December 2, 2020

Muslim Marriage: A Contractual Sacrament

ABSTRACT –

The present piece of work throws light on the nature of Muslim marriage. This article deals with the various conflicting views regarding the genius of a Mohammedan marriage. According to some jurists, it is regarded as a civil contract, while others argue it as a sacramental bond. Their views and justifying contentions are depicted in this article. In order to find out the real outcome of such discussion, various case laws, articles, and books related to Islamic jurisprudence have been made as sources of study. The object of this discussion is to provide the meaning and object of Muslim marriage and finding out its actual genius.

INTRODUCTION

Marriage has been an important institution of human race since ages. Since birth of suitable progeny has been considered necessary in order to continue the race and family, the institution of marriage has been made the only means to legalise the sexual relationship between a man and a woman. Marriage by capture was the ancient form of securing a wife and ultimately it gave way to elopement with consent. This tradition gradually grew up and this acquisition of wife as property, paved the way for marriage by consent, subject to dower. It was this time when women were considered not more than chattels and were deprived of any right of inheritance, i.e., were made fully dependent on their male counterparts. However, after the advent of Prophet Mohammed, the old social structure of Arabian civilisation vanished and it gave birth to a new series of ideas and conceptions. The marriage among Muslims is considered as a contract which makes it distinct from Hindu marriage.[1] Owing to this contract, the woman can enjoy absolute ownership over her individual rights and also can proceed against her husband in law courts, if necessary.

DEFINITION OF NIKAH (MARRIAGE)

The Arabic word nikah literally means the union of the sexes and in law this term means ‘marriage’.[2] It means to unite, and it cannot be affected except by the pillar ruku emanating from ahl, one who is competent to contract and with reference to mahl, fit subject to marriage. It is thus defined as Sunnat Muwakiddah[3].

Dr. Jang is of the view that –

“Marriage though essentially a contract is also a devotional act; its objects are rights of enjoyments and procreation of children and regulation of social life in interest of society.”[4]

The sanctity attached to marriage in the Islamic system has neither been comprehended nor sufficiently appreciated by outsiders. It is recognised as the basis of society by Islam, the main aim of which is to protect society from foulness and unchastity. It is an act of ibadat or worship, for it preserves mankind free from pollution.[5]

WHAT DOES A MUSLIM MARRIAGE AIMS?

Nikah is an institution legalised for manifold objects such as preservation of species, the fixing of descent, restraining men from debauchery, the encouragement of chastity, the promotion of love and union between the husband and wife, and of mutual help in earning livelihood.[6]

The Prophet said: “Men marry women for their piety, or their property, or their beauty, but you should marry for piety”.

A Muslim husband and wife who follow the teachings of the Holy Quran should always be a source of comfort for each other. Their relationship should reach far above that of mere sexual enjoyment and should reach the stage of cordial friendship accompanied by mutual benevolence.[7]

MUSLIM MARRIAGE: A CONTRACT OR A SACRAMENT

The Muslim jurists treat marriage both as a civil contract and a religious duty. Several authors of Anglo-Muhammadan Law apparently under the influence of modern conception of marriage or perhaps by reason of singular characteristics of Muslim Matrimonial Law have defined it as a civil contract. According to them, marriage among Mohammadans is not a sacrament, but purely a civil contract on the completion of which by proposal and acceptance, all rights and obligations which it creates arise immediately and simultaneously.[8]

Their observation seems to be based on the fact that marriage, under Muslim Law, has similar characteristics as a contract. For instance, as marriage requires proposal (ijab) from one party and acceptance (qubul) from the other. Moreover, marriage requires presence of sound mind and free consent. The terms of marriage can also be altered within legal limits to suit individual cases.[9] Also, it can be dissolved through the provision of talaq. Though it is solemnised generally with the recitation of certain verses from the Quran, yet the Muhammadan law does not positively prescribe any service peculiar to the occasion.[10]

Another view is that marriage is not purely a civil contract but a religious sacrament too. This view is also supported by judiciary.[11] Taking religious aspect into account Muslim marriage is an ibadat (devotional act) or ‘muamalat’, i.e. dealings with men. The latter view closely resembles the celebrated definition of Modestinus, Nuptiae sunt conjunction maris et feminae et consortium omnis, vitae divini et humani jusris communicatio.

The Prophet says “O assembly of youths, whoever among you is able to have, he should marry, for it is a restraint to the looks and he who is not able let him keep fast.” This is because marriage elevates the moral and spiritual standard of man. Nikah is my precept. Those of you, who are unmarried, are the unworthy of the deed.[12] Marriage (nikah) among Muslims is a ‘solemn pact’ (mithaq-e-ghalid) between a man and a woman, soliciting each other’s life companionship, which in law takes the form of a contract (aqd).[13]

In the case of Amina v. Koye[14], it was observed that:

“We feel that we are not wrong if we say that there is an unfounded popular belief that no religious significance or social solemnity attaches to a Muslim marriage and it is merely a civil contract pure and simple.”

After observing minutely it is found that though this marriage resembles with a civil contract, there are certain differences too. Like a marriage cannot be for a limited time (muta marriage[15], under which a Shia male may contract a temporary marriage with any Mohammadan, Jew, Chrishtian women or any women who is a fire worshipper, is an exception). Unlike, civil contract, it cannot be made contingent on future event. Also, this does not find its resemblance with the contract of sales because, in a Muslim marriage the women receives the dower and if we consider this as a contract, it will be like selling her personality in return of mehr or the dower, which is against the basic principles of natural justice, for no one is entitled to sell his or her personality.

CONCLUSION: MARRIAGE IS A CONTRACTUAL SACRAMENT

In the ultimate analysis it can be said that the marriage is Islam is neither purely a civil contract nor as a sacrament. It is devoid of none but the blending of the two. The transition from the sacramental indissolubility of marriage to the treatment of marriage, as a civil institution, is a modern idea. It is a logical development of Anglo Muslim law. Marriage is nothing more or less than the voluntary union of one man and one woman. The definitions that profound the idea of marriage as a contract only represents one aspect of Muslim marriage. They ignore its ethical importance and its religious value. They fail to realise the close and intimate relation between religion and law in Muslim faith.

[1]. The State Of Bombay v. Narasu Appa Mali, AIR 1952 Bom 84.

[2]. Vincent J. Cornell, Voices of life: family, home, and society (Praeger Publishers Inc, Westport, United States, 2006), P. 59–60.

[3]. Sunnat Muwakiddah means “The person who complies with it, is rewarded in the next world, and he who does not commits a sin”.

[4]. Dr. M.U.S. Jang, Dissertation on the Development of Muslim Law in British India, (The Juvenile Press, Allahabad, 1932), P-2.

[5]. Syed Ameer Ali, Students Handbook of Mohammedan Law, (6th Ed, SK Lahiri & Co., Calcutta, 1912), P-69.

[6]. Dr. M.U.S. Jang, Dissertation on the Development of Muslim Law in British India, supra, P-2.

[7]. Zulfiqar Ali Khan, Marriage and its Objectives in Islam, https://zulfiqarlegal.blogspot.com/2012/01/marrige-and-its-objectives-in-islam.html.

[8]. J. Mahmood, Abdul Kadir v. Salima, (1886) 8 All. 149; See also, Shama Charan Sircar, The Mohammedan Law: Being a Digest of the Law Applicable Especially to Sunnis in India, Tagore Lectures, 1873.

[9]. Aqil Ahmad, Mohammedan Law, (21st ed. Central Law Agency, Allahabad, 2004), P-109.

[10]. Abdul Kadir v. Salima, supra, P-112.

[11]. Anis Begum v. Mohammad Istafa, (1933) 55 APP 743.

[12]. Aqil Ahmad, Mohammedan Law, supra.

[13]. Dr. Tahir Mahmood, Muslim Law of India and Abroad, (2nd ed., Universal Law Publishing Co., 2016), sited in Amina v. Koye, infra.

[14]. 1985 CriLJ 1996.

[15]. Section 206B, Mohamedan Law, Sir Dinshaw Fardunji Mulla, Principles of Mohamedan Law (12th ed., The Eastern Law House, Calcutta, 1944).

Author Details: Aditi Sharma (Govt. New Law College, Indore)

The views of the author are personal only. (if any)

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