Difference between Sunni and Shia Law of Marriage

Difference between Sunni and Shia Law of Marriage

Introduction

Marriage which is known as nikah in Islam is the different types of sex relationship between a man and a woman based on certain terms. During pre- Islamic era, women were treated as animals, and were not provided with the right to inheritance and were made completely dependent. Prophet Mohammad brought a complete change in the status of women. He improved their position in the society and gave them unique legal status. He placed women on almost equal status with men in exercising all the legal powers and functions. The marriage is considered as a civil contract in Islamic law. A woman does not lose her identity after marriage and remains a distinct member of the society. She doesn’t have her existence known by her husband’s personality. There is no power given to anyone under the contract of marriage on her person and property. She has a right to alienate or transfer her property to anyone and also can come into a binding contract with her husband and sue him in a Court of law. She enjoys her position through the injunctions of Quran.

How Nikah is defined?

Nikah is Arabic word which means union of the sexes and in law it means ‘marriage’. Baillie’s Digest defined marriage as, “a contract for the purpose of legalising sexual intercourse, and procreation of children.”

In Hedaya, Nikah has been defined as, “Nikah in its primitive sense is a carnal conjunction. Some have said that it signifies conjunction generally. In the language of law it implies a particular contract used for the purpose of legalising generation.”

The Prophet Mohammad is believed to have said- “Marriage is my Sunna and those who do not follow this way of life are not my followers.”

Justice Mahmood defined Nikah as, “Marriage among Muslims is not a sacrament, but purely a civil contract.”

Thus a Muslim marriage is a contract for legalising sexual intercourse and procreation of children.

Object of Nikah

There are five objects of marriage-

  1. To control sexual passion;
  2. To begin a domestic life;
  3. Increase the family;
  4. To create sense of care and responsibility towards wife and children;
  5. Good upbringing of children.

Who are Sunnis and Shias?

After the death of the Prophet, there was a conflict between his followers regarding his successor. One group believed that the Caliph who would be elected by the people must succeed the Prophet and the other group believed that Ali, his son in law should be the successor as he had blood relation with the Prophet. In this way Islam was divided into two groups of people who follow different traditions, first one is Sunni who follows Quran and fatwas which were issued by the Caliph and other one is Shia who followed Ali and the lineage of the Prophet Mohammad. Their ultimate and same source of law is the Holy Quran but these two groups are different in many ways, such as time of prayers, time of opening the fasts during Ramadan and also how they marry or what traditions and rules they follow during marriage. Both the sects though seem to be similar by the non Muslims but they are different in terms of their customs and wedding ceremonies. Because they have so much differences in their traditions, there remains a very less chance of intersect marriages.

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Difference between Sunni Marriages and Shia Marriages

The difference between the marriages of both the sects can be divided on the basis of certain points which are discussed in detail below-

On the basis of essentials- Sunnis require two witnesses in order to mark their marriage a valid one. Those two witnesses must be majors, sane and sound at the time they witness the Nikah, on the other hand there is no need of even a single witness in a Shia marriage. Just the husband and wife should be present at the time of Nikah, and they need witnesses at the time of Talaq (Divorce).

On the basis of Tradition- In a Shia wedding, the six verses of Quran are required to be delivered in public but there is no such tradition in a Sunni wedding. Also there is a bath ceremony in Shia wedding in which the bride and groom have to take part but this ceremony takes place before the day of wedding in Sunnis. Sunni wedding ceremony does not take much time to complete but a Shia wedding ceremony is quite longer and takes time.

On the basis of types- Sunnis have three types of marriages- valid, void and irregular, however in Shias, there is also a fourth type of marriage which is known as ‘ Muta Marriage’. To understand what these types of marriages are, they should be discussed in details-

1. Valid (Sahih) Marriage

Marriage which doesn’t fall under either void or invalid category is known as a valid marriage. This marriage fulfils all the essential conditions and legal requirements needed for a valid marriage. These requirements are-

  • There must be a proposal (ijab) by one party and acceptance (qubool) by another.
  • There must be a free consent.
  • Both proposal and acceptance must have taken place at one meeting and in the presence of atleast two witnesses who are major and are of sound mind in case of Sunni marriages. The condition of having witnesses is not required in Shia marriages.
  • Both the parties must be capable of entering into a contract- must be adults, sound minded and can give free consent. Even if they are minor or of unsound mind, their guardians can give the consent on the behalf of the parties.
  • The relations should not fall under absolute incapacity i.e., Consanguinity (Qurabat), Affinity (Mushaarat), Fosterage (Riza) and relative incapacity i.e., Unlawful conjunction, polygamy or having a fifth wife, absence of proper witnesses, polyandry and difference of religion.
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What are Absolute incapacity and Relative incapacity?

Absolute incapacity is when there is any illegal element in the marriage and it cannot be removed which makes a marriage void ab initio. This has three sub categories- Consanguinity( Qurabat)- It means a man cannot marry within his blood relations like his mother or grandmother, daughter or granddaughter, sister whether full, consanguine or uterine, niece or great niece, his aunt( father’s sister or mother’s sister) or great aunt, whether paternal or maternal.

Affinity( Mushaarat)- Where a man is barred from marrying his mother in law or grant mother in law, his wife’s daughter or granddaughter, his father’s wife or grandfather’s wife, his daughter in law, granddaughter in law of both son and daughter.

Fosterage (Riza) – When a child is two years old and he is breast fed by a woman other than his mother, that woman is considered as his foster mother. In this case a man cannot marry his foster mother or her daughter or his foster sister. But there is an exception in Sunnis as a man in Sunnis can marry his foster sister’s mother, sister’s foster mother, foster son’s sister and foster brother’s sister. Such exceptions are absent in Shias.

Relative Incapacity means there are some conditions that are making a marriage void or invalid but if they are removed, the marriage can retain its validity. It is also sub categorised as-

Unlawful Conjunction- A man cannot marry two women at a same time when they are related to each other through consanguinity, affinity or fosterage. Therefore a man cannot marry two sisters or an aunt and her niece. He cannot contract a marriage with his wife’s sister until the wife’s dead. He may divorce his wife if he wants to marry her sister or the wife must be dead at that time. In Shias, a man cannot marry his wife’s aunt but he can marry his wife’s niece if she gives her consent for the same.

In the case of Azizunnissa v. Karimunissa, it was held that a man cannot marry his wife’s sister when his wife is undivorced and alive, thus such marriage is null and void.

Polygamy or marrying a fifth wife– A Muslim can marry four times but if he marries for the fifth time, that marriage is irregular and to remove such irregularity, the man must divorce any of his four wives. In Shia law, marriage with a fifth wife is not irregular but void.

Polyandry or more than one husband- A Muslim woman cannot have more than one husband and marriage with a second one when the first husband is alive or not divorced is void and a woman can be liable for bigamy under section 494 of the Indian Penal Code.

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Absence of proper witnesses- In Sunnis, presence of adult and sound minded witnesses are very necessary during wedding ceremony. However, in Shias witnesses are not at all necessary during wedding ceremony. If in Sunni marriage, there were no witnesses, then marriage will be invalid but not void.

Difference of religion- A Sunni man can marry to a Muslim woman of any sect and also a kitabi woman (woman who follows Judaism or Christianity). But he cannot marry an idolatress or a fire worshipper (Hindu, Sikh or one who follows Zoroastrianism). Such marriage is irregular in Sunnis but void in Shias. A Muslim woman cannot marry a man who is out of her religion, it does not matter whether he is a kitabi or not. Such marriages are considered irregular by Mullah but void by Fyzee.

2. Void (Batil) marriage

A marriage which is not legal is a void marriage. In Sunnis marriage suffering absolute incapacity or marriage with a wife of some other man or remarriage with a divorced wife is void. These grounds and in addition to them, some more grounds make a marriage void in Shias like marriage during pilgrimage, marrying a fifth wife, marrying a woman who is in iddat, etc.

3. Irregular (Fasid) marriage

Sunnis have irregular marriages which may derive from relative incapacity and can be made valid if such incapacities can be removed. But in Shias there are no irregular marriages, they can be either valid or void and what is irregular in Sunnis is void in Shias.

4. Muta or Temporary marriage

It is a concept in Shia laws and not in Sunni laws. It is practice mainly done in Arabic countries like Saudi Arabia, UAE, Syria, Lebanon, Morocco and Persia where Sheikhs live in majority. They used to travel for trade and wherever they go, they marry a woman there for a temporary basis. Such marriages are known as Muta marriage and they are only for a certain time period pre decided by both the parties and after the completion of that period, the marriage finishes and the woman gets his mahr or dower and children born out of such marriages are legitimate and belongs to the mother and can inherit the properties of both the parents.

Conclusion

Sunnis and Shias are two main sects of Islam religion and they made up as a foundation of the religion. Though Sunnis are 85% and Shias only 16% still both hold great importance in Islam. Their traditions and culture may distinguish in many ways but they both follow the Holy Quran and Sunna of the Prophet Mohammad. Thus yet different still they hold importance for the religion and their customs let the essence of Islam alive.

Author: Samiksha Mehta,
Invertis University/ Student ( LL.B 3rd year

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