Muslims are divided into two sects due to Political Division – Sunni and Shia. Both Sects follow Shariat law, commonly referred to as Muslim Personal Law, which controls the spiritual, mental and physical behavior of Muslims. Under Muslim law, Marriage (also known as Nikah) is considered a Civil Contract between two individuals. There are no religious ceremonies in Muslims that are a must for the per se validity of a Muslim Marriage. Therefore, the union is not a sacrament, but rather a pure civil contract. In application of law of marriage, there is a minute difference between Sunnis and Shias. There are different kinds of marriages under Muslim law. To understand, we must discuss further thoroughly.
Classification of Kinds of Marriage under Muslim Law
Sahih Nikah – Valid Marriage under Muslim Law
There are certain essentials based on which two individuals get married under Muslim Law and their marriage is considered Valid or Sahih Nikah when those essentials are fulfilled. The essentials of a valid marriage under Muslim law are discussed below:
- There must be a Proposal from one party, which is termed as Ijab and there must be Acceptance from the other party to whom the proposal is made, which is termed as Qabool. The proposal and acceptance must be done in one meeting only, as no future acceptance will be considered for valid marriage.
- Both the parties must be competent to contract Nikah, which means they should have attained the age of puberty which is 15 years. The age of marriage which is 18 years for girls and 21 years for boys at present does not apply on Muslims.
- Both the parties must give their consent for valid marriage and either party is incapable of giving free consent as regards the age of marriage or of unsoundness of mind, their guardian (Jabr) can give consent to marriage.
- There must be at least two male witnesses or one man and two women at the time of marriage in Sunnis. Whereas No witnesses are required at the time of marriage between Shias. For a Sunni marriage contracted in the absence of witnesses, such a marriage is not void but rather irregular, which can become valid if parties contracting marriage make declaration in presence of competent witnesses.
- There must be consideration known as Mehr for Nikah, given by husband to wife as demonstration of respect that she accepted his proposal of marriage.
- Both the parties must not be allowed to marry each other on account of consanguinity, on account of affinity, or on account of fosterage relation.
Legalization of marriage in Muslim law is done for procreation of children and for having sexual intercourse. It involves simple formalities which ensure financial security and other rights of women in marriage. The right of maintenance in Muslims can be claimed by Wife only if it is a valid marriage, as held in MD ABDUL MANAB V. SAHIDA BIBI, 2019 SCC ONLINE(MANI)91:(2019)200 AIC 807, 2020 I DMC 300.
Void Marriage under Muslim Law
As per Muslim Law, a marriage is Void if a person marries within his or her degrees of prohibited relationship. In other words, they are not allowed to get married in the familial relationships that are traditionally and legally invalid. A Void Marriage is known as Batil. Such relationships are based on three categories:
Relationship by Consanguinity/Related by Blood
It means that individuals are related by full blood or half blood. Full blood means both the parents are common and half-blood means common father but are from different mothers or common mother (uterine) but are from different fathers.
- Under Muslim law, consanguine relations mean blood relations are not allowed to marry each other i.e. lineal ascendent means who comes before you in your family tree, such as parents, grandparents, great grandparents. Lineal descendants mean who comes after you in your family tree. For example – own children, grandchildren.
- A Muslim girl cannot marry her brother, whether related to her through full blood or half-blood. Similarly, a Muslim man cannot marry his full blood sister or half-blood sister.
- A Muslim girl cannot marry her maternal uncle or paternal uncle i.e. father’s brother or mother’s brother or grandfather’s brother or grandmother’s brother. Sinilarly, a Muslim man cannot marry his father’s or mother’s sister or grandfather’s or grandmother’s sister.
Relations by Affinity
It regards a relationship which is not related by blood but has become relations by law as in by marriage.
- A Muslim girl cannot marry her step father, mother’s former husband or step-grandfather. Similarly, a Muslim man cannot marry his father’s wife (not being his mother), grandfather’s wife (not being his grandmother).
- A Muslim girl can cannot marry her father-in-law or grandfather-in law, and a Muslim man can not marry his mother-in-law or grandmother-in- law.
- A Muslim girl cannot marry her daughter’s husband or granddaughter’s husband i.e. son-in-law. And a Muslim man cannot marry his son’s or grandson’s wife i.e. daughter-in-law.
Relations by Fosterage
When a woman other than the mother of a child breastfeeds a child under the age of two. The woman who breastfeeds the child becomes the child’s foster mother. A Muslim man cannot marry a foster mother or even the foster mother’s daughter.
Marriages under these degrees are absolutely invalid i.e. void-ab-initio. It may be noted that under Muslim law, children of brothers and sisters, i.e., cousins can marry each other and such marriage is valid. For example, a Muslim man can marry daughter of his maternal or paternal aunt, or daughter of mother’s brother or father’s brother. The same is applies to a Muslim woman.
Irregular Marriage Under Muslim Law
What we have seen so far is that a valid marriage is accepted in law, and void marriage has no value. However, there is a third kind of marriage in Muslim law which is unacceptable at the beginning, but becomes legal at a certain point. Such type of Muslim marriage is called as Irregular Marriage or Fasid Nikah. There is a certain irregularity in such marriages, whose removal leads to a valid marriage. It may be noted that the Shias do not recognize this concept of irregular marriage, while the concept prevails among Sunnis.
For example, maximum four marriages are allowed for Muslim men, but if a person contracts the 5th marriage, irrespective of the fact that his all four marriages are subsisting, then, his 5th marriage becomes irregular and the irregularity can be removed if any of the previous four marriages comes to an end, either by death or dissolution of marriage. In Shias, it’s considered a void marriage
Requirements of Witnesses for Muslim Marriage
A marriage when contracted in the absence of witnesses is considered irregular marriage but can be regularized by an acknowledgement later in presence of persons who can be competent witness i.e. two adult male or one adult male and two females of sound mind. Speaking of Shias, they do not require witnesses at the time of marriage.
Can a Muslim man only marry a Muslim Women?
When a Muslim male marries a non-Muslim female who is a Christian or a Jewish by faith, then the marriage is perfectly valid. But, if a Muslim male marries a Hindu or Parsi woman, then the marriage is irregular under Sunni but void under Shia law. And the marriage between a Hindu woman and Muslim man can become valid only if a woman converts herself to Muslim faith. A Muslim girl cannot marry a non-Muslim male as it’s against under Muslim law, though the inter-faith marriages are perfectly valid and can be done under Special Marriage Act 1954.
Observing Iddat is necessary for remarriage of a woman?
Iddat period refers to the period for a woman when her marriage comes to and end either due to death of her husband or by divorce. A Muslim woman can remarry after observing Iddat i.e. waiting time for a Muslim woman i.e. 3 lunar months (one lunar month comprise of 29 days) if the marriage is ended because of divorce and 4 months 10 days when the marriage is ended because of the death of the husband. If the marriage is not consummated and dissolved by divorce, then there is no requirement to observe Iddat for a woman and she can remarry immediately. But if the marriage is consummated, it is mandatory for her to observe Iddat. In case of death of the husband whether the marriage is consummated or not the observance of Iddat is mandatory. Under Shia law, if a man marries a woman undergoing Iddat period, the marriage is void. Whereas under Sunni law, the marriage becomes irregular between a Muslim man and woman undergoing Iddat, and can become completely valid on expiration of Iddat period. The observance of Iddat period starts from the date of death of husband or from the date of divorce, as the case may be.
Can a Muslim man marry two sisters?
A Muslim man cannot marry two sisters at the same time, women who are related by blood, because if one of them is man they wouldn’t have been able to marry each other because they are related by blood or consanguinity often known as unlawful conjunction. Howsoever, the marriage is irregular and can be regularized if one of the two wives either dies or takes divorce from the husband. In TABJI ABDALAL DESAI V. MOWLAKHAN ALIKHAN DESAI, 39 IC 1917 the Bombay High Court held that a marriage of Sunni Muslim with his wife’s sister is irregular and not void.
Temporary Marriage or Muta Marriage
Muta marriages are temporary marriages contracted for mere pleasure by a Muslim man for a fixed period of time which may last for an hour to a day or a month or even years. Muta Marriages are recognized by Shia Muslims, while Sunni Muslims do not approve of this practice of Temporary Marriage as prophet has banned this practice.
Is Dower essential for Muta Marriage?
The main essential for Muta marriage is consideration, that is Dower (Mehr). Without Mehr a Muslim man cannot contract Muta marriage. If the marriage is consummated then the woman is eligible for full dower and if the marriage is not completed then she is eligible for half dower.
Can Muta Marriage be dissolved by Divorce?
In general, Muslim man can contract only 4 marriages whereas there’s no fixed number given for a man to contract Muta marriage under Muslim law. A temporary marriage can be contracted with Muslim, Christian or even a fire worshiper woman. As the time period is fixed, therefore, there is no provision for divorce and the marriage ends on completion of the time stipulated for Muta Marriage. The time so fixed can be extended by mutual consent of both the individuals. If a man wants to end the marriage before time fixed, he can compensate his wife with money for the time she couldn’t enjoy his company, and if a woman wants to end the marriage, she has to compensate the man by abandoning part of her Mehr amount. If a man dies during the Muta Marriage his wife is not eligible to acquire his property.
Legitimacy of Children under Muta Marriage
The children born from Muta Marriages are legitimate and can acquire property of both the parents. In SADIK HUSSAIN V. HASHIM ALI KHAN (1916) ILR ALL 627 the Allahabad High Court held that children born from the wedlock of Muta Marriage are legitimate children.
