Marriage ( NIKAH)
Muslims believe that the Quran is the only revealed book of Allah.Mohammed was the last prophet sent by God (Allah) who received wahi during the jahiliyya period ( period of harshness, sadness , conflicts all over between different tribes)
Under Muslim law, Marriage is considered as a contract with conditions to be fulfilled for a valid marriage .In India , Marriage is considered as civil contract. Unlike hindu law,there are no such ceremonies to be performed instead a marriage must fulfilled or include the following conditions and Essentials of marriage:-
Capacity to contract marriage
- The parties he/she should be muslim
- A muslim should be of sound mind
- Has attained the age of Puberty
- Persons who are not of sound mind or who have not attained puberty can be married by their guardians.
- A woman cannot marry any man who is not a Muslim under Muslim law
- As per sunni ,a Sunni mohammedan can marry a non Muslim women if she is Kitabia
(If the religion is revealed through a divine book then it is called Kitabia, Hinduism is not kitabia)
- As per Shia mohammedan can not marry a non Muslim women even if she is a Kitabia.
- If the other person converts to Islam before marriage then there is no bar
Proposal(known as Ijabin muslim law)
- There should be two male witnesses OR one male and two female witnesses
- Should be without ambiguities and should be made by the parties themselves or by others on their behalf.
- Proposal and acceptance should be expressed in one meeting
- An assurance to marry in future does not constitute a proposal.
Acceptance(known as Quabul) of proposal
- There should be two male witnesses OR one male and two female witnesses
- Should be without ambiguities and should be made by the parties themselves or by others on their behalf.
- Proposal and acceptance should be expressed in one meeting
- An assurance to marry in future does not constitute a proposal.
There should be no impediments to the marriage.
Classifications of Marriage under muslim law:-
Prophet Mohammed ,who was the last prophet in muslims was died at age 63 without leaving an heir to the throne. So to decide who would become his successor ,
Two groups were formed which were on political rather than religious basis. First, on religious basis called shias and another on the basis of election called sunni.
As per shia muslms
- Sahih ( valid marriage)
- Batil( void marriage)
As per sunni muslims
- Fasid( Irregular marriage)
- Sahih ( valid marriage)
- Batil( void marriage)
FASID MARRIAGE ( IRREGULAR MARRIAGE)
- When a marriage is not considered as valid marriage because it involves temporary impediments and prohibition but it can further recity and remove to validate the marriage, it is called irregular and fasid marriage.
- Fasid marriage is not considered as void ab initio but considered as voidable marriage but after the removal of the impediments or irregularity then it will become valid marriage.
- Fasid marriage orIrregular marriages exist only in case of Sunni Muslims whereas an irregular marriage, under Shia law, is void marriage.
- In Ata Mohammed. v. Saiqul Bibi, it was observed that when a marriage is temporarily prohibited and not certainly restricted it is merely irregular or fasid and not void.
- In,Tajbi Abalal Desai vs Mowlakhan Alikhan Desai on 6 February, 1917 ,Court recognized and accepted the classification of marriages with prohibited women in two categories: (1) Those which were “batil” or absolutely void, and (2) those which were “fasid” or only invalid (or irregular).
Fasid marriage covered under muslim personal law ;- A marraige is irregular when
Sec;254;- without witness
Sec;255;- Mahomedan can only have four wives
Sec;256;- unlawful for mahomedan women having more than one husband
Sec;257;- marriage with women undergoing iddat is prohibited
Sec;259;- mahomedan male can contract a valid marriage not only with a mahomedan woman but also with a kitabia, i.e. a Jewess or Christian but marriage with an idolatress or a fire worshipper, is not void, but irregular
Fasid marriage is a marriage with the process of removing irregularity
FOR EXAMPLE;-
- A marriage is voidable or irregular without witnesses but by acknowledgement before witnesses ( removing irregularity) it will become valid marriage
- A marriage is voidable or irregular With is fifth wife but by divorcing one of the wives it will become valid marriage
- A marriage is voidable or irregular with a woman undergoing iddat but by expiration of iddat period it will become valid marriage
- A marriage prohibited by reason of difference of religion but conversion of religion, women can adopt Islam, Christianity or Jewish religion but man has to adopt Islam it will become valid marriage
- A marriage is voidable or irregular with a woman so related to the previous wife, that if one of them had been a male, they could not have lawfully intermarried but by divorcing the wife who is the obstacle it will become valid marriage
Author: Tanveen Kaur,
Chandigarh university/2 year/law student