Marriage signifies to Arabic term ‘Nikah’, which is a contract for legalizing sexual intercourse and procreation of children. In Muhammadan Law, marriage is a civil contract whose validity depends on proposal from one side and acceptance from other side. It may also be defined as a religious contract between a man and a woman the object of which is legalizing of sexual intercourse, procreation and legitimization of children and regulation of social life.
OBJECTS OF MARRIAGE:
The objects of marriage in Islam are as under:-
1. Legalize of sexual intercourse;
2. Procreation of children;
3. The ordering of domestic life;
4. The discipline for care and responsibility for wife and children;
5. Regulation of social life.
ESSENTIALS OF MARRIAGE:
Following are the essentials of valid marriage. If any of these requirements is not fulfilled, the marriage becomes void or irregular. These essentials are:
1. Offer (Ijab) and Acceptance (Qabool):
A valid marriage requires offer (ijab) from one party and acceptance (Qabool) from the other party. The consent of parties to such offer and acceptance must be free without coercion, fraud or undue influence.
2. Presence of both Parties:
The offer and acceptance to marry must be heard by either parties or their agents.
3. One Meeting:
The offer and acceptance must be communicated at one meeting. An offer and its acceptance made at different meetings do not constitute a valid marriage. For instance, after the communication of proposal for marriage either party leaves or engages in another business without communicating its acceptance, the acceptance communicate subsequent would not have the effect of completing the contract.
4. Competency of Parties:
The parties to the contract must be competent to marry. The parties are competent if they are Muslims, of the age of puberty and of sound mind.
5. Witnesses:
Under Sunni law, the proposal and acceptance must be made in the presence of either two males or one male and two females and these witnesses must be sane, adults and Muslims as required by article 3 and 17 of Qanoon-e-Shahadat Ordinance. The absence of witnesses would render marriage irregular not void. Under Shia law, the presence of witnesses is not necessary.
6. No Legal Disability:
The parties must not be legally disabled, that is to say they must not be within prohibited degree, or so related to each other as to make union unlawful.
KINDS OF MARRIAGE:
Marriages are classified into valid (Sahid), Irregular or Invalid (Fasid) and Void (Batil).
1. Valid (Sahih):
A marriage which fulfills all the legal conditions is said to be valid. In other words, a marriage which is neither invalid or irregular nor valid is valid.
Legal Effects of Valid Marriage:
Following are the legal effects of valid marriage:
i. The spouses get the status of husband and wife;
ii. The children are legitimate and entitled to proprietary rights;
iii. Wife gets the right to Mahar and maintenance;
iv. Wife becomes obliged to observe IDDAT if marriage consummated;
v. Wife and husband may retain their sects even after marriage;
vi. Wife or husband cannot marry certain relations even after divorce.
2. Invalid or Irregular (Fasid) Marriage:
An invalid marriage is not unlawful itself, but it becomes unlawful, when irregularity arises from accidental circumstances, or where the prohibition is temporary or relative. Such marriage can be made valid by redressing such irregularity arose. Shia law does not recognize invalid marriage; they only consider two kinds of marriage as valid and void. Thus the following marriages are irregular:
i. A marriage contracted without witnesses;
ii. A marriage with a woman observing her IDDAT by either divorce or death of her husband. Such marriage becomes valid after the expiration of IDDAT period;
iii. A marriage by a man with 5th woman when he is already married to 4 wives. Such marriage can be valid if man divorces his either wife as not exceeding 4 wives;
iv. A marriage with such women together that they could not intermarry if either of them is a male. Such as a marriage with two sisters, two aunts, two nieces, etc. Such marriage can be made valid if he divorces either sister.
v. A marriage prohibited on ground of difference of religion.
Legal Effects of Irregular Marriage:
The legal effects of an irregular marriage vary and depend upon its consummation. An irregular marriage has not legal effect before consummation. If consummation has taken place then following would be the legal consequences:
i. Wife becomes entitled to dower;
ii. Wife is bound to observe IDDAT, but the duration of IDDAT both on death and divorce is three months;
iii. The issues of marriage are legitimate and entitled to inheritance.
iv. Although consummated, but an irregular marriage does not create mutual rights of inheritance between husband and wife.
3. Void (Batil) Marriage:
A void marriage is one which is unlawful in itself, the prohibition against marriage being perpetual and absolute. Such a marriage is void ab initio and is not a marriage at all. The following marriages are void:
i. A marriage prohibited on the grounds of consanguinity, affinity or fosterage;
ii. A marriage with a woman who is another man’s wife;
iii. A marriage without consent of either party;
iv. Incase a person marries two sisters or five women and it becomes impossible to know which marriage was contracted first, all the marriages will be nullified. If incase priority of one is known, the previous marriage will be valid and the others will be void.
Legal Effects of Void (Batil) Marriage:
Following are the legal effects of void marriage:
i. The sexual intercourse becomes unlawful;
ii. The void marriage creates no right and obligation upon any party;
iii. The children born out are illegitimate;
iv. The wife does not become entitled to maintenance and inheritance.
IMPEDIMENTS OF CONTRACT OF MARRIAGE:
There are some legal disabilities or prohibitions to make the contract of marriage. These legal disabilities or prohibitions are classified into two classes as under:-
1. Absolute Disability or Prohibition:
It is total prohibited contract of marriage and it cannot be made in any circumstances. It includes consanguinity, affinity and fosterage as under:-
a. Consanguinity:
Consanguinity is derived from Latin word 'consanguinitas’, which means ‘blood relations’. These blood relations are established by father, mother or children. A marriage by man with a woman prohibited by reason of consanguinity is void. Consanguinity includes following relations:
i. mother and all female ascendants, how high soever;
ii. daughter and her female descendants, how low so ever;
iii. sister with a full uterine and her all descendants, how low so ever;
iv. niece and all her female descendants, how low so ever;
v. aunt, whether paternal or maternal, and all her female ascendants, how high so ever, except her descendants.
b. Affinity:
Affinity signifies a relation established by marriage and not a blood relation. A marriage of man with a woman is also prohibited on the ground of affinity. According to Hanfi law adulterous relatives are also included in affinity and daughter from such woman is prohibited. According to Shia law it is prohibited as the consanguinity is prohibited. Affinity includes following:
i. Wife’s mother (Mother-in-law) or grandmother;
ii. Wife’s daughter (step daughter) or granddaughter;
iii. Son’s wife or son’s son’s wife, how low so ever;
iv. Wife of father (step mother) or grandfather.
c. Fosterage:
Fosterage relations are established when women feeds a child with her milk. According to Hanfis feeding once established fosterage, according to Shafis atleast five times feeding established fosterage and according to Shias 15 times or 24 hours feeding established fosterage. These foster relations, though not born to the same woman, are taken as blood relations for the purpose of marriage. The Shia jurists place fosterage in consanguinity on the same footing and refuse to recognize exceptions permitted by Sunnis. These exempted relations
include:
i. Sister’s foster mother;
ii. Foster sister’s mother;
iii. Foster brother’s sister;
iv. Foster son’s sister.
2. Relative or Temporary Disability or Prohibition:
It defectives contract of marriage but in certain circumstances it may be converted into valid
contract of marriage if so rectified. The cases of relative or temporary prohibition include:
a. Unlawful Conjunction:
It means that a man cannot 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 intermarried. For instance, two sisters, or aunts or nieces. The bar of unlawful conjunction renders a marriage irregular, not void. However, the children born out of such wedlock are legitimate.
b. Polygamy:
Polygamy means plurality of marriage, that is to say marriage with fifth wife. A Muslim man is allowed to have upto four wives at the same time but at the same time he is not allowed to have fifth marriage. Such marriage with fifth wife is irregular but this irregularity can be removed by divorcing one of the wives.
c. Absence of Proper Witnesses:
In Sunnis, it is essential to have atleast two male or one male and two female witnesses to confirm the contract of marriage otherwise marriage would be irregular. In Shias, a marriage contracted by spouses themselves or their guardians in absence of witnesses is held valid.
d. Difference of Religion:
Under Hanfi law, marriage of Muslim man with a woman who believes in a revealed religion i.e. Islam, Christianity, Judaism, is valid but he cannot marry a woman who is neither a Muslim or belongs to revealed religion. Such marriage is irregular which can become valid if wife converts to Islam. On the other hand, a Muslim woman cannot marry any man who is not a Muslim and such marriage will be irregular, which can become valid if husband converts to Islam.
e. Woman Undergoing IDDAT:
A marriage with a woman before completion of her IDDAT is irregular.
COMPETENCY OF PARTIES AS TO MARRY:
The parties, both the girl and the boy, to the contract must be competent to enter into a contract of marriage. The competency of the parties depends upon the following three factors:
1. Age of puberty:
Age of puberty is an age at which a person is supposed to acquire sexual competency. Due to difficulty of ascertaining the age of puberty by physical features, the Courts have presumed that the age of puberty for the purpose of marriage, dower and divorce is acquired at the age of fifteen years. The requirement of the age of puberty is essential not only for competency for consummation but also for the parties to be able to give their consent for the marriage. After attaining fifteen years, a person becomes mature enough to give consent for his or her marriage. No consent of the guardian is necessary to validate the marriage.
2. Soundness of Mind:
The parties must be of sound mind at the time of marriage. A marriage by lunatic contracted during his lunacy and not during lucid intervals is void. However, a lunatic person may enter into marriage contract through his guardian.
3. Religion of Parties:
There is no bar with regard to sect or sub-sect of a Muslim male and female and any male or female of any sect of sub-sect may marry other male or female of other sect or sub-sect, as the case may be. But there are different approaches with regard to inter-religion marriages. Under Hanfi law, marriage of Muslim man with a woman who believes in a revealed religion i.e. Islam, Christianity, Judaism, is valid but he cannot marry a woman who is neither a Muslim or belongs to revealed religion. Such marriage is irregular which can become valid if wife converts to Islam. On the other hand, a Muslim woman cannot marry any man who is not a Muslim and such marriage will be irregular, which can become valid if husband converts to Islam.
MUTTA MARRIAGE:
Muta literally means “enjoyment or use”. Hence Muta marriage is a marriage for pleasure. It is a temporary marriage for a fixed period for a certain reward paid to the woman. The specified period may be a day, a month, a year or a term of years. The woman who participates in Muta is termed as “Mustajara” which literally means “rented woman”. Muta is considered a kind of ‘rental’ because in general a man's basic aim in this kind of marriage is the sexual enjoyment of a woman, and in return for his enjoyment the woman receives a certain amount of money or property.
Origin of Muta Marriage:
In the earlier days of Islam, when the Arabs had to live away from their homes for a considerably long period either on account of wars or on trade-journeys, they used to satisfy their sex-desires through prostitutes. In order to avoid the development of prostitution in the society and to confer legitimacy upon children of such unions, a temporary marriage was recognized and permitted by the Prophet (pbuh) for some time. The institution of Muta was fairly common in Arabia both before and at the time of the Prophet (pbuh). But later on, when he felt that this concession was being exploited, He prohibited it absolutely.
Essentials of Muta Marriage:
The following are the essentials for a valid Muta marriage:
1. The form:
There must be a proper contract entered into by competent parties. Since it is a contract, so offer and acceptance is also necessary.
2. The subject:
A Shia male may contract Muta marriage with a Muslim, Christian, Jewish or a fire-worshipping woman but not with the follower of any other religion. Muta marriage with a Hindu woman is void. Relations prohibited by affinity cannot contract in Muta marriage. There is no restriction as to number of Muta marriage.
3. The period:
The period for which the Muta is contracted, must be clearly specified. The specified time may be a day, a month, a year or several year. A Muta terminates efflux or time or by death. The man may, on the expiration of specified term, make a gift and terminate contract, either with or without wife’s consent.
4. The dower:
The dower (consideration) must be specified at the time of the contract. If it is not specified the agreement is void. 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, though void as Muta, may operate as a “Permanent Marriage”. If the marriage is consummated, the wife is entitled to the entire amount, if not, only to half the Mehar. In case the wife leaves the husband before the period, he is entitled to deduct proportionately.
Legal Effects of Muta Marriage:
The following are the legal effects of muta marriage:
1. No mutual rights of inheritance are created, unless otherwise agreed in the contract.
2. The children born out are legitimate but have no right of inheritance.
3. The wife is not entitled to maintenance under Shia Law because the word wife does not in reality apply to a woman contract in Muta but she may claim maintenance under Section 125 CrPC.
4. The husband is not bound to provide residence to the muta wife.
5. If there was no cohabitation, the IDDAT is not necessary. But if the marriage was consummated, the wife will observe IDDAT incase of death of her husband for four months and ten days; however, incase of pregnancy this period is to be extended till delivery. The period of Iddat in case of termination of muta otherwise than death of the husband is two courses.
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