MUSLIM MARRIAGE ACT
NATURE OF MUSLIM MARRIAGE
In Muslim law, marriage (Nikhat-An Arabic word) is defined to be a contract which has for its object the procreation and the legalising of children (Mulla). Mahmood J. Defines a Muslim marriage as a civil contract, upon the completion of which by proposal and acceptance, all the rights and obligations, which its create, arise immediately and simultaneously (and are not dependent on any condition precedent such as the payment of dower).
A Muslim marriage should attract all the incidents of contract As any other stipulated in the contract Act. For stance, there can be no marriage without free consent and such consent should not be obtained by means of coercion, fraud, or undue influence. Just as in case of contract entered into by a guardian, on attaining majority, so can a marriage contract in Muslim law, be set aside by a minor on attaining the age of puberty. The parties to a Muslim marriage may enter into any ante-nuptial or post-nuptial agreement which is enforceable by law provided it is reasonable and not opposed to the policy of Islam.
Under Muslim law, the marriage is not permanent and eternal union. A Muslim may divorce his wife whenever he desires. Under Shia law, a marriage for a fixed period (a day, a month, etc) is also recognised.
Marriage among Mohammedans is not a sacrament, but a civil contract.
ESSENTIALS OF MUSLIM MARRIAGE
1. Every Muslim of sound mind, who has obtained adult age or puberty (baligh), many enter into a contract of marriage. A marriage brought abut without the consent of such a Muslim void.
2. There should be an offer or proposal (Ijab) made by or on behalf of one of the parties and an acceptance (qubul) of the proposal by or on behalf of other party.
3. Offer and acceptance of marriage must be in the presence and hearing of two male witnesses (or one male and two female withness) who must be Muslim, of sound mind and major. In Shia law, the witness are not necessary.
4. Muslim law does not prescribe any specific words to be uttered at the occasion through the words used n offer and acceptance must clearly and unequivocally convey the intention to be married. If proper words are not used, consummation of marriage cures the deficiency.
5. Ofer and acceptance must be at one and in or at the same meeting. A proposal made at one meeting and an acceptance made at other meeting does not constitute a valid marriage.
6. If the parties are major, they must make offer and acceptance themselves, but for minors and lunatics guardians can perform this function.
7. Neither writing nor any religious ceremony is essential (through a Kazi or Mulla is usually present on the occasion who recites certain Koranic verses).
CAPACITY TO MARRIAGE
Every Muslim of sound mind, who has attained puberty, and who is not within the prohibited decrees of relationship with the party he or she contracts to marry, may enter into a contract of marriage. In Muslim law, age of majority is understood with reference to attaining the age of puberty. Puberty is presumed, in the absence of evidence, on completion of the age of 15 years.
Thus, a Muslim grill becomes major if she has completed the age of 15 years or has attained a state of puberty at an earlier period [Mst. Atika Begum v Mohd. Ibrahim AIR 1916 PC 250]. ‘Age of puberty’ is an age at which a person is supposed to acquire the sexual competency. However, the requirement of the age of puberty is essential not only because of competency for consummation, but also because it is considered to be the age at which the parties can give their own consent for the marriage.
The Indian majority Act, 1875 do not apply to the Muslims in respect of marriage.
ABSOLUTE BARS (VOID MARRIAGE)
There is an absolute prohibition for a Muslim to marry a person who is within his or her ‘prohibited relationship’. Two persons are said to be within ‘Prohibited realtionsip’ if they are related to each other by —-
(1). Consanguinity (2). Affinity (3). Fosterage
(1). Prohibition on the ground of consanguinity - A Muslim male is prohibited from marrying the following blood relations:
(a) mother, grandmother (how high so ever).
(b) daughter, grand daughter (how low so ever).
(c) sister (full, half or uterine)
(d) niece (brother’s or sister’s daughter) or grand niece (brother’s or sister daughter) (how low so ever).
(e) aunt or great aunt (how high so ever, whether paternal or maternal) (father’s sister, Mother’s sister, etc.).
There is no prohibition in Muslim law for the marriage of two cousins (parallel as well as cross) e.g. brother’s daughter with sister’s son or brother’s daughter with brother’s son.
Also, there is no prohibition in marrying the wife of ones parents brother. Thus, a man can lawfully marry his divorced or widowed Chachi v Mami.
(2). Prohibition on the ground of affinity - affinity means nearness. It is created through marriage. A Muslim is prohibited from marrying certain persons, relationship with the whom arises on account of marriage, valid or invalid:
(a). Ascendant of his wife (i.e., wife’s mother, grand mother, etc.)
(b). Descendants of his wife (i.e., wife’s daughter or grand daughter, etc.)
(c). Wife of any ascendant (i.e., fathers’s wife, grand father’s wife, etc.)
(d). Wife of any descendant (i.e., son,s wife, son’s son’s wife or daughter’s son’s wife, etc. )
(3). Prohibition on the ground of fosterage - where a child, under the age of two years, has sucked the milk of any woman (other than his own mother) such a women is called the ‘foster mother’ of that child. Whoever is prohibited by consanguinity or affinity is prohibited by reason of fosterage e.g. a Muslim male can not marry the foster mother, foster sister or foster mother’s daughter. However, a Sunni Muslim may contract a valid marriage with sister’s foster mother, foster sister’s mother, foster son’s sister or foster brother’s sister.
(4). Plurality husbands/ marrying another’s wife - A marriage with a women, who has her husband alive and who has not been divorced by him, is void (bigamy of wife). Even if a ground of divorce is available to her under the dissolution of Muslim Marriages Act, 1939, she has to prove the ground and obtain a court’s decree before marrying another person.
RELATIVES BARS (IRREGULAR /VOID MARRIAGE)
Relative prohibition are those prohibition the compliance of which is not mandatory but their presence is deemed to be unjust. Such bars renders a marriage either irregular or void or do not Affect its validity at all, the bars being of recommendatory/ directory or moral nature such bars are of temporary nature and can be got over.thus, an irregular marriage can become a valid marriage at the volition of the person. These bars are:
1. Unlawful conjunction - a man may not have at the same time two wives who are so related to each other by consanguinity, affinity or fosterage, that if either of them had been a male, they could not have lawfully inter-married. Thus, a man is prohibited to marry the sister of his wife because, if one of them is presumed to be a male, they would become brother and sister and could not inter-marry.
⁃ thus, a person can not marry two sisters, or aunt and niece. In Shia law a man may marry his wife’s aunt, but he cannot marry his wife’s niece without the permission of the wife.
2. Marrying the fifth wife - Muslim law permits a limited polygamy of four wives. A Muslim male can only have four wives. He can marry a fifth wife only after divorcing one of the four.
⁃ it may be noted that Muslim law does not permit polyandry for a muslim female.
3. Absence of proper (two competent) witness (only under sunni law).
4. Marriage of a Muslim major without his/ her consent.
5. Difference of religion - a Sunni male can validly marry a Kitabia (i.e., a jewess or Christian), but not an idolateress (ideal worshiper) e.g., a Hindu) or a fire worshippers. The marriage with an idolateress or fire-worshipper is merely irregular. The word “Kitibia” means a person who believes in a holy book containing revelations. The Muslims, Christian and the Jews falls under this category, but not Sikhs. A Sunni female cannot marry a non-muslim, whether kitabia or a non-kitabbia. Mulla, however, hold the view that the marriage of a Sunni female with a non-Muslims is not void but merely irregular. Prof. Fyzee regards such marriage as void.
⁃ in Shia law, no Muslims whether male or female can marry a non-Muslims. But a muslim made may contract a valid muta marriage with a kitabia. A Sunni male / female may contract a valid marriage with Shia female/male. Such marriage are not irregular.
6. Marriage with a woman undergoing Iddat - “Iddat” means counting the days of possible conception to ascertain whether a women is pregnant or not. Under Muslim law, it is the period during which it is incumbent upon a woman, whose marriage has been dissolved by divorce or death to remain in seclusion, and to abstain from marrying another husband. The abstinence is imposed to ascertained whether she is pregnant by the husband, so as to avoid confusion of the percentage. During the period of ‘halala’ she has to stay indoors and make sure even the shadow of a man does not fall over her.
⁃ The object of Iddat is to ascertain the paternity of a possible conception by her former husband. Because if after divorce or death of him, if she re-marries immediately and a child is born within normal course then there is every likelihood that the conception could be by the former husband and not the present. It would be difficult, thereafter, therefore, to establish as to who may be regarded as the fathers of such a child. Iddat overcomes this difficulty.
⁃ when the marriage is dissolved by divorce, the duration of Iddat if the woman is subject to menstruation is three course; if she is not so subject, it is three lunar months. If She is pregnant, the period between the divorce and the delivery of the child, or the termination of the pregnancy (abortion), whichever is earlier [as under the Muslim Women (Protection of Rights on Divorce) Act, 1986].
7. Rule of Pilgrimage - if a person enters the kaba in pilgrim-dress, finds another women there and marries her, the marriage will not be valid (Shia-shafei school). It is valid under Sunni law.
8. Marriage with a divorced woman - A person can not remarry the woman whom he had already divorced by triple talaq, unless the woman marries another man, the marriage is actually consummated with him and then he divorces her. A marriage in violation of this rule is invalid.
VOID MARRIAGE UNDER SHIA LAW
Besides the void marriages on account of “absolute bars” (discussed earlier), the following marriages are void under Shia law on account of “relative bars”
(i). Marriage in violation of incapacity.
(ii). Remarriage with one’s own divorced wife, when there is legal bar.
(iii). Marriage prohibited by reason of unlawful conjunction.
(iv). Marriage with the fifth wife.
(v). Marriage during pilgrimage.
(vi). Marriage with any non-muslim
(vii). Marriage with a woman.
Irregular marriages under Sunni Law
The following marriages are irregular under sunni law on account of “relative bars”:
(i). Marriage prohibited by reason of unlawful conjunction.
(ii). Marriage with the fifth wife by a person having four wives.
(iii). Marriage without two competent witness.
(iv). Marriage with a woman who is neither Muslim nor Kitibia.
(v). marriage with a women undergoing iddat.
Classification of Muslim marriage
A Muslim marriage may be valid (Sahih i.e., true), void (batil i.e., bad in its foundation) or irregular/ invalid (Fasid i.e. good in its foundation but unlawful in its attributes). The Shia law does not recognise the distinction between irregular and void marriage. Among Shias, a marriage is either void or valid. Marriage that are irregular under the sunni law are void and valid under the Shia law.
Effect of valid marriage - A marriage performed between the parties having full capacity to marry with all the necessary formalities is a valid marriage. The legal effects of a valid marriage are:—
(i). Status of husband and wife conferred. However, the status of women does not change and she is subject to her own pre-marital school of law.
(ii). Status of legitimacy on the children conferred.
(iii). Mutual rights of inheritance conferred on the parties (however, not a right or power on each other’s property).
(iv). The husband becomes entitled to restrain the wife’s movements in a reasonable manner.
(v). Wife acquires the right of maintenance, dower and residence.
(vi). Wife becomes bound to allow conjugal union, obey the commands of her husband and to observe Iddat.
(vii). Prohibited degrees of relation created between the parties.
(viii). Other rights and obligations as agreed upon the marriage contract.
Effect of Void marriage: A void marriage is one which is unlawful in itself the prohibition against the marriage being perpetual and absolute. Thus a marriage with a woman prohibited by reason of consanguinity, affinity or fosterage void.
A void marriage is no meaning at all and no legal consequences flow from it. It is called marriage because two persons have undergone the necessary formalities of marriage. Such marriage confers no rights or obligations (there is neither dower and nor Iddat) and the children are illegitimate. Such marriage can not be validated. No legal action is necessary to declare such as void. Since the marriage is void ab initio (from the beginning), the parties are free to go their own way. If the wife enters into another marriage, she will not be guilty of bigamy. It may be noted that if such a marriage has been consummated, the wife becomes entitled to customary dower only.
Effect of Irregular marriage- An irregular marriage is one which is not unlawful in itself, But unlawful “for something else”, as where the prohibition is temporary or relative or remedial, or when the irregularity arises from an accidental circumstance, such as the absence of witness.
An irregular marriage differs from a voidable marriage under English or Hindu law. A voidable marriage till it is avoided and on its annnulment it has the same consequences as a void marriage. An irregular marriage is not a valid marriage: nor is it a void marriage. Further it can be made a fully valid marriage by remedying the prohibition. Thus, a person can marry fifth wife by divorcing one of the four wives; the bar of Iddat ceases on the expiration of Iddat period; a person can marry his wife’s sisters by divorcing his wife; when a sunni male marries an idolatress, the marriage is irregular, but on his wife’s conversion to kitabia i.e., Islam, christan or Jew religion, the marriage becomes valid.
Either party may terminate an irregular marriage by saying ‘I have relinquished you’ or by divorce or by the court’s intervention, either before or after consummation. An irregular marriage us not perfect union of husband and wife. It is regarded as unholy union. It is duty of the kazi or the court to separate them and dissolve their marriage.
An irregular marriage has no legal effect prefer consummation. If the consummation has taken place then the wife is entitled to dower and she is bound to observe the iddat (but the duration of iddat bot on divorce and death is three courses.) the children then become legitimate and have rights of inheritance. But an irregular marriage though consummated, does not create mutual rights of inheritance between husband and wife.
The Shia law (Ithana Ashari school only) recognises two kinds of marriage, namely (1). Temporary, and (2). Temporary or muta (literally means enjoyment or use-an Arab custom). The fundamental difference between the two is that in former the term is not specified, while in the latter it is.
A Shia male may contact a muta marriage with a Kitibia woman (professing Muslim, christan or Jewish religion) or even with a woman who is five worshiper, but not with a women following any other religion (e.g., Hindu). But a Shia woman may not contract a muta mariage with a non-Muslim. Under sunni law, muta marriage is not recognised.
A Shia male can contract any number of muta marriages.all the requisite formalities of a marriage, such as of offer and acceptance, have to be observed in the muta marriage. It is essential to the validity of muta marriage that (1) the period of cohabitation should be fixed (a day, a month, year, and years) and that (2) some dower (mehar) should be specified (otherwise the meaning will be void). Muta is quid pro quo —for a short time, services of a woman. If the period is not specified, it should be considered as a permanent union, even if the parties call it a muta.
Dower or Mahar is a peculiar muslim law concept: “it is sum of money/ other property promised by the husband to be paid or delivered to the wife in the consider of the marriage, and even where no dower is expressly fixed or mentioned at the marriage ceremony, the law confers the right of dower upon the wife” (justice Mohammad). However, non-specification of dower does not render a muslim marriage void.
According to Ameer Ali, generally in India dower is a penal sum with the object to compel husband to fulfil marriage contract in its entirely.
A muslim marriage is a civil tract, and dower is a necessary result of it. However, the word ‘consideration’ is not used here in the same senses in which it is used in the Indian contract Act. It may be noted that dower is in the nature of a ‘nuptial gift’ or a sort of ‘marriage settlement’ for the wife. It is an obligation imposed upon the husband as a mark of respect for the wife. It is not a Brie price or a form of dowry. Also, it is incorrect to say that it is n acccount payable to the wife on divorce (Shah Bano case AIR 1985 SC 945).
Dower is an invaluable right of a Muslim wife. Probably, it is also used as a deterrent to Musl husband’s absolute power to pronouncing divorce on his wife. It is an integral part of marriage and may be fixed before, at or after the marriage; in case, not fixed by the parties, it is implied in every marriage, and is usually fixed by the courts.
A contract of dower, after the marriage can be made by the father if the son is minor on the date of the contract. Under the Hanafi law, a father’s contract of dower on behalf of a minor son is binding on the son, and the father is not personally liable for the mahar.
No school of muslim law fixes the Maximum amount of dower, and a muslim coup; may fix any amount of dower, Ana a muslim couple. May fix any amount of dower- even an amount which is evidently much beyond the means of husband. The Hanafis fix the minimum amount at 10 dirhams, and the Malikis at 3dirhams. In Shia law, no minimum dower has been prescribed. Usually dower is fixed in terms of money, but it may be as well any type of property (mal). No writing required, through usually a Mahar-nama (dower-deed) is executed.
Kinds of Dower
(a). Specified and proper dower
The distinction is acccording to the mode of determination of the amount of dower. Specified dower (Mahar-i-musamma) is fixed by mutual agreement of the parties. Dower May be spelled by the parties to the marriage either before the marriage or at the time of the marriage or at the time of the marriage or even after the marriage. Proper (unspecified) dower (Mahar-i-nisi), also called ‘customary’ dower, arises by operation of law: if noting is said about dower at the time of marriage, the wife may claim to have a reasonable amount of dower steeled for her (even if the marriage was contracted on the express condition that she should not claim any dower).
(b). Prompt and Deferred Dower
The distinction is according to the time when a ‘specified’ dower is payable. ‘Prompt’ dower(marjjal) is payable immediately on the marriage taking place, and it must be paid on demand (unless delay is stipulated for and agreed).
Distinction between sunni law and Shia Law Relating to Dower ——
(1) Sunni Law: Sunnis fix the minimum amount at 10 dirhams for specified dower.
⁃ Shia Law: No minimum dower has been prescribed.
(2). Sunni Law: There is no limit to proper dower.
⁃ Shia Law: The proper dower should not exceeds 500 dirhams.
(3). Sunni Law: if marriage is dissolved by death and doer has not been specified, proper dower would be due whether the marriage was consummated or not.
⁃ Shia law: if the either party dies before the consummation of marriage, dower is not payable.
(4). Sunni Law: under the sunni law, in the absence of an agreement —
(i) the whole may be awarded as prompt, or
(ii) it has to be regulated by the custom or usage of the wife’s family, or
(iii) in the absence of any proof of custom, part (one-haf) is regarded as prompt
And part as deferred
⁃ Shia Law: where no specific proportion of prompt and deferred dower has been fixed by agreement- the whole is regarded as prompt.
MUSLIM LAW DIVORCE
Under Muslim law, there is no provision for a decree of judicial separation. Through certain agreements could be entered into at the time of marriage or subsequently thereto which stipulate for ‘seperation’ or ‘divorce’ on the happening of a stipulated contingency (e.g., that the wife will have right of pronouncing divorce on her husband on his asking a second wife or treating her with cruelty).
Despite the precept of the prophet, “oh, Allah, the most detestable of all permitted things is divorce”, divorce is the most copious and uninhibited aspect of muslim matrimonial law. “Men are maintainers of women, because Allah has made some of them to excel other s and because they spend out of the property (on their maintenance and dower)” (the Koran, iv, 35). The above verse in support of the husbands authority to pronounce unilateral divorce (talak) is often cited.
In muslim law, although matrimony is a civil contract, the husband usually enjoys special privileges and the wife suffers corresponding disabilities. No muslim marrriage (either among Sunnis or Shias) is “permanent” in the Sense in which a Christian on Parsi marriage is, for the husband may divorce the wife at any time he likes. The wife remains at her husband’s mercy owing to polygamy and the inequity of the law of divorce. He may divorce her even if there was a promise on his part not to excercise the power of divorce. The husband is given an almost unfettered power of divorce, the only restraints upon him being those imposed by the law relating to dower and by his own conscience. He has to remember the Prophet’s words: “Of all things permitted by the law, the worst is divorce.”
Another remarkable feature of Muslim law of divorce is that in most cases no judicial or non-judicial authority is needed to effect dissolution of marriage. Judicial divorce was introduced in 1939 by the Dissolution of muslim marriage Act and under the Act only wife can sue for divorce. However unlike husband, she has to prove the ground for obtaining the divorce. Islamic law has never conferred the same power to pronouncing talak on the woman, as it has on the man, through it recognises that a muslim wife has the right to seek divorce with the consent of the husband (Khula or Mubara,at). Even in such cases, the husband can escape the liability of paying dower and may also gain more property in the bargain if the wife is very keen to obtain divorce.
However, there are certain safeguards against the husband’s power of talak, viz, restraints on remarrying a divorced wife, payment of dower to divorced wife, delegated divorce which allows the wife to secure the right of divorce from her husband, etc. . The judiciary in india has also looked down upon the free and arbitrary use of Talak. In Itwari v. Asghari (see below), the court observed that second marriage of the husband raises a presumption of the first wife.
MODES OF TALAK (EXTRA-JUDICIAL)
Among the Sunnis, talak may be express, implied, contingent, constructive, or delegated. The Shias recognise only the express and the delegated talak.
(i) EXPRESS DIVORE
When clear and unequivocal words are uttered, the divorce is express, it may be talak-ul-sunna (approved and recovered) or Talak-ul-biddat (unapproved and irrevocable).
(a) Talak-ul-Sunnat - it means talak as sanctioned by the the sunnat or traditions(of the prophet) or customary talak. It is also called as Talak-ul-Raje. It has two form:—
The former is most approved and the latter is approved.
(1) Ashan talak - this consists of a single pronouncement of divorce (‘I divorce you’) made during a tuhr (period between menstruation or period of purity, the period during which cohabition is possible) followed by abstinence from sexual intercource for the period of Iddat. This requirement is not applicable when the wife has passed the age of mensturation, or parties have been away from each other for a long time, or when marriage has not been consummated. The advantage of this form is that divorce ca be revoked at any time before the completion of Iddat period i.e., 90 days (after iddat it becomes irrevocable); thus hasty, thoughtless divorce can be prevented. The revocation (expresses or implied) may be by resumption of cohabition or by saying “i have retained three”.
The singe pronouncement of evil words of ‘talak’ and revocability of this talak (sufficient opportunity for reconciliation) makes it the most proper or approved divorce. Thereafter, where a husband makes any declaration in anger, but realising his mistake afterwards, want to cancel it, there is sufficient time for him to do so.
(2) Hasan Talak - this consists of three pronouncement made during successive tuhrs, no intercourse taking place during any of the three thurs. The moment the third pronouncement is made (i.e., no revocation is made after the first or second declaration), the marriage stands dissolved irrevocably, irretrievably of Iddat.
(b) Talak-ul-Biddat - it means talak which, though valid, is sinful or irregular. It is an usual form of talak, as it becomes effective as soon as the words are pronounced and there is no possibility of reconciliation between the parties. The prophet never approved it.
It has two forms: triple divorce or three declarations at one time, and one irrevocable declaration. The Shias do not recognise talak-ul-biddat.