Nikah

Muslim Marriage (Nikah) Like anything a Muslim does, marriage should only be undertaken after gaining an understanding of all that Allah has prescribed in terms of rights and obligations as well as gaining an understanding of the wisdom behind this institution. One of the principles of Islamic Jurisprudence says that: "The default state of all things is lawfulness until some evidence shows otherwise." Based on this, if new foods are discovered, they are considered lawful, unless there is some specific reason or attribute which would make it forbidden for example if it is causes intoxication. Relations between men and women do not follow this general principle and in fact are opposite to it. The principle is that: "Relations between men and women are forbidden until some evidence shows otherwise." Mutual Rights and Obligations:

Marriage is a union for life having mutually inclusive benefits and fulfilment for the contracting parties including the following:  Preservation of chastity and security of gaze  Companionship inside and outside home  Emotional and sexual gratification  Procreation and raising of any children by mutual consultation  Agreement to live together in a mutually agreed country and establish their matrimonial home therein  Working collectively towards the socio-economic welfare and stability of the family  Maintaining their individual property rights but contributing to the welfare of the family according to their capacity  Maintaining social contacts with family and friends mutually beneficial for the family  Managing their individual activities/roles inside and outside the home by mutual consultation Marriage:-Pre Islamic Position

Before the birth of Islam there were several traditions in Arab. These traditions were having several unethical processes like:a)  b) c) d)

Buying of girl from parents by paying a sum of money. Temporary marriages. Marriage with two real sisters simultaneously. Liberty of giving up and again accepting women.

These unethical traditions of the society needed to be abolished; Islam did it and brought a drastic change in the concept of marriage. Nikah  Nikah is an Arabic term used for marriage. It means "contract". The Quran specifically refers to marriage as "mithaqun Ghalithun,” Ghalithun,” This means “a strong agreement”. The original meaning of the work nikah is the physical relationship between man and woman. It is also used secondarily to refer to the contract of marriage which makes that relationship lawful. "A contract that results in the, man and woman living with each other and supporting each other within the limits of what has been laid down for them in terms of rights and obligations."

Bailies Digest: - A Nikah in Arabic means “Union of the series” and carries a civil contract for the  purposes of legalizing sexual intercourse and legitimate procreation of children.

It’s a matter of query still existing whether Muslim marriage is only a civil contract or an Ibadat & Muamlat. While unleashing the various definitions it’s quite a big problem to say which one is the most appropriate, in my opinion although the essentials of a contract is fulfilled yet marriage can never  be said to be a contract because marriage always creates a bondage between the emotions and thinking of two person.

Judicial Interpretation regarding Nature of Muslim Marriage In Abdul Kadir Vs. Salima (Mr. Justice Mahmood) Mr. Justice Mahmood said thatIn this view of the case the reference cannot, in my opinion be satisfactorily answered without considering, first, the exact nature and effect of marriage under the Muhammadan law upon the contracting parties; secondly, the exact nature of the liability of the husband to pay the dower; thirdly, the matrimonial rights of the parties as to conjugal cohabitation; and fourthly, the rules of the general law as to the decree of Court in such cases. There are three aspects to a marriage under Muslim Law 1) Legal Aspect; 2) Social Aspect; 3) Religious Aspect. Legally a Muslim marriage is a contract which provides for certain requirements as regards consent and also provides for provisions for its breach. One can enforce a Muslim marriage judicially and it  provides for specific terms. The Social aspect of Muslim marriages is that they normally provide for higher status to women in society and there are also restrictions placed in Muslim marriages on polygamy in that word polygamy is allowed though limited to a certain extent. Insofar as the religious aspect is concerned, marriage in Muslim law is considered to be a sacred covenant and it is said that the Prophet Mohammed encouraged it.

Justice Sulaiman has said “In Islam, marriage is not only a civil contract but also a religious and sacrament.” Muslim marriage can also be differentiated from a civil contract on the basis of following points:a) It cannot be done on the basis of future happenings unlike the contingent contracts.  b) Unlike the civil contract it cannot be done for a fixed period of time. (Muta Marriage being an exception.) c) Unlike the civil contract a Muslim man can have only four wives at a time. d) A Muslim Marriage is not allowed at certain places (e.g. marriage on Huj under Shia law) but a Muslim man can enter into a contract at any place. Essential Condition of Nikah  Nikah is based on few conditions. When these conditions are fulfilled, then a man and a woman are  proclaimed as husband and wife and can live together and carry on their marital duties. These are: The essentials of a valid marriage are as follows:1) There should be a proposal made by or on behalf of one of the parties to the marriage, and an acceptance of the proposal by or on behalf of the other party. A Muslim marriage requires  proposal ‘Ijab’ from one party and acceptance ‘Qubul’ from the other side. This must be done in one sitting. 2) The proposal and acceptance must both be expressed at once meeting. The acceptance must be corresponding to what is being offered. The marriage must be effectively immediate. 3) The parties must be competent. The two parties must be legally competent; i.e. they must be sane and adult.

4) There must be two male or one male & two female witnesses, who must be sane and adult Muslim present & hearing during the marriage proposal and acceptance. (Not needed in Shia Law). Only women can not be the witness 5)  Neither writing nor any religious ceremony is needed. Age of Puberty: For purposes of marriage, dower and divorce, the age of majority under Muslim law is not eighteen years. In respect of these matters the age of majority is considered to be equal to the age of puberty. Age of puberty is an age at which a person is supposed to acquire the sexual competency. This competency may be ascertained on the basis of the physical features of the boy and the girl. According to Heclayu, the earliest possible age of puberty with respect to a boy, is twelve years, and with respect to a girl, nine years. But, this cannot be treated as absolute rule regarding the age of marriage because sexual competency, as evidenced by physical features, depends upon several factors and may vary from person to person. It is therefore difficult to ascertain this age by the physical appearance. Keeping in view the practical difficulty of ascertaining the age of puberty by physical features, the courts have presumed that the age of puberty is acquired on the completion of fifteen years. In Mst. Atika Begum v. Mohd. Ibrahim, the Privy Council has laid down a clear law about the age of puberty in following words: “According to Mohammedan law a girl becomes major on the happening of either of the two events: (i) the completion of her 15th year or (ii) on her attainment of a state of puberty at an earlier period.” The same rule may be applicable in respect of the age of a boy. Thus, it may be said that in the absence of any evidence to the contrary, a Muslim, is presumed to have attained puberty at the age of fifteen years. The requirement of the age of puberty is essential not only because of competency for consummation,  but also because it is considered to be the age at which the parties can give their own consent for the marriage. After attaining fifteen years, a person becomes mature enough to give consent for his or her marriage no consent of the guardian is necessary to validate the marriage. Minor’s Marriage: Under Muslim law a person who has not attained the age of puberty (fifteen years) is a minor. As such, he (or she) has no capacity to give consent for marriage. A minor’s marriage without the consent of guardian is void. If, on behalf of the minor, his or her guardian gives the consent, the marriage is lawful. A minor’s marriage is, therefore, valid only with the consent of the guardian. Under Muslim law, following persons are recognised as guardians for contracting the marriage of minors: (1) Father, (2) Paternal grandfather, how high so ever, (3) Brother or other male members of the father’s family, (4) Mother, (5) Maternal uncle, aunt or other maternal relations. It is to be noted that first of all the right of guardianship in marriage is given to the father. In the absence of father this right passes on to the next guardian in the order of priority. In absence of any of the above-mentioned guardians, a minor’s marriage may be contracted by Kazi or an authority of the Government. The ‘guardians for marriage’ must be distinguished from the ‘guardians appointed by court’. A guardian appointed by court for the protection of the person or the property of the minor has no right to contract the minor’s marriage without prior permission of the court. On the other hand, a ‘guardian for marriage’ need not take such permission; he can contract the marriage without permission of the court. Another important point in respect of the guardianship in marriage is that in presence of a nearer guardian, the remoter guardian has no right to contract the minor’s marriage. Marriage by a remoter guardian without consent of the nearer available guardian (unless such nearer guardian is insane or missing) is void.

Shia Law: Under Shia law, the only guardians for marriage are (1) the father, and (2) the paternal grand-father, how highs ever. A marriage contracted by any other guardian must be expressly confirmed by the minor on attaining puberty. Option of Puberty (Khyar-ul-Bulugh): Under Muslim law, a minor on attaining the age of puberty, has a right to approve or disapprove the marriage contracted by a guardian who was neither father nor paternal grandfather. This is called the ‘option of puberty’. In other words, marriage of a minor contracted by any person other than minor’s father or grand-father is voidable at the option of such minor. If a person, on attaining puberty, chooses to repudiate the marriage by exercising his right of ’option of  puberty’ the marriage is dissolved with immediate effect. On the other hand, if the minor, on attaining  puberty, opts to approve the marriage, it is considered to be a valid marriage since its very beginning. However, the exercise of this right is not compulsory; the minor, on attaining puberty, may or may not exercise this right. Where a person has not exercised the right of option of puberty after becoming adult, it is presumed that he or she has approved the marriage contracted during minority. But, under Shia law a minor’s marriage must be approved by the minor on attaining puberty. According to Shia law, therefore, unless the minor on attaining majority, expressly ratifies the marriage, it is no marriage at all in the eyes of law. Rules relating to the ’option of puberty’ under Muslim law, may be stated as under: (i) The ‘option of puberty’ cannot be exercised by husband if his marriage was contracted by father or grandfather. Father and the grandfather are supposed to be the best persons to safeguard the minor’s interests. Therefore, their choice in the marriage is normally binding on a minor. However, in exceptional cases, where it is proved that father or the grandfather had contracted the marriage either fraudulently or negligently, the minor has a right to repudiate the marriage on attaining  puberty. (ii) A wife can exercise option of puberty even if her marriage was contracted by her father or grandfather. Before 1939, a Muslim wife was not entitled to exercise option of puberty if the marriage was contracted by father or grandfather. But the Dissolution of Muslim Marriage Act, 1939, has now modified the law in regard to the ‘option of puberty’ by a wife. Section 2(vii) of this Act provides that a Muslim wife is entitled to obtain a decree for the dissolution of her marriage on the ground that her marriage was contracted by her father or any other guardian during her minority (i.e. when she was under the age of 15 years). At present, a Muslim wife has an absolute right of the option of puberty and she can repudiate her marriage even if it was contracted by her father or grandfather. (iii) The option must be exercised by a wife immediately after the attainment of puberty. If there is an unreasonable delay in the exercise of the option, her right is lost. However, under Section 2(vii) of the Dissolution of Muslim Marriage Act, 1939 a Muslim wife has a right to exercise this option till she attains the age of eighteen years. If she fails to exercise the right after attaining the age of eighteen years, it may be considered as unreasonable delay and her right may be lost. But in the case of a husband, the option continues till he approves the marriage either expressly or impliedly. Payment of dower to the wife or cohabitation with her is regarded as implied approval of the marriage by a husband. (iv) When consummation takes place, the husband’s right of option is lost because consummation is regarded as implied consent. The ‘option of puberty’ of a wife is also lost after the consummation  provided it was not (i) before attainment of her age of puberty, or (ii) against her consent. (v) The marriage does not dissolve merely by the exercise of option of puberty. Confirmation by court is necessary for dissolution of marriage. However, only a formal approval by the court is sufficient; decree is not necessary. It may be noted that as the marriage does not dissolve without confirmation therefore, where any spouse dies after the exercise of the option but before court’s confirmation, the surviving spouse is entitled to inherit the properties of the deceased.

Free consent Free consent of the parties is absolutely necessary for a valid marriage .If there is no free consent a Muslim marriage is void. Under the Muslim Law, a marriage of a Mohammedan who is of sound mind and has attained puberty is void; if it is brought about without his consent. The marriage of a girl who has attained puberty and is of sound mind would be void if her consent is not obtained. When the consent to the marriage has been obtained by force or fraud, the marriage will be invalid, unless it is ratified. When a marriage was consummated against the will of the women, the marriage is void. The  person who has been defrauded can repudiate the marriage. Lunatics and minors who has not attained puberty may be validly contracted by their respective guardians. A minor is incompetent to give valid consent. The right to contract a minor in marriage  belongs successively to the following persons: i) Father ii) Paternal Grand Father (How high so ever) iii) Brother and other male relations on the father’s side iv) Mother v) The maternal uncle or aunt and other maternal relations. Under the Shia law only the father and the paternal grandfather are recognized as guardian for contracting marriage of a minor. If a minor, whether male or female, be contracted in marriage by a remoter guardian, while a nearer guardian is present and available and such nearer guardian does not give consent to the marriage, the marriage is void. But if the parties ratify it after attaining puberty, it will be valid. However if the nearer guardian be absent at such a distance as precludes him from acting, the marriage contracted by the remoter is also lawful. Compulsion: When the consent for a marriage is obtained by application of force, under threats, coercion or any other compulsion, it is not free and it cannot be said that such a person has intended to what he or she has consented. Under all schools of Muslim law except Hanafi if the consent of the parties or of their guardians has been obtained under any compulsion, the marriage is void. Hanafi Law: Under Hanafi law, even if the consent has been given under compulsion, the marriage is valid. This  peculiar Hanafi rule may not appeal to a reasonable prudent man but its authority is not doubtful. It is  based on 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, marriages, the second, divorce and the third taking back.” Religion of the Parties: As the marriage is to be governed by the rules of Muslim law, both the parties have a right to marry a Muslim, irrespective of sect or the sub-sect. Where both the parties are Muslims but they belong to different sects (e.g. one is Shia and the other is Sunni), the marriage is inter-sect marriage. Inter-sect marriages are perfectly valid. Thus marriage of a Shia boy with a Sunni girl is valid. Similarly, the marriage of Hanafi boy with a girl  belonging to Shafie or the Ithna Asharia sect is also lawful. Under Muslim law so long as the religion of both the parties is Islam, the validity of their marriage is not affected by any difference in the sector sub-sect. If the religion of the parties is different i.e. where one party is a Muslim but the other is a non-Muslim, their marriage becomes an interreligious marriage. Inter-Religious Marriage: In respect of an inter-religious marriage, Sunni and Shai laws are different. The law is, therefore discussed separately under both the schools. Sunni law: Under Sunni law, a boy is allowed to marry a Muslim girl of any sect and is also allowed to marry a Kitabia girl. A girl is Kitabia if she belongs to a community the origin of which is believed from a heavenly revealed kitab (book).

Under the law, Christians and the Jews are regarded as the Kitabia communities. Thus, a Sunni male has a right to contract a lawful marriage with a Christian or a Jew woman; their marriage is perfectly valid. If a Sunni male marries a female who is neither a Muslim nor Kitabia, the marriage is not void; it is merely irregular (Fasid). As discussed in the following pages, an irregular marriage is neither valid nor void. As soon as the irregularity is removed, the irregular marriage becomes valid. For example, the marriage of a Sunni boy with a Fire- worshipper (Parsi) or a Hindu girl is merely irregular and may be regularised and treated as valid when the girl converts to Islam. That is to say, the marriage of a Sunni male with any non-Muslim or non-Kitabia female is not void; it is merely irregular. Shia law: Shia male has no right to contract a marriage with any non-Muslim female. A Shia male cannot marry even Kitabia female. The marriage of a Shia man with a Hindu, Jew, Christian or a Fire Worshipping woman is void. Hawever, a Shia male may contract a Muta-marriage with a Kitabia or a Fire worshipping (Parsi) female. Marriage of a Muslim female with a non-Muslim male: A Muslim female, whether Shia or Sunni, has no right to enter into the contract of marriage with any non-Muslim male. If a Muslim female marries a Hindu, Jew or a Christian male, the marriage, under  both the schools of Muslim law, is void. Law relating to in.ter-religious marriages under Muslim law may now be summarised, as under   —  (i) Muslim male (of any sect) + Muslim female (of any sect)Marriage is valid. (ii) Sunni male + Kitabia female Marriage is valid. (iii)Sunni male + Female who is neither Muslim nor Kitabia Marriage is irregular. (iv) Shia male + Non-Muslim female Marriage is void. (v) Muslim female + Non-Muslim male Marriage is void. The Special Marriage Act, 1954: A Muslim, whether male or female, can lawfully marry a non-Muslim under the Special Marriage Act, 1954. Marriage contracted under this Act is called ‘court marriage’. When a person (whether Hindu or Muslim etc.) contracts marriage under this Act, the marriage is not governed by the personal law applicable to him. Thus, if any Muslim contracts a marriage under this Act the marriage and its other incidents (i.e., rights and duties of the parties) are regulated by the provisions of this Act and Muslim  personal law is not applicable. Succession of the properties of the couples married under the Special Marriage Act, 1954, is governed by the provisions of the Indian Succession Act, 1925, and not by the Muslim Law of inheritance.

Legal Disability: It means the existence of certain circumstances under which marriage is not permitted. Absolute Incapacity There is absolute prohibition of marriage in case or relationship of consanguinity. In this case the situation is such that the relationship has grown up of the person through his/her father or mother on the ascending side, or through his or her own on the descending side. Marriage, among the persons associated by affinity such as through the wife it is not permitted. Marriage with foster mother and other related through such foster mother is also not permitted. Consanguinity (qurabat) - it means blood relationships and bars a man from marrying- Mother or Grandmother, Sister, Aunt, Niece etc. Affinity (mushaarat)   - A man is prohibited from marrying- Mother-in-law, Step-grandmother, Daughter-in-law, Step-granddaughter, etc Fosterage (riza)  - when a child under the age of two years has been suckled by a woman other than his or her mother, the woman becomes his foster mother. A man may not marry his foster mother or her daughter or foster sister A man cannot marry his foster mother, nor foster sister, unless the foster brother and sister were nursed  by the same mother at intervals widely separated. But a man may marry the mother of his foster sister, or the foster mother of his sister.

Exception Sister’s foster mother   Foster-sister’s mother   Foster-son’s sister   Foster- brother’s sister  Relative Incapacity Relative incapacity springs from case which render the marriage irregular only so long as the cause which creates the bar exist, the moment it is removed, the incapacity ends and the marriage becomes valid and binding. Unlawful Union:  Marrying a fifth wife  Marrying a woman undergoing iddat  Marrying a non-Muslim  Absence of proper witnesses  Woman going for a second marriage even after the existence of the first marriage.  Marrying pregnant women  Marrying during pilgrimage  Marrying own divorced wife Prohibited Incapacity: It arises in the following cases: a) Polyandry- it means the fact of having more than one husband. It is forbidden in the Muslim system and married women cannot marry second time so long as the first marriage subsists.  b) Muslim woman marrying a non-muslim- a marriage of a Muslim female with a non Muslim male whether he be a Christian or a jew or an idolater or a fire worshipper is irregular in nature under Sunni law and void under shia law. Valid Marriage (Sahih) Under the Muslim law, a valid marriage is that which has been constituted in accordance with the essential conditioned prescribed earlier. It confers upon the wife; the right of dower, maintenance and residence, imposes on her obligation to be faithful and obedient to her husband, admit sexual intercourse with him & observe Iddat. Irregular Marriage (Fasid) Those marriages which are outcome of failures on part of parties in non fulfillment of prerequisites but then also are marriages; to be terminated by one of the party is termed to be Irregular marriages. They are outcome of(a) A marriage without witness (Not under Shia Law) (b) Marriage with fifth wife. (c) Marriage with a women undergoing Iddat. (d) Marriage with a fire-worshipper. (e) Marriage outcome of bar of unlawful conjunction. An irregular marriage has no legal effect before consummation but when consummated give rise to several rights & obligations. Void Marriage (Batil) A marriage which is unlawful from it’s beginning. It does not create any civil rights or obligations  between the parties. The offspring of a void marriage is illegitimate. They are outcome of(a) Marriage through forced consent. (b) Plurality of husband. (c) Marriage prohibited on the ground of consanguinity. (d) Marriage prohibited on the ground of affinity. (e) Marriage prohibited on the ground of fosterage

Iddat The literal meaning of Iddat is to keep count. In Islamic legal terminology, it is the period after her husband’s demise, in which the woman has been instructed to refrain from getting married again.

In Islam, iddat (Arabic: period of waiting) is a period after a divorce, during which a woman may not marry another man. The period is calculated on the number of menses that a woman has, usually three. Iddat was intended to ensure that the male parent of any offspring produced after the cessation of a nikah would be known. Iddat after Death of HusbandQur'an prohibits widows to engage themselves for four (4) lunar months and ten (10) days after the death of their husbands. This is also to ascertain whether a woman is pregnant or not, since four and a half months is half the length of a normal pregnancy. Husbands should make a will in favor of their wives for the provision of one year’s residence and maintenance, unless the wives themselves leave the house or take any other similar step. The directive of the Qur'an regarding the waiting period of a widow, are as under: Whoever from amongst you dies and leaves behind wives, the wives will hold themselves [from marriage] for four months and ten days. Then, when they have expired this period, there is no blame upon you in whatever they do regarding themselves, according to the recognized traditions. And God is fully aware of whatever you are doing. And there is no blame upon you in proposing [marriage] to these women or in keeping such proposal to yourself - God is aware that you would mention it to them - but do not make with them any secret commitments, except that you say a noble word to them. However, do not commit the marriage-contract with them, until the law has reached its prescribed time. Iddat after Divorce Comparing this waiting period with the one prescribed for a divorced woman (i.e. three menstrual  periods of the divorced woman), we see that the waiting period prescribed for a widow exceeds that, which is prescribed for a divorced woman by at least a month and a half. It is also clear from the stipulations of the Qur'an that the prescription of the waiting period for a divorced woman is with the  basic purpose of ascertaining her condition with reference to pregnancy as well as to provide the divorcing couple adequate time to review and, if possible, to revise their decision. Thus, in view of the increased prescription of waiting period in the case of a widow, it seems that the waiting period  prescribed for a widow entails other purposes, besides merely ascertaining the woman's position with reference to pregnancy. The Muslim jurists and thinkers have generally construed this additional  purpose entailed in the prescription of the waiting period for widows to be that of the widow's 'mourning' her deceased husband. The understanding of the Muslim jurists and thinkers seems to be quite logical and in consonance with sayings ascribed to the Prophet. However, it seems important to add that the prescription of a specified 'waiting' or 'mourning' period is for the purpose of safeguarding the woman against defamation, slander and ill-repute in society.  No other restrictions apply to a widow during her waiting period. Duration of Iddat The Iddat of divorce commences immediately upon the pronouncement of repudiation and in case of invalid marriage if they are separated voluntarily then from the time of separation but if the separation is effected by the court then it starts with the issuance of judicial decree. In case of widowhood the period of Iddat begins with the decease of husband. If the information of divorce or of her husband’s death does not reach the wife until after the expiration of Iddat period, she is not bound to observe Iddat. The period is considered to have been passed. Iddat is normally observed in the following manner If the marriage is terminated by divorce or in consequence of annulment by the Court, then the Quran has specifically explained the situation in such words, “women who are divorced shall wait, keeping themselves apart, three (monthly) courses. And it is not lawful for them that they should conceal that which Allah has created in their wombs if they are believers in Allah and the last day.” Therefore the divorced woman is bound to observe Iddat for three menstrual cycles i.e. the period of three complete courses of menstruation. In the above two cases if the marriage has not been consummated nor any valid retirement has taken  place then after the termination of marriage the woman is not required to observe Iddat. Iddat of a Pregnant Widow In case of pregnancy, the widow is bound to observe the Iddat for a period whichever is the longest. i.e. if the child is born before the period of four months and ten days then her Iddat is not over with the

delivery but she will complete the normal specified period of Iddat (four moths & ten days). If the child is expected to be born after the specified period, then the Iddat will lost up till the delivery of a child. They consider it binding upon all widows who are pregnant or non pregnant, so according to their view the fore mentioned period of four months and ten days is the minimum obligatory period for a widow.

It is suggested to go through the class notes also.