Essentials of Valid Muslim Marriage (Sahih)

The essentials of valid Muslim marriage include free consent from both parties, competency of individuals
(major, sound mind, and Muslims), an offer (proposal or ‘ijab’) and acceptance (‘qubul’) made during the
same meeting, and the presence of competent witnesses.

Dower (‘mahr’) terms must be agreed upon, and the marriage should not violate any prohibitions, such as
those related to close blood relations, affinity, or fosterage. While registration is not obligatory under Islamic
law, it is encouraged for legal recognition.

These essentials of valid Muslim marriage emphasise consent, capacity, and adherence to Islamic guidelines
for a valid marriage.

1. Proposal and Acceptance (Ijab and Qubul)

In a Muslim marriage, a proposal is known as ‘ijab,’ and the acceptance of that proposal is termed ‘qubul.’ It
is imperative that a proposal be made by one party or on their behalf and subsequently accepted by the other
party. Crucially, for a Muslim marriage to be valid, the proposal and acceptance must occur during the same
meeting. If the proposal is made in one meeting and its acceptance takes place in a different meeting, the
marriage is not considered valid.

2. Competency of Parties

The parties entering into the marriage contract must meet specific criteria, which include being (i) of legal
age, (ii) of sound mind, and (iii) Muslims.

i. Major (Legal Age)

Under Muslim law, the age at which a person reaches puberty is considered the legal age for marriage.
According to Hedaya, the age of puberty for females is typically 9 years, while for males, it is 12 years.
However, the Privy Council, in the case of Muhammad Ibrahim v. Atkia Begum & Anr., established that a
girl is considered to have reached the age of puberty if she is either 15 years old or has reached puberty at an
earlier age.

The same rule applies to Muslim boys. Thus, unless there is evidence to the contrary, Muslims are generally
considered to have reached the age of puberty at 15 years. Once they attain this age, they can give their own
consent, and there is no need for the consent of their guardians.

ii. Guardians for Minors

If a person is a minor, meaning they have not reached the age of puberty, the consent of their guardian is
required to make the marriage lawful. The individuals recognised as guardians under Muslim law include: (a)
Father, (b) Paternal Grandfather, (c) Brother or any other male member of the father’s family, (d) Mother,
and (e) Members of the maternal relation.
If one guardian is unavailable, the right to consent passes to the next in line according to a specific order of
priority. In the absence of these guardians, a marriage may be contracted by a Qazi or another government
authority.

iii. Soundness of Mind

Both parties must be of sound mind at the time of marriage. Individuals who are not of sound mind lack the
capacity to enter into a contract, and their consent, in the eyes of the law, is considered null and void.
Unsoundness of mind can manifest in two forms:

(a) Idiocy, which signifies a complete abnormal state of mind rendering the person incapable of contracting,
and

(b) Lunacy, which denotes a curable mental disease. A person deemed a lunatic can enter into a contract
during periods when they exhibit sane behaviour.

iv. Muslim

It is a fundamental requirement that both parties to the marriage must be Muslims, regardless of their sect or
sub-sect. A marriage remains valid even if the parties belong to different sects within Islam, making inter-
sect marriages valid.

Free Consent

In Muslim law, the cornerstone of a valid marriage is the free consent of both parties. If consent is obtained
through coercion, fraud, or a mistake of fact, the marriage is deemed invalid and void.

For instance, in the case of Mohiuddin v. Khatijabibi, the Court ruled that a marriage is invalid if it occurs
without the genuine and free consent of the parties involved.

Dower (Mahr)

Dower, known as “mahr,” represents the monetary or property consideration that the groom is obligated to
provide to the bride as part of the marriage contract. Its primary purpose is to ensure the financial security of
the bride during and after the marriage.

In the case of Nasra Begum v. Rizwan Ali, the Allahabad High Court established that the right to dower
arises before the commencement of cohabitation. The Court also held that if the wife is a minor, her
guardians can refuse to send her to her husband until the dower is paid.

If she is already in the husband’s custody, she can be brought back until the dower is settled.

Freedom from Legal Disability

Under Muslim law, marriage is prohibited under specific circumstances, categorised as absolute prohibition,
relative prohibition, and miscellaneous prohibition.

Absolute Prohibition
A Muslim marriage is considered void if the parties are closely related by blood or fall within prohibited
degrees of kinship. These absolutely prohibited degrees include:

Consanguinity

Prohibits marriage with females related by blood, such as one’s mother or grandmother (regardless of how
many generations removed), daughter or granddaughter, sister (whether by full, half, or uterine blood), niece
or great-niece, and aunt (both paternal and maternal, regardless of how many generations removed).

Marrying a woman within these prohibited degrees of consanguinity results in an invalid marriage, and
children born from such a union are considered illegitimate.

Affinity

Certain close relatives are also prohibited from marriage due to their relationship with one’s spouse.
Prohibited relationships under affinity include one’s wife’s mother or grandmother (regardless of how many
generations removed), wife’s daughter or granddaughter, father’s wife or paternal grandfather’s wife, and
son’s wife or descendants’ wives. A marriage with a woman falling under the prohibited degrees of affinity
is void.

Fosterage

Fosterage pertains to relationships established through breastfeeding or suckling. If a woman, other than the
child’s biological mother, breastfeeds or suckles a child under the age of two, she becomes the child’s foster
mother.

A man is prohibited from marrying individuals who fall under foster relationships, which include his foster
mother or foster grandmother and the daughter of his foster mother (foster sister).

Sunni law allows for some exceptions to the prohibition on grounds of fosterage, permitting marriages such
as sister’s foster mother, foster-sister’s mother, foster-son’s sister, or foster-brother’s sister. Shia jurists,
however, do not recognise these exceptions and treat consanguinity and fosterage similarly.

Relative Prohibitions

Under Muslim law, certain prohibitions are relative and not absolute. Violating these prohibitions renders a
marriage irregular, but it cannot be declared void. The marriage becomes valid once the irregularities are
rectified. The relative prohibitions are as follows:

1. Unlawful Conjunction

A Muslim man is prohibited from marrying two women who are closely related to each other through
consanguinity, affinity, or fosterage. If their relationship is such that their marriage would have been void
(batil) if they were of opposite sexes, then the marriage is irregular (fasid).

After the termination of one marriage or the death of a wife, the man can marry the other woman. Under
Sunni law, a marriage in violation of unlawful conjunction is considered irregular, while under Shia law, it is
considered void (batil).
2. Polygamy

Muslim law permits polygamy but restricts it to a maximum of four wives at a time. If a Muslim man marries
a fifth wife while already having four wives, the marriage is irregular, not void. The fifth marriage can
become valid after the death or termination of one of the four wives.

However, Shia law considers marriage with the fifth wife as void. In India, a Muslim man who has registered
his marriage under The Special Marriage Act, 1954, cannot enter into a second marriage.

3. Absence of Proper Witness

The contracting of a Muslim marriage must be done in the presence of proper and competent witnesses.
Under Shia law, the presence of witnesses is not essential, and marriage without witnesses is considered
valid. Parties themselves (if major) or their guardians can contract the marriage.

Under Sunni law, the presence of witnesses is essential, and a marriage without witnesses is irregular. At
least two male witnesses or one male and two female witnesses should be present, and they must be of legal
age, of sound mind, and Muslim.

4. Difference of Religion

Under Sunni law, a Muslim male is allowed to marry a female who respects the same scriptures, such as
Christians, Parsis, and Jews. However, if he marries an idol or fire worshipper, the marriage is considered
irregular.

A Muslim woman is not permitted to marry a non-Muslim man, and if it happens, the marriage is irregular.
Under Shia Law, marriage with a non-Muslim is considered void. While Fyzee holds such marriages as void,
Mulla considers them irregular.

5. Marriage During Iddat

Iddat refers to the waiting period after the death of a woman’s husband or after the termination of her
marriage. During this time, she cannot remarry. The purpose of iddat is to determine if the woman is
pregnant, which can affect the paternity of any child born.

A divorced woman observes iddat for three months, while a widow observes it for four lunar months and ten
days after her husband’s death. If the woman is pregnant, the iddat period extends until her delivery. Under
Sunni law, marriage during iddat is considered irregular, while under Shia law, it is considered void.

6. Miscellaneous Prohibitions

 In Shia law, marriage during pilgrimage is considered void.

 Re-marriage between a divorced couple requires a specific procedure, including the woman marrying another
man, her husband voluntarily divorcing her, and her observing iddat. If this procedure is not followed, the
marriage is considered irregular.
 Polyandry, where a woman has more than one husband, is not permitted under Muslim law.

Registration of Muslim Marriages

Under Muslim law, marriage registration is not a mandatory requirement. However, several states in India,
including Assam, Punjab, Bengal, Bihar, and Orissa, have enacted laws that facilitate the registration of
Muslim marriages. While registration is not considered an essential element for a valid Muslim marriage, it
serves as compelling and authentic proof of the marriage contract.

The Indian Supreme Court’s ruling in the case of Seema v. Ashwani Kumar emphasised that the
registration of marriages involving Indian citizens, regardless of their religious affiliation, should be carried
out in the states where the marriage ceremony has taken place. This decision highlights the importance of
registering marriages for all Indian citizens, regardless of their religious background, as a means of
establishing legal documentation and authentication.

Furthermore, in the case of M. Jainoon v. Amanullah Khan, the Madras High Court made a significant
observation. While confirming that registration of marriage is not obligatory, the court emphasised that it
cannot be deemed prohibited under Muslim personal law. This reaffirms the idea that while registration is not
a mandatory requirement, it is a permissible and beneficial practice that offers legal recognition and
credibility to Muslim marriages.

Conclusion

Muslim marriage is a significant institution guided by key essentials of valid Muslim marriage, which
include mutual free consent, competency, an offer and acceptance in the same meeting, and the presence of
competent witnesses. Dower arrangements are also essential, ensuring financial security for the bride.

Prohibitions on consanguinity, affinity, fosterage, and other factors prevent invalid marriages. While
registration is not mandatory according to Islamic law, it serves as important documentation in various
regions.

These essentials of valid Muslim marriage uphold the sanctity of marriage within the Muslim community,
emphasising consent, capacity, and adherence to Islamic principles, contributing to the preservation of
societal values and the rights of individuals involved.

Nikah and Muta Distinguished

The following are the distinguishing points between Nikah and Muta:

Muta Marriage Nikah

It is a temporary marriage contracted for a limited
It is a permanent marriage
period
It gets terminated with the expiry of the stipulated
It gets dissolved by divorce or death
term.
It is recognized only in the Ithna Asharia Shia
It is recognized in both the Shia and Sunni Sects.
School.
It does not confer any mutual right of inheritance It does confer mutual right of inheritance between the
between the husband and wife. husband and wife.
Divorce is not recognized in muta marriage Divorce is fully recognized in Nikah.
If the marriage is unconsummated, the wife is In nikah, the wife gets full dower, no matter, the
entitled to only half of the dower. marriage is consummated or not.
The wife is not entitled to maintenance The wife is entitled to maintenance.
Dower must be specified, otherwise the marriage is
Dower may be implied in nikah
void.
It does not create any liabilities except those
It creates liabilities.
specified in the contract

Case Law

 Sadiq Hussain v Hashim Ali (1916):

o The Allahabad High Court held that children born out of wedlock in muta marriage are
legitimate and are entitled to inheritance from both parents.
 Luddun v. Mirza Kumar (1882):
o According to Shia law, a muta wife is not entitled to maintenance but the Calcutta High
Court held that she was qualified for maintenance as a wife under the requirements of
section 125 of the Code of Criminal Procedure, 1973.

Valid Marriage Under Muslim Law

« »

29-Sep-2023

Tags:

 Bombay High Court

 Jammu & Kashmir and Ladakh High Court
 Muslim Law

Introduction

 Marriage is considered a social structure due to its universality within different societies and cultures.
 Marriage is a socially and legally sanctioned union that is regulated by laws, rules, customs, and beliefs that
prescribe the rights and obligations of the partners and accords status to their offspring (if any).
 For a Muslim marriage to be valid it has to comply with the formalities laid down by Muslim law although it is
a contract. On performance of nikah, a marital status arises between the parties.

Essential Conditions of Muslim Marriage

A marriage can be legally performed between the parties possessing full capacity to marry. The general
essentials for marriage under Islam are as follows:

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.
o Marriage becomes complete only when the other party has accepted (Qabul) that offer.
 The words conveying proposal and acceptance must be uttered in each other’s presence or in the presence
of an agent.
o Under Sunni law, the proposal and acceptance must be made in the presence of two males or one
male and two female witnesses who are sane, adults and muslims.
 Absence of witnesses does not render marriage void but voidable.
o Under Shia Law, witnesses are not necessary at the time of marriage.

Free will and consent

 The consent should be without any fear, undue influence or fraud.

 That parties contracting a marriage must be acting under their free will and consent.
 In the case of a boy and girl who have not attained the age of puberty, the marriage is not valid unless the
legal guardian consents to it.
 The consent may be express or implied.

Related Cases

 In the case of Sayad Mohiuddin v. Khatijabai (1939), the Bombay High Court held that 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 v. Dr Hussaina Praveen (2012), Nagpur bench of Bombay High Court
had reiterated that:
o “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 the 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.”

Competent Parties

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 to enter into a contract. In other words, they must be
competent to marry. A 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.

Puberty
  Another important factor to determine whether the parties are competent is puberty. Puberty means the age
when a boy or a girl becomes capable of begetting or bearing children.
 Puberty is presumed, in the absence of evidence, of the completion at the age of 15 years. The Indian
Majority Act, 1875 does not apply to the muslims in respect of marriage, dower and divorce.

Marriage of minors and guardianship in marriage

 Marriage of a minor without the consent of the guardian is invalid unless it is ratified after the attainment of
majority. A boy or girl who has attained puberty is at liberty to marry any one he or she likes, and the
guardian has no right to interfere if the match be equal.

Abdul Ahad v. Shah Begum (1996):

 Jammu and Kashmir High Court held that marriage of a minor girl even contacted by a Wali is invited ab
initio.
 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.

Dower

 It is referred to as ‘Mehr’. Dower means sum of money paid by husband to his wife at the time of marriage.
According to Wilson, "Dower is a consideration for the surrender of person by the wife."

Free From Legal Disability

Under Muslim law, marriage is not permitted under certain circumstances. The restrictions/prohibition can be
divided into two parts:

Absolute Prohibition

 A Muslim marriage cannot take place if the parties are within the blood relationship or prohibited degree of
relationship of each other in this case the marriage turns to be void.

1. Consanguinity

 It refers to blood relationship in which a man is barred from marrying the following females:
o His mother or grandmother (how high so ever),
o His daughter or granddaughter (how low so ever),
o His sister (irrespective of full blood/ half-blood/ uterine blood),
o His niece or great-niece (how low so ever) and
o His aunt or great aunt, whether paternal or maternal (how high so ever).
  A marriage with woman prohibited under consanguinity is void. Also, children born out of that wedlock are
considered illegitimate.

2. Affinity

 A marriage with certain close relatives is also prohibited in Muslims due to closeness of relationship. The
prohibited relationship are as follows:
o His wife’s mother or grandmother (how high so ever),
o His wife’s daughter or granddaughter (how low so ever),
o His father’s wife or paternal grand-father’s wife (how high so ever) and
o His son’s wife or son’s son’s wife or daughter’s son’s wife (how low so ever).
 A marriage with woman prohibited under affinity is void.

3. Fosterage

 It refers to the milk relationship. It is a condition when a lady other than the mother of the wife, breastfed/
suckled the child under the age of two years, the lady turns to be foster mother of the child.
o A man is restricted from marrying the persons who comes under foster relationship.

Relative Prohibition

 Under Muslim law, certain prohibitions are relative and not absolute. If marriage takes place in violation of
such prohibition, it is only irregular and it can’t be declared as void. Following fall in the category of relative
prohibition:

1. Unlawful Conjunction

 It means contemporaneously marrying two women so related to each other by consanguinity, affinity or
fosterage, which they could not have lawfully intermarried with each other if they had been of different
sexes. Thus, a Muslim cannot marry two sisters, or an aunt and her niece.
 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.

2. Polygamy

 In Muslim Marriage law, 4 wives are allowed at a time. But if a man marries for the fifth time, that marriage
becomes irregular. On termination of earlier marriage or death of one wife, the fifth marriage becomes valid.
 In Shia law, fifth marriage is void. Also, if a Muslim man is married under the provisions of Special Marriage
Act, then he cannot do bigamy or polygamy, it means he can’t have 2nd wife while subsistence of the 1st
marriage.

3. Absence of Proper Witness

 The marriage must be performed in the presence of proper and competent witnesses.
o Under Shia law, presence of witness in not at all important for a valid marriage.
o Under Sunni law, presence of witness is essential else the marriage would be irregular.

4. Difference of Religion
  A Muslim man can marry a woman who is Christian, Parsi & Jews, but he cannot marry a woman who is a
worshipper of fire/idol. If he does so, it is considered as irregular marriage.
 In the case of Muslim woman, she cannot marry a non-Muslim man, if she does so, it is also considered as
irregular.

5. Marriage During Iddat

 “Iddat” means a particular time after ending of marriage (divorce) or when the husband dies.
 The period of iddat is 3 lunar months in case of divorce and 4 lunar months 10 days when the husband dies. If
the marriage was not consummated there is no need to follow iddat period.
 Under Shia law, the marriage during Iddat period is void whereas under Sunni law, the marriage during Iddat
period is irregular.