Muslim Law of Marriage [Nikah] It is Contract and Object is the procreation and legalising of children. [Mulla, principle of Mohamedan Law] It is Contract

Muslim Law of Marriage [Nikah]Muslim Law of Marriage [Nikah] It is Contract and Object is the procreation and legalising It is Contract and Object is the procreation and legalising

of children. [Mulla, principle of Mohamedan Law]of children. [Mulla, principle of Mohamedan Law] A/c to Justice Mahmood- it is a civil contract.A/c to Justice Mahmood- it is a civil contract. A/c to Mr.Abdul Rahim-it is both in nature of Ibadat A/c to Mr.Abdul Rahim-it is both in nature of Ibadat

[devotional act] and Muamalat [a dealing among men][devotional act] and Muamalat [a dealing among men] Anis Begum v. Muhammad Istafa 1933 allAnis Begum v. Muhammad Istafa 1933 all Justice Sulaiman-Marriage is not regarded as a mere civil Justice Sulaiman-Marriage is not regarded as a mere civil

contract but as a religious sacrament.contract but as a religious sacrament. Ameer Ali defines marriage as -it is an institution ordained Ameer Ali defines marriage as -it is an institution ordained

for the protection of society. for the protection of society. Abdul Kadir v.Salima, 1886 AllAbdul Kadir v.Salima, 1886 All Justice Mahmood held that it is not sacrament but purely a Justice Mahmood held that it is not sacrament but purely a

civil contract.civil contract.

Muslim Law of MarriageMuslim Law of Marriage Object of marriage is covered under three headings.Object of marriage is covered under three headings. Religious –Prophet was great supporter of marriage. He Religious –Prophet was great supporter of marriage. He

says ‘ marriage helps in raising the status of women.says ‘ marriage helps in raising the status of women. Social—it helps women in many ways.Social—it helps women in many ways. Legal—Marriage can not be complete unless free consent is Legal—Marriage can not be complete unless free consent is

obtained.obtained. Marriage is dissolved by the acts of parties or by operation Marriage is dissolved by the acts of parties or by operation

of Law.of Law. Capacity for MarriageCapacity for Marriage Every Muslim who is of sound mindEvery Muslim who is of sound mind who has attained puberty is capable.who has attained puberty is capable. General presumption is 15 years.General presumption is 15 years. Marriage of person above than 15 years without his Marriage of person above than 15 years without his

consent is void.consent is void. Person of unsound mind and those who have not attained Person of unsound mind and those who have not attained

puberty –Guardians will contract Marriage for them.puberty –Guardians will contract Marriage for them.

Capacity of MarriageCapacity of Marriage

Limitations to valid Muslim Marriage.Limitations to valid Muslim Marriage. [1]Number—Man may marry any number, not exceeding four. [1]Number—Man may marry any number, not exceeding four.

[Wife only one .Otherwise liable for bigamy][Wife only one .Otherwise liable for bigamy] If a Muslim marries 5If a Muslim marries 5thth wife –Marriage is not void but Irregular. wife –Marriage is not void but Irregular. [2]Religion—Sunni male can marry muslim woman or woman of [2]Religion—Sunni male can marry muslim woman or woman of

kitabia [Christian and Jews] [kitabis is male]—valid marriage.kitabia [Christian and Jews] [kitabis is male]—valid marriage. Sunni male with Non Muslim or Non kitabia is irregular.Sunni male with Non Muslim or Non kitabia is irregular. Shia male can marry only Muslim woman otherwise it will be void.Shia male can marry only Muslim woman otherwise it will be void. Inter sect marriage is allowed. The spouse retains his/her pre-Inter sect marriage is allowed. The spouse retains his/her pre-

marital status unless one changes sect. marital status unless one changes sect. [3]Relationship- one can not marry someone who is related to him [3]Relationship- one can not marry someone who is related to him

by consanguinity or affinity or Fosterage.by consanguinity or affinity or Fosterage. [4]Unlawful conjunction-A man may not have two wives who are [4]Unlawful conjunction-A man may not have two wives who are

related to each other by consanguinity or affinity or related to each other by consanguinity or affinity or fosterage[ wife , her sister, her mother etc]fosterage[ wife , her sister, her mother etc]

Such marriage would be irregular.Such marriage would be irregular.

Capacity of MarriageCapacity of Marriage [5] Iddat- when a marriage is dissolved by death [5] Iddat- when a marriage is dissolved by death

or divorce , the woman is prohibited to marry or divorce , the woman is prohibited to marry within a specified period of time, which is called within a specified period of time, which is called Iddat.Iddat.

Object is to ensure certainty of paternity whether Object is to ensure certainty of paternity whether she is pregnant by the husband.she is pregnant by the husband.

Iddat is necessary where cohabitation took place.Iddat is necessary where cohabitation took place. In case of divorce—3 Menstrual periods after date In case of divorce—3 Menstrual periods after date

of divorce. [if marriage was consummated]of divorce. [if marriage was consummated] In case of death of Husband- 4 months and 10 In case of death of Husband- 4 months and 10

days [bound to observe whether marriage was days [bound to observe whether marriage was consummated or not] [Evidence not available]consummated or not] [Evidence not available]

In case woman is pregnant—she will observe In case woman is pregnant—she will observe iddat till delivery of child.iddat till delivery of child.

Capacity of MarriageCapacity of Marriage Legal Incidents of IddatLegal Incidents of Iddat Wife can not remarry during Iddat.Wife can not remarry during Iddat. She can claim maintenance during this period.She can claim maintenance during this period. Parties have a right of mutual inheritance during iddat period in Parties have a right of mutual inheritance during iddat period in

case one dies .case one dies . Wife is entitled for deferred dower.Wife is entitled for deferred dower.

[6]Marriage during pilgrimage-it is prohibited.[6]Marriage during pilgrimage-it is prohibited.

[7]divorce-if man divorces a woman, he can not once again [7]divorce-if man divorces a woman, he can not once again remarry her unless she undergoes Iddat of divorce, then lawfully remarry her unless she undergoes Iddat of divorce, then lawfully marries another boy , marriage is consummated, and second marries another boy , marriage is consummated, and second husband lawfully and effectively gives divorce to her and then she husband lawfully and effectively gives divorce to her and then she observes Iddat then only she can remarry the boy who was her observes Iddat then only she can remarry the boy who was her husband.husband.

Proposal and AcceptanceProposal and Acceptance Proposal-IjabProposal-Ijab Acceptance-Qubul [by girl or guardian or Acceptance-Qubul [by girl or guardian or

other person on her behalf.other person on her behalf. Ijab+Qubul should be In one meeting.Ijab+Qubul should be In one meeting. ‘‘I have married myself to you’ and ‘ I have I have married myself to you’ and ‘ I have

consented’consented’ This has to be done either by party or This has to be done either by party or

guardian.guardian. Witnesses-2males or 1male and two Witnesses-2males or 1male and two

females [No equality].females [No equality]. Witnesses should be Adult Muslim [Not Witnesses should be Adult Muslim [Not

from other religion] of sound mind.from other religion] of sound mind.

Proposal and AcceptanceProposal and Acceptance

There should not be any ambiguity.There should not be any ambiguity. It may be oral or in writing.It may be oral or in writing. There is no format for it.There is no format for it. Offer should be accepted as it is.Offer should be accepted as it is. E.g Boy offers to marry girl on Rs 500 E.g Boy offers to marry girl on Rs 500

as dower. she accepts it on Rs 1000.as dower. she accepts it on Rs 1000.[x][x]

ConsentConsent

Consent of both parties should be Consent of both parties should be free.free.

Consent may be express or Implied.Consent may be express or Implied. If marriage lacks consent, it must be If marriage lacks consent, it must be

ratified afterwards.ratified afterwards. No consent –Marriage is invalid.No consent –Marriage is invalid.

Registration of marriageRegistration of marriage

Kazi/Mulla and witnesses are required and Kazi/Mulla and witnesses are required and nikah nama [document] is preparednikah nama [document] is prepared

Wherein conditions of marriage such as Wherein conditions of marriage such as amount of dower, mode of payment, amount of dower, mode of payment, question related to custody of child etc are question related to custody of child etc are incorporated.incorporated.

Registration is not compulsory.Registration is not compulsory. If parties are interested, state If parties are interested, state

governments have statutes for this governments have statutes for this purpose.purpose.

Legal Effects of valid MarriageLegal Effects of valid Marriage

Sexual intercourse becomes lawful.Sexual intercourse becomes lawful. Children born of such union are Children born of such union are

legitimate.legitimate. The Wife becomes entitled to her The Wife becomes entitled to her

dower [Mahr].dower [Mahr]. The wife becomes entitled to The wife becomes entitled to

maintenance.maintenance. Mutual rights of Inheritance are Mutual rights of Inheritance are

established.established.

Legal effects of valid marriage.Legal effects of valid marriage.

The wife is not entitled to remarry The wife is not entitled to remarry after death of husband or dissolution after death of husband or dissolution of marriage without observing Iddat.of marriage without observing Iddat.

Any agreement entered into by Any agreement entered into by parties at time of marriage or after parties at time of marriage or after marriage is enforceable.marriage is enforceable.

Muta MarriageMuta Marriage

It is also known as temporary marriage.It is also known as temporary marriage. It means enjoyment or use.It means enjoyment or use. Marriage for pleasure for a fixed period of Marriage for pleasure for a fixed period of

time.time. It was very popular in Arabia before and at It was very popular in Arabia before and at

time of Prophet.time of Prophet. It was justified in olden days because that It was justified in olden days because that

was the period of wars and travels.was the period of wars and travels. Now not recognized except shia school.Now not recognized except shia school. This practice is almost obsolete in India.This practice is almost obsolete in India.

Legal effects of Muta MarriageLegal effects of Muta Marriage It does not create mutual rights of inheritance.It does not create mutual rights of inheritance. Children are legitimate [good provision]Children are legitimate [good provision] Muta marriage is dissolved ipso facto by the Muta marriage is dissolved ipso facto by the

expiry of the term.expiry of the term. Dower is a necessary condition. If marriage is Dower is a necessary condition. If marriage is

consummated-she is entitled for whole amount consummated-she is entitled for whole amount ..

If marriage is not consummated then she is If marriage is not consummated then she is entitled for half the dower.entitled for half the dower.

Muta wife is not entitled to maintenance.Muta wife is not entitled to maintenance. A man may contract muta with any number of A man may contract muta with any number of

women.women.

Difference between Nikah and Difference between Nikah and Muta marriageMuta marriage

Nikah accepted in both shia and sunni Nikah accepted in both shia and sunni while Muta only in shia.while Muta only in shia.

Nikah is permanent while Muta marriage is Nikah is permanent while Muta marriage is temporary.temporary.

Nikah gives rights of mutual inheritance Nikah gives rights of mutual inheritance while in Muta it is not so.while in Muta it is not so.

Nikah is dissolved either by death or Nikah is dissolved either by death or divorce whild muta marriage is divorce whild muta marriage is automatically dissolved on expiry of automatically dissolved on expiry of specified period.specified period.

Difference between Nikah and Difference between Nikah and Muta marriageMuta marriage

Nikah –maintenance can be asked for Nikah –maintenance can be asked for Iddat period while it is not so in muta Iddat period while it is not so in muta marriage.marriage.

Repudiation of marriage by option Repudiation of marriage by option of pubertyof puberty

If marriage is contracted by guardian If marriage is contracted by guardian for minor, he/she has this right.for minor, he/she has this right.

One can repudiate after attaining One can repudiate after attaining majority.majority.

This option of puberty can be This option of puberty can be exercised only when the minor is exercised only when the minor is given in marriage by father or grand-given in marriage by father or grand-father or by legal guardian.father or by legal guardian.


Saghir-below 7 years. Consent given Saghir-below 7 years. Consent given by minor has no importance.by minor has no importance.

Sarir-7 to 15 years-marriage of minor Sarir-7 to 15 years-marriage of minor can be performed by can be performed by parents/guardian but such minor parents/guardian but such minor consent has no value.consent has no value.

Bulugh-above 15-they themselves Bulugh-above 15-they themselves can marrycan marry


Option of puberty is lost in casesOption of puberty is lost in cases Where marriage is consummated.Where marriage is consummated. If wife does not repudiate within a If wife does not repudiate within a

reasonable time after attaining reasonable time after attaining puberty.puberty.

She fails to exercise before attaining She fails to exercise before attaining 18 years.18 years.

Option of puberty is confirmed by Option of puberty is confirmed by court. [decree of court is required to court. [decree of court is required to severe the marital tie]severe the marital tie]

Legal effects of void and irregular Legal effects of void and irregular marriage.marriage.

Marriages may be classified under Marriages may be classified under sunni assunni as

[1] Sahih-valid[1] Sahih-valid [2]Batil-void[2]Batil-void [3]Fasid-Irregular[3]Fasid-Irregular Shia does not recognise Fasid .Shia does not recognise Fasid . Legal effects of valid Marriage-Legal effects of valid Marriage-

Already discussed.Already discussed.


Batil marriageBatil marriage When marriage is performed in When marriage is performed in

violation of absolute /permanent violation of absolute /permanent impediments. [consanguinity, affinity impediments. [consanguinity, affinity etcetc

It is void ab initio-no marriage and no It is void ab initio-no marriage and no legal consequences flow from it.legal consequences flow from it.

No status as husband & wifeNo status as husband & wife No mutual rights and obligations ariseNo mutual rights and obligations arise

Child will be illegitimate. [differs from Child will be illegitimate. [differs from Hindus]Hindus]

If wife enters into another marriage, she If wife enters into another marriage, she will not be guilty of bigamy.will not be guilty of bigamy.

There is no need to get decree for There is no need to get decree for remarrige.remarrige.

One can file a declaratory suit u/s 9 cpc One can file a declaratory suit u/s 9 cpc read with s.34 specific relief Act.1963 if read with s.34 specific relief Act.1963 if marriage is valid and other spouse is going marriage is valid and other spouse is going for remarriage.for remarriage.


Fasid-Irregular marriageFasid-Irregular marriage If impediment or prohibition is If impediment or prohibition is

temporary/remedialtemporary/remedial Irregular marriage is not similar as voidable Irregular marriage is not similar as voidable

marriage.marriage. Voidable marriage is perfectly valid till it is Voidable marriage is perfectly valid till it is

avoided [only by either party]avoided [only by either party] Irregular marriage is not a valid marriage to begin Irregular marriage is not a valid marriage to begin

with but it can be validated by removing the with but it can be validated by removing the impediment.impediment.

E.g marring fifth wife. it can be validated by E.g marring fifth wife. it can be validated by pronouncing talak on his wife.pronouncing talak on his wife.

Legal effects of Fasid MarriageLegal effects of Fasid Marriage

Once consummation takes place, Once consummation takes place, wife is entitled to dower.wife is entitled to dower.

Wife is required to perform Iddat of Wife is required to perform Iddat of death or divorce.death or divorce.

Children of such marriage are fully Children of such marriage are fully legitimate.legitimate.

Children have rights of inheritance.Children have rights of inheritance.

Legal effects of fasid marriageLegal effects of fasid marriage

Marriage is irregular in following casesMarriage is irregular in following cases Marriage performed with w/o Marriage performed with w/o

witnesses.witnesses. Marriage performed with a woman Marriage performed with a woman

undergoing Iddat.undergoing Iddat. Marriage on account of difference of Marriage on account of difference of

religion.religion. Marriage with a fifth wife.Marriage with a fifth wife.

Documents

Muslim Law of Marriage [Nikah] It is Contract and Object is the procreation and legalising of children. [Mulla, principle of Mohamedan Law] It is Contract