Huzaifa Muqadam

Denning Law School

CONTRACT OF MARRIAGE

In Islam, marriage is a contract which is concluded when an offer (ijab) is made by one party and accepted
(qubul) by another.

There is no need for any particular word or form so long as the intention to conclude a contract of marriage
is clear.

The offer and acceptance has to be done at the same time in the same meeting (majlis), but not necessarily
in the presence of each other.

Capacity to Contract:

The parties involved must have the capacity to enter into a contract of marriage.

In the Hanafi school of thought, any sane adult, whether male or female has the capacity to conclude their
own contract of marriage. Adulthood is attained at the onset of physical puberty. There is an irrebuttable
presumption that no female below 9 years and no male below the age of 12 has attained puberty. Moreover,
there is an irrebuttable presumption that both boys and girls attain puberty by the age of 15.

The Hanafi woman does not have an absolute right to contract her own marriage. If a Hanafi woman
contracted her marriage at a lower dower than the proper dower, her guardian can demand a proper dower
to be paid. Moreover, the guardian can dissolve the marriage if she has married a man who is not her equal
(kafa’ah). Equality is determined by lineage, piety, wealth and occupation. The right of the guardian to
dissolve the marriage will, however, lapse if the woman becomes pregnant.

Even though the consent of the guardian is not essential, it is still usually obtained. Moreover, the common
practice is that the guardian concludes the contract on her behalf i.e. the guardian signs in a representative
capacity.

If the woman is not previously married i.e. it will be her first marriage, then consent may be implied. Silence
of the woman can amount to acceptance / consent by conduct. Even weeping when asked about marriage
will amount to consent as the crying will be considered a sign that the woman is upset about leaving her
parents.

For Ithna Ashari, the age rules are the same as the Hanafis. Moreover, the woman’s express consent is
mandatory.

In the Maliki, Hanbali, and Shafi’i schools of thought, a woman can never conclude her own marriage
contract. The woman’s guardian must always act on her behalf.

In the Maliki school of thought, there is a strict order of succession of the guardian. The guardian must be
the father, paternal grandfather, or the nearest male kinsman. If she has a son, then he will precede the ranks
of the guardians.

In the Hanbali school of thought, the woman’s son cannot be her guardian.
Huzaifa Muqadam
Denning Law School
Islamic Law

In both schools of thought (Maliki and Hanbali), the guardian appoints his successor and the consent will
be mandatory.

In all three schools of thought, the father or paternal grandfather has the right of Ijbar.

Ijbar is the right to contract a woman’s marriage without her consent and / or even against her express
wishes, but only if the woman has not been married before. The Ijbar has been removed by modern reforms
in many Muslim countries.

In Pakistan, the Ijbar was removed by the courts in the case of Asma Jehangir v. The State. Saima Waheed
had contracted her own marriage without her father’s consent. The court’s rejected the father’s application
by stating that an adult Muslim woman does not need the consent of her Wali to contract her own marriage.

Morocco is the latest country to remove Ijbar.

Child Marriage:

There is no minimum age for marriage in traditional Islamic law. Guardians may contract their infant sons
and daughters in marriage without their consent.

In Hanafi school of thought, a girl who was married during infancy can revoke her marriage upon puberty
provided that it was not her father or grandfather who contracted the marriage. This option is crucial as men
have an unlimited right to divorce i.e. they can opt out of the marriage at any time. If a girl wishes to
repudiate her marriage contracted by her guardian she must approach the Qadhi for a decree. Until the
Qadhi issues the decree, the marriage continues.

Modern laws impose penal sanctions to curb the practice of child marriage. However, the sanctions do not
render the marriage invalid. Example: in Pakistan, Child Marriage Restraint Act, 1929 disallows child
marriage. The original 1929 act defined child as “a boy below the age of 18 and/or a girl below the age of
16”. This has been amended in Sindh in 2013 and entire Pakistan in 2019.

Proof of Marriage:

Traditional law requires the marriage to be done in the presence of two witnesses who have the capacity to
testify in Shariah Court i.e. the witness must be a sane, adult Muslim male with the highest moral probity.

If such direct evidence is not available then the marriage may be proved by indirect evidence i.e. the parties
have lived together for a long time and their families accept them as husband and wife.

Most Muslim countries have legislations that require registration of marriage [example: Pakistan, Egypt,
Tunisia, Kuwait, Jordan]. However, a failure to register the marriage will not in itself render the marriage
as invalid as it can still be proved by traditional methods.

The modern times video recordings and DVD of the marriage ceremony will also be accepted as evidence.

Payment of Dower:

Before Islam, certain kinds of marital gifts were prevalent. Moreover, in pre-Islamic Arabia, a marriage
also required the payment of bride price to the father of the woman. The Holy Prophet abolished these
Huzaifa Muqadam
Denning Law School
Islamic Law

practices and introduced the concept of payment of dower and maintenance, both of which to the bride and
not anybody else.

Dower is the right of the woman. It belongs to her and does not need to be shared with anyone. Justice
Mahmood defines dower as “Dower is the sum of money or other property promised by the husband to be
paid or delivered to the wife in consideration of the marriage. Even where no dower is expressly mentioned
at the marriage ceremony, the law confers the right of dower upon the wife.” [Abdul Kadir v. Salima 1886].

According to Hedaya and Fatawa –e – Alamgiri, it is not consideration in the modern sense of the term but
an obligation imposed by law upon the husband as a mark of respect for the wife.

The dower is to be paid even if it is not stipulated in the contract. In such a case, the woman is entitled to a
proper Dower.

A proper dower is calculated by taking into account the dower received by the woman’s sisters and cousins.
Moreover, the woman’s personal attributes like age, education, beauty, virginity and such will also be taken
into account.

The parties can agree between themselves as to the time of the dower payment. The parties can agree that
part of the dower will be paid promptly i.e. prompt dower at the time of the contract. The part that is to be
paid at a later time, may be at the time of separation, is called the deferred dower.

The wife has the right to refuse consummation of marriage until she is paid the first part of the dower. After
consummation, the wife is entitled to the deferred dower. If she is divorced before consummation she will
still be entitled to the first part of the dower.

At any point after the marriage, the husband can increase the dower. The wife can forego the dower partly
or wholly provided that she has attained majority.

In Shahbano v. Iftikhar Muhammad, it was held that in certain cases the remission of dower will be regarded
as being invalid. Example: Where the wife foregoes the dower in order to retain the affection. In such
scenarios, the wife is not a free agent and according to justice and equity she will not be bound by her
promise.

The minimum amount of dower is as follows;

Hanafi - 10 Dirhams
Maliki - 3 Dirhams
Hanbali and Shafi’i - no minimum
Shia - no minimum

However, under Shia school of thought, the dower cannot exceed 500 Dirhams i.e. the dower fixed by the
Prophet for his daughter.

Section 10 Muslim Family Laws Ordinance 1961 provides that where no details about the mode of payment
of the dower are specified in the nikahnama or the marriage contract, the entire amount of the dower shall
be presumed to payable on demand.
Huzaifa Muqadam
Denning Law School
Islamic Law

IMPEDIMENTS TO MARRIAGE

Permanent Impediments to Marriage:

There are certain relations amongst which marriage is not allowed. The Quran in 4:24, and also Sunnah,
states that permanent impediments exist between the relationship of blood, fosterage or affinity.

1. Blood Relations, i.e. the ascendants or descendants. The immediate child of any ascendant or the
descendants of the parents are forbidden for marriage.

2. Foster Relationship, i.e. relationship through milk. Two persons who have the same mother or
foster mother cannot marry each other.

3. Affinity Relationship, i.e. those people who have previously been married to the ascendants or
descendants. Example: Ascendants or Descendants of a former wife.

Temporary Impediments to Marriage:

A man cannot marry:

- An already married woman

Moreover, a Muslim woman can only marry a Muslim man. In non-Hanafi schools of thought, marriage
during Hajj is invalid. In Maliki school of thought, marriage in the state of death sickness is prohibited.

Effects of Impediments:

A permanent impediment renders the marriage void i.e. Batil. Similarly, a temporary impediment which is
not in the hands of the contracting parties will also render the marriage void. For Example: If a woman is
married to another man.

All other impediments render the marriage irregular i.e. Fasid.

A void marriage leads to the commission of Zina. Offspring of such a union are regarded as being
illegitimate and have no rights in succession.

An irregular marriage is one which is temporarily invalid but the parties can make it regular. Sexual
relationship in an irregular marriage does not lead to Zina, and the offspring will be illegitimate. If the
parties of an irregular marriage separate, the woman needs to observe Iddah and the separation will also
raise affinity.

In the Indian sub-continent, marriages between Muslims and Hindus were common. Moguls married Hindu
women and the offsprings from such unions were legitimate.
Huzaifa Muqadam
Denning Law School
Islamic Law

A marriage which would have been void will be considered irregular if the parties acted in good faith.
Huzaifa Muqadam
Denning Law School
Islamic Law

RIGHTS IN A MARRIAGE CONTRACT

Mutual Rights:

The most important mutual right is the legitimacy of the offsprings. Both parties have the right to inherit
from each other’s estate and to sexual intercourse. However, the wife can refuse consummation of marriage
at certain times.

Rights of the Wife – Right to claim maintenance

The wife has the right to maintenance even if she is rich and the husband is poor. Maintenance includes
provisions of accommodation, food, clothing and, depending on her social status, servants. It also includes
the right to a Shariah compliant dwelling.

A Shariah compliant dwelling is one which is structurally safe and in a location which is free from any
other family members including the husband’s co-wives. The only exception are his infant children from
a previous marriage. In Shia schools of thought even the infant children are not allowed.

In Hanafi, Maliki and Hanbali schools of thought, the standard of maintenance will be determined by taking
the average of the husband’s means and the wife’s prior standard of living. In Shafi’i school of thought,
the husband’s means are the only factor under consideration. For Ithna Ashari, the wife’s previous standard
of living is the only factor.

The right to maintenance is not absolute. The wife is only entitled to the maintenance if she is obedient to
the husband. The husband’s right to be obeyed and the wife’s right to maintenance are reciprocal.

Maintenance is payable as soon as the wife submits to the husband’s control. If the marriage was contracted
when underage, the maintenance will be payable when the wife is ready, able, and willing to cohabit with
the husband. If the husband chooses not to take her with him but the wife is willing, then the maintenance
will be payable.

The wife is not entitled to maintenance when she is disobedient unless it is for a lawful purpose.

The right to maintenance terminates upon the husband’s death. The wife is not entitled to maintenance from
the husband’s estate. However, during a revocable divorce, the wife will be entitled to maintenance during
the Iddah.

No maintenance is payable in Misyar Marriages, i.e. a walking marriage where the husband and wife do
not cohabit and the wife continues to live with her parents. The husband visits the wife at mutually agreed
time and children of such a union do not belong to the husband.

Rights of the Husband – Right to Polygyny:

In pre-Islamic Arabia a man could have an unlimited number of wives. Islamic law prohibits having more
than four wives, i.e. a husband cannot have more than one wife at a certain time, according to 4:3.

The Quran verse 4:3 requires a man to deal equitably with all his wives. It further states that if he cannot
do so then he should keep only one wife. The condition of equity means that he should spend an equal
Huzaifa Muqadam
Denning Law School
Islamic Law

amount of time with all the wives. The jurists consider this to be a matter of the husband’s conscience, and
not a precondition for polygyny.

The schools of thought are all in agreement that a man does not require the consent of his wife before
entering into a subsequent marriage.

Restrictions on Polygyny:

1. A man cannot marry more than 4 women at the same time.

2. The Ithna Ashari allow Mutah marriages i.e. a man can have unlimited number of temporary wives.

3. A man is not allowed to marry two sisters or a mother-daughter, blood or foster, at the same time.

4. A man needs to provide a separate dwelling / accommodation to each of his wives. A wife who is not
offered such a dwelling can refuse to cohabit with her husband and will not be regarded as disobedient.

5. A husband is required to give maintenance to each of his wives as per the appropriate standard. For the
Shafi’i this is equal. For Hanafi, Hanbali, and Maliki schools of thought, it is the average of husband’s
and wife’s standard of living. The Shafi’i determine it based on the husband’s means. In Ithna Ashari,
it is the wife’s previous standard of living.

6. The Quranic duty to treat all wives equally means that the husband must divide his time equally. The
jurisprudential texts state that the husband must divide the nights equally between his wives. If he fails
to do so, he should give compensation to the wife he passed over. However, the wife’s right is to
companionship not sexual intercourse.

7. The concept of equal division will be altered when the husband takes a new wife. He can spend three
or seven consecutive nights with the new wife without compensating the existing wives.

8. This obligation of equal time division is as Qasm. This does not exist in Mutah marriage.

Unwilling Co-wives:

The traditional law provides no solution where a woman does not agree to become a co-wife.

In Hanbali school of thought the wife can, at the time of marriage, insert a provision in the contract that the
husband will not take a subsequent wife. This stipulation will then be binding because the Nikkah is a
contract and the Quran requires every person to abide by their contract (verse 5:1). Moreover, polygyny is
a right not an obligation and rights can be limited by way of contracts. However, if the man does take on a
subsequent wife, the subsequent marriage will not be invalid. The wife will only be entitled to seek
dissolution of marriage on the grounds of breach of contract.

In non-Hanbali school of thought, the right of the husband to take subsequent wives is laid down by Allah
and, therefore, cannot be changed at the wishes of the parties. Any provision that restricts subsequent
marriages is thus void. Moreover, a woman cannot seek the dissolution of marriage if her husband takes
on subsequent wives. However, she can seek divorce if the right was delegated to her.
Huzaifa Muqadam
Denning Law School
Islamic Law

In Maliki school of thought, the wife can also get out of a polygynous marriage by petitioning the court on
grounds of dharar [harm / prejudice]. The wife can claim that taking on a subsequent wife made the
husband treat her unequally or caused her physical harm. If the wife is able to prove dharar, there will be
a judicial divorce. If she is unable to prove then there will be judicial khula i.e. the wife will have to forego
the dower.

The fifth-wife:

If a man alrady has four wives, his marriage to a fifth woman will be irregular. The offspring of this
marriage will be legitimate and the sixth wife will not be guilty of Zinah. She will be entitled to dower and
will have to observe Iddah upon separation. However, if the man dies, the fifth wife will not be required
to observe Iddah.

Inheritance in Polygynous Marriage:

A wife is entitled to:

(a) 1/4th share of the husband’s estate if the husband is not survived by a descendant.

(b) 18th share of the husband’s estate if he is survived by descendants.

If a man is survived by multiple wives, the share [1/4th or 1/8th] will be divided equally amongst all wives.
A mutah wife is not entitled to any share in the estate.

Reforms in the law of Polygyny:

Polygyny has been the subject of criticism and many countries have introduced reforms which impose
restrictions on polygynous marriage either in the form of judicial consent or the consent of the first wife.

1. Tunisia:

The Tunisian Law of Personal Status, 1956 clearly states ‘Polygyny is prohibited’. Any man who
marries whilst he is already married will be punished by one year in jail and a fine.

Tunisia is the first and only Muslim country to ban polygyny completely. The law was made relying
on the views of the Egyptian jurists Muhammad Abduh who said that when the Quranic verses 4:3 and
4:129 are read together, it would mean that polygyny is prohibited for all but the Prophet [SAW]. 4:3
allows polygyny but 4:129 states that no matter how hard a man strives he will not be able to deal
equitably with all his wives.

When this law was enacted in 1956, a Memorandum was attached to explain this justification and the
then Tunisian President stated that the law does not violate Shariah. When the Memorandum came into
effect there was doubt about whether a polygynous marriage was valid despite penal sanctions. These
doubts were cleared in 1964 when the law declared that any subsequent marriage will be void.

This is a classic example of modern day Ijtihad.

2. Syria and the Middle East

Syria is the first country that restricted the husband’s right to polygyny. The law of Personal Status
1953 states that for a second or subsequent marriage, a man will need the consent of the court. A judge
will refuse consent unless he is satisfied that he has lawful justification and the man is capable of
maintaining multiple wives.

Most Middle East countries have followed the example of Syria. The law emphasizes the man’s
financial ability to deal with several wives as a prime consideration.

Article 8 – Algerian Family Law [amended in 2005] requires that the husband must prove his ability to
treat his co-wives equally and to provide necessities for married life. He must have sound reasons for
wanting a subsequent wife and must show that he has informed his existing wife[ves] and the potential
wife of his legal marital status. If a man does not comply with the latter then the existing wives may
seek a judicial divorce or if the husband tries to deceive them by other means.

In 2004, Morocco decided that the courts will only give permission if it is satisfied that the husband is
capable of treating all the co-wives equally and that he guarantees an equal standard of living for all
the children of all the wives.

Since 1985, in Egypt, a man must disclose the name and address of his existing wife to the court. The
court will inform the existing wife of the polygynous marriage and she will have a right to claim a
judicial divorce within one year of finding out.

Since 1959, in Iraq, a husband must also prove that there is some lawful benefit from the second
marriage.

The Middle-Eastern countries have adopted the Hanbali law regarding the insertions of stipulations in
the marriage contract. The courts permission for second marriage is an implied term of the marriage
contract.

3. Pakistan and Bangladesh

Section 6 MFLO 1961 states that a man wishing to enter into a polygynous marriage must obtain the
permission of the local union council. When making an application, the man must state the reason for
marriage a second time and whether his existing wife has given her consent or not. The chairman of
the union council will require the husband and each of his existing wives to appoint a representative.
The representatives and the chairman form an arbitration council. The arbitration council will look into
the grounds for the subsequent marriage and on the basis of these permission may be granted.

The grounds for permission of subsequent marriage are recognized in MFLO as: sickness, infertility,
and unfitness for marital relations with the existing wife. The decision of the arbitration council can be
appealed against by a review request by either party.

A polygynous marriage will not be void per se but will lead to conviction, to imprisonment or fine.

If a husband marries without permission, the existing wife can seek dissolution of the marriage under
Section 14 of MFLO. Furthermore, the wife can also demand that the husband pay the remaining dower
immediately upon the subsequent marriage. Failure to pay will allow the wife to enforce dower through
land revenue. The divisional officer will recover the dower from the reluctant husband.
Huzaifa Muqadam
Denning Law School
Islamic Law

In Yasmin Sultana v. M. Elyas 1997, Justice Rabbani of Bangladesh stated that the correct approach
towards polygynous marriage is the one adopted by Tunisia.

4. India

In India, a man does not need to obtain the court’s permission to enter into a subsequent marriage. A
woman can, however, enter stipulations in the contract to restrict her husband from taking on another
wife. Moreover, a woman can also seek dissolution of marriage if the husband fails to treat her equally.
The failure amounts to cruelty under the Dissolution of Muslim Marriage Act, 1939.

In Itwari v. Asghari, Justice Dhavan stated that India tolerates but does not encourage polygyny. He
said that a second marriage may have an impact on the mental and physical health of the first wife and
thus, by entering into a subsequent marriage, a husband is endangering a wife’s health which falls
within the English law definition of cruelty, i.e. causing physical or mental suffering [injury or harm].

Moreover, the Indian Government discourages polygyny by not allowing male civil servants to enter
into a second marriage without the Government’s permission. Similarly, a female employee cannot be
a second wife without the government’s consent. Failure to observe these conditions will result in
disciplinary actions against the offender.
Huzaifa Muqadam
Denning Law School
Islamic Law

VALID & VOID STIPULATIONS

Mutah Marriage:

The word Mutah means enjoyment. According to Heffening, Mutah, in its legal context, may be regarded
as a marriage for pleasure. It is a marriage for a fixed period for a certain reward paid to the woman.

Mutah was fairly common in Arabia before and during the time of the Prophet. All schools of thought agree
that initially the Holy Prophet tolerated such marriages for some time. All schools, except the Ithna Ashari,
agree that the Holy Prophet declared such unions to be unlawful. Mutah was justified as being useful during
times of war and travel. However, the second Caliph suppressed and ruthlessly condemned it. Even the
Ismailis, Zaidis and Fatimis do not regard Mutah as lawful.

The Mutah period needs to be fixed. If a time is not set out it will be a Mutah life.

Mutah can be contracted with a Muslim, Christian, Jew and even a Majusia, i.e. fire worshippers by a man.
A Shia woman can only Mutah with a Muslim man. There is no limit to the number of Mutah marriages a
man can contract.

Mutah can be terminated before expiry of the period by way of Talaq.

Just like normal marriages, dower is a precondition for a Mutah marriage. The dower needs to be paid upon
the termination of Mutah. The wife will have to observe the Iddah. However, if the marriage was not
consummated then Iddah is not required.

Children born from a Mutah are legitimate and have the right to inherit. However, Mutah partners do not
inherit from each other’s estates unless agreed otherwise. A Mutah wife is also not entitled to maintenance.

Although allowed, Mutah is not very common in the Shia population of the sub-continent. In Iran and Iraq,
Mutah amounts to legalized prostitution.