Essentials of Valid Marriage under Muslim law
Nikah is an Arabic term which is used in Quran and refers to marriage contract. It is a term which is used for validating the union of two Sexes and their relationship. Under Muslim law Marriage is purely a civil contract between husband and wife. After Marriage a women doesn’t lose her individuality and her rights over her property and its alienation. She has her own individual rights and are not merged with her husband.
Definition of Marriage
In Baillie’s Digest, marriage has been defined to be “a contract for the purpose of legalising sexual intercourse, and procreation of child.”
The prophet of Islam is reported to have said; “ Marriage is my sunna and those who do not follow this way of life are not my followers.”
“There is no monkery in Islam.”
Justice Mahmood in Abdul kadir V. Salima said, “ Marriage among Mohammedan is not a sacrament, but purely a civil Contract.”
ALSO READ: Kinds of marriages (Nikah) under Muslim law
Essentials of Valid Marriage
There are various ceremonial rites which are performed in a marriage and before marriage however they are not essential for a valid marriage and not ley necessary. The essentials of a valid Muslim marriage are:
- Proposal and Acceptance
- Competent parties
- No legal disability.
1.Proposal and Acceptance
Just like any other contract marriage also consists of a proposal, i.e. ijab and its acceptance, i.e. qabool. In a muslim marriage both the parties of marriage (the girl and the boy) shall agree and give their consent to get married. The acceptance of the proposal must be done in front of two male or one male and two female witnesses who are sane and adult and muslim. It is essential that the proposal and acceptance both must be done at the same meeting.
It is necessary that the consent provided for the marriage is free consent and not under any kind of influence or fear or with any condition. That will make the marriage invalid.
In Rashida Khatoon v. S.k. Islam(2) A man promised a lady to marry her and cohabited with her. After some time a child was born and the women claimed the status of wife. In this case court observed that a valid muslim marriage requires the proposal of a party and acceptance of the other in front of two male or one male and two female witnesses and the Qaji. And both the proposal and acceptance of it shall be done in one meeting. In the present case there was no marriage thus the women does not constitute the status of validly married women.
2. Competent parties
A competent party to a contract is
- An adult
- Free consent
If the parties to the marriage are adult which means has attained the puberty are sane not idiot or lunatic and give their consent freely to the marriage the marriage would be held valid.
Puberty means the age at which a persons becomes capable of performing sexual intercourse and procreating children. Among muslims the age of puberty was presumed to be 12 for boys and 9 for girls which is now substituted by Child Marriage Restraint act 1978 and made provision that the marriage of boy below the age of 21 and a girl below the age of 18 would be child marriage and people responsible for this are subject to punishment.
It means the existence of certain circumstances under which a marriage will not be permitted. These prohibitions are divided as follows;
- a. Absolute incapacity
- b. Relative incapacity
- c. Prohibitory incapacity
- d. Directory incapacity
A. Absolute incapacity
Absolute incapacity to marriage arises from
- Consanguinity (Qurbat)– Consanguinity means blood relationship like mother, grandmother, daughter, sister
- Affinity(Mushaarat)– A man is prohibited from marrying his wife’s mother or grand mother, his wife’s daughter and grand daughter, wife of his father or grand father and wife of his son or son’s son.
- Fosterage(Riza)- A child under the age of two years suckled by a women other than his mother becomes her foster child and he as a man can not marry his foster mother, sister etc.
B. Relative incapacity
It is the prohibition which bars the marriage only for the duration it exists and as soon as the causes of this prohibition are removed the marriage becomes valid.
The following are the cases of relative incapacity;
- Unlawful conjunction
- Marrying a fifth wife
- Absence of proper witnesses
- Differences of religion
- Woman undergoing iddat
C. Prohibitive incapacity
It arises in following cases:
- Polyandry (a women has more than one husband)
- Muslim women marrying a non muslim.
D. Directory incapacity
It arises from
- Marrying a women ‘enciente’ i.e, pregnant.
- Prohibition of divorce
- Marriage during pilgrimage
- Marriage with a sickman.
Thus under muslim law a marriage is just like a contract which validates the sexual intercourse between two adults who are sane, are of marriageable age, and is valid only when it is performed in the presence of witnesses by Ijab-o-qabool and with free consent and should defeat all the legal disabilities.
Reference- Mohammedan Law by Aqil Ahmad 26th edition.
Case law- 1.(1886) 8 All. 149 at 154
2.AIR 2005 ori.57
Author: Saumya Shukla,
Final year CMP degree college Prayagraj