, the minor on attaining puberty has the option to either repudiate or acknowledge the marriage.
[3] Eg marrying two full sisters, mother and daughter, etc
[4] Valid retirement means that the husband and wife are in such circumstances that there is no reason why they cannot have intercourse.

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