SOURCES AND SCHOOLS OF MUSLIM LAW
Today one-sixth of the total world population is following Islam. And if there is anything which is characteristics of and fundamental to that religion, it is the shariah or the Islamic law.
What is Islam?
In the religious sense, Islam means “Submission to the will of good” and in secular sense Islam the “establishment of peace”.
In Islam all humility is one vast brotherhood, with one god as their creator or master so looks them as equal. Hence, all men are equal in Islam. It enjoins a duty to surrender to the will of god.
Muslim law is a personal law: personal law is that branch of civil law which regulates the ‘personal matters’ of an individual. Marriage, divorce, guardianship, inheritance, etc., are called ‘personal matters’. The ‘personal matters’ may also be called as “family matters”. Muslim have may be described as that branch of civil law which regulates the family-matters of the muslim.
THE CONCEPTIONS OF MUSLIM LAW
1. Shariat (Muslim law is a revealed law)
2. Fiqh (science of jurisprudence)
Shariat (Muslim law is a revealed law): the world ‘shariat’ literally means “the path to be followed” shariat is law in the wider sense. It means means the totality of Allah’s commandments. It is a doctrine of duties. Legal consideration and individual rights have secondary place in it. Quran, Hadis, Sunna, Ijma, and Quias from the body of muslim common law known as shariat.
Fiqh (science of jurisprudence): the Quran or shariat provided only the raw material with which the legal fabric has to be built. Fiqh signifies law in the modern sense. According to Muslim jurists, in the absence of any direction for human actions in the words of god of god or traditions of the prophet, the human reasoning or the exercise of human knowledge in deciding a point of law is necessary. Human intelligence or the knowledge of the law is technically called fiqh. Fiqh is the name given to the whole science of jurisprudence, because it implies the independent exercise of intelligence in deciding a point of law. The fiqh is, therefore, a part of the secular law or the law proper which the authorities enforce for regulating human conduct.
THE SHARIAT ACT, 1937
The most important and far-reaching enactment dealing with the application of muslim law in India 🇮🇳 is the Shariat Act, 1937.
It is applicable to every muslim regardless of the school to which he belongs. It applies to all kinds of properties but these are three main exceptions :—
1. Agricultural Land
2. Testamentary secession
3. Charities other than wakfs.
Section 2 of Shariat Act- provides that in case where both the parties are Muslims rule for decision shall be muslim law, if the case involve any of the following matters.
1. Intestate succession (i.e., inheritance)
2. Special property of the females
3. Marriage (including all incidents of marriage)
4. Dissolution of marriage (including all kinds of divorce)
9. Trust and trust properties
Since, adoption, wills and legacies are not mentioned in section 2 of Shariat Act, the courts will not apply muslim law also in these three matters unless they desire must be expressed through a declaration to that effect. If there is no such declaration by a muslim, the courts are not bound to apply custom and usages or the local enactments, if any.
SOURCES OF MUSLIM LAW
Sources of muslim law classified into two categories:—
(A). THE PRIMARY (SHARIAH) SOURCES
(B). THE SECONDARY (EXTRANEOUS) SOURCES
The Primary Sources: primary sources of muslim law are those which the Prophet himself directed to be the sources of Muslim law. These are:—
1. The Quran
2. Sunna or Hadith
3. The Ijam
4. The Qiyas
Secondary (Extranous) Sources: These are those sources which are developments on the foundations laid down by the primary sources. These are :—-
2. Judicial precedents
4. Justice, equility and good conscience.
QURAN: the Quran is composed of such express revelations as were made in the very words of god to Mohammed when he was bestowed with the office of the prophet and messenger of God. The Quran is the first source of muslim law in point of time as well as in importance. It deals with variety of subjects and very small part of its comes into the domain of law. Basically it is mixture of religion, law and morality.
SUNNAT OR HADITH: (The traditions). Whenever the prophet said or did without reference to hold is treated as his traditions and considered to be the second source of Muslim law.
The narration’s of “What the Prophet said, did or tacitly allowed” is called Hadith. These traditions, however, were not reduced to writing during the life time of Mohammad. They have been preserved as traditions handed down for generation to generation by authorised person.
THE IJMA (consensus of opinion)
Ijama means the consensus of the companions as followers of the prophet. Abdul Rahim defines it as “the agreement of jurist among the followers of Mohammed in a particular age on a particular Question.”
The authority of Ijma, as a source of law is based upon tradition, “my followers can never agree upon what is wrong.”
THE QUIAS: Qiyas or analogy is a process of deduction by which the law of a text is applied to cases which through not covered by the language, and governed by the reasons of the text. If there was any problem before the society on which the former three texts were silent then Qiyas was applied to get the law. It was mentioned of comparing the problem of society with a similar problem for which solution was given in the texts.
CUSTOM: A custom is tradition passing on form one generation to another, that originally governed human conduct and has obtained the force of law in a particular locality. It is a natural source of law. The muslim jurist do not expressly describe it as a source of law but those customs and usages of the Arabs which were not abolished by the prophet are held to have been sanctioned by the “jurist by their silence.”
A precedent is not merely an evidence of law but a source of it and the courts of law are bound to follow the precedents. Strictly speaking, judicial decisions only declare the law as it is and are not a source of it but they undoubtedly supplement and modify the law. Muslim law is no exception to their rule. In the absence of any clear text of muslim law, the courts may interpret a rule of law according to their own concepts of justice.
IN KATHEESSA UMMA V. NARYANATH KUNHAMV, AIR 1964 SC 275, the Supreme Court has held that a gift by a husband to his minor wife above the age of fifteen years but under Eighteen years is valid even if the gift was accepted by any incompetent guardian under muslim law.
LEGISLATION: It is generally believed in Islam that Allah alone is the Supreme legislator and no other agency or body on earth has authority to make laws. This belief is so deep-rooted that even today and legislative modification may be treated as an encroachment upon the tradition Islamic law. The result is that as independent source of Muslim law, the legislative enactments are almost insignificant. However, some important enactments on muslim personal law are given below:—-
1. The Mussalman Waqf Validating Act, 1913
2. The Child Marriage Restraint Act, 1929
3. The Muslim Personal Law (Shariat) Application Act, 1937
4. Dissolution Of Muslim Marriage Act, 1939
5. Muslim Women (Protection of rights on Divorce) Act, 1986.
JUSTICE, EQUITY AND GOOD CONSCIENCE
Under muslim law principles of justice, equity and good conscience can also be regarded as one of the source. Sometimes analogical deductions failed to satisfy the jurist awing to the narrowness and inadaptability of the habits or due to hardship to the public. In such a case, according to the Hanafis , a jurist could use good conscience. The importance of Justice, equity and good conscience as a source of Muslim law can be well assessed by the following observation of Ameer Ali, he says that “when the great expounders of Mussalman law have exuciated divergent doctrines or expressed different opinions, the judge administering Mussalman law to adopt the one most comfortable to equity and the requirements of the times. ”
MUSLIM LAW OF MARRIAGE (NIKAH)
Among the Arabs Nikah (marriage) is a wide term comprising many different forms of sex relationship, but in muslim law it has a very definite legal meaning.
It is quite relevant to know whether the muslim marriage is a sacrament like the Hindu marriage, for this let us get acquainted with some of the definition of muslim marriage.
(b). Bailies Digest
(c). Ameer Ali
(d). Justice Mahmood
(e). Abdul Rahim
Hedaya: Marraige is a legal process by which the several process and procreation and legitimation of children between man and women is perfectly lawful and valid.
Bailies Digest: A Nikah in Arabic means, “union of series” and carries a civil contract for the purpose of legalising sexual intercourse and legitimate procreation of children.
Ameer Ali: Marriage is an institution ordained for the protection of society and in order that human being may guard themselves from foulness and unchastity.
Justice Mahmood: Marriage among Muhammadans is not a sacrament, but purely a civil contract.
Abdul Rahim: The Muhammandans jurists regard the institutions of marriage as parking both of the nature of ‘Ibaddat’ or ‘devotional’ acts and ‘Muamlat’ or dealings among men.
Justice Salman has said “in Islam, marriage is not only a civil contract but also a sacrament.” Among all the above definitions, Abdul Rahim’s definition is the most balance one. By using the two ingenious word “Ibbadat” and “Muamlat” he has summarised the whole concept of muslim marriage in one sentence.
Object of Marriage
The objects of muslim Nikah are as follows —
1. Legislation of sexual intercource for the purpose of enjoyment, and
2. Procreation and legitimation of children for the purpose of :—
(A). Preservation of human race, and
(B). Systematisation of Domestic and social life.
NATURE OF MUSLIM MARRIAGE
There are divergence of opinion with regard to nature of muslim marriage is purely a civil contract while others say that it is a religious sacrament in nature. In order to better appreciate the nature of muslim marriage it would be proper to consider it in its different notions.
Muslim marriage, by some text writers and jurist, is treated as a mere civil contract and not a sacrament. The following observation seem to be based on the fact that marriage, under muslim law, has similar characteristics as a contract:—
1. As a marriage requires proposal (Ijab) from one party and accept (Qubul) from the other so is the contract. Moreover, there can be no marriage without free consent and such consent and such consent should not be obtained by means of coercion fraud or undue influence.
2. 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.
3. The parties to a muslim marriage may enter into any ante-nuptial or past-nuptial agreement which is enforceable by law provided it is reasonable and not opposed to the policy of Islam. Same is the case with a contract.
4. The terms of a marriage contract may also be altered within legal limits to suit individual cases.
5. Although, discouraged both by the holy Quarantine and Hadith, yet like any other contract, there is also provision for the breach of marriage contract.
MUSLIM MARRIAGE IS NOT MERELY A CIVIL CONTRACT, because : —
1. Unlike civil contract, it cannot be made contingent on future event.
2. Unlike civil contract, it cannot be for a limited time (Muta marriage is an exception);
3. Unlike civil contract, the analogy of lien cannot be applied to a marraige contract. The contract of sale of goods may be cancelled by unpaid seller. He may result the goods by rescinding such contract where as in a contract of marriage, the wife is not entitled to divorce her husband or to remain with a third person if a part of the dower remain unpaid.
It is, therefore, submitted that nikah is a well established social institution which gives to the woman a separate and dignified status in the society.
Quran, which is collection of the words of God, directs every Muslim to marry a suitable woman of his liking. It is, therefore, a religious duty of every muslim to contract a marriage according to the rules of Islam. A person who remains bachelor without any reasonable excuse, disobeys the words of God. Moreover, marriage is also the tradition (sunnat) of the prophet. This means that it is an act of such a nature that if a person does it, he gets religious benefits, if he abstains from doing it, then he commits a sin.
In the ultimate analysis it can be said that the marriage in Islam is neither purely a civil contract nor as sacrament. It is devoid of none but the blending of the two. In form or appearance it is contractual but in essence its nature is undoubtedly socio-religious.
ESSENTIALS OF A VAID MARRIAGE
Marriage may be constituted without any ceremonial there are no special rites, no proper officiants, no irksome formalities.
Under the Muslim law, a marriage is a contract and a valid contract will argue only, if the following essentials have been observed. Following conditions must be fulfilled in a valid Muslim marriage :—
1. Competence/ capacity of the Prties—
Parties are competent if they are :—
(a). Of the age of puberty
(b). Of sound mind
2. Free consent of the parties
Where the parties to the marriage are Sana and adult, it is their own consent which is required but if any of them is either minor or an insane then the consent on his or her behalf must be given by the guardian. A consent is not free if it is given under compulsion, fraud or mistake of fact.
Compulsion: when the consent for a marriage is obtained by application of forces under threats. Core is on or any other compulsion, it is not free and it cannot be said that such a person has intended to what he or she was consented. Under all schools of muslim except hanafi if the consent of the parties or of their guardian has been obtained under any compulsion, the marriage is void. Under Hanafi law, even if the consent has been given under the compulsion, the marriage is valid.
Fraud: if the consent has been obtained by playing fraud, the marriage is voidable at the option of the party defrauded where the marriage, there is no consent and the marriage is void.
3. Formalities and ceremonies of the marriage are duly completed
Though in the muslim communities certain social functions and ceremonial rites are performed at the time of marriages such functions or rites are not legally necessary. Under Muslim law the only essential formalities are that the offer and the acceptance are made at the some sitting. The rules in this regard may be summarised as follows:—
1. Offer (Ijab) signifies willingness of a person to contract a marraige with the offer. The offer is in the form of declaration and is generally made form of declaration and is generally made from the side of the boy or his guardian.
2. The offer for the marriage must also be accepted (Qubool) by the girl or his guardian.
3. If the parties are major, they must make offer and acceptance themselves but for minors and lunatics guardians can perform this function.
4. The offer and the acceptance may either be oral or in writing.
5. The word with which the marriage is contracted must be clear and unambiguous. No specific words are prescribed for an offer and acceptance, but they must indicate expressly a clear intention of the parties (or of their guardians) to marry. The offer and acceptance should not be of uncertain or doubtful nature.
6. The offer and acceptance must be expressed in one and the same meeting. The legal requirement is that the offer and the acceptance must be simultaneous to each other so that they may from party of the same transaction. Where it appears that offer and the acceptance are isolated, there is no formation of a marriage contract.
7. Offer and acceptance must be reciprocal to each other. The acceptance must be exactly for the proposal and nothing else. If the acceptance is conditional or with modifications, it is no acceptance of the proposal.
8. The offer and acceptance must be made in presence of two competent witness. A marriage without witness is valid under Shia law. Even under the Hanafi law, a marriage without witness or with incompetent witness is irregular by consummation.
CAPACITY TO MARRY
The following persons have the capacity to contract Nikah—
1. Any person who is of sound mind.
2. A person who is not within the prohibited degrees of relationship.
3. Any person who has attained the age of puberty;
4. In case of lunatics or minors who have not attained the age of puberty (completion of 15 years of age) the marriage can be legally contracted by their legal guardians. If there is no consent of the guardians, then the marriage of a minor or a lunatic is invalid.
ABSOLUTE (MANDATORY) RROHIBITIONS
Absolute prohibitions in the marriage are mandatory in nature. A marriage contracted in violation of any of the absolute prohibition is null and void under all the schools of muslim law. For a valid marriage therefore, there must be absence of prohibited relationship between the parties. There is an absolute prohibition for a Muslim to marry a person who is within his or her ‘prohibited realtionship’.
Two persons are said to be within ‘prohibited relationship’ if they are related to each other by—
1. Consanguinity (Relation by blood): under consanguinity or blood-relationship, a muslim can not marry only of his (or her) following relations:—
(a). One’s own ascendents or descendant (How high so ever)
(b). Descendants of ones’s father and (or) mother (How high so ever)
(c). Brothers or sisters of one,s ascendant (How high so ever).
◦ Mother, Grandmother (how heigh so ever)
◦ Daughter, grand daughter (how heigh so ever)
◦ Aunt or great aunt.
One’s own ascendant and descendants : father and mother of a person are his )(her) ascendents. Ascendants of higher degree from the side of after are father,s Father, Father,s Father,s father etc., how heigh so ever. Sons and daughter of a person are his (her) descendants. Descendants of lower degree are son’s Son or Daughter’s Son etc., how heigh so ever.
Descendants of one’s Father and (or) Mother : The descendants of One’s Father and mother are one’s real brothers and sisters. Descendants in the lower degree of ones,s parents are his own sons and daughters of his real brother or sister. A man is prohibited to marry no only his real (full) sister but also his uterine and consanguineous sisters.
Similarly, a women cannot marry her real (full) uterine and the consanguine brother. A man is prohibited to marry also the descendants (i.e. daughter,s daughter Or son,s daughter) of his uterine or consanguine brother or sister, just as he is prohibited to marry the descendants of his real brother or sister.
NOTE: There is, however, no prohibition in the marriage of cousins-brother and sister. That is to say, [Chachere, mamere, Phuphere or Mauser brother and sister] can lawfully marry each other.
Brothers or Sisters of one’s Ascendants: A man is prohibited to marry the sisters of his father or mother. Thus a man can not marry his Booa(phuphi) or his Mausi (khala). A woman can not marry her paternal or maternal uncle (chacha or Mama). A man is also prohibited to marry chacha or Mama of his parents.
NOTE: it is to be noted that there is no prohibition in marrying the wife of one’s parents brother. Thus, man can lawfully marry his divorced or widowed mami or Chachi.
2. Affinity (Relation by Marriage): Affinity means nearness. It is created through marriage. On the basis of affinity one can not marry with any of the following relations.
(a.) Ascendant or descendants of one’s wife (or husband).
(b.) Wife (or husband) of one’s ascendants or descendant.
The ascendants or the descendant of one’s wife (or husband)- A man is prohibited to marry his wife’s mother or wife’s mother’s mother of any higher degree.
A women is prohibited to marry her husband’s father or husband’s father’s father of any higher degree. A man is also prohibited to marry his wife’s daughter or wife’s grand daughter how low so ever. Similarly, a woman can not marry her husband’s Son or husband’s great grand son, how low so ever.
NOTE: a man can marry the descendant of his wife if his own marriage with the wife ha snot been consummated.
Wife (or husband) of any ascendant or descendants - A man is prohibited to marry the wife of his father or grand-father of any higher degree. Similarly a woman cannot marry the husband of her mother or husband of her grand-mother etc. it is to be noted that there, the prohibition includes restriction in the marriage of a n with his step-mother (i.e., the other wives of his father, if any, other than his real mother). A man is also prohibited to marry the wife of his son, or wife of the grandson of any lower degree. Similarly, a women is prohibited to marry the husband of her daughter or the husband of her grand daughter of any lower degree.
3. Fosterage (Relation by Milk)- when a child, under the age of two years, has sucked the milk of any women [other than its own mother] such a women is called the foster- mother of that child. Although there is no blood-relationship between that women and the child d yet, she is treated as the real mother of that child for purposes of prohibitions in the marriage. The relation behind this rule is that breast-feeding to any child, necessary for child’s life and developments, is regarding as the act of giving birth to that child.
NOTE: A man is prohibited to marry his foster-mother, foster-mothers daughter etc.
The prohibition on the ground of fosterage has almost become outdated because in most of the families of Indian Muslims, this relationship is now not in practice.
RELATIVE (DIRECTORY) PROHIBITIONS
Relative prohibitions are those prohibitions the compliance of which is not mandatory (must) but their presence is deemed to be unjust. Under shariat the rules which are not mandatory are called directory (Mustahab) and are without any legal effect. Therefore, a marriage contracted in violation of these prohibitions is merely irregular, not void.
As soon as that irregularity is removed, the marriage becomes perfectly valid. Under Shia law, which does not recognise an irregular marriage, a marriage against any of those prohibitions is either void or perfectly valid. The relative prohibitions are given below.
1. Unlawful conjunctions
2. Marriage with the fifth
3. Marriage with non-Muslims
4. Marriage without witness
5. Marriage during Iddat
UNLAWFUL CONJUNCTIONS - a muslim is prohibited to have two wives at a time if these two wives are related to each other (by consanguinity, affinity or fosterage) in such a manner that if they had been of different sexes, they could not have intermarried. Marriage with two such wives is an unlawful conjunction.
For example a man is prohibited to marry the sister of his wife because, if one of them presumed to be a male they would become brother and sister and could not inter-marry. Similarly, a muslim can not marry the aunt (Booa or Mausi i.e, Khala) or the niece of his wife. However, a man can lawfully marry his wife’s sister after te death or divorce of the wife.
A marriage against the rule of unlawful conjunctions is irregular.
(1). Under Shia law, marriage with wife’s aunt (Booa or Mausi i.e., Khala) is not unlawful conjunction. Therefore one can marry with his wife’s aunt. But he cannot marry with wife’s niece without consent of the wife; with wife consent, marriage with wife’s niece is permitted.
(2). A marriage against the rule of unlawful conjunction (except married with wife’s aunt) is void under Shia law.
MARRIAGE WITH THE FIFTH WIFE - Muslim law permits a limited polygamy of four wives. A muslim can marry lawfully with four wives at a time. But he is prohibited to marry with a fifth wife. However, marriage with a fifth wife is only irregular. After the death or the divorce of any of the four wives, this irregularity does not exist, and he can lawfully marry because at a time he will have four wives, which is permissible.
Shia law: marriage with the fifth wife is void.
MARRIAGE WITH A NON-MUSLIMS - sunni law prohibits a marriage being contracted without two competent witness. A marriage without witness or with incompetent witness is, however merely irregular.
Shia law: under Shia law, the presence of witness is not necessary. A marriage contracted without witness is, therefore, valid under the Shia law.
MARRIAGE DURING IDDAT - Iddat is that period which a women has to undergo after divorce or death of her husband. Marriage with a woman undergoing Iddat prohibited under muslim law.
According to muslim law (sunni law), a marriage with a woman observing Iddat, is merely irregular, but according to Shia law the marriage is void. However, the prohibition of marrying a woman during Iddat, is a temporary prohibition which comes to an end after the expiry of the specified period.
Iddat is an Arabic word and its literal meaning is ‘Counting’. ‘Counting’ here means counting the days of possible conception to ascertain whether a women is prohibited from re-marrying after the dissolution of her marriage. During this period the widow or a divorce wife is required to live a pure and simple life. The object of iddat is to ascertain the paternity of a possible conception by her former husband. After divorce or death of the husband, if the women 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 by the present. It would be difficult, therefore, to establish as to who may be regarded as the father of such a child. To overcome this difficulties, muslim law provides that where a marriage is dissolved by divorce or death of a husband, the women cannot re-marry before the expiry of a specified period called. Iddat after this period, the possible conception by the former husband and would naturally become apparent and visible.
Marriage with a women a who is observing iddat is irregular under Sunni law. Under Shia law, the marriage contracted with women observing Iddat is void.
DIFFERENT PERIOD OF IDDAT, WHICH A WOMEN IS LEGALLY REQUIRED TO UNDERGO, ARE GIVE BELOW —
(a). Dissolution of marriage by divorce —
(i). When a void marriage is dissolved by divorce and consummation has taken place, the duration of iddat is three monthly courses.
(ii). If the marriage has not been consummated , the woman is not required to observe the iddat.
(iii). If the women is pregnant at the time of divorce then the duration of iddat extends till delivery of the child or abortion.
(b). Dissolution of Marriage by death of Husband —
(i). Where a valid marriage dissolves by the death of the husband, the duration of iddat is four months and 10days. If she is pregnant at the time of husband’s death, it continues till the delivery of the child, or four months ten days whichever is longer.
(ii). After the death of the husband, on Iddat of four months ten days must be observed by the widow even if the marriage was not consummated.
(c). Death of husband During ‘Divorce-Iddat’—
The period of iddat after, divorce is three months. If the divorced woman is observing divorce-iddat of three months, she has to start a fresh Iddat of four months and 10 days from the date of husband’s death.
For Example: where after completion of two months of divorce-Iddat te former husband dies the divorced woman has to observe a fresh iddat of four months ten days. Thus period of iddat in such case shall be five months ten days.
(d). Commencement of Iddat —
The period of Iddat begins from the date of the divorce or death of the husband and not from the date on which the women get the information after the expiry of the specified term, she need not observe the required iddat.
(i). A generally accepted tradition among the Shias is that iddat is not necessary if the women gets the information after the expiry of the specified term, she need not observe the required Iddat.
(ii). Under Shia Law, the marriage with a women observing Iddat is void.
CLASSIFICATION OF MARRIAGES
A marriage according to muslim law may be valid (shish), void (Batil) or Irregular (fasid). According to Shia law, marriage may not be either valid or void.
(1). Valid (Sahih) Marriage
A marriage which is neither void nor irregular is void. A marriage which conforms in all respects with the legal requirements is a valid marriage. A marriage to be valid must satisfy the following requirement :—
(a). There must have been a proposal by one party and its acceptance by the other.
(b). The parties must be capacity to contract marriage i.e., they should be —
(i). Of sound mind
(iii). Capable to give consent, if they are minor or lunatics, 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 wittinesses is necessary.
(e). There should be no independent to marriage whether absolute (on the ground of consanguinity, affinity, fosterage and polygandary) or relative (directory).
Legal effects of valid marriage —
Bailies 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 following from a valid marriage :—
(i). Sexual intercourse becomes lawful and the children born of the union are legitimate.
(ii). The wife becomes entitled to er dower.
(iii). The wife becomes entitled to maintenance.
(iv). The husband become 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 the dissolution of her 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
(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 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 ground of consanguinity, affinity or fosterage is void. Similarly marriage with a woman who is wife of another, or remarriage with a divorced wife, without observing the stricken rules set for this occasion, is void—
Under shia law, following marriages are void:—
(a). Marriage in violation of absolute incapacity.
(b). Marriage with the wife of another person, who marriage is still subsisting.
(c). Remarriage with one’s own divorced wife, when there is legal bar.
(d). Marriage prohibited by reason of unlawful conjunction.
(e). Marriage with fifth wife,
(f). Marriage during pilgrimage.
(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 valid marrying 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
(3). Irregular or invalid (Farid) Marriage—
Irregular marriage are recognised only under the sunni law. The irregular marriage is an incomplete marriage. If there is nay illegality in a 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 prohibition is regarded as irregular marriage because relatives prohibition are merely temporary which may be removed afterwards.
Following marriages are regarded as irregular marriage :—-
(a). Marriage against the rule of unlawful conjunction.
(b). Marriage with fifth wife.
(c). Marriage without two competent witness.
(d). Marriage with a woman who is neither Muslim, nor kitabia.
(e). Marraige with a women 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.
(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.
(v). If the marriage has not been consummated, the wife is not required to observe any iddat.
(vi). Where consummation has taken place, the wife is entitled to get only the specified or the proper dower whichever is less.
(vii). Where the marriage is consummated, the wife is required to observed on Iddat only of three monthly courses where the marriage dissolves by divorce or by death of the husband. After the death of the husband, the widow need not observe the death-Iddat (four months ten days); three months-Iddat is sufficient.
(viii). Irregular marriage is not a perfect marriage or 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 marriage. An irregular marriage may also be terminated by the parties themselves, either before or after the consummation.
The word muta literally means ‘enjyoment’ and in its legal contest it may be rendered according to Heffening, as marriage for pleasure. Muta may be defined as a temporary union of male and female for specified duration, on payment of some consideration. It is a temporary marriage for a fixed period for a certain reward paid to the women. The specified period may be day, a month, or a year or a year or a term of years.
Origin of Muta marriage:
In earlier day of Islam, when the Arabs had to live away from their homes for a considerably long period either on account of wars on trade- journeys, they used to satisfy their sex-desires through prostitutes. In order to avoid the developments of prostitution in the society and to confer legitimacy upon children of such unions temporary marriage was recognised and permitted by the prophet for sometime. The institution of muta was fairly common in Arabia both before or at time of the prophet. But later on, when he felt that this consideration was being exploited it absolutely.
THE DOWER (MAHER)
The dower (consideration) must be specified at the time of the contract. When the term and the dower have been fixed, the contract is valid. If the term is fixed, but the dower is not specified, the contract is void. “But if the dower is specified and the term is not fixed, the contract, through void as muta, may operate as a permanent marriage .” It must be noted that the specification of the dower is necessary for the validity of a muta form of marriage but it is not essential for permanent marriage (Nikah).
Types of Dower —
(1) Specified dower
(a). Prompt dower
(b). Deferred dower
(2) Unspecified dower
Specified dower - When the amount of dower is fixed either before or at the time of marriage or even after marriage, such fixed amount is called specified dower. Here in if the husband is minor his father may steeled the amount of dower.
The minimum amount of dower is not less than the value of 10 dirhams in hanafi law and it is 3 dirhams in Malawi law.
NOTE: Dirham is a silver coin weighting 2.97 Grammies.
Prompt dower is payable on demand and Deferred dower payable on dissolution of marriage by death or divorce.
Unspecified dower - In such case where dower has not been settled at the time of the marriage or after it is fixed with reference to the social position of the wife family and her own personal qualifications. Help would be taken by taking into account the amount of dower fixed in case of wife,s sister paternal aunt etc.
According to Hedaya : the Wife’s age, beauty, intellect and virtue will also be considered.
DISTINCTION BETWEEN SUNNI AND SHIA LAW OF MARRIAGE :—
1. SUNNI LAW : The proposal and acceptance need not be in any particular form.
SHIA LAW - they must be made by use of the terms taweez of Nikah or their grammatical variations.
2. SUNNI LAW : Marriage Under compulsion or without intention is valid, if made for suitable dower and to a man who is her equal.
SHIA LAW: such marriage is void.
3. SUNNI LAW: two males or one male are two female witness are necessary for the validity of marriage.
SHIA LAW : No witness are necessary.
4. SUNNI LAW : prohibition by affinity arises not only from marriage but also from illicit intercourse and any acts of undue familiarity or other act done with desire.
SHIA LAW: Illicit intercourse before marriage would create prohibition.
5. SUNNI LAW : Prohibition against plurality and unlawful conjunction, subsists during iddat for divorce, whether revocable or irrevocable.
SHIIA LAW : Iddat subsists for those prohibitions only in the case of revocable divorce.
6. SUNNI LAW : Muslim male may marry a non-muslim kitabia female.
SHIA LAW : neither a male nor a female can marry a non-muslim (even a kitabia) except in the muta form.
7. SUNNI LAW: period of iddat is 3 courses in the case of menstruating and 3 lunar months in the case of a non-menstruating and 3 lunar months in the case of a non menstruating wife.
SHIA LAW : The period of 3 Tushar’s in the case of menstruating and 78 days in the case of non-menstruating wife.
8. SUNNI LAW : Iddat of a women, who is pregnant even if by zina extends till delivery.
SHIA LAW : If pregnancy is by zina and talk is pronounced, the period of iddat,s only 3 months and is not extended the delivery.
9. SUNNI LAW : Idddat commences from the date or divorce, as the case may be, even through, the wife may have no knowledge of it.
SHIA LAW : in the case of death in the absence of wife’s knowledge Idddat commences when she receives the news of death. In the case of divorce, if the wife does not know the exact time of divorce, iddat was commendable from the time when the tidings reach her.
10. SUNNI LAW : Fresh Iddat. Must be observed in the case of the death of the husband during the period in which the wife is observing iddat even for irrevocable talaq.
SHIA LAW : No fresh iddat is necessary in which wife is observing iddat for irrevocable talaq.
11. SUNNI LAW : marriage during pilgrimage (ihram) to Mecca is valid.
SHIA LAW : marriage during pilgrimage while in pligrim’s dress (ihram) is prohibited.
12. SUNNI LAW : A marraige with a women undergoing iddat does not perpetually prohibited marriage between the parties.
SHIA LAW : if the cohabitation is done during iddat with the knowledge of the prohibition, marriage between the parties is perpetually prohibited.
13. SUNNI LAW : Marraige contracted by a minor who has attained discretion is only irregular.
SHIA LAW : All acts before puberty and direction are void.
14. SUNNI LAW: Temporary marriage are not permitted.
SHIA LAW : Temporary marriages (muta) are permitted.
15. SUNNI LAW : “valid retairment” amounts to consummation for many purposes.
SHIA LAW : “valid retairment” is not recognised as a substitute for consummation.
16. SUNNI LAW: Where a woman, being of age, contacts herself in marrriage with a man who is not her equal (Ghayr kuf) without the consent of any those male relations who would be entitled to be guardians of her marriage (wali) if she ere a minor, the court, on the application of such relations, has power to rescind the marriage. This is called doctrine of kaffa (equality).
The following factors are necessary for determining equality :—-
(v) good character
SHIA LAW : Social inferiority on the part of bridgegroom afford no grounds for cancellation of marriage, by equality is meant only two things.
(i) equality in respect of Islam, and
(ii) ability to support the wife.
DEFENCES AVAILABLE TO WIFE
Under muslim law, a wife can take the following defences against husband’s claim for restitution of conjugal rights :—
(i) Physical or mental cruelty by the husband.
(ii) the marriage void or irregular.
(iii) the marriage has been validity repudiated or has been avoided, in the exercise of
the option of the puberty.
(iv) when it is improper for the husband and wife to cohabit (Lina and zihar).
(v) The husband is guilty of apostasy
(vi) the husband has been declared out caste.
(vii)renunciation of Islam by husband or husband’s using objectionable words against the prophet.
(viii) the wife had demanded her prompt dower which had not been paid provided no consummation has taken.
(ix). Violation of a condition laid down in the marriage agreement, if any. However, such condition must be legal an must not be void.
(X) Impotency of husband.
(Xi) where the suit for restitution of conjugal rights is not bonafide, and is filed to serve some ulterior motive, such as taking possession of wife’s property.
(xii) The court may also refuse to pass a decree for restitution of conjugal rights if it feels that it would be just and reasonable to do or that it would be inevitable to pass a decree.