Table of Contents
In Muslim communities certain social functions and ceremonial rites are performed at the time of marriage, such functions or rites are not legally necessary. The solemnization of marriage requires adherence to certain forms in formulas. If any of these requirements is not fulfilled the marriage becomes either void or regular, as the case may be. Some of the important essentials are as follows-:
- Proposal and acceptance
- Free will and consent
- Competent parties
- No legal disability
Proposal And Acceptance
Marriage like any other contract is constituted by Ijab-O-Qabul, that is by declaration and acceptance. One party to the marriage must make an offer (Ijab) to the other party. Marriage becomes complete only when the other party has accepted (Qabul) that offer. According to Muslim marriage it is absolutely necessary that a man or someone on his behalf and the woman or someone on her behalf should agree to the marriage at one meeting and agreement should be witnessed by to two aldut and sane witnesses.
In the case of Mst. Ghulam Kibriya vs Mohammad Shafi, AIR 1940, it was observed by the court that ” as the woman is in Purdah, it is customary to send a relation of the woman to her inside the house accompanied by two witnesses. The relation asks the girl within the hearing of the two witnesses whether she authorises her to agree to the marriage on her behalf for the dower money offered by the husband. When the girl says Yes or signifies her consent by some other method, the three people come out. The future husband and those three people are then placed before the Qazi. The Qazi asks the boy whether he offers to marry the girl on payment of the specified dower. He says Yes, then the relation who had gone inside, consents on behalf of the girl. The witnesses are present there so if the Qazi has any doubts he can question them. When both sides have said ‘Yes’, Qazi then reads some portion of the Quran and in this way marriage is completed.”
In another case of Rashida Khatoon vs S.K. Islam, AIR 2005, the question before the court was whether marriage conditioned on future marriage is a valid marriage in Muslim Law?
The facts of the case were, a Man assured a lady to marry her and started to cohabit with her. After sometime a child was born to the couples. Later the girl claimed the status of the wife.
The Odisha High Court cited the paragraph of Mulla’s Book ” It is essential to the validity of marriage that there should be a proposal made by or on behalf of one of the parties to the marriage, and acceptance of the proposal by or on behalf of the other in the presence and hearing of two male or one male and two female witnesses, who you must be sane and adult Muslims. The proposal and acceptance must be both expressed at one meeting; a proposal made at one meeting and an acceptance made at another meeting does not constitute a valid marriage. Neither writing nor any religious ceremony is essential. “
The court held that in the instant case there was no acceptance of the offer to marry, but there was only an assurance to marry in future and therefore, mere cohabitation with such an assurance does not constitute the factum of marriage to give the status of a validly married woman.
Similarly in the case of Mst. Zainaba vs Abdul Rehman, AIR 1945, the court held that ” There is no particular form in which the proposal and acceptance should be made. The offer (Ijab) and acceptance (Qabul) may be either oral or in writing. Where the words of offer are laid down in a written document, such a document is called Kabin-Nama which is an important documentary evidence of marriage. The words must indicate with reasonable certainty that a marriage has been contracted. There must be no ambiguity, no questions of intention to marry at some future time. It is necessary that the words of proposal and acceptance should be such as to show intention to establish the conjugal relation from the moment of acceptance.”
Free will and consent
Another important essential is that parties contracting a marriage must be acting under their free will and consent. The consent should be without any fear or undue influence or fraud. In the case of a boy or a girl who has not attained the age of puberty, the marriage is not valid unless the legal Guardian consented to it. The consent may be expressed or implied; smiling or laughter or remaining silent may be construed to imply consent. Free consent in the case of an adult person is not only an essential factor for a valid marriage, but is also necessary and the father’s consent is no substitute for the girl’s consent.
In the case of Sayad Mohiuddin vs Khatijabai, where marriage of a Shafei Girl, who had attained puberty was performed by her father against her consent, the court held that marriage was void.
Similarly in the case of Sheikh Abdullah versus Dr Hussaina Praveen, Nagpur bench of Bombay High Court had reiterated that
“Muslims in India are governed by the personal laws under which Nikah (marriage) is a civil contract and may be permanent or temporary. Therefore, all the ingredients of a valid contract must be satisfied. A woman who has attained the age of puberty must be of sound mind and competent to enter into a contract of marriage. Free consent should be given by both the contracting parties. A Vakil is required to be voluntarily appointed. A proposal must be made in presence and hearing of two male or one male and two female witnesses, all adult and sane muslims coupled with the payment of prompt dower. But there appears no such evidence in the present case to prove the marriage as valid.”
Consent under compulsion
According to the Hanafi law, contracts of marriage under compulsion or the offer and acceptance even if pronounced without any intention to affect a marriage, are valid. This peculiar rule is based upon the following tradition ” Apostle Of God said: there are three things which whether done in joke or earnest, shall be considered as serious and effectual: one marriage, second divorce, and third the taking back”.
However the other three schools of Sunni law and Shia schools hold the contrary opinion. According to these schools, marriage under compulsion is not valid.
For a marriage to be valid, the parties must be competent to give their consent without any fear or undue influence. There are many factors which determine the competency of the parties to the marriage. Some of them are as follows:
Age Of Marriage
The parties to a marriage must have the capacity of entering into a contract, In other words, they must be competent to marry, Muslim who is of sound mind and who has attained puberty may enter into a contract of marriage. The parties must be able to understand the nature of their act. A marriage contracted by a majnoon (lunatic) is void except when it is contracted in lucid intervals. However, lunatics can be contracted in marriage by their respective guardians.
Another important factor to determine whether the parties are competent is puberty. Puberty means the age at which a person becomes capable of performing sexual intercourse and procreating children. Puberty and majority are in the Muslim law one and the same. The presumption is that a person attains majority at the age of 15 but the Hedaya lays down that the earliest period for a boy is 12 years and a girl 9 years. Majority is presumed among the Hanafis on the completion of the fifteen years, in the case of both males and females,, unless there is any evidence to show that puberty was attained earlier. In the case of a Shia female, the age of puberty begins with menstruation. It has been held by the Privy Council in Sadiq Ali Khan vs Jai Kishori, that the age of majority in the case of a Shia girl is attained at the age of nine years Muslim law.
Minor’s Marriage and Guardianship
It should also be noted that marriage of minors without the consent of a Guardian is invalid unless it is ratified after the attainment of majority. A boy or a girl who has attained puberty is at liberty to marry any one he or she likes and the Guardian has no right to interfere. The right to contract to give a minor in marriage under Sunni law belongs successively to the following people:
- Paternal grandfather how high soever,
- Brother and other male relation on father’s side enumerated in the table of residuaries,
- The mother,
- The maternal uncle aur aunt and the other maternal relations without the prohibited degrees,
- Lastly, the state.
In the case of Abdul Ahad vs Shah Begum, Jammu and Kashmir High Court held that marriage of a minor girl even contacted by a Wali is invited ab initio.
Facts of the case
A Minor girl, aged 14 years was married to a man who was a major. The husband lived in the house of his wife for some time and when he tried to carry his wife with him, the parents refused to send the wife. The husband therefore instituted a suit for restitution of conjugal rights against the defendant.
The high court in the case, came to a conclusion that at the time of marriage the girl was a minor and the marriage was contacted during her minority by a person who was not competent to give her in marriage. He was simply a Wali (not a guardian) and had not shown at any point of time that he had the authority of law to give minor girl in marriage. The court further observed that in no such circumstances there was given a reputation needed by the minor girl to enable the marriage because the marriage in itself had been invalid ab initio,
However under Shia Law, only the father and the paternal grandfather how highsoever are recognised as guardians for contracting the marriage of minors.
Option Of Puberty ( Khayr-ul- bulguh)
In certain circumstances, a minor girl contracted in marriage by the guardian, has the right of repudiating or ratifying the marriage contract on attaining puberty. This right of the minor is known as “khayr-ul-bulguh”. Thus, option of puberty is a right of a minor boy or girl whose marriage has been contacted through a Guardian, to repudiate or confirm the marriage on attaining puberty. Similarly, a male also had the same right of option of puberty. The option can be ratified on attaining puberty by-
- Express declaration
- Payment of Dower
If an option of repetition is made the marriage ceases to be a marriage and consequently it is treated as having never taken place.
Time of option by female
In case a girl is aware of the marriage she must exercise this right to the option immediately on attaining puberty. Any unreasonable delay would deprive her right of option. But if she does not know that she has this right, it is prolonged until she is acquainted with the fact that she has such a right.
In Fatawa-i-Alamgiri, it is laid down: “When a woman attains puberty and enquires the name of her husband or the amount of the specified dower, or salutes the witness, the opinion of puberty is extinguished.” The option is also lost if she after having attained puberty permits the marriage to be consummated. But mere consummation is not enough, it must be with the wife’s consent who has the knowledge of her right.
Section 2 (vii) of the dissolution of Muslim Marriage Act, 1939 states that “The girl been given in marriage by her father or or another Garden before she attend the marriage of 15 years can repudiate the marriage before attaining the age of 18 years provided the marriage has not been considered.”
No Legal Disability
Legal disability means the existence of certain circumstances under which marriage is not permitted. These prohibitions have been classified into four classes as follows-:
- Absolute incapacity or prohibition
- Relative incapacity or prohibition
- Prohibitory incapacity or prohibition
- Directory incapacity or prohibition
It arises from Consanguinity, Affinity and Fosterage.
Consanguinity (Qurabat)– Consanguinity means blood relationship and bars a man from marrying:
(i) his mother or grandmother how high soever,
(ii) his daughter or grand-daughter how low soever,
(iii) his sister whether full, consanguine or uterine,
(iv) his niece or great-niece how low soever,
(v) his aunt (father’s sister, mother’s sister) or great aunt, how high soever, whether paternal or maternal.
A marriage with a woman prohibited by reason of consanguinity is void and issues from such marriage are illegitimate.
Affinity (Mushaarat)- A man is prohibited from marrying:
(1) his wife’s mother or grand-mother how high soever;
(2) his wife’s daughter or grand-daughter how low soever
(3) wife of his father or paternal grand-father how high soever;
(4) wife of his son or son’s son or daughter’s son how low soever.
A marriage with a woman prohibited by reason of affinity is void. Marriage with the wife’s daughter or grand-daughter is prohibited only if the marriage with the wife was consummated.
Fosterage (Riza)- When a child under the age of two years has been suckled by a woman other than its own mother, the woman becomes a foster-mother of the child. A man may not marry his hostel mother or her daughter, or his Foster sister. However under Sunni law there are few exceptions to the general rule of the prohibition on the grounds of Fostage and a valid marriage may be contracted with:
1) Sister’s foster-mother
2) Foster- sister’s mother
3) Foster son’s sister
4) Foster bother’s sister
On the other hand Shia jurist place fosterage and consanguinity on the same footing and refused to recognise the exceptions permitted by the Sunnis
Relative incapacity springs from the cases which render the marriage invalid or irregular only so long as the cause which creates the bar exists. The moment it is removed the incapacity ends and the marriage becomes void and binding. Thus, it differs from the case of absolute incapacity where the marriage is void ab intio and can never become valid. The following are the cases of relative incapacity:
- Unlawful Conjunction- It means contemporaneously marrying two women so related to each other by consanguinity, affinity or fosterage, that they could not have lawfully intermarried with each other if they had been of different sexes. Thus a Muslim man cannot marry two sisters, or an aunt and her niece. The reason behind this prohibition is to avoid confusion of kindred or dual relationship. This bar may, however, be removed by divorcing his first wife or when she is dead. Under the Shia law, a Muslim may marry his wife’s aunt, but he cannot marry his wife’s niece without her permission. Marriage prohibited by reason of unlawful conjunction is void under Shia Law, but irregular and void under Sunni Law.
- Polygamy or Marrying a fifth wife- It is unlawful for a Mohammedan to have more than four wives. Marriage with the fifth wife is irregular under Sunni Law, but this irregularity may be removed by divorcing one of them. However, under Shia Law marriage with a fifth wife is completely void.
- Absence Of Proper Witnesses- It is essential among the Sunnis that at least two male witnesses or one male and two female witnesses must be present to testify that the contract of marriage was properly entered into between the parties. Absence would affect its contractual completeness. Such marriages have therefore been held invalid or irregular under Sunni law. In Shia law, a marriage contracted by the spouses themselves or their guardians in private are held valid. Presence of witnesses is not necessary.
- Differences of religion- A sunni male can marry a muslim female (of any sect) or a Kitabia. Marriage with a Kitabia means marrying women who believe in a revealed religion possessing a divine book viz. Islam, Christianity, and Judaism is valid under Sunni law. But he cannot marry an Idolateress or fire worshipper. A marriage however with a Idolateress or a fire worshipper is merely irregular in Sunni law, but void in Shia Law.
- WomenUndergoing Iddat- Iddat is the period during which it is incumbent upon a woman whose marriage has been dissolved by divorce or death of the husband to remain in seclusion and to abstain from marrying another husband. Under Sunni law, marriage with a woman undergoing Iddat is irregular and not void. but under Shia law a marriage with the woman undergoing Iddat is void.
It arises from the following cases:
- Polyandry- Polyandry means the fact of having more than one husband. It is forbidden in the Muslim law and a married women cannot marry second a time so long as the first marriage exists. A Muslim woman marrying in contravention to this rule shall be held liable and be punished under Section 494 of IPC and the issues from such marriages will be legitimate.
- Muslim women marrying a non Muslim- A marriage of a muslim female with a non Muslim male weather he be a Christian or a Jew, or an Idolater or a fire worshipper is irregular under Sunni law and void under Shia Law.
This may arise from:
- Marrying a Woman Enceinte- It is unlawful to marry a woman who is already pregnant by her former husband.
- Prohibition of divorce- When the marriage is dissolved by the pronouncements of divorce three times, re-union is prohibited except after the the lawful marriage of the woman with another man and then it being dissolved after consummation.
- Marriage during pilgrimage- Under Shia law, marriage during pilgrimage is void. The Shafeis, Malikis and Hanabalis held marriage within the sacred territory on a pilgrimage to Mecca as irregular. But the Hannafis considered such marriages legal.
- Marriage with a Sick Man- Marriage with a sick man suffering from a disease which is likely to be fatal is invalid. If however, he recovers and the marriage is consummated it is valid.
Mulla’s Principles Of Mohammedan Law, Essentials Of Marriage
Shayara Bano v. Union of India & Others
Saif Mehmood and Tahir Mehmood, Introduction to Muslim Law, 2nd edition, 2017