This article has been authored by Anam Fatima and co-authored by Ammar Ashfaq, who is pursuing B.A.LL.B degree from Integral University Lucknow, Uttar Pradesh.
Table of Contents
Meaning Of Marriage Under Muslim Law
In Islam the meaning of marriage is Nikah which means [a contract between two people and the word marriage in Arabic is ZAWAJ which means association and joining together. The Almighty Allah describes marriage in Quran: Surah 24 Ayat 32 “Marry those of you that are [whether men or women] and those of you male and female slaves that are righteous”.
In Islam law the relation of marriage between man and women is considered to be a sacred bond. The relation of husband and wife to love, support, respect and care for each other according to the teaching of Islam. The motive of marriage in Islam is to make a harmonious and peaceful family unit, and love. It is a medium that is being used to fulfill religious responsibilities.
Not only this but it also establishes a strong relationship of companionship between a couple. There are some essentials of valid marriage in Islam just like consent of both parties, presence of proper witness from both sides, and fulfillment of other conditions, like the payment of dowry [Mahr] by husband to wife.1
Essentials Of Valid Marriage Under Muslim Law
The word Sahih is an Urdu expression for the words right, valid or true and Nikah means marriage. A sahih nikah or a valid marriage takes place when all the essentials of Muslim marriage are fulfilled.2
The Following Are The Essentials Of Valid Marriage
- Proposal Or Acceptance : The marriage proposal needs to be made on behalf of either party and the proposal needs to be accepted by either of the other parties. It is required that the proposal and approval should be made at the same time.
- Presence Of Witnesses : In a valid marriage under Muslim law there must be presence of witnesses, the presence of two male or one male and two female witnesses is obligatory.
- Competence And Consent: Both the parties must be competent to marry each other and their consent should must be free and authentic. The parties must have the capacity to understand the ramification of marriage and the desire to enter into it.
- Permission From Wali : In a Sunni Islamic marriage the consent of Wali is important because the Wali is the representative and protector of the bride. Only the father cannot be a wali, if the father is not alive then any male member of the family or relative can act the role of Wali. The role of Wali is not only about religious implication but also has legal impact.
- Mahr [Dower] : Mahr [Dower] is a mandatory gift the groom gives to the bride. Mahr symbolizes that the husband takes the responsibility for the financial stability of the bride. Mahr can be given at a time of Nikah or even after as per the wish of the bride. Property or any other thing can also be given in Mahr. Mahr is not an optional aspect of the marriage in Islamic Law, it is mandatory in the marriage of Islamic Law.3
Types Of Marriage
In Islam There Are Four Types Of Marriages
Valid Marriage– Under Muslim law, sahih marriage—also referred to as nikah—is the most typical type of union. Since it adheres to Islamic principles, it is regarded as the only legitimate and legal type of marriage. When two people get married in a Sahih, they commit to a long-term, stable relationship in which they plan to live as husband and wife for the rest of their lives.
Characteristics Of Valid (Sahih )Marriage
- It is meant to be a stable and long-lasting union that lasts for the duration of the parties’ lives.
- Both parties must freely and voluntarily consent to the marriage, which is founded on mutual consent and agreement.
- Islamic customs dictate that the marriage must be performed in line with certain precepts, such as having witnesses present, giving the wife her share of the mahr, and reciting specific prayers.4
Void Marriage (Batil Nikah)
In an Islamic law the void marriage is called a Batil marriage. The Batil marriage is the absence of required elements or violation of Islamic law making it null and void. Some factors that can make a Batil marriage.
- Prohibited Relationship: Islamic law prohibited marriage between close relatives,mother, father, brother, sister, grandparents, nieces, nephews, and etc. Marriage in all relations will be void in Islam.
- Lack of Legal capacity: If either of the two parties is not legally capable of marriage then that marriage will be void marriage for example due to mental incapacity, if either of the two parties is not Muslim then the marriage will be void.
- Polyandry and Polygamy violation: According to Islamic law, a man can have one to four wives at a time. But after marriage any further marriage will be void.
- Polyandry means a woman having more than one husband. The Islamic law does not allow polyandry anywhere. If a woman has one husband then her second marriage will be void as per Islamic law.
- Invalid Consent: If either of the two parties does not have consent or the consent is obtained by fraud or force, then the marriage will be void.
- Absence of essential elements: If the essentials of valid marriage are not present in the marriage like proposal and acceptance, witnesses, mahr, permission from Wali, the marriage will be void.5
Irregular Nikah (Fasid Nikah)
As it does not meet all of the requirements for being a valid marriage, an irregular marriage, also referred to as a fasid marriage, is deemed invalid. However, by eliminating the irregularities, this kind of marriage can be transformed into a legally recognized union in Islam. Only Sunni law recognizes the idea of an irregular marriage because Shia law does not provide a middle ground between lawful and void marriages.
The following unions might be deemed abnormal in Sunni law:
- Marriage in the absence of witnesses. To establish the validity of their new marriage, the parties may remarry in front of witnesses.
- Getting married to a fifth wife. If the husband marries the fifth wife after divorcing one of his four, it will still be enforceable.
- Matrimony to a woman during her iddat phase. If the marriage is consummated after the iddat period has passed, it will be deemed lawful.6
Muta Marriage (Temporary Marriage)
Sunni Muslims do not recognize muta marriage, a transient marriage contract that is common in Shia Islam. A fixed-term marriage contract, which can last anywhere from a few hours to several years, governs this type of Muslim marriage. Without a formal divorce, the marriage is automatically dissolved when the contract’s term ends.
The primary importance of muta marriage lies in the fact that it gives people an opportunity to enter into a short-term marriage without going against Islamic law. A temporary marriage can be an option in circumstances where a permanent union is impractical, such as when a man is on the road or a woman needs financial assistance.
Difference Between Valid [Sahih] And Void [Batil] Marriage
|Sexual relations between the husband and wife is valid in a valid marriage.
|Sexual relation is sinful between a wife in void marriage.
|In a valid marriage the children are legitimate.
|In void marriage the children are illegitimate.
|Right of Restitution of conjugal right arise
|In a valid marriage the right of restitution of conjugal rights arises.
|In void marriage the right of restitution of conjugal rights doesn’t arise.
|In valid marriage Iddat is required to be followed.
|In void marriage the iddat is not required to be followed.
|In a valid marriage the Mahr must be payable.
|In void marriage the Mahr is not payable.
Reference Of Islamic Sources [Quran/Hadith] For Marriage
Primary sources of Islam are the Quran and Hadith and there is guidance on marriage in many places in the Quran and Hadith. As in Surah Nisa Ayat “ And if you fear that you will not deal justly with the orphan girls, then marry those that please you of [other] women, two or three or four. But if you fear that you will not be just, then [marry only] one or those right hands possess. That is more suitable that you may not incline [to injustice].”
And after that Surah: 30 Ayat: 21 in Quran The Almighty Allah says that “And one of His signs is that He created for you spouses from among yourselves so that you may find comfort in them. And He has placed between you compassion and mercy. Surely in this are signs for people who reflect.”
And many more places the Almighty Allah gives call on marriage in the Quran. The Hadith is also the primary source of Islam and the Prophet Muhammad [Peace and Blessings upon him] gives guidance on marriage in many places Sahih Bukhari: 5065 The Prophet Muhammad said to us, O Young Man! The one among you who has the power to marry, should marry and the one who does not have the power to keep a fast, should keep a fast, because this will break the desire of the soul.
Islam places a great emphasis on marriage, which is covered in great detail in both the Holy Qur’an and the Prophet Muhammad’s (pbuh) Sunnah. For example, it is referred to as the Sunnah of Muhammad (pbuh), the method of prophets1, and the sign of God.
The Qur’an compares a couple’s relationship to a garment4 in order to illustrate how it should be mutually protective and beautiful, and it calls for extreme kindness and consideration between partners. In order to maintain the harmonious operation of the family that results from the husband and wife’s mandated marriage contract, it also assigns distinct roles to each spouse.
Dissolution Of Marriage Under Muslim Law
Islam views marriage as an eternal institution in which each partner has certain rights and obligations. In Islam, marriage is a social agreement between two self-sufficient individuals who have reached puberty. Islam adds checks and balances to safeguard the rights of all parties involved, including the children, the spouse, the woman, and society as a whole.
It treats all extramarital relationships as a violation and forbids them in whatever form, both before and after marriage. Islam does not prohibit divorce as a last option for divorcing parties. citing divorce as the least acceptable of all the legal acts,6 Islam grants both parties the option to end their marriage agreement if the other fails to achieve the marriage’s main goals.8
According to Baillie,the term “DIVORCE” refers to any separation that results from the husband as well as repudiation for talaq in the narrow sense—that is, separation that is accomplished by using the proper language.9
Such a marital partnership ends with a divorce, as there are two ways to dissolve a marriage under Muslim law:
- By Divorce
- By Talaq
Although these two names are sometimes used interchangeably in everyday speech, in Muslim law, an individual seeking a “divorce” shall be subject to the guidelines set down in the Dissolution of Muslim Marriage Act, 1939. On the other hand, Muslim personal laws govern “Talaq” proceedings.
Following the highly publicized triple talaq case, there has been an increased interest in learning about Muslim talaq legislation. Triple talaq is prohibited as a practice by the Supreme Court, which also held that a Muslim marriage cannot be terminated in this way. The husband faces a maximum three-year prison sentence if he continues to do this. One of the most significant changes to family law legislation was this.
In Union of India v. Shayara Bano (2017)
By a vote of 3 to 2, the Supreme Court ruled that triple talaq was illegal. The Indian Parliament was therefore given six months to draft legislation to address both the global expansion of Islamic family law in India and triple talaq. The 264-page ruling included comprehensive guidelines to address the triple talaq issue and future legal advancement measures. The five judges of the Indian Supreme Court rendered a decision that was broken into seven sections.
Until the advent of Islam, a husband’s divorce rights were unrestricted, and women were viewed as a man’s property. As a result, talaq became a topic of equity and significant concern, particularly for women, and social maladies and moral ills proliferated in society. Two primary issues stem from the notion of talaq in Muslim law: the first is the triple talaq divorce procedure, and the second is the unequal treatment of husband and wife in the marriage.
Three Options Are Available For Ending Or Dissolving A Marriage Under Muslim Law
By the passing away or death of the married parties
A person’s death is the most unexpected event and is a natural occurrence. Naturally, a marriage ends when one of the spouses passes away. If a wife passes away, the husband is free to get married again right away. The man is unrestricted in his ability to marry. A Muslim wife must finish the iddat procedure upon her husband’s death.
According to justice, Iddat is the procedure that requires widows and divorced women to refrain from getting married again for a set amount of time. Mahmood-Iddat is the waiting period after which a newly formed marriage becomes enforceable. Women are not allowed to be married again during this time once their first marriage ends. Iddat lasts for three months
By The Parties’ Actions10
Marriage dissolution by the parties’ own action separated into three groups
By The Husband’s Action- (talaq)
The Arabic term for removing any kind of binding or constraint is talaq. It refers to the dissolution of marriage in legal terms. There are two other legal systems that take distinct stances on the divorce issue. Ithna Ashari law strictly adheres to the form in which talaq must be spoken, but Hanafi law does not need any particular pronunciation or sentence to be spoken in order to obtain talaq.
The talaq must be said aloud in Arabic in front of two male witnesses, both of whom need to be devout and truthful Muslims. It is not required for a woman to be present during talaq.
Shias demand oral talaq, but Sunnis accept both written and oral forms. The husband has the highest authority in the marriage and can declare talaq to end the partnership without providing an explanation, going to court, getting the wife’s approval, or adhering to any formalities or procedures.
There are two Talaq modes:
Talaq-ul-sunnat is further categorized into two parts- ahsan and hasan. There are two forms of Talaq-ul-sunnat, which are based on the tradition of the prophet.
This word has excellent significance. It’s regarded as the best method for Talaq. The prophet acknowledged Ahasan as well. In this instance, the husband deserts his wife when she is free from the menstrual cycle, during the tuhr, or the month of purity. The husband abstains from sexual relations with his spouse during this time, leaving her to observe iddat. Since the divorce is still reversible during the iddat, the parties are granted the right to inherit.
According to Hedaya, since the Prophet’s companions approved of it, this is the most appropriate and sanctioned divorce procedure.
In Ahsan, talaq can also occur during the menstrual cycle if the marriage has not yet been consummated. If the wife is elderly or past the menstrual age, or if the husband and wife live apart, the condition of tuhr does not apply.
This talaq method involves the husband saying the word talaq three times in a row during the season of tuhr, or purity. It can be described as a type of divorce upon divorce in layman’s words. The first and second announcements in this instance are reversible, but they become irreversible if the third pronouncement comes after them.11
The Following Formalities Must Be Followed In Hasan Talaq:
- Three separate divorce announcements
- When a wife is menstruating, the initial announcement should be made when the wife is in her pure state, or TUHR. This is the time in between two menstrual cycles.
- The announcement should be made within the next 30-day period in the case of a non menstruating woman. There should be no cohabitation during the three-day tuhr period.
The Talaq is revoked if the husband and wife live together during this time, and it becomes irreversible if they do not.
This type of Talaq is immoral. Three statements made in a single hour, either as separate sentences, like “I divorce thee thrice,” or as one sentence, like “I sever my relationship with you, forever. After making such a declaration, Talaq becomes final.
- Illa: The husband who is of sound mind and has reached the age of majority is said to have made an Ila (Vow of Continence) when he swears in the name of God that he will not engage in sexual relations with his wife and leaves her to observe iddat.12
- Zihar, Or Detrimental Assimilation: To use this method of dissolving a marriage, a husband must be of sound mind and older than eighteen. The wife has the right to refuse to have sex with him if he makes any inappropriate comparisons between her and his mother or any other female. Such a rejection is permissible up until the point at which he has atoned for the legal penance.
Zihar can dissolve a muta marriage, which is common among Shias and admits no other type of divorce. Divorces of this kind are no longer granted.
Talaq By The Wife
This is the only method available to a woman to file for divorce from her husband; nonetheless, only the husband has the authority to grant a divorce. It’s a type of premarital or postmarital agreement that grants a woman the right to file for divorce from her husband under certain conditions, such as:
- Should the husband choose to wed another woman
- For a certain amount of time, the husband is unable to provide for her; further requirements must not conflict with public policy.
By Both Parties’ Actions
When, “both parties” refers to the parties’ mutual consent.
These two methods can be used to take such a talaq.
Khula- Khula (Redemption): In this instance, the wife proposes to dissolve the marriage and agrees to give the husband some thought.
It is possible for Khula to enter into an oral or written agreement.
- The wife must make an offer;
- The husband must accept the offer and show appreciation for it.
- It is imperative that the iddat period be observed.
According to Shia law, the wife has the right to reclaim the consideration during the iddat period, but the husband cannot reverse the divorce once it has been accepted.
Mubrat- (Mutual Separation) In these situations, a Talaq proposal is made by one of the parties to the marriage.
- It can be oral or written, and it doesn’t have to be registered.
- The husband can also impose conditions on the giving of the talaq.
Through The Use Of Legal/ Judicial Process
This kind of dissolution of marriage was created in 1939, and Muslim women are allowed to do so in specific circumstances. There are nine grounds listed in Section 2 for Muslim women to apply in court for a dissolution of their marriage. Usually, a family court will hear such an application; if one is not available, the district court will hear it.
DISSOLUTION OF MUSLIM MARRIAGE ACT, 1939. Further, there are two ways-
Lian And Faskh
Lian can be summed up as her husband accusing her of adultery without evidence13. When a husband accuses his wife of adultery, she has the right to sue him and, under the Act, file a standard lawsuit for dissolution of marriage to get a divorce on the same grounds
- A husband must be adult and sane.
- He charges his wife of adultery.
- Such a charge must be false.
- False charges do not ipso facto (by that fact itself) dissolve the marriage, it just provides a ground to the wife to move to the court to dissolve the marriage.
- Marriage will continue until the decree for dissolution of marriage is passed by the court.
- Judicial separation via mode of lian is irrevocable.
- This mode is applicable only to Sahih marriages not on fasid ones.
Retraction can be made by the husband before the end of the trial, admitting that he made the charge of adultery against her wife and such charge was false.
The Faskh Quran states that husband and wife have a duty to respect one another, treat one another with decency, and comply with each other’s legal commands.14 When it becomes apparent to them both that they cannot continue as husband and wife, they can approach the qazi, who may, after a thorough examination, dissolve their marriage.
The Dissolution of Muslim Marriage Act, 1939, specifies nine grounds in Section 2 that a Muslim wife may use to get a divorce decree, following are the grounds16 –
- Absence of husband
- Unsound Mind / insanity
- Option of puberty
- Other i.e Ila, Zihar,lien/
What is Talaqnama
Writing down talaq is called talaqnama. It is possible to provide talaq via talaqnama even when the wife is not present, and it is not required to be signed in front of the wife’s father or Qazi.
- Husband needs to carry out a right deed.
- Both his name and the names of the women he has divorced must appear in a deed.
Things To Take Into Account For A Legitimate Talaq
- Intoxicated people cannot pronounce talaq; this is against Muslim law.
- Intention is not a necessary condition for a talaq to be deemed valid.
- A husband may offer talaq verbally without performing a talaqnama or deed.
Talaq Given During A Terminal Illness
- The authority to declare talaq has been granted to sick Muslims, who are usually men, in order to stop his inheritance from passing to his widow upon his death.
- A wife is entitled to her share if the husband issues an irreversible talaq in the event of a terminal illness and passes away before the iddat period expires.
- There is no right of inheritance if the husband passes away after the iddat period has passed.
Consequences Of Divorce Legally
- Inheritance rights cease to be mutual.
- Cohabitation is no longer permitted, and offspring born from such relationships are not recognized as legitimate.
- Dower becomes due right away.
- One party may enter into a second marriage.
- Throughout the iddat period, the wife is entitled to maintenance.
Mir Khursheed Rasool V. State Of Maharashtra (2022)
According to the Bombay High Court, the parties have mutually talked their differences to resolution. The terms were accepted by both sides. As a result, the complaints brought against the petitioner had to be dismissed because they would be useless. Both parties’ requests were granted by the court, and the case was allowed.
Legal opinion leads us to the simple conclusion that under Muslim law, marriage is just a civil transaction. This satisfies all contract requirements, including those for proposal and approval, free consent, and consideration. But from a religious perspective, marriage is seen as a devotional act in Islam.
The Quran and Hadith command husbands and wives to respect and love one another. It has been proven that enjoying yourself and expressing love and affection to one another are morally righteous actions. According to Islamic tradition and the Quran’s teachings, marriage is a sacrament.
Following the Supreme Court’s 2017 ruling that triple talaq was unconstitutional, Muslim law grants equal rights to both husband and wife to end their marriage.It’s possible that two people who live together for a long time don’t know each other as well when they get married. The best decision to be made is to live apart if the two are incompatible after that.Unhealthy relationships can ruin both parties’ lives, and unlike Hindu law, talaq is not considered a sin under Muslim law because it is an old custom.
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- Lawmatic, www.lawomatic.in, https://www.lawomatic.in/content.php?id=43&back=9
- Pratibha bansal & nimisha dublish, Elucidating the Provisions of Muslim Law on Divorce, iPleaders (2019), https://blog.ipleaders.in/muslim-law-divorce/.
- The Changes in the Law of divorce- under Muslim Law, https://msbrijuniversity.ac.in/assets/uploads/newsupdate/LawofDivorce.pdf.
- Mohammedan Law – Divorce in Muslim law: Aspects of Muslim Divorce, Toppr-guides (2019), https://www.toppr.com/guides/legal-aptitude/family-law-i/mohammedan-law-divorce-in-muslim-law/
- Legal Service India, The Concept of Divorce under Muslim Law, Legalserviceindia.com (2017), https://www.legalserviceindia.com/article/l393-Divorce-under-Muslim-Law.html.
- Indrasish Majumder, Concept of Talaq under Muslim Law, catalog (2023), https://lawctopus.com/clatalogue/clat-pg/concept-of-talaq-under-muslim-law/
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