Kinds of marriages (Nikah) under Muslim law

Kinds of marriages (Nikah) under Muslim law

INTRODUCTION:

• In Islam, marriage is seen as a civil contract between a man and a woman for the purpose of legitimatizing the intimacy and procreation of children. Unlike other religions, the Mohammedan law does not see marriage a sacrament; but a contract that is entered into by two individuals by signing a document called Nikahnama.
• The Nikahnama is a written document that two Muslim partners entering into a civil union must put their signature on in order to legalise their marriage. Under the Muslim Family Laws Ordinance 1961, it is the legal evidence of said union and lays out the rights and obligations agreed upon the by the bride and groom. It also includes the amount of Mahr.
• The Mahr is a legal right of the bride and an obligation of the groom. It can be a sum of money or property given to the bride by the groom. It can be paid to be at the time of the Nikah or after it.
• Being a civil contract, the Nikah is not permanent. The couple is not obliged to maintain their relationship onto death but can be broken at any point in time.
• In Islam, polygamy, that is; having more than one wife but only up to four wives is allowed. But, polyandry, that is; a woman having more than one husband is strictly prohibited.

ESSENTIALS OF NIKAH (Muslim Marriage)

• There should be a proposal, i.e., Ijab and acceptance, i.e., Qubul from the parties wanting to enter into a marital relationship. This should be done in a single sitting.
• The parties must be of a legal age to marry. However, in Islamic law, two women to serve as a witness to the ceremony. Persons who have attained an age of puberty shall be allowed to marry.
• There must a witness to acknowledge the marriage. It can either be a man or
• The persons entering into the matrimonial relationship must be of sound mind and competent enough to understand the nature of marriage and also obligations arising out of it.
• There must be free consent of the parties entering into this civil contract.

MARRIAGE NOT HAVING LEGAL DISABILITY

The marriage should not have any legal disability. It should be free from the following:

1. Consanguinity- This means a blood relationship. A man cannot marry the female of any degree of blood relationship or uterine (same mother but different fathers) relationship; however low or high. E.g. mother, aunt, grandmother, niece, sister etc.
2. Affinity- This means that the man is prohibited from marrying a female due to the closeness/ nearness in the relationship. E.g. wife’s sister, wife’s mother, father’s mother or grandmother etc.
3. Fosterage- This means a milk relationship. When a child is breastfed by a woman other than his mother, she becomes his foster mother. A man is not allowed to marry relations arising out of this foster relationship. E.g. foster mother or grandmother, foster sister.
4. Polyandry- This means that if a woman is already married, she cannot marry for the second time until the first marriage subsists. However, a man is allowed to keep four wives.
5. Differences of religion: A Muslim is only allowed to marry a Muslim. They cannot marry an idol worshipper or a fire worshipper. However, they can marry a kitabia i.e. a revealed religion possessing a religious book (Christianity, Judaism).
6. Marriage during Iddat period: Iddat is a period during which the incumbent upon a woman, whose marriage has been dissolved by divorce or death of her husband to remain in seclusion, and to abstain from marrying another husband, so as to ascertain the paternity of the child if any conceived. Marriage performed during this period of Iddat is prohibited.

There are various kinds of marriage performed under Islamic law.

TYPES OF MUSLIM MARRIAGES (NIKAH)

There are various kinds of Nikah:

• Valid marriage/ Sahih
• Irregular marriage/ Fasid
• Void marriage/ Batil
• Mu’tah marriage

1. Valid marriage/ Sahih Nikah

The Sahih Nikah is the one where all the essentials of the marriage a duly fulfilled. If the couple has signed the Nikahnama by the proposal and acceptance, and the groom has paid Meher to the bride, it is deemed to be a valid Nikah. There are certain legal and social implications and obligations arising out of valid marriage. Some of them are listed herein;

• The spouses can legally consummate their marriage and the children arising out of their relationship are deemed to be legitimate.
• Due to the Sahih Nikah, the couple acquires rights over inheritance over the property that can be inherited.
• After a valid marriage, the wife has the right to alimony and maintenance for herself as well as her children. Also, the right to receive maintenance is independent of the right to receive dower.
• Incase the wife turns a widow post a valid marriage, she is obliged to observe a period of Iddat for a period of 90 days under the Muslim law.

2. Irregular marriage/ Fasid Nikah

When a contract is lacking one of the essentials of the Nikah. The concept of irregular marriage exists only in the case of Sunni Muslims; while, in the case of the Shias’ the marriage is deemed to be void. Irregular marriages are the one which is called voidable, that means if the essential that the marriage lacks is removed or recovered then, the marriage can be called valid.

For instance, if a Muslim man marries a woman who is an idol worshipper, but then converts her to Islam then the marriage is termed to be valid. In the case of Ata Mohammed. v. Saiqul Bibi, it was seen that Fasid Nikah could be turned into Sahih Nikah. The social and legal implications and obligations are decided on the very fact whether the marriage was consummated or not. The implications are as follows:

• Unless the marriage is consummated, the wife is not entitled to mahr in case the husband divorces her.
• The wife is not mandated to observe the period of Iddat in case the marriage was not consummated.
• In case the children are born out of the Fasid marriage, then they are termed to be legitimate.

3. Void marriage/ Batil Nikah

When a contract is not enforceable by law, it is called void agreement. Similarly, Nikah being a civil contract, when the essentials are not met or are not removable/ recoverable, then it is called void ab intio or Batil marriage. In Munshi v. Mst. Alam Bibi. The court observed that when there is a permanent or perpetual prohibition from marriage due to non-adherence of a condition, it is void marriage. The following enlisted situations ascertain that the marriage is void:

• When the Nikkah takes place between persons who are either legally / mentally / physically incapable.
• When a woman marries another man during the subsistence of the first marriage, the second marriage is deemed the status of void/ Batil.
• When a man takes a woman to be his fifth marriage, then the marriage is deemed to be void.
• When a man marries the woman during the period of Iddat/ when she is pregnant.

The result of such marriage usually such as enlisted below:

• The marriage is deemed to be void ab inito, even if it is consummated.
• Since the marriage is deemed void, right to maintenance is lost.
• The children born out of such wedlock are given the status of illegitimate, as it is seen that the marriage never existed.
• When the spouses decide to part their ways, no legal decree is required to dissolve their marriage.

4. Mu’tah marriage

Mu’tah is marriage was seen as a temporary form of marriage. This was recognised only by the Shias’ and not by the Sunnis’. Mu’tah marriage was basically a marriage performed for a contracted period by payment of dower. It was usually performed by the Sheikhs who were on tour due to business of oil refining on deserts. Since it is not allowed to engage in any kind of sexual activity with any woman other than his wife, Sheikhs used to engage in these temporary unions called the Mu’tah marriage.

Finally, marriage has seen to have very high regard in Islamic law. It does not recognise the persons to observe celibacy. Marriage also has a high degree of respect in society as to form and grow these families into social institutions and finally into a state.

Author: Ayushree Mehta,
NMIMS Bangaluru/ 1st year BA LLB student