By:

RASHMI DUBEY
FACULTY OF LAW
 Marriage is the ‘nucleus’ of the family. The very foundation of the family and
society is the marriage. It confers on parties, the status of husband and wife and
gives rise to certain rights and obligations and of legitimacy of their children.

 Meaning and Definition:- In Mohammedan Law, marriage is regarded as ‘Civil

Contract’. ‘Nikah’ is an Arabic term, which literally means “the union of two
sexes”. In Baillie’s Digest, marriage has been defined to be ‘a contract for the
purpose of legalizing sexual intercourse, and procreation of children.’

 Ashabah says :- ‘Marriage is a contract underlying a permanent relationship

based on mutual consent on the part of man and woman’.

 Abdur Rahim says:- ‘The Mohemmadan jurist regard the institution of marriage
as partaking both of the nature of ibbadat or devotional acts and muamalat or
dealings among men.
 According to Ameer Ali:- ‘Marriage is an institution ordained for the protection
of the society, and in order that human beings may guard themselves from foulness
and unchastity.

 Mulla defined Nikah as “a contract which has for its object, the procreation and
legalizing of children.”

 As per Section 2 of Law of Marriage (Compendium of Islamic Laws compiled

by All India Muslim Personal Law Board), ‘Marriage is an agreement between a
man and a woman, based on the Shariat principles as a result of which mutual sexual
relation becomes legitimate, paternity of obligation becomes enforceable.’
 Section 4 of the Law of Marriage (Compendium of Islamic Laws compiled by
All India Muslim Personal Law Board), says, ‘Marriage is compliance with
injunctions of God’s Book and His Prophet’s Sunnat. In the eyes of Shariat,
therefore, marriage is not just a civil contract; it is also a worship.’

 Justice Mahmood in Abdul Khadir v. Salima defines a Muslim Marriage as “a

civil contract” , upon the completion of which by proposal and acceptance, all the
rights and obligations, which it creates arise immediately and simultaneously.

 Justice Mitter in Saburannissa v. Sabdu Sheikh(AIR 1934) observed, “ The

Marriage under Muslim Law is a civil contract and is like a contract of sale. In the
contract of marriage the wife is the property and dower is the price.
 A glossary on Tarmizi sets out five objectives of marriage :

i) The restraint of sexual passion

ii) The ordering of domestic life

iii) The increase of the family

iv) The discipline of the same in the care and responsibility of wife and children, and

v) The upbringing of virtuous children.

 The Prophet said – ‘Men marry women for their piety, or their property or their
beauty, but man should marry for piety.

 The purpose of marriage are perpetuation of human race and attainment of chastity,
continence, mutual love, affection and peace.
 There has been a conflict of opinion as to the nature of Muslim Marriage. Some opine
that, Muslim Marriage is a mere civil contract and not a sacrament, while some other
opine that it is a religious sacrament in nature.
 Muslim Marriage, by some text writers and jurists, is treated as a mere civil contract
and not a sacrament. This observation seems to be based on the fact that marriage,
under Muslim Law, has similar characteristics as a contract. For instance:
1. As marriage requires proposal (Ijab) from one party and acceptance (Qubul/ Qabool)
from the other so is the contract. Moreover, there can be no marriage without free
consent and such consent should not be obtained by means of coercion, fraud or undue
influence.
2. Just as in case of contract, entered into by a guardian, on attaining majority, so can a
marriage contract in Muslim Law, be set aside by a minor on attaining the age of
puberty.
3. The parties to a Muslim Marriage may enter into any post-nuptial agreement which
is enforceable by law provided it is reasonable and not opposed to policy of Islam.
Same is the case with contract.

4. The term of marriage contract may also be altered within legal limits to suit
individuals cases.

 The analogy of marriage contract with contract of sale as pointed out by Justice
Mahmood in the leading case of Abdul Khadir v. Salima, and Justice Mitter in
Saburannissa v. Sabdu Sheikh(AIR 1934) also emphasizes the contractual aspect
of Muslim Marriage.

 Another view is that marriage is not purely a civil contract but a religious
sacrament too. Anis Begum v/s. Mohammad Istafa (1993) is a leading case on the
point where C.J. Sir Shah Sulaiman has tried to put a more balanced view of the
 While reviewing the Abdul Kadir’s case, Justice Sulaiman in Anis Begum’s case
observed : ‘ It may not be out of place to mention that Maulvi Samiullah collected
some authorities showing that marriage is not regarded as a mere civil contract but
as a religious sacrament. Though the learned C.J. does not himself say that
marriage is a sacrament, but from the context in which he said, it is clear that he
supported the view of Maulvi Samiullah.

 Justice Mahmood’s observation i.e., marriage is a civil contract cannot be

appreciated only because upto some extent marriage resembles with civil contract.
After observing minutely it will be found that besides some similarities there are so
many basic differences between the two. For instance.

 Muslim marriage is not merely a civil contract, because:

i) Unlike civil contract, it cannot be made contingent on future event, and

ii) Unlike civil contract, it cannot be for a limited time (muta marriage is an
exception).

 One may conclude the nature of Muslim Marriage by the observation of M.C.J
Jung – ‘Marriage is an institution of Ibadat clothed in the legal form of contract
regulating sexual intercourse, but its continuance is dependent upon the
maintenance of conjugal affection.’ In the ultimate analysis it can be said that the
marriage in Islam is neither purely a civil contract nor as a sacrament. It is devoid
of none but the blending of the two.
 In Muslim or Mohammedan Law, marriage have been categorized under the
following heads:-

i) Sahih or Valid Marriage – According to Law of Marriage (compendium of

Islamic Law compiled by All India Muslim Personal Law Board), ‘A valid
marriage is one in which all essential conditions of marriages are found.’(Section
20)

 Essentials of a Valid (Sahih) Marriage – A Muslim marriage (Nikah) to be

valid, the following conditions are to be satisfied:

A) Civil Contract : A Muslim marriage is purely a civil contract. As in the case of a

contract, there are two parties. One party makes a proposal(Ijab) and the same is
accepted by the other at one meeting.

a) Proposal (Ijab) and Acceptance (Qabool) – The proposal is made by the

by the bridegroom. The proposal is called ‘Ijab’. The proposal consists the amount of
dower. The bride sits behind the curtain (pardah) with the relatives accumulated for
this purpose.

b) At one meeting: The Ijab and Qabool must be done at one meeting. The Ijab at one
time, and Qabool at another time, make the marriage void.

c) Consent : The consent of both the parties must be with free will, not under undue
influence, misrepresentation or coercion. Marriage under compulsion is not valid
under Sunni and Shia Schools. But it is valid under Hanafi Sub School.

According to the Shias, witnesses are not necessary. But, according to the Sunnis, two
male witnesses, who are sane and adults should be present. Absence of witness renders
the marriage irregular, but not void.
B) Capacity of Parties : The parties to the marriage must be competent to marry. In
Muslim Law, a person, who is sane (sound mind) and has attained puberty is
competent to marry. The person, who has not attained puberty is a minor. The age of
puberty for both a boy and girl is 15years.Under Shia Law, in the case of males,
puberty is presumed to be attained at the age of 15years but in case of females it is
9years.

 Those persons, who are not of sound mind, i.e., are lunatics or who have not
attained puberty i.e., are minors, can be contracted in marriage by their respective
guardians. But after the children become Baligh or the insane become sane, they
can endorse or abrogate the marriage. Minority is of two kinds – (i) age of
discretion (Saghir) and (ii) Puberty (Bulugh).
 Doctrine of Puberty or Option of Puberty (Khyar-ul-bulugh) : In Muslim Law,
a person, who is sane and has attained the age of puberty is competent to marry.
The age of puberty is the age at which a person becomes capable of performing
sexual intercourse and procreation of children. In Muslim Law, a person, who has
not attained the age of puberty is a minor. The age of puberty for both a boy and
girl is 15years.

 If a boy or girl, without attaining puberty is given in marriage, the boy or girl can
repudiate the marriage after attaining the age of puberty/majority. This right is
know as “the Option of Puberty” or “Khayr-ul-bulugh”. This right shall be
exercised within a reasonable time. In case of a boy(i.e., minor husband) it should
be exercised before the ratification of the marriage by payment of the Dower or
Mahr. (Mahr is an amount of cash or property paid by the bridegroom (husband)
to the parents of the bride (wife) at the time of marriage or later, in consideration
for the marriage) or by cohabitation.

 When a minor has been contracted in marriage by the father or paternal

grandfather, such marriage cannot be repudiated unless such father or grandfather
acted fraudulently or negligently. All the restrictions with regard to the option of
puberty have been abolished by the Dissolution of Muslim Marriage Act, 1939.
According to Sec. 2 of the Act, a Muslim wife is entitled to the dissolution of her
marriage if she proves that the marriage has not been consummated or the
marriage took place before she attained the age of 15years or she has repudiated
the marriage before attaining the age of 18years. Mere repudiation does not render
dissolution of the marriage. The dissolution must be confirmed by a competent
court.
C) Free Consent : The marriage to be valid, the parties must be freely consented to. If
the consent is obtained by force or fraud, it is no consent and the marriage is not valid.

 It is a general law among all sects that in case of an adult woman consent must
come from her. Without her consent, consent of her father, grandfather etc., only is
not sufficient, though in some cases permission to marry may be obtained from
father or grandfather, wherever it was possible.

 In order to validate the marriage of a boy or girl who has not attained the age of
puberty, the consent of the legal guardian is necessary. The marriage of a minor
girl without the consent of her guardian is void.

 Under Hanafi law if the consent is obtained by fraud or compulsion, the marriage
would be valid but only irregular and not void. Suppression of certain facts by any
of the contracting parties have been held to amount to fraud.
 Under Shia and Shafi law, such marriages where consent was obtained through
fraud or compulsion are void. A Shia adult (attained majority) woman should
obtain permission of her father or grandfather to marry, although she may be
looking after her own affairs.

D) Prohibited Degrees of Relationship: The parties to the marriage should not be

within prohibited degrees of relationship. The prohibition may be:

1. Absolute Prohibition; and

2. Relative Prohibition.

 The absolute prohibition renders the marriage void. While the relative prohibition
renders the marriage irregular.
1. Absolute Prohibition : It is sub-divided into :

(A) Prohibited Degrees of Relationship :

(i) Consanguinity;

(ii) Affinity;

(iii) Fosterage

(B) Polyandry

(i) Consanguinity : It means ‘blood relationship” . A marriage between the

following relations is prohibited and void –

a) Mother and Son

b) Grandmother (how high so ever) ; and

c) Brother and Sister;

(d) Uncle and Niece
(e) Nephew and Aunt
(ii) Affinity : It means “relationship by marriage”. A man should not marry his
(a) Wife’s mother or grandmother how high so ever;
(b) Wife’s daughter or grand daughter how low so ever;
(c) Wife of father or paternal ancestor;
(d) Wife of son or son’s son or daughter’s son how low so ever.
(iii) Fosterage : It means foster relationship. If a woman suckles the child of another,
foster relationship is created. Thus, a marriage between two persons having foster
relationship is prohibited.
(B) Polyandry: If a woman has two husbands, it is called “bigamy”. If she has
several(more than one) husbands, it is called “Polyandry”.
 A Muslim man can have four wives at a time. But a Muslim woman cannot have
more than one husband. If so, the marriage is void.

2. Relative Prohibition : Relative Prohibition viz. absence of witnesses,

polygamy(having several wives) i.e., more than four wives, marriage during “Iddat
Period” etc. renders the marriage irregular and not void.
 ii) Batil or Void Marriage : - Section 50 of the Law of Marriage (compiled by All
India Muslim Personal Law Board), ‘A void marriage is one which according to
the Shariat does not come into existence at all.’

 Mulla defines Void Marriage as – ‘A void marriage is one which is unlawful in

itself the prohibition against the marriage being perpetual and absolute.

 A marriage which has no legal results is termed batil or void. It is the semblance of
marriage without the reality. A marriage contracted by parties suffering from
absolute capacity i.e., prohibited on the grounds of consanguinity, affinity,
fosterage, etc. is void.
iii) Fasid or Irregular Marriage:- In Islamic law, Sunni school considers three kinds

of marriages namely valid, void and irregular marriage. According to Shia school there
is no irregular or invalid marriage and there are only two marriages : Valid and Void
Marriages. The irregular marriages stand in between the void and valid marriages.
Fyzee has classified irregular marriages into five classes, namely :

i) A marriage without witness,

ii) A marriage with a woman undergoing iddat,

iii) A marriage prohibited by reason of difference of religion,

iv) A marriage with two sisters, or contrary to the rules of unlawful conjunction, and

v) A marriage with a fifth wife.

 Under Hanafi Law a marriage contract entered into :
a) without the presence of witness, or
b) between persons prohibited from inter-marrying by unlawful conjunction in iddat or
divorce or religion or supervenient illegality is irregular and not void.
 According to Section 51 of the Law of Marriage (compiled by All India Muslim
Personal Law Board) “An irregular marriage is one which is neither valid nor void.
Before consummation such marriage is governed by the rules of marriage, and after
consummation it gives rise to the effect and rules of marriage. In both these situations
separation is necessary either by mutual renunciation or by the order of the qazi”.
 According to Mulla, ‘An irregular marriage is one which is not unlawful in itself, but
unlawful ‘for something else’, as where the prohibition is temporary or relative, or
when the irregularity arises from an accident circumstances such as absence of
witnesses.’
 The Shia law recognizes two kinds of marriage, namely, permanent and muta or
temporary. Muta is a kind of temporary marriage recognized only in the Shia
School of Muslim Law. A Shia male may contract a muta marriage with a woman
professing the Mohammedan, Christian or Jewish religion or even with a woman
who is a fire-worshipper (e.g.. – Zoroastrian) , but not with a woman following
any other religion and is into Idol worship.
 The term ‘muta’ implies ‘enjoyment’ or ‘use’. Muta Marriage is a marriage for
temporary but a fixed period after specifying dower(amount to be paid).
 Muta Marriage is a kind of temporary marriage for a fixed period i.e., for a day,
few days, few weeks, few months or years.
 A Shia woman cannot contract Muta Marriage.
 The period of marriage is fixed by entering into an agreement between the parties
on payment of some consideration.
 Essentials of Muta Marriage : A muta marriage to be valid, the following
conditions are to be satisfied:

i) The period of cohabitation should be fixed.

ii) The amount of dower should be fixed. Half of the amount would be paid if the
marriage is not consummated.

 The Muta marriage comes to an end on the expiry of the stipulated period. There
is no divorce in respect of a muta marriage. Even before the expiry of the term the
Husband may put an end to the marriage by making a gift of remaining term to her
and paying the full amount of dower. Children born during muta marriage are
legitimate and are entitled to inherit property from both the parents.
 When a Muslim marriage is dissolved by death or divorce, the woman is required
to remain in seclusion for a specified period. During this period, she is prohibited
to remarry. This period is called “Idda” or “Iddat”.

 Iddat is the period during which it is incumbent upon a woman whose marriage
has been dissolved by divorce or death, to remain in seclusion and to abstain from
marrying another man.

 In the words of Justice Mahmood, ‘Iddat is the term by the completion of which a
new marriage is rendered lawful.’ Iddat is a period during which a woman is
prohibited from marrying again after the dissolution of her first marriage i.e., the
period of waiting or the period during which the previous existing marriage is
considered to be undissolved for certain purpose notwithstanding that the husband
had died or if alive had pronounced a divorce.

 Muslim Law lays down that one should not marry a woman, who is undergoing
 During the period of Idda, her husband also cannot remarry. After the completion
of idda, the women can lawfully remarry. This prohibition is imposed with a view
to ascertain the pregnancy of the woman so as to avoid confusion of paternity.

 Ameer Ali defines, “Idda” is an interval, which the woman is bound to observe
between the termination, by death or divorce of one matrimonial alliance and
commencement of another.”

 Duration or Period of Idda :- Different periods of ‘idda’ are provided depending

upon the manner in which the marriage is dissolved as detailed below:

i) Iddat of widowhood : When a person dies living a widow, she is prohibited from
marrying before the expiration of 4 months and 10 days.

ii) Iddat of pregnant woman: If the widow is pregnant at the death of her husband,
the Iddat will not terminate until delivery of miscarriage. If delivery or its
iii) Iddat of Talaq : The period of Iddat in case of Talaq is three courses, if the woman
is subject to menstruation, otherwise three lunar months. If the woman is pregnant at
the time of divorce, the Iddat will not terminate till delivery.

iv) Iddat when marriage is irregular : If the marriage is irregular and parties have
separated before actual consummation, there is no Iddat. If the consummation has
taken place the wife is bound to observe Iddat.

v) If the marriage is not consummated, iddat has to be observed in the case of death,
but not in the case of divorce.

vi) The period of iddat begins from the date of the divorce or death of the husband and
not from the date on which the woman gets the information of the divorce or of the
death of the husband.
 The iddat due to the death of husband commences from the date of death. If the
information of death does not reach the wife until after the expiration of the period
of iddat she is not bound to observe iddat.

 When a husband divorces his wife, the iddat period starts from the date of divorce.
When the husband dies in the period of iddat for a revocable divorce, the wife
must observe fresh iddat for death.

 Effects of Iddat Period :

i) During the period of iddat, Muslim woman is not entitled to marry any other
person.

ii) During the Iddat period, the wife is entitled to maintenance.

iii) The wife is entitled to Deferred Dower

iv) During the Iddat period, if any one of the parties to the marriage, dies, the other is
 entitled to inherit from him or her in his or her capacity of wife or husband
respectively as the case may be.

v) If the husband has four wives including the divorced one, he cannot marry a fifth
one, until the completion of iddat of the divorced wife.

vi) Where the Husband pronounces talaq three times during death – illness and dies
before the completion of wife’s iddat, the wife is entitled to inherit from him even
if the divorce has become irrevocable prior to his death.

 A marriage performed during the period of Idda is not void, but irregular. But,
under the Shia Law, it is void. During Idda, the woman is entitled to maintenance.
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