JAMIA MILLIA ISLAMIA UNIVERSITY

FAMILY LAW
MARRIAGE

SUBMITTED TO:- MRS. KAHKASHAN DANYAL

SUBMITTED BY:- VAIBHAV SHARMA

BALLB (HONS)(S/F)
2ND YEAR

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TABLE OF CONTENTS

S.NO. TOPIC PAGE NO.

1. INTRODUCTION 03

2. NATURE OF MUSLIM MARRIAGE 04

3. LEGAL REQUIREMENTS FOR MARRIAGE 11

4. CLASSIFICATION OF MARRIAGE 11

5. PROHIBITED DEGREES OF MARRIAGE 19

6. OPTION OF PUBERTY 21

7. RESTITUTION OF CONJUGAL RIGHTS 24

8. CONCLUSION 31

9. BIBLIOGRAPHY 32

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MARRIAGES UNDER MUSLIM LAW

INTRODUCTION

Although in most systems of the world the individual has the freedom to marry or to remain
celebrate, marriage is regarded all over the world as a social institution. Whether considered
as a sacrament or as a contract, marriage, apart from giving rise to certain mutual rights and
obligations, confers the status of husband and wife on the parties and of the legitimacy of
their children.The fundamental concept of individual liberty and responsibility which is the
corner stone of Muslim jurisprudence is incorporated in the institution of marriage. In
Muslim law, marriage depends upon the free volition of the parties concerned.

Marriage according to Mohemmadans is a civil contract what is necessary is the agreement

between the parties arising out of proposal and its acceptance. Contractual capacity for
purposes of marriage is governed by the Mohemmadan Law itself. According to that law
attainment of puberty confers contractual capacity. It is presumed that on completion of 15
years of age a person attains puberty. A marriage under the Muslim Law may be unilaterally
put to an end by the husband by pronouncing Talak (Divorce). The husband and wife may by
mutual agreement also put an end to the marriage.

DEFINITIIONS OF MARRIAGE

HEDAYA: "Nikah in its primitive sense means carnal conjunction. Some have said that it
signifies conjunction generally. In the language of the law it implies a particular contract used
for the purpose of legalizing generation.”
“Muslim marriage is a contact for the purpose of legalizing sexual intercourse and the
procreation of the children” – WILSON

JUSTICE MAHMOOD: "Marriage among Muhammadans is not a sacrament, but purely a

civil contract."1

M.U.S. JUNG: "Marriage though essentially a contract is also a devotional act, its objects
are the right of enjoyment, procreation of children and the regulation of social life in the
interest of the society."

ABDUR RAHIM:"The Muhammadan jurists regard the institution of marriage as partaking

both of the nature of ibadat or devotional acts and muamlat or dealings among men."

1
Abdul Kadir v. Salitna (1886)8 All 149 at p. 154.

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Among all the above definitions, Abdur Rahim's definition is the most balanced one. By
using the two ingenious words ibadat and muamlat, he has summarized the whole concept of
Muslim marriage in one sentence. Let us approve of this definition, and proceed to see why
Muslim marriage is not purely a civil contract, as Mahmood, J., emphasized, or as to why it is
not solely a way to procreate children.

NATURE OF MUSLIM MARRIAGE

The judgment in Abdul Kadir v. Salima2is one of those classic pronouncements of the
illustrious Mr. Justice Mahmood, the first Indian Judge of the Allahabad High Court, which
has acquired so great a reputation that its obiter dicta carries the legal sanctity of ratio
decidendi. The case is one on the restitution of conjugal rights, yet Justice Mahmood's
observations on-
(i) Nature of marriage,
(ii) Husband's liability to pay dower,
(iii) Matrimonial rights of the husband and wife, and
(iv)General rules of interpreting Hanafi Law, have won universal recognition not only of
various High Courts but also of the Privy Council and the Supreme Court.

Describing the nature of Muslim marriage, Mahmood, J., says:

"Marriage among Muhammadans is not a sacrament, but purely a civil contract; and though
it is solemnized generally with recitation of certain verse from the Koran, yet the
Muhammadan Law does not positively prescribe any service peculiar to the occasion. That it
is a civil contract is manifest from the various ways and circumstances in and under which
marriages are contracted or presumed to have been contracted. And though a civil contract,
it is not positively prescribed to be reduced to writing, but the validity and operation of the
whole are made to depend upon the declaration or proposal of the one, and the acceptance
or consent of the other of the contracting parties, or of their natural and legal guardians
before competent and sufficient witnesses; as also upon the restrictions imposed, and certain
of the conditions required to be abided by according to the peculiarity of the case.
That (the above) is an accurate summary of the Muhammadan Law is shown by the best
authorities, and Mr. Baillie, in his Digest, relying upon the texts of the Kanz, the Kjfayah and
the Inayah, has well summarized the law; Marriage is a contract which has for its design or

2
(1886)8 All 149 at p. 154

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object, the right of enjoyment and the procreation of children. But it was also instituted for
the solace of life, and is one of the prime or original necessities of man. It is therefore lawful
in extreme old age after hope of offspring has ceased, and even in the last or death illness.
The pillars of marriage, as of other contracts, are Ejab-o-Kubool, or declaration and
acceptance. The first speech, from whichever side it may proceed, is the declaration, and the
other the acceptance."
The Hedaya lays down the same rule as to the constitution of the marriage contract, and Mr.
Hamilton has rightly translated the original text:
"Marriage is contracted—that is to say, is affected and legally confirmed—by means of
declaration and consent, both expressed in the preterite."
From the above, Justice Mahmood could not be held to have taken the view that Muslim
marriage is nothing but purely a civil contract. Yet this is precisely what he is accused of
holding. When he approves of Baillie's view that marriage is also for the solace of life, he is
himself highlighting another aspect of marriage, that is, its social aspect.
The amount of dower which becomes payable after marriage must not be confused with
consideration in the context of civil contract. Justice Mahmood himself is sounding a note of
caution when he says in the same decision:
"Dower, under the Muhammadan Law, is a sum of money or other property promised by the
husband to be paid or delivered to the wife in consideration of the marriage. the dower of the
Muhammadan Law bears a strong resemblance to the ‘denatio propter nuptias’ of the
Romans which has subsisted in the English law under the name of marriage settlement. In
this sense and in no other case dower under the Muhammadan Law be regarded as the
consideration for the connubial intercourse, and if the authors of the Arabic textbooks of
Muhammadan Law have compared it to price in the contract of sale, it is simply because
marriage is a civil contract under that law, and the sale is the typical contract which
Muhammadan jurists are accustomed to refer to in illustrating the incidents of other
contracts by analogy."
From what Justice Mahmood has said up to this point, he can only be accused of neglecting
the religious aspect of marriage. Seen from the religious angle, Muslim marriage is an ibadat
(devotional act). The Prophet is reported to have said that marriage is essential for every
physically fit Muslim who could afford it. Moreover, the following traditions may also be
considered:
"He who marries completes half his religion; it now rests with him to complete the other half
by leading virtuous life in constant fear of God."

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"There is no mockery in Islam."

"There are three persons whom the Almighty Himself has undertaken to help—first, he who
seeks to buy his freedom; second, he who marries with a view to secure his chastity; and
third, he who fights in the cause of God."
"...whoever marries a woman in order that he may retain his eyes—God putteth blessedness
in her for him, and in him for her."
The Prophet is reported by some of the writers to say that marriage is equal to jehad (holy
war); it is sinful not to contract a marriage; it is a Sunnah; and it is obligatory on those who
are physically fit. Now, if marriage is nothing but a civil contract, then keeping in view the
above traditions we could say: He who enters into a civil contract completes half of his
religion; the Almighty Himself has undertaken to help the person who enters into a civil
contract; civil contract is equal to jehad; it is obligatory on every physically fit Muslim to
enter into a civil contract; and so on. All these inferences 'are patent absurdities, and are
untenable. Which means Muslim marriage is something more than a civil contract. Seen in
this context, Muslim marriage ceases to look as purely a civil contract or a means only to
procreate children. In the words of Baillie, marriage is "for the solace of life... It is therefore
lawful in extreme old age after hope of offspring has ceased, and even in the last or death-
illness." In the words of Ameer Ali, marriage is "for the protection of society, and in order
that human beings may guard themselves from foulness and unchastity." Al-Ghazali, the
famous jurist and philosopher, regards marriage as a means "of attaining nearness to God". In
the famous case of Anis Begam v. Mohd. Istafa3 Sir Shah Sulaiman, C.J., observed:
"Marriage (in Islam) is not regarded as a mere civil contract, but a religious sacrament.
(Too)".
Furthermore Muslim Marriage is not merely a civil contract, because-
(a) Unlike civil contracts, it cannot be made contingent on a future event; and
(b) Unlike civil contracts, it cannot be for a limited time (Muta marriage is an exception and
not a rule).
It has thus been said that Abdur Rahim's definition is by far the best, as it give proper
weightage to both the aspects of marriage, namely the temporal and religious.
Tahir Mahmood is also of the view that marriage among Muslims is a “solemn pact”(mithaq-
e-ghalid) which in law takes the form of a contract(aqd). He says that there is a popular
misconception that no religious significance or social solemnity attaches to a Muslim

3
ILR 1933 All 743.

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marriage and that is a mere ‘civil contract’. This, he says is not true. ”Of course Islam does
not regard marriage as a ‘sacrament’ (sanskar) in the Hindu religious sense of the term.
However the Prophet did described Nikah as as his Sunnat, and those who know the socio
legal significance of Sunnat as recognized by Muslim can well understand what marriage
means to follower of Islam. The Quran does not treat marriage as an ordinary contract as a
matter of fact it is only the form of Muslim marriage that is contractual and non ceremonial
marriage itself is a concept is not merely a contract”. A.A.A. Fyzee observes that while
considering the socio legal aspects, of religion is often neglected or misunderstood. Marriage
partakes of the nature of both of Ibadat and Mamala (worldly affairs)4
It appears however that whatever religious character is imbibed in Nikah, it is discernible
more in the form practiced by the Indian Muslims rather than the sectarian prescriptions.
Thus, in marriage ceremonies performed amongst the Muslim there are exchanges of
coconuts or betel-nuts,the Nikah is read by a Qazi, among the Ithna Asharis there are usually
two Maulvis representing the boy and the girl, each person invited to read the Nikah recites
the ‘Marriage Sermon’(Khutba-e-nikah) consisting of extract from the Quran and Hadith and
at the end of the ceremonies of the evening, all the Muslims present, pray for well being of
the couple. However, it must be noted that none of these ceremonies customarily practiced by
the Indian Muslim constitutes a legal requirement. Tayabji is also of the same view.
‘Marriage not performed in the mode usual in the community would have to be more strictly
proved’, it would however not be void.5

The Kazi can keep an eye on the claims of citizenship/nationality of the contracting parties,
the hidden purpose of the marriage between a girl of Indian citizenship and a male of foreign
nationality, misuse of conversion to hoodwink legal restrictions on marriage; he can insist on
simultaneous registration of marriage. Now the Supreme Court has held6that marriages of all
persons who are Indian citizens belonging to various religions should be made compulsorily
registerable in their respective States, where the marriage is solemnized. The highest court
notes with approval the view of the National Commission for Women that compulsory
registration will, inter alia, deter parents from selling young girls to any person including a
foreigner, under garb of marriage. Should a Kazi mutely perform such marriage or report it to
the State? Andhra Pradesh itself has a law requiring compulsory registration of marriages. 18

4
Outlines of Muhammadan Law (4th edition) at. Pp. 89-90.
5
Rahima Khatoon v. Saburjanessa AIR 1996 Gau 33.
6
Seema v. Ashwini Kumar(2006)1 KLT 791 (SC).

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Thus a Kazi can play an important role by assisting the State in protecting national security.
There was one suggestion at the BCI convention that registration of marriages must be made
compulsory for all marriages in India. The above suggestion at the Convention has now
received a very strong support by the Supreme Court of India in its decision in Seema v.
Ashwani Kumar7 that has laid down that registration of marriage is compulsory in India.
FORMALITIES OF A VALID MARRIAGE
Marriage may be constituted without any ceremonial; there are no special rites, no officiants,
no irksome formalities.8 Nevertheless, following conditions are necessary.
(i) Offer on the part of one party to the marriage.
(ii) Acceptance by the other party.
(iii) Presence of two witnesses where the parties are Hanafis; no witnesses are required if
parties are Shias.
(iv)The words with which the marriage is contracted must be clear and unambiguous.
(v) The proposal and acceptance must both be expressed in one and the same meeting.
In certain cases where man and woman are living as husband and wife, the question may
arise whether they are presumed to be married. According to the recognized view, if the
cohabitation is continuous and prolonged, the man and woman may be treated as husband and
wife. The same presumption will also be there in the case where the man acknowledges the
woman as his wife, or the child born of the union as legitimate. But where impediments of a
nature which render a valid marriage between the parties as impossible, are present, no
presumption of marriage may arise. Thus, where the woman is non-Kitabiya, related to the
man within the prohibited degrees of relationship, the wife of another person, and so on, she
cannot be presumed to be the wife. In a case where a Buddhist Burmese lady cohabited with a
Muslim male for some time, the Privy Council observed that no presumption of marriage in
such a case could arise.9 Similarly, cohabitation with prostitute cannot give rise to the
presumption of marriage.10 Thus, the essential conditions of a valid marriage may be
summarized as follows:
"Ijab (offer), qubul (acceptance). baligh (adult age or puberty), (sound mind or compos
mentis) parties—i.e. groom and bride, or when minor their guardians, two witnesses (in
Hanafi Law, not Shia Law), and same meeting (that is at one session complete). The

7
(2006) 1 KLT 791.
8
Abdul Rahim v. Julaiga Beevi, (2001)4 CLT 440.
9
Abdool Razack v. Aga Mohd. (1893) 21 IA 56.
10
Mohd. Amin v. Vakil Ahmed,1952 SCR 1133.

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completion of this contract which commences with proposal or demand in marriage and ends
with the consent is called aqd." (Ameer Ali).
STIPULATIONS IN MARRIAGE CONTRACT
Certain ante and/or post-nuptial conditions may be appended to a marriage contract. These
conditions must be legal, reasonable and not opposed to the spirit of Islamic Law. The parties
could modify or rescind these conditions at any time they like; it is because marriage is
mainly a civil contract. In cases where illegal and unreasonable condition is attached with a
marriage contract, the condition alone and not the marriage itself will be treated as invalid.
The following are the typical valid conditions attached with a marriage contract:
(i) The condition agreed upon by the guardians of minors whose marriage has been so
contracted, that the wife could divorce the husband in case he takes a second wife without her
consent.11
(ii) "I (the husband) accordingly agree that if I forsake the Malak-o-Badar community or am
expelled from it by the spiritual head, my wife may get a divorce from me pronounced by a
person appointed by her on my behalf which divorce I will accept as valid." It was held that
the condition is valid, and is not opposed to Muslim Law.12
(iii) It will be a valid condition if it says that the wife would be entitled to separate
maintenance if her relationship with the husband becomes strained. Such a condition is not
against the public policy.13
(iv)It can validly be agreed upon that the wife shall live in her parent's house and shall not be
removed elsewhere, and in the case of dissension with the husband, he would pay a monthly
allowance to her as maintenance and will allow her to remain in her parent's house.14
(v) The wife may validly stipulate to be allowed to leave her husband's house in case of his
misbehavior or cruelty.15
(vi)The husband authorized the wife to seek divorce in the event he mistreats her, her parents
or her relations. Long afterwards, the husband instituted a criminal proceeding against his
wife and her parents. The complaint proved frivolous. The wife exercised her right to seek
divorce and sent a notice to this effect to her husband. The husband did not receive the notice.
It was held that the fact whether husband received notice or not is immaterial. The eventuality

11
Marfatalli v. Zahedunnissa, AIR 1941 Cal 657.
12
Fida Ali v. Sanai Badar, AIR 1923 Nag 262.
13
Muinuddin v. Jamal Fatima, AIR 1921 All 152.
14
Sakina v. Shamshad Khan, AIR 1936 Pesh 195.
15
Banney Sahib v. Abida Begum, AIR 1922 Oudh 221.

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in which he has allowed his wife to seek divorce is present and she is not affected in any way
by the non-service of the notice.16
(vii) It is a valid condition through which the husband stipulates that he would earn his
livelihood and maintain his wife and would live in a house approved by the wife and her
parents, and on his failure in doing so, the wife may seek divorce.17
There are many conditions, however, which because of their illegal or unreasonable character
cannot be appended to a marriage contract. Some of the most typical illegal conditions are:
(i) A stipulation binding the husband to live in his wife's or wife's parents' house.
(ii) An agreement for future separation between the husband and wife, and payment of
maintenance during such separation.
(iii) An agreement through which the husband has been divested of his power of divorce.
(iv) An agreement which gives liberty to the wife to visit immoral places.
(v) A condition negativing the mutual right of inheritance, or wife's right to dower and
maintenance.
(vi) A condition that the wife will permanently live with her parents.
(vii) A condition that the wife will be free to leave her husband's residence and may live
elsewhere.
No exhaustive list of legal and illegal conditions can ever be drawn. And neither there is a
need of any. The validity of any given condition can be tested at once by asking: Is it
reasonable, legal, moral, Islamic and conforming to the basic legal incidents of the marriage?
To resist the claim of his wife for maintenance allowance for her and her child, the husband
in Amina v. Hassan Koya18 took the plea that his wife had concealed her pregnancy at the
time of marriage and therefore their marriage was not valid. The lower court had upheld her
marriage. The wife was five months pregnant at the time of their marriage. The husband's
contention that she had concealed this fact could not convince the Supreme Court,
particularly when the stage was so advanced. Further, he continued with such marriage
without raising any objection, attended to his wife at the time of delivery, gave his name to
the child born, brought up the child for nearly four years, and now, after four and half years
filed for divorce. In view of these facts, held, the respondent was aware of the pregnancy of
the appellant at the time of marriage, and therefore the marriage was valid.
.

16
Samserannessa v. Abdul Samad, AIR 1926 Cal 1144.
17
Mohd. Yasin v. Mumtaz Begum, AIR 1936 Lah 1716.
18
(2003) 6 SCC 93.

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LEGAL REQUIREMENTS FOR A MARRIAGE UNDER MUSLIM LAW

The Muslim law does not require a ceremonial solemnization of marriage, though there is
nothing in it specifically prohibiting the same. The legal requirements for a marriage by the
muslim law are

 Ijab (proposal) – The marriage should be proposed by or on behalf of either party

there to…
 Qubul (acceptance) – The proposal should be accepted by or on behalf of the other
party.
 Form of Ijab and Qubul – Both ijab and qubul must be in definite words so as to result
into a complete and not an inchoate transaction and must not be conveying a mere
intention or promise to marry.
 Wilayat (guardianship) – Where legally the consent of a wali is essential, the ijab or
qubul as the case may be should be made by the guardian. In all other cases a wali
may do so on behalf and with the consent of the party concerned.
 Vakalat (representation) – Adults can make the ijab or qubul either personally or
through an adult and sane vakil(representative). Guadians of minors have the option
of naming the representatives.
 Shahabat (witness) – Except, if the parties are Isna Ashari, the ijab and qubul should
be made in the presence and hearing of alteast two adult muslim witnesses. One of
these may be replaced by two women.
 Majlis- I – wahid (single sitting) – the ijab and qubul should be made in the same
sitting signifying continuity of transaction.

CLASSIFICATION OF MARRIAGE

All the schools of Sunnis classify marriage into:

 Valid ( Sahih) marriage.

 Void (Batil) marriage.
 Irregular (Fasid) marriage.

The Ithna Ashari school of the Shias does not recognize the irregular marriage and therefore
among them marriages are either valid or void.

VALID MARRIAGE (SAHIH)

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A marriage which conforms with all respects of the law is termed sahih, i.e. “correct”, in
regard to legal requirements. For a marriage to be valid it is necessary that there should be no
prohibition affecting the parties. In other words a marriage between the parties having full
capacity to marry with all the necessary formalities is a valid marriage. Here the word
‘capacity’ is used in a wide sense, which includes all legal requirements of a valid marriage.
If the marriage is sahih then all the consequences of a valid marriage flow from it.

ESSENTIALS OF VALID MARRIAGE:

For a valid marriage the following conditions should be satisfied:

(A) Capacity to marry:

 The parties19 should have attained puberty or the marriage contract should be entered
into by the guardian in marriage on behalf of the party concerned.
 The parties should be of sound mind otherwise the guardian in marriage should act
on behalf of the person of unsound mind in arranging the marriage contract.
(B) Form of Marriage:

There should be a proposal and its acceptance at one meeting. According to the Shias
witnesses are not necessary but according to Sunis atleast 2 male witnesses or 1 male and
2 female witnesses are necessary. Where witnesses are necessary they have, of course, to
be sane and adult persons. The absence of witnesses however can only render marriage
irregular and not void.

(C) Prohibited Relationships:

The parties should not be within prohibited degrees of relationship. The presence of any
such forbidden relationship is an impediment to marriage. On ground of blood
relationships, that is, consanguinity the following relationships are not suitable for
marriage and make the marriage void.

 Mother and son

 Grandmother (how high-so-ever) and Grandson (how low-so-ever)
 Brother and Sister
 Uncle and niece (how low-so-ever)

19
The Child Marriage Restraint Act 1929 applies to Muslims as it does to all other Indians, according to Art. 44
of The Indian Constitution.

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 Nephew and aunt (how high-so-ever)

On ground of affinity, the following relations connected though marriage are prohibited for
marriage.

o Wife’s mother or grandmother (how high-so-ever).

o Wife’s daughter or granddaughter (how low-so-ever) (if marriage with wife is
consummated).
o Wife of father or paternal ancestor.
o Wife of son on son’s son or daughter’s son (how low-so-ever).

Fosterage also may give rise to prohibited degrees of relationship. Thus a foster mother
would come under the ban as much as the mother herself.

LEGAL EFFECT OF A VALID MARRIAGE

Baillie gives a description of the legal effects of marriage'', but the systematic treatment of
this point by Fyzee has been adopted here for convenience.In the leading case of Abdul Kadir
v. Salima20, Mahmood. J has discussed the legal effects of a Muslim marriage:

“the legal effects of marriage are that it legalizes the enjoyment of either of them (wife and
husband) with the other in the manner which in this matter is permitted by the law; and it
subjects the wife to the power of restrain ; that is she becomes prohibited from going out and
appearing in the public; it renders her dower , maintenance, and raiment obligatory on him;
and establishes on both sides the prohibitions of affinity and the rights of inheritance ; and the
obligatoriness of justness between the wives and their rights, and on her it imposes
submission to him when summoned to the couch; and confers on him the power of correction
when she is disobedient or rebellious, and enjoins upon him associating familiarly with her
with kindness and courtesy. It renders unlawful the conjunction of two sisters (wives) and of
those who fall under the same category.”

The conception of mutual rights and obligation arising from marriage between the husband
and wife bears in all main features similar to the Roman law and other European systems.

The legal effects of a valid marriage are summarized as follows:

o Sexual intercourse becomes lawful and the children born of the union are legitimate.

20
ILR (1886)8 All 149.

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o The wife becomes entitled to her dower (mahr).

o The wife becomes entitled to maintenance.
o The husband is entitled to restrain the wife’s movements in a reasonable manner and
to exercise marital authority.
o Mutual rights of inheritance are established.
o The prohibitions regarding marriage due to the rules of affinity come into operation.
o The wife is not entitled to re-marry after the death of her husband, or after the
dissolution of her marriage, without observing ‘Iddat’.
o Where there is an agreement between the parties, entered into either at the time of
marriage or subsequent to it, its stipulations will be enforced, in so far as they are not
inconsistent with the provisions or the policy of the law.
o A woman does not change her status on marriage. She remains subject to her own pre-
marital school of law. Neither the husband nor the wife acquires any interest in the
property of the other by reason of marriage.

VOID MARRIAGE (BATIL)

When a marriage is performed in violation of absolute impediments or perpetual

impediments, the marriage is batil, null and void and it is considered to be void-ab initio. A
void marriage is no marriage and no legal consequences flow from it. Neither it confers the
status of husband and wife on the parties, nor the status of legitimacy on the children, nor-
mutual rights and obligations arise from such marriage. It is called marriage because two
persons have undergone the necessary formalities of marriage. But since they totally lack
capacity to marry, marriage cannot come in existence between the two. Thus marriages
performed in violation of rules of consanguinity fosterage of affinity or with another’s wife,
are batil marriage. The issue of such a union is illegitimate and law knows no process
whereby the union may be legalized.21 Similarly, a marriage with the wife of another or re-
marriage with a divorced wife when the legal bar still exists is void.22 Since the marriage is
void-ab-initio, the parties are free to go their own way. If the wife enters into another
marriage, she will not be guilty of bigamy. Third persons can take a stand and say that the
marriage is void, even though the marriage has not been formally terminated.

IRREGULAR MARIAGE (FASID)

21
Mulla §§260 – 262, read with §264
22
Rashid Ahmedv. Anisa Khaun, 1931 59 I.A. 21

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If the impediment of prohibition to marriage is temporary or remedial, then the marriage

performed in violation of such impediments is not void, but as Muslim law gives call,
irregular. An irregular marriage under Muslim law is not same thing as voidable marriage
under English law or Hindu law. A voidable marriage is perfectly valid till it is avoided, and
it can be avoided only by either party to the marriage. No third person can take a stand on it.

A voidable marriage on its annulment has practically the same consequences as that of the
void marriage. On the other hand irregular marriage is not a valid marriage: nor it is a void
marriage. A fasid marriage is not a valid marriage to begin with, but it can be validated and
made a fully valid marriage by removing the impediment or by remedying the prohibition.
Thus, when a person marries his wife’s sister the marriage is irregular but he can validate it
by pronouncing talaq to his wife. Or, when a Sunni male marries an idolater the marriage is
irregular, but, on his wife’s conversion to Islam, the marriage becomes valid.

An irregular marriage is totally an ineffective marriage before consummation. Either party to

an irregular marriage has a right to terminate it at any time, either before or after
consummation, by just expressing an intention to do so. Any words indicating such an
intention are enough, such as one party may say to another “I have relinquished thee”. If
consummation has taken place in an irregular marriage, then the wife is entitled to dower,
proper or specified whichever is less. The wife is required to perform iddat of three courses
on dissolution of marriage, either by divorce, or, by death of the husband. The children of
such marriages are fully legitimate, and have rights of inheritance to the property of both the
parents. The parties to an irregular marriage have no right of mutual inheritance.

A marriage under Muslim law is irregular in the following cases:-

 A marriage performed without witness.

 A marriage performed with a woman undergoing iddat.
 A marriage prohibited on an account of difference of religion.
 A marriage with two sisters, or contrary to the rules of unlawful conjunctions.23
 A marriage with a fifth wife.24

Since the Ithna Ashari law does not recognize irregular marriages, a marriage with no witness
is void under that law. But for a Shia marriage no witness is necessary.

23
Mulla § 263
24
Mulla § 264. Read with § 255.

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MUT’A MARRIAGE

The word ‘Mut’a’ literally means ‘enjoyment, use’ and in its legal context it may be
rendered, according to Heffening , a ‘marriage for pleasure’. It is a marriage for a fixed
period, for a certain reward paid to the woman. The institution of Mut’a was fairly common
in Arabia both before and at the time of the Prophet. “The believer is only perfect when he
has experienced a Mut’a“, thus observed the Shia theologian Al–Hurr-Al-Amili. It may be
difficult to say that when an Ithna Ashari Muslim enters into a mut’a marriage, he does so
with the view to perfecting his belief. The fact of the matter is that a Mut’a marriage is a
survival of a pre- Islamic Arab custom whereby the Arab women used to entertain men in
their own tents. This union gave rise to no mutual rights and obligations. The man entering
the tent had of course, to pay the entrance money. The man could get out of the tent whenever
he wanted and the woman could throw him out whenever she chose , if any child was born of
such a union , it belonged to the woman. It seems that later on it developed into a fixed term
union on payment of some consideration by the man and acquired the name of Mut’a. This
pre-Islamic institution of Mut’a continued to exist for some time even after the advent of
Islam in Arabia. It appears that on account of its widespread prevalence, the fiat of the
Prophet too tolerated it for some time, but ultimately came out against such unions and
declared them to b unlawful. But the institution survived inspite of the Prophet. It was Caliph
Omar who liquidate it ruthlessly. Since the Ithna Ashari do not accept the first three Caliphs
(in which is included Omar), they continued to recognize the Mut’a.

ESSENTIALS OF A MUT’A MARRIAGE

According to Ithna Ashari law a Mut’a is a marriage for a fixed period of time. It may be for
a day, a month, a year or a term of years. The essentials of such a union are four: the Form,
the Subject, the Period, and the Dower.

 As regards the form, there must be a proper contract: declaration and acceptance are
necessary.
 As regards the subject, a man may contract a Mut’a with a Muslim, Christian, Jewish
or a Fire-worshipping women25, but not with the follower of any other religion.
Relations prohibited by affinity are also unlawful in temporary marriage. A man may
contract Mut’a with any number of women.26

25
Syed v. Rajmaa, 1977 AP. 152.
26
Mulla §269 (4)(b)

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 JAMIA MILLIA ISLAMIA UNIVERSITY

 As regards the term of Mut’a , this must be specified: else a life-long Mut’a will be
presumed If the original cohabitation commenced with the lawful Mat’a. In Shoharat
singh v Mst. Jafri Bibi27 it was held that of the “ cohabitation of a man and a woman
commenced with the Mut’a , and there was no evidence as to the term of the marriage
, the proper inference would , in default of evidence to the contrary , be that the Mut’a
continued during the whole period of cohabitation”

In a recent Hyderabad case it was held

 That there is no difference between a Mut’a for an unspecified period and a Mut’a for
life
 That a permanent Nikah for a life can be contracted by the use of the word Mut’a also.
 That specification of the period for which a Mut’a marriage is contracted alone makes
a permanent marriage for life , a temporary Mut’a marriage for the period specified.
 That where the specification of period is omitted, whether intentionally or
unintentionally, a permanent Nikah marriage results, with all the legal incidents of a
Nikah marriage, including the right of inheritance between the contracting parties.
 That where the period is for life, Nikah marriage will result28.

The learned judge in this case purports to follow the authority of the Jawahi- al-Kalam , an
exhaustive commentary on the Shara I Al – Islam , by Shaykh Muhammad Hasan Al-Najafi ,
in six volumes. He says that it is of higher authority than the Shara I Al – Islam. In view of
the remaks of Mahmood . J29 and Sulaiman . J30 it is difficult to accept the opinion of the
learned judge. The view which he advocates may, in the circumstances prevailing in
Hydrebad, have some justification: but in so far as it tends to obliterate the well known
distinction between a Mut’a and a Nikah , it is respectfully submitted that the judgement
requires reconsideration. The fixation of a period in the marriage contract destroys the
concept of Nikah as understood in Islamic law. The mere omission to specify the period may
result in a valid Mut’a for life: but to equate a Mut’a for life with a regular Nikah is a serious
step, which inter alia fails to take in cosideration the question of intention.

27
(1914) 17 Bom LR 13 at 17.
28
Shahzada Qanum v. Fakher Jahan, AIR 1953 Hyd. 6.
29
Agha Ali v. Altaf Hasan, 1892 14 All. 429, 450
30
Aziz Bano’s case 1952 47 All. 823, 828, 829.

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 JAMIA MILLIA ISLAMIA UNIVERSITY

A Mut’a terminates by the efflux of time or by death. On the expiry of the term, no divorce is
needed, during the period , the husband has no right to divorce the wife , but the husband may
make a “gift of the term”31 thereby terminate the contract , without the wife’s consent.32

The dower (mahr) is a necessary condition of such a union. If it is not specified, the
agreement is void. Where the marriage is consummated, the wife is entitled to the whole
amount, if not, to half the dower. In case the wife leaves the husband before the expiry of the
term, the husband is entitled to deduct a proportionate pat of the dower33. On the expiry of the
period, where there has been cohabitation, a short idda two courses is prescribed, however,
there has been no consummation, no idda is necessary.

The issue of the Mut’a union are legitimate and entitled to inherit. In the absence of a specific
agreement, the husband o the wife does not inherit from the other, but if there is such a
stipulation it will be effectual.

A Mut’a wife is not entitled to maintenance, for, according to Shara I al- Islam, ‘the name of
a wife does not in reality apply to a woman contracted in Mut’a34

INCIDENTS OF MUT’A MARRIAGE

The main incidents of the Mut’a marriage are:

o In a Mut’a marriage, parties have no right to mutual inheritance, even if one of the
parties dies when the Mut’a is subsisting. There is a difference of opinion among the
Shia authorities whether a specific stipulation to the effect in a Mut’a is valid.
o A wife in a Mut’a marriage is not entitled to maintenance. But if in the contract of
marriage, it is specifically stipulated, the wife will be entitled to maintenance during the
whole term, even if the husband chooses not to cohabit with her. In the absence of such a
stipulation the court has the power to grant her maintenance, under section 125 of the
code of criminal procedure.35
o If the marriage is not consummated, the wife is entitled to only half of the dower. If the
marriage has been consummated, then the wife is entitled to full dower, even if the
husband does not cohabit with her during the entire term or part of the term. On the other

31
Otherwise called hiba-e muddat
32
Mulla §269 (4) (d)
33
Mulla § 269 (4)(e)
34
Mulla §269 (4)(f)
35
Luddun V. Mirja Karma (1882) 8 Cal. 336.

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 JAMIA MILLIA ISLAMIA UNIVERSITY

hand if the wife leaves her husband before the expiry of the term she is entitled to only a
proportionate dower36.
o When the marriage has been consummated, the wife is enquired to undergo idaa of three
courses; if there is no consummation of marriage, no idaa is required.
o It seems that in a mut'a marriage the husband has the right to refuse procreation, that is to
say, Izl is allowed, and no permission of the wife is necessary.
o The off spring of mut'a marriage has the status of legitimate children, and is entitled to
inherit the property of both parents in the same manner as the off spring of the permanent
marriage.
o The mut'a marriage comes to an end automatically on the expiry of the term, unless
extended, or on the death of either party. The question of husband’s right of Talak does
not arise. However the parties may terminate the union by mutual consent if the husband
wants to terminate the union earlier, he can do so by making “gift of the tem” or of any
portion of it. This is called Hiba-i-muddat for which the consent of the wife is not
necessary.37

PROHIBITIONS TO MARRY IN CERTAIN CASES

Tyabji gives the following grounds on which Muslims are prohibited from intermarrying with
each other:
(i) Consanguinity—A Muslim is prohibited to marry—
(a) his own ascendants or descendants;
(b) his father's or mother's descendants; and
(c) the sisters or brothers of any ascendant.
(ii) Affinity—It is unlawful for a Muslim to marry38-
(a) ascendants or descendants of his wife; and
(b) the wife of any ascendant or descendant.
(iii) Fosterage— A child is called the "foster-child" of the woman who not being the child's
mother, has nursed the child whilst it was under two years of age. The woman is called the
"foster-mother". Muslim Law prohibits marriage within certain limits of fosterage. A man
may not, for instance, marry his foster-mother or his foster-sister.
(iv) Unlawful conjunction.—It may be because of two things:

36
Mad. Abid v. Ludden 1887 14 Cal. 276
37
There is a difference of opinion among the Shia Jurists itself on this matter.
38
A man may marry the descendant of a wife, with whom the marriage has not been actually consummated.
Under Hanafi, Hanbali and Shia Law illicit intercourse has the same effect in establishing prohibition by
affinity as the consummation of a lawful marriage. See, Tyabji, 124.

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(a) Number, or
(b) Relationship between co-wives.
(a) Number—Muslim male may marry any number of wives not exceeding four; but a Muslim
woman can marry only one husband, if she marries with a second husband, she may be
punished under Section 494, Indian Penal Code.
(b) Relationship between co-wives—A man is forbidden to have two wives at the same time,
so related with each other by consanguinity, affinity or fosterage, that they could not have
lawfully intermarried with each other if they had been of different sexes.
From the above it comes out clearly, for instance, that it is unlawful to marry two sisters at
the same time, or to marry the sister of the wife during the wife's lifetime. In the leading case
of Aizunnissa Khatoon v. Karimunnissa Khatoon39 the Calcutta High Court held that such
unions were void. However, the High Courts of Bombay, Madras, and Lahore, and the Chief
Court of Oudh declared them to be merely irregular.40
(v) Iddat.—A widow, a divorced woman or a woman who is pregnant by illicit intercourse
are prohibited from remarrying or marrying during the period of iddat. The object of iddat is
to ascertain whether the woman is pregnant or not and to ascertain the paternity of the child.
The period of iddat in case of (a) the marriage dissolved by death is 4 months and 10 days or,
if the woman is pregnant, till delivery, whichever is longer; and (b) the marriage is
consummated and dissolved by divorce, it is three courses, or till delivery in case of
pregnancy.
For example, H has four wives, A, B, C and D. He divorces A after consummation of the
marriage with her. It is not permissible to A to marry another husband, nor to H to marry
another wife, during A's iddat. H also cannot marry A's sister, during A's iddat. A marriage
contracted during the iddat is not void, but irregular.
(vi) Divorce— After the husband has pronounced three talaqs against his wife, their marriage
is irrevocably dissolved, and they are prohibited from remarrying each other unless and until
(a) the woman is lawfully married to a second husband, (b) her marriage with her second
husband is actually
Consummated, (c) it has been lawfully dissolved, and (d) the woman observes iddat.
(vii) Difference of religion—Under Hanafi Law, a man may marry a Muslim woman or a
Kitabiya41, but a Muslim woman cannot marry anyone except a Muslim. A Muslim,

39
ILR (1895)23 Cal 130.
40
Fyzee, at p. 113.
41
A Kitabiya a woman who believes in a revealed religion possessing a Divine Book.

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 JAMIA MILLIA ISLAMIA UNIVERSITY

therefore, cannot marry an idolatress or a fire-worshipper; and a Muslim woman cannot

marry even a Kitabiya. Among the Shias, however, no one can marry a non-Muslim in the
nikah form, but the male can contract a Muta marriage with a Kitabiya (including a fire-
worshipper).
Ameer Ali says that the marriage between a Muslim and a Hindu woman "whose idolatry is
merely nominal and who really believes in God" should not be unlawful but irregular. Fyzee
cites Mulla as saying that "the present position appears to be that the nikah of a Muslim man
with an idolator or a fire-
worshipper is irregular and not void". However, in view of the clear texts of law and Koranic
provisions, such a broad view can only be introduced by legislation.

OPTION OF PUBERTY
A minor cannot legally enter into a marriage contract nor is contract of marriage entered into
by a guardian on his or her behalf, always binding on the minor. The minor can on attaining
puberty ratify such a contract if he or she chooses. This right of dissolution of marriage on
attaining puberty is called Khayar-ul-Bulugh or option of puberty. This right is one of the
safeguards which the Muslim Law provides against an undesirable marriage. Hadith provide
women the right to repudiate the marriage forced on them through pressure direct or indirect
under the assumption that girl being minor cannot exercise her independent discretion
regarding the marriage due to her physical and mental immaturity and in such a situation she
can be victim of undue influence rather these types of marriage might have had very bad
consequences.

Ibn Abbas reported that a virgin came to the Prophet of Allah (SAW) and narrated that her
father had given her in marriage to a person whom she disliked. Prophet (SAW) gave her
option.42

Aisha (R) reported that a girl came and stated that her father had given her in marriage to his
nephew and she dislikes him. I told to the Prophet (SAW) the full story of the girl. He at once
sent a message for the father of the girl and enquired from him whether the facts stated were
true, after which he told the girl that she was at liberty to choose her life partner or repudiate

42
Ali Mohummad; Manual of Hadith 271(1944).

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her marriage, and that she would only to know whether woman had any right in marriage
contract.43

Ibn Umar says; Uthman bin Mazum left behind a young daughter. My uncle Qudamah,
married her to me, and did not even consult her when the girl came to know of this, she
dislike this marriage and wished to marry Mughirah bint Shubah. So she was married to
Mughirah44. All these Ahadith provides conclusive proof that girl is as free in Islam as a boy
to choose or repudiate her partner while negotiating the marriage contract. Under Hanbali
Law position is same as in the Maliki Law and in Shia law, it is same as in Hanafi Law.45

In every case, where option is available, it must be exercised immediately on attaining

puberty. Imam Abu Hanifa held the view that option must be exercised immediately on
attaining puberty while other authorities opined that it could be exercised without any
unreasonable delay after attaining puberty. This right is to be pressed while the marriage of
her not yet been consummated. The rule respecting to the doctrine of option of puberty is that
a girl who is unaware of her marriage, when she attain puberty, retains this right until she
becomes aware of the marriage and option is prolonged until she is acquainted with the fact
that she has the right to repudiate the marriage and she can exercise that right within a
reasonable time. The option is lost if the wife, after she attains puberty permits the marriage
to be consummated but mere consummation is not sufficient unless happens it be with the
wife's consent.

In case of dissolution of Muslim marriage through 'option of puberty', Qazi's order for
cancelling the marriage is necessary. This is a procedural safeguard as many rights and duties
flow from the cancellation of marriage. Likewise, Qazi's order cannot be passed when
husband is not represented. Marriage in the eyes of law shall be presumed to subsist unless
the order is made by the Qazi.

EXCEPTION- This right is available to both male and female. However women will lose
her right if on attaining puberty and on being informed about marriage does not repudiate it in
reasonable time. She can’t take benefit of this under such circumstances. Under the

43
Nasai, Quoted by M.M.Siddiqui, Women in Islam, p. 52.
44
Ibn Maja: Quoted by M.M.Siddiqi, Women in Islam, p. 52.
45
Hamilton, Charles, A1 Hedya, Vol. 11, p. 296.

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Dissolution of Muslim Marriage Act, 1939, even if she is married by her father and father’s
father, she has a right to dissolve the marriage.

CASE LAWS-

In Behram Khan v. Akhtar Begum46, the court held that cohabitation before the age of
puberty does not deprive the wife of her right to dissolve marriage.
Bismillah Begum v. Nur Mohammad47, was a case of delayed repudiation. The court held
that wife could exercise option of puberty only if she had known about it. In the instant case,
the women after knowing the fact within reasonable time moved a suit for repudiation of
marriage. The court held that one can’t move a suit for repudiation unless one has the
knowledge, and whatever is done by her after getting the knowledge, she has a right and can
repudiate the marriage.

The court in Abdul Karim v. Amina Bai48, held that cohabitation will put an end on the right
of wife to seek option of puberty. The court held that cohabitation must have taken place
without duress, with the consent of wife after attainment of puberty.
A question arose in the case of SK Shaib Ali v. Jinnatan Nahar49, Question was whether
option of puberty is exercisable by wife only in a substantive suit under DMM Act of 1939 or
is she eligible to exercise this in other legal proceedings like in a suit for Restitution of
Conjugal rights. The court held that it can only be exercised by filing a substantive suit under
the 1939 Act only.

In Nizamuddin v. Huseni and Ors.50, question arose whether the mere exercise of option of
puberty severe the marital ties or marriage subsists till repudiation is confirmed by the court.
The court held that no decree is required to confirm the repudiation but the order of the judge
is necessary.
However, in Pakistan it has been held that exercise of option of puberty itself puts an end to
marriage. The court by itself does not dissolve the marriage but recognizes the termination of
marriage.

46
P.L.D 1952 Lahore 548.
47
(1922) 9 AIR All 155.
48
A.I.R (22) 1935 Bom. 308.
49
AIR 1960 Cal 717.
50
AIR 1960 MP 212.

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RESTITUTION OF CONJUGAL RIGHTS

The leading case on this point is Moonshee Buzloor Ruheem v. Shumsoonissa Begum51. It
was observed in this case that if either party to a marriage contract has withdrawn from the
society of the other without any valid reason, or has neglected to perform the marital
obligations, the aggrieved party may bring a suit in a civil court for the restitution of conjugal
rights. Thus, where

a wife refuses to live with her husband, the husband is entitled to sue for restitution of
conjugal rights. This right, however, is not absolute. There are a number of valid defences
available to a wife in a suit for restitution of conjugal rights. She may prove that:

(i) it is unsafe for her to live with her husband because of his cruelty; or

(ii)the husband grossly neglects the performance of the marital obligations; or

(iii)the marriage is irregular; or the husband has been made an outcaste by his community.

(i) The defence of cruelty.—If cruelty constitutes such a potent and valid defence that a wife
may lawfully deprive herself to her husband, although cohabitation is one of the fundamental
ingredients of marriage, it becomes necessary to understand the real meaning and import of
the term 'cruelty'. In a recent case,52the Allahabad High Court observed:

"Indian Law does not recognize various types of cruelty such as 'Muslim' cruelty, 'Christian'
cruelty, 'Jewish' cruelty, and so on, and that the test of cruelty is based on the universal and
humanitarian standards, that is to say, conduct of the husband which would cause such
bodily or mental pain as to endanger the wife's safety and health..."

Those actions of the husband which are held to amount to cruelty are as follows53:

(a) Actual violence of such character as to endanger personal health and safety of the wife, or
creates a reasonable apprehension of such violence; -

(b) A treatment, falling short of actual violence, but such as to jeopardize health or sanity of
the wife;

(c) False charges of immorality and adultery and throwing insults on the wife;54

51
(1867)11 MIA 551: 74 IC 166.
52
Itwari v. Asghari, AIR 1960 All 684.
53
Tyabji at p. 166, and Fyzee, at pp. 117-118.

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 JAMIA MILLIA ISLAMIA UNIVERSITY

(d) charging with adultery (with subsequent apology); once striking; using abusive language;
stripping house of furniture and charging wife with theft;55

(e) Husband's second marriage, if the court feels that the circumstances are such as to make it
inequitable for the court to compel the first wife to live with him.56

"The onus today would be on the husband who takes a second wife to explain his action and
prove that his taking a second wife involved no insult or cruelty to the first...and in the
absence of cogent explanation the court will presume, under modern conditions, that the
action of the husband in taking a second wife involved cruelty to the first, and it would be
inequitable for the court to compel her against her wishes to live with such a husband."

Fyzee comments that this strong judgment shows clearly that since the passing of the
Dissolution of Muslim Marriages Act, 1939, the courts have leaned heavily in favour of the
wife in all these cases, and restitution cannot be had by the husband unless the wife is clearly
in the wrong.57

(ii) The neglect of matrimonial obligations.—Abdur Rahim says that the wife has a right
corresponding to that of the husband to demand the fulfillment of marital duties towards her.
This includes proper accommodation separate from the husband's relations and to be
maintained in a way suitable to his own means and the position in life of both. She is further
entitled to the payment of her dower.

If the marriage has not been consummated, then all the authorities on Muslim Law agree that
the wife may validly refuse to cohabit, and the restitution of conjugal rights may be refused
unless the husband pays the prompt dower.

After the consummation, however, she has no such right, as held by Imam Muhammad and
Abu Yusuf and approved by Mahmood, J., in Abdul Kadir v. Salima58, overruling previous
rulings to the contrary. According to Abu Hanifa, such a right is available to her even after

54
Husain Begam v.Mohd Rusiam Ali Khan, ILR (1906)29 All 222.
55
Armour v. Armour, (1904)1 All U 318.
56
Itwari v. Asghari, AIR 1960 All 684.
57
Fyzee, at pp. 118-119.
58
ILR(1886)8 All 149.

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consummation, but this view is not being followed in India. Because, as pointed out by Sir
Shah Sulaiman, C.J., in Anis Begum v. Mohd. Istafa59:

"Owing to the prevalent practice, the amounts of dower fixed in this country are often unduly
high and beyond the means of the husband. To allow to the wife the right of refusing to live
with her husband even after consummation, so long as any part of the prompt dower remains
unpaid would, in many cases where the husband and wife quarrel, amount to an absolute
option to the wife to refuse to live with her husband and yet demand a maintenance
allowance. This would dislocate domestic life."

(iii) Other grounds.--A demand for the restitution of conjugal rights may be rejected if it is
proved that the marriage is irregular, or the husband has been made an outcaste by his
community. This excommunication can be made by the heads of certain Shia sects; in India,
by Syedna Burhanuddin and Agha Khan.60Also where, though, there is no satisfactory
evidence of actual physical cruelty, yet there is a reasonable presumption that the husband's
suit was for getting hold of wife's property.

In Hamid Husain v. Kubra Begum61, it was held that if wife's return to her husband would
endanger her health and safety, a suit for restitution of conjugal rights could not succeed.

Conditional Restitution — In Anis Begam v. Mohd. Istafa62, it has been held that when
the husband keeps a mistress in the same house with his wife, and treats the wife cruelly,
restitution can be granted only by imposing certain conditions on the husband. Sir Sulaiman.
C.J observed-

"There is no absolute right in a husband to claim restitution of conjugal rights against his wife
unconditionally; the courts have a discretion to make the decree conditional on the payment
of her unpaid dower debt or to impose other suitable conditions considered just, fair and
necessary in the circumstances of each case ... there is certainly, a possibility that the story
told by the defendant that she was beaten with lathis and shoes might not be true, but I have
no hesitation in holding that the fact that Mst Hibia, a mistress, was kept in the same house
with the wife is fully established and I do not believe the denial made by the husband nor do I

59
1933 ILR All 743.
60
Vide judgments of the Privy Council and the Supreme Court.
61
ILR(1918)40 All 332.
62
ILR 1933 All 743.

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 JAMIA MILLIA ISLAMIA UNIVERSITY

accept the statements of his two brothers, who, admitting the presence of Mst Hibia in the
house, tried to explain it away by saying that she was a mere maid servant....! Have no
hesitation in holding that the husband misbehaved in this way that he kept a mistress in his
house along with his wife and caused mental pain to her in consequence and that he must
have, when quarrels ensued, treated his wife cruelly, and that as the quarrels were not and
could not be patched up, so long as Mst Hibia remained in the house (the wife) had
reasonable apprehension of injury to her person.

I think that the wife is fully justified in refusing to go and live with her husband so long as
there is no undertaking not to keep any mistress in the house; she can go to live with him only
if a separate house is given to her. Further, I think that in order to protect her safety it is
necessary that she should have the option of keeping one female servant and one male
servant, According to her choice, in the house...I would accordingly allow the appeal in part
and impose conditions on the decree for the restitution of conjugal rights."

As we observed, the current judicial trend is more humanitarian and alive to the sufferings of
the wife.

Thus, in Shakila Banu v. Gulam Mustafa63, the Bombay High Court held that in a suit filed
by husband for restitution of conjugal rights the defendant wife's evidence about cruelty does
not require corroboration. In Raj Mohd. v. Saeeda64, the facts were that the defendant was
staying away from the plaintiff-husband. She filed a suit against the husband claiming
maintenance for herself and her children from him. The husband also filed a suit for
restitution of conjugal rights. During the pendency of this suit the husband married a second
wife. Against this background the court held that it had to be borne in mind that the decision
in a suit for restitution of conjugal rights did not entirely depend upon the right of the
husband. The court should also consider whether it would make it inequitable for it to compel
the wife to live with her husband, and if so the remedy may be refused. 'Our notions of law
must be brought in conformity with the modem social conditions'.

CASE LAWS-
Ayatunnisa Bibi v. Karam Ali65, The wife had left the husband a year after marriage.
Husband filed a suit for Restitution of Conjugal Rights. Defence was that it was stipulated in

63
AIR 1971 Born 116.
64
AIR 1976 Kant 200.
65
ILR 36, Cal. 23.

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 JAMIA MILLIA ISLAMIA UNIVERSITY

the marriage contract that if husband contracts the second marriage, she would have power to
divorce herself and in exercise of that power, divorced him. The court held that when a power
is given to a wife by marriage contract to divorce herself in the event of husband taking
second wife. She is not bound to exercise her option immediately on hearing the news
because the injury done to her is a continuing wrong and so it is reasonable that she should
have a continuing right to exercise the power.

In Sainuddin v. Latefunnisa66, where the husband had delegated power of divorce to wife if
he married the second wife without her permission and he married the second time thereafter
and as a result of which the first wife left him. He filed a suit for Restitution of Conjugal
Rights and subsequently the first wife divorced herself. The court held that post marital
delegation of power was revocable and he had revoked it by filing a suit for Restitution of
Conjugal Rights. The court held that the wife had not properly exercised her power.

Saifuddin Sheikh v. Soneka Bibi67, The person concerned had two wives and wanted to
marry the third time. In the agreement it was mentioned that if husband would bring either of
his two previous wives who were not living with him, to stay in her home without her
consent, she would be entitled to exercise the power of divorce. Husband argued that this is
opposed to public policy. Court held that a contract which serves to ensure peace and
domestic happiness in family should not be treated as opposed to public policy and hence it
was enforceable. The judgement is however criticized for not taking into consideration the
domestic peace and happiness of the first 2 wives.
In Mansoor v. Azizul68, a week after his second marriage, husband entered into agreement
with the first wife to pay her maintenance even if she resides in her own house. The wife filed
a suit for arrears of maintenance based on this agreement. Husband argued that agreement
was without consideration and opposed to public policy. Court held that if a Muslim man
marries the second time and could not pull up with first wife and could not provide a separate
residence, then in thus case where he executed an agreement, wife will be entitled to
maintenance. The Court further held that agreement was not against public policy.

66
(1919) 46, Cal.141.
67
AIR 1949 Assam 14.
68
AIR 1990 Pat 224.

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Petition for Restitution of Conjugal Rights may be filed under Section 20(c) of the Civil
Procedure Code, 1908
OR

May be filed under Section 47 of the Matrimonial Causes Act, 1970

Section 47 states that “a petition for Restitution of Conjugal Rights can be filed by a party to
a marriage on the ground that the parties to the marriage, whether or not they have at any
time cohabited or are not cohabiting and that without any just cause or excuse, the party
against whom the decree is sought, refuses to cohabit with or render conjugal rights of
petitioner.”

Section 48 states that “An agreement for separation entered into between the parties shall not
constitute a defence to the proceedings for a decree of Restitution of Conjugal Rights.

1. The order of priority between the various persons who can act as guardian, one or the
another, cannot be changed either by will or otherwise.

2. A remoter guardian cannot act out of turn, and a non guardian cannot act at all. In either
case the marriage, if it has taken place, may be ratified by the true marriage guardian; where
the later refuse to do so the marriage may be held to have no legal effect.

3. It is not clear that what has to be done if, in case, the person whose turn is to act as
marriage guardian happens to be a non Muslims. The entitlement will pass on to the next
person in order. The affect of the Caste Disabilities Removal Act 1850(which repeal all legal
provisions imposing less of eight on apostates) on the rules of Muslim law relating to
marriage, guardianship is yet to be clarified.

As regards to both male and female who are incompetent to contract their own marriage. The
rule of Muslim law is as follows:

1. Under none of the schools of Muslim law can a minor person (male or female) contract
marriage without the consent and intervention of his or her marriage guardian.

2. Under the Shafai law, a girl though neither minor nor insane cannot contract her first
marriage without the consent of her marriage guardians, but where, she is not marrying first
time, this rule does not apply.

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v) Shia Law:

Under Shia Law, the father and grandfather is the only guardian for marriage of a minor girl.
The mother has no power of giving a minor child in marriage if she is an executrix of the
father.

The order of priority between the two is first father's father then the father. A Wali or
guardian must be major, sane and free. He must not be a minor or lunatic, with or without
lucid intervals or slave.

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CONCLUSION

Thus to conclude it can be said that In Islamic law, marriage (Nikah ‫ )نکاح‬is a legal and
social contract between a man and a woman. Islam is totally opposed to monasticism and
celibacy.[1] Marriage is an act of Sunnah in Islam and is strongly recommended; the age of
marriage being whenever the individuals feel ready, financially and emotionally. Polygyny is
permitted in Islam under some conditions, but polyandry is forbidden.

On the basis of Juristic opinion we can easily conclude, that marriage is simply a civil
contract under Muslim Law. It fulfills all the conditions of a contract-proposal and
acceptance, free consent and consideration.

But from the religious angle, Muslim marriage is a devotional act. Marriage is not devoid of
all religious and spiritual values. Along with its secular aspect it also partakes the elements of
a sacred union of two souls means for spiritual ends.

Marriage is a religious duty of every Muslim and is considered to be a moral safeguard and
social need. The Prophet has also said “Marriage is my tradition whomsoever keeps away
there from is not amongst me. Marriage is necessarily for legitimatization of the child. When
the marriage is done in accordance with prescribed norms, it creates various rights and duties
on both the parties

In Quran and Hadith spouses are strictly enjoined to love and honour each other. Enjoyment
and showering love and affection by each one has been called a noble act. Marriage under
Islam is sacrament keeping the view of Quranic injunction and traditions.In the ultimate
analysis it can be said that the marriage in Islam is neither purely a civil contract nor a
sacrament. It is devoid of none but the blending of the two.In Muslim marriage mutual
consent is the foundation stone of marriage relationship which must be from any type of
pressure. In Muslim law marriage is a contract, though it is not a pure one and implies a
mutual consent. When a marriage is contracted on behalf of an adult person of either sex, it is
an essential condition for its validity that such persons should have mutual consent thereto.

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BIBLIOGRAPHY

BOOKS:

1. OUTLINES OF MOHAMADDAN LAW, 4th ed. Oxford India Paperbacks - ASAF A.A.
FYZEE.

2. FAMILY LAW IN INDIA, 9th ed. S.Gogia & Co. -PROF. G.C.V.SUBBARAO

3. FAMILY LAW, 9th ed. Allahabad Law Agency -PARAS DIWAN

4. THE MUSLIM LAW OF INDIA, 3rd ed. Lexis Nexis Butterworths -TAHIR MAHMOOD

5. MUSLIM LAW, 9th ed. Lexis Nexis Butterworths –MULLA

STATUTES REFERRED:

1. The Indian Constitution

2. Muslim Laws

3. The Civil Procedure Code

4. The Specific Relief Act, 1963

ONLINE SOURCES:

1. www.indiankanoon.org

2. www.moj.gov.jm

3. http://shodhganga.inflibnet.ac.in/bitstream/10603/8109/9/09_chapter%202.pdf

4. http://www.legalserviceindia.com/article/l162-Concept-of-Marriage-in-Muslim-Law.html

5. www.scconline.com

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