Essentials of Valid Muslim Marriage

Marriage holds profound significance in Islamic culture, and its validity is determined by a set of essential elements that reflect the principles of consent, competency, and adherence to Islamic guidelines. This discussion explores the fundamental essentials of valid Muslim marriage.

Marriage under Muslim Law

Marriage holds a significant place in Muslim law. According to Ameer Ali, Muslim marriage is regarded as an institution designed for the betterment of society and the protection of individuals from moral impurity and unchastity. In essence, marriage signifies the union of two individuals in wedlock.

In the Islamic context, the marriage contract, known as Nikah, is considered a civil agreement with the primary purpose of promoting the well-being of the parties involved. Under Sharia law, there is no strict requirement for a written document to prove the marriage contract’s existence.

However, a valid contract is essential for a Muslim marriage to be recognised. The objectives of marriage under Islamic law include:

1. Legalisation of Sexual Intercourse: Marriage serves as a means to legalise the physical union between a man and a woman.

2. Procreation of Children: It enables the couple to bear children and expand their family, contributing to the continuation of the human race.

3. Preservation of Human Race: By allowing for the procreation of offspring within the bounds of marriage, this institution plays a vital role in preserving the human race.

4. Regulation of Social Life: Marriage acts as a cornerstone for the regulation of social life within the Muslim community, fostering stability and societal harmony.

Religious Significance:

In Muslim law, marriage is not merely a social contract; it is also a religious duty. It is considered an act of worship, known as Sunnat-Muwa-Akidah, as emphasised by Hazrat Muhammad (P.B.U.H). He stated that if a person possesses the means to support his wife and fulfill the dower obligations, he should undertake the responsibility of marriage. The essential elements of Muslim marriage closely resemble those of a civil contract.

Essentials of Valid Muslim Marriage (Sahih)

The essentials of valid Muslim marriage include free consent from both parties, competency of individuals (major, sound mind, and Muslims), an offer (proposal or ‘ijab’) and acceptance (‘qubul’) made during the same meeting, and the presence of competent witnesses.

Dower (‘mahr’) terms must be agreed upon, and the marriage should not violate any prohibitions, such as those related to close blood relations, affinity, or fosterage. While registration is not obligatory under Islamic law, it is encouraged for legal recognition.

These essentials of valid Muslim marriage emphasise consent, capacity, and adherence to Islamic guidelines for a valid marriage.

1. Proposal and Acceptance (Ijab and Qubul)

In a Muslim marriage, a proposal is known as ‘ijab,’ and the acceptance of that proposal is termed ‘qubul.’ It is imperative that a proposal be made by one party or on their behalf and subsequently accepted by the other party. Crucially, for a Muslim marriage to be valid, the proposal and acceptance must occur during the same meeting. If the proposal is made in one meeting and its acceptance takes place in a different meeting, the marriage is not considered valid.

2. Competency of Parties

The parties entering into the marriage contract must meet specific criteria, which include being (i) of legal age, (ii) of sound mind, and (iii) Muslims.

i. Major (Legal Age)

Under Muslim law, the age at which a person reaches puberty is considered the legal age for marriage. According to Hedaya, the age of puberty for females is typically 9 years, while for males, it is 12 years. However, the Privy Council, in the case of Muhammad Ibrahim v. Atkia Begum & Anr., established that a girl is considered to have reached the age of puberty if she is either 15 years old or has reached puberty at an earlier age.

The same rule applies to Muslim boys. Thus, unless there is evidence to the contrary, Muslims are generally considered to have reached the age of puberty at 15 years. Once they attain this age, they can give their own consent, and there is no need for the consent of their guardians.

ii. Guardians for Minors

If a person is a minor, meaning they have not reached the age of puberty, the consent of their guardian is required to make the marriage lawful. The individuals recognised as guardians under Muslim law include: (a) Father, (b) Paternal Grandfather, (c) Brother or any other male member of the father’s family, (d) Mother, and (e) Members of the maternal relation.

If one guardian is unavailable, the right to consent passes to the next in line according to a specific order of priority. In the absence of these guardians, a marriage may be contracted by a Qazi or another government authority.

iii. Soundness of Mind

Both parties must be of sound mind at the time of marriage. Individuals who are not of sound mind lack the capacity to enter into a contract, and their consent, in the eyes of the law, is considered null and void. Unsoundness of mind can manifest in two forms:

(a) Idiocy, which signifies a complete abnormal state of mind rendering the person incapable of contracting, and

(b) Lunacy, which denotes a curable mental disease. A person deemed a lunatic can enter into a contract during periods when they exhibit sane behaviour.

iv. Muslim

It is a fundamental requirement that both parties to the marriage must be Muslims, regardless of their sect or sub-sect. A marriage remains valid even if the parties belong to different sects within Islam, making inter-sect marriages valid.

Free Consent

In Muslim law, the cornerstone of a valid marriage is the free consent of both parties. If consent is obtained through coercion, fraud, or a mistake of fact, the marriage is deemed invalid and void.

For instance, in the case of Mohiuddin v. Khatijabibi, the Court ruled that a marriage is invalid if it occurs without the genuine and free consent of the parties involved.

Dower (Mahr)

Dower, known as “mahr,” represents the monetary or property consideration that the groom is obligated to provide to the bride as part of the marriage contract. Its primary purpose is to ensure the financial security of the bride during and after the marriage.

In the case of Nasra Begum v. Rizwan Ali, the Allahabad High Court established that the right to dower arises before the commencement of cohabitation. The Court also held that if the wife is a minor, her guardians can refuse to send her to her husband until the dower is paid.

If she is already in the husband’s custody, she can be brought back until the dower is settled.

Freedom from Legal Disability

Under Muslim law, marriage is prohibited under specific circumstances, categorised as absolute prohibition, relative prohibition, and miscellaneous prohibition.

Absolute Prohibition

A Muslim marriage is considered void if the parties are closely related by blood or fall within prohibited degrees of kinship. These absolutely prohibited degrees include:

Consanguinity

Prohibits marriage with females related by blood, such as one’s mother or grandmother (regardless of how many generations removed), daughter or granddaughter, sister (whether by full, half, or uterine blood), niece or great-niece, and aunt (both paternal and maternal, regardless of how many generations removed).

Marrying a woman within these prohibited degrees of consanguinity results in an invalid marriage, and children born from such a union are considered illegitimate.

Affinity

Certain close relatives are also prohibited from marriage due to their relationship with one’s spouse. Prohibited relationships under affinity include one’s wife’s mother or grandmother (regardless of how many generations removed), wife’s daughter or granddaughter, father’s wife or paternal grandfather’s wife, and son’s wife or descendants’ wives. A marriage with a woman falling under the prohibited degrees of affinity is void.

Fosterage

Fosterage pertains to relationships established through breastfeeding or suckling. If a woman, other than the child’s biological mother, breastfeeds or suckles a child under the age of two, she becomes the child’s foster mother.

A man is prohibited from marrying individuals who fall under foster relationships, which include his foster mother or foster grandmother and the daughter of his foster mother (foster sister).

Sunni law allows for some exceptions to the prohibition on grounds of fosterage, permitting marriages such as sister’s foster mother, foster-sister’s mother, foster-son’s sister, or foster-brother’s sister. Shia jurists, however, do not recognise these exceptions and treat consanguinity and fosterage similarly.

Relative Prohibitions

Under Muslim law, certain prohibitions are relative and not absolute. Violating these prohibitions renders a marriage irregular, but it cannot be declared void. The marriage becomes valid once the irregularities are rectified. The relative prohibitions are as follows:

1. Unlawful Conjunction

A Muslim man is prohibited from marrying two women who are closely related to each other through consanguinity, affinity, or fosterage. If their relationship is such that their marriage would have been void (batil) if they were of opposite sexes, then the marriage is irregular (fasid).

After the termination of one marriage or the death of a wife, the man can marry the other woman. Under Sunni law, a marriage in violation of unlawful conjunction is considered irregular, while under Shia law, it is considered void (batil).

2. Polygamy

Muslim law permits polygamy but restricts it to a maximum of four wives at a time. If a Muslim man marries a fifth wife while already having four wives, the marriage is irregular, not void. The fifth marriage can become valid after the death or termination of one of the four wives.

However, Shia law considers marriage with the fifth wife as void. In India, a Muslim man who has registered his marriage under The Special Marriage Act, 1954, cannot enter into a second marriage.

3. Absence of Proper Witness

The contracting of a Muslim marriage must be done in the presence of proper and competent witnesses. Under Shia law, the presence of witnesses is not essential, and marriage without witnesses is considered valid. Parties themselves (if major) or their guardians can contract the marriage.

Under Sunni law, the presence of witnesses is essential, and a marriage without witnesses is irregular. At least two male witnesses or one male and two female witnesses should be present, and they must be of legal age, of sound mind, and Muslim.

4. Difference of Religion

Under Sunni law, a Muslim male is allowed to marry a female who respects the same scriptures, such as Christians, Parsis, and Jews. However, if he marries an idol or fire worshipper, the marriage is considered irregular.

A Muslim woman is not permitted to marry a non-Muslim man, and if it happens, the marriage is irregular. Under Shia Law, marriage with a non-Muslim is considered void. While Fyzee holds such marriages as void, Mulla considers them irregular.

5. Marriage During Iddat

Iddat refers to the waiting period after the death of a woman’s husband or after the termination of her marriage. During this time, she cannot remarry. The purpose of iddat is to determine if the woman is pregnant, which can affect the paternity of any child born.

A divorced woman observes iddat for three months, while a widow observes it for four lunar months and ten days after her husband’s death. If the woman is pregnant, the iddat period extends until her delivery. Under Sunni law, marriage during iddat is considered irregular, while under Shia law, it is considered void.

6. Miscellaneous Prohibitions

• In Shia law, marriage during pilgrimage is considered void.
• Re-marriage between a divorced couple requires a specific procedure, including the woman marrying another man, her husband voluntarily divorcing her, and her observing iddat. If this procedure is not followed, the marriage is considered irregular.
• Polyandry, where a woman has more than one husband, is not permitted under Muslim law.

Registration of Muslim Marriages

Under Muslim law, marriage registration is not a mandatory requirement. However, several states in India, including Assam, Punjab, Bengal, Bihar, and Orissa, have enacted laws that facilitate the registration of Muslim marriages. While registration is not considered an essential element for a valid Muslim marriage, it serves as compelling and authentic proof of the marriage contract.

The Indian Supreme Court’s ruling in the case of Seema v. Ashwani Kumar emphasised that the registration of marriages involving Indian citizens, regardless of their religious affiliation, should be carried out in the states where the marriage ceremony has taken place. This decision highlights the importance of registering marriages for all Indian citizens, regardless of their religious background, as a means of establishing legal documentation and authentication.

Furthermore, in the case of M. Jainoon v. Amanullah Khan, the Madras High Court made a significant observation. While confirming that registration of marriage is not obligatory, the court emphasised that it cannot be deemed prohibited under Muslim personal law. This reaffirms the idea that while registration is not a mandatory requirement, it is a permissible and beneficial practice that offers legal recognition and credibility to Muslim marriages.

Conclusion

Muslim marriage is a significant institution guided by key essentials of valid Muslim marriage, which include mutual free consent, competency, an offer and acceptance in the same meeting, and the presence of competent witnesses. Dower arrangements are also essential, ensuring financial security for the bride.

Prohibitions on consanguinity, affinity, fosterage, and other factors prevent invalid marriages. While registration is not mandatory according to Islamic law, it serves as important documentation in various regions.

These essentials of valid Muslim marriage uphold the sanctity of marriage within the Muslim community, emphasising consent, capacity, and adherence to Islamic principles, contributing to the preservation of societal values and the rights of individuals involved.