Marriage and Muslim Law

The researcher has adopted a doctrinal form of research to do his project. The project entails the researcher to analyzes the concept of marriage under muslim law. Various sources both primary and secondary sources have been consulted for the same. No part of this project is plagiarized and the project is the original work of the researcher.

Introduction

To what extent is sharia a fixed set of norms that apply to all Muslims? Many assume that sharia rules can simply be found either by reading the Quran, or by listening to the opinion of any Muslim priest. They also assume that all Muslims are bound by the same rules, and that sharia rules can thusbe enforced across national borders to all Muslims equally, in the MiddleEast, Africa, Asia, and Europe. But is this correct? And if not, what then is the correct understanding of sharia?

“When people refer to the sharia, they are, in fact, referring to their sharia in the name of the eternal will of the Almighty God.”

“The variety of meanings of sharia has given rise to a flexible, multi-interpretable discourse about sharia and law which moves smoothly from one meaning of sharia to another.”

Marriage or “Nikah” in Islamic law is a contract pure and simple needing no writing and no scared rites. All that is necessary is offer and acceptance made in the presence and hearing of two male or female witnesses and recording the factum of marriage in the “Nikah” Register maintained in every mosque signed by the parties and attested by witnesses. It is payable to the wife on the dissolution of marriage or death or divorce. In India, there is no need to register the Muslim marriage, as there is no law requiring registration.

I am grateful to Dr.Vijender Kumar to give me this valuable opportunity to do a project on “The Concept of Marriage under Muslim Law”.

We have seen, it is the family law that has always represented the very heart of the Shari’a, for it is this part of the law that is regarded by the Muslims as entering into the very warp and woof of their religion.

Generally speaking, in the law of the family alone that the Shari’a is still applied to some four hundred million Muslims, for it is virtually only in the Arabian Peninsula, Afghanistan, Northern Nigeria that the Shari’a is applied today, as such, outside the sphere of family relations and personal status.

It is precisely in regards to the law of marriage and divorce that the battle is joined today between the forces of conservatism and and progress in the Muslim world, and the vicissitudes of that battle provide, as we have seen, a gauge of social progress, a mirror of the advance of modernism in Islam, and an illustration of how a nominally immutable law can be changed in practice.

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Let us start then with a summary statement of Islamic law in these matters. A Muslim woman is bound to monogamy, while a Muslim man may have as many as four wives at once, but no more. In addition, the Ithna ‘Ashari branch of the Shi’a, alone , allows him to have any number temporary marriages, or “marriage of enjoyment,” while all schools allow a man to indulge rights of concubinage with his own female slaves. Any sexual intercourse outside these limits [1] constitute zina, or illicit sex relations, for which the punishment is death by stoning in the case of an offender who has ever consummated a lawful marriage, and one hundred lashes in the case of others. But these penalties can seldom be properly imposed because of the exceedingly exacting standard of proof required, and the principle that such punishments are averted by any circumstance of doubt-besides the fact that Islamic criminal law has today only a very limited application. In addition a Muslim husband may repudiate his wife or wives at any time and at his unilateral discretion.

So much for a very general summary. It is essential, however, first to consider this against its historical background and then elaborate it in greater detail.

Marriages in Islam

Islam, unlike other religions is a strong advocate of marriage. There is no place for celibacy like, for example the Roman Catholic priests and nuns. The prophet (pbuh) has said “there is no celibacy in Islam.

Marriage is a religious duty and is consequently a moral safeguard as well as a social necessity. Islam does not equal celibacy with high “taqwa” / “Iman”. The prophet has also said, “Marriage is my tradition who so ever keeps away there from is not from amongst me”.

Marriage acts as an outlet for sexual needs and regulate it so one does not become a slave to his/ her desires.

It is a social necessity because through marriage, families are established and the family is the fundamental unit of our society. Furthermore, marriage is the only legitimate or halal way to indulge in intimacy between a man and a woman.

Islam takes a middle of the road position to sexual relations , it neither condemns it like certain religions, nor does it allow it freely. Islam urges us to control and regulate our desires, whatever they may be so that we remain dignified and not become like animals.

Historical Background

In pre-Islamic Arabia, it seems, there were several types of marriage, ranging probably from the patrilineal and including the so-called “marriage of temporary enjoyment.”

The most respectable form, however, was a patrilineal marriage in which the groom paid a dower for, or to, his bride.

This has developed no doubt, out of the widespread custom of paying bride-wealth to the tribe or the family of the bride for the loss of her reproductive capacity and as a stabilization both of the union and of the relation between two families; but it would seem that even before the the advent of Islam the dower had come to be regarded in Arabia as properly belonging to the bride herself. In any case this is a characteristic of the Islamic law of marriage, however much it is still disregarded in practice in some quarters. Muslim jurists often in fact employ the simile of sale, and regard the dower as consideration for marital rights-a consideration that constitutes an essential element in every Muslim marriage. Nor is this dower repayable on divorce, in Islamic law, once the marriage has been consummated, even where the wife is primarily at fault, except by her own voluntary agreement.

Hanafis, on the other hand, consider that an adult woman may contract herself in marriage provided she chooses a husband who is her “equal” in respect of family, trade, religion, and so forth; that only minors may be given in marriage without their consent; and that even minors have an option of repudiating such a marriage when they reach majority I all cases in which the guardian who acted for them was other than father or grandfather. [2] The other Sunni schools exclude marriage by compulsion by any except the father or father’s father (or, in the case of the Malikis, the father or father or his executor); but they extend such compulsion, in respect of virgins daughters, far beyond majority.

In addition, a man is prohibited from being married, at one and the same time, to two women who would be debarred, were one of them a male, from marrying each other; [3] 

An Overview of Concept of Marriage in Muslim Law

Islam, unlike other religions is a strong advocate of marriage. There is no place of celibacy in Islam like the Roman Catholic priests & nuns. The Prophet has said “There is no Celibacy in Islam”.

Marriage acts as an outlet for sexual needs & regulates it so one doesn’t become slave to his/her desires. It is a social need because through marriage, families are established and the families are the fundamental entity of our society. Furthermore marriage is the only legitimate or halal way to indulge in intimacy between a man and woman.

Islamic marriage although permits polygamy but it completely prohibits polyandry. Polygamy though permitted was guarded by several conditions by Prophet but these conditions are not obeyed by the Muslims in toto.

Marriage:-Pre Islamic Position

Before the birth of Islam there were several traditions in Arab. These traditions were having several unethical processes like:-

(i) Buying of girl from parents by paying a sum of money.

(ii) Temporary marriages.

(iii) Marriage with two real sisters simultaneously.

(iv) Freeness 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.

Marriage Defined

It is quiet relevant to know whether the Muslim marriage is a sacrament like the Hindu marriage, for this let us get acquainted with some of the definitions of Muslim marriage.

(a) Hedaya [4] : – Marriage is a legal process by which the several process and procreation and legitimation of children between man and women is perfectly lawful and valid.

(b) Bailies Digest [5] :- 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.

(c) Ameer Ali  [6] :- Marriage is an organization for the protection of the society. This is made to protect the society from foulness and unchestity.

(d) Abdur Rahim [7] :- The Mahomedan priests regard the institution of marriage as par taking both the nature of “Ibadat” or devotional arts and “Muamlat” or dealings among men.

(e) Mahmood J. [8] :- Marriage according to the Mahomedan law is not a sacrament but a civil contract.

(f) Under Section 2 of Muslim Women (Protection of Rights on Divorce) Act, 1986 Marriage or Nikah among Muslims is a ‘Solemn Pact’ or ‘Mithaq-e-ghalid’ between a man & a woman soliciting each others life companionship, which in law takes the form of a contract or aqd.

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. .J Sarsah Sulaiman [9] has said “In Islam , marriage is not only a civil contract but also a 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.)

Purpose of Marriage

The word “Zawj” is used in the Quran to mean a pair or a mate. The general purpose of marriage is that the sexes can provide company to one another, procreate legitimate children & live in peace & tranquility to the commandments of Allah. Marriage serves as a mean to emotional & sexual gratification and as a mean of tension reduction.

Marriage compulsory or not ?

According to Imams Abu Hanifa, Ahmad ibn Hanbal & Malik ibn Anas, marriage in Islam is recommendatory, however in certain individuals it becomes Wajib or obligatory. Imam Shafi considers it to Nafl or Mubah (preferable). The general opinion is that if a person , male or female fears that if he/she does not marry they will commit fornication, then marriage becomes “Wajib”. However, one should not marry if he does not possess the means to maintain a wife and future family or if he has no sex drive or if dislikes children, or if he feels marriage will seriously affect his religious obligations.

Prophet said:-

“When a man marries he has fulfilled half of his religion, so let him fear Allah regarding the remaining half.”

This very wording of Prophet marks the importance of marriage, thus it could be well concluded that marriage in Islam is must.

Capacity for Marriage

The general essentials for marriage under Islam are as follows:-

(i) Every Mahomedan of sound mind and having attained puberty can marry. Where there is no proof or evidence of puberty the age of puberty is fifteen years.

(ii) A minor and insane (lunatic) who have not attained puberty can be validly contracted in marriage by their respective guardians.

(iii) Consent of party is must. A marriage of a Mahomedan who is of sound mind and has attained puberty, is void, if there is no consent.

Requirements of Muslim Nikah

The solemnization of a Muslim marriage requires adherence to certain forms and formulas. They are called the essentials of a valid marriage. If any of these requirements is not fulfilled the marriage becomes either void or irregular, as the case may be. The essentials are as follows:

• Proposal and Acceptance
• Competent Parties
• No legal Disability

Absolute Prohibition

There is absolute prohibition of marriage in case or relationship of consanguinity which means the relationship 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 related by affinity, ie, through the wife is not permitted. Marriage with foster mother and other related through such foster mother is also void.

Relative Prohibitions :

Unlawful conjunction

Marrying a fifth wife

Marrying a woman undergoing iddat

Marrying non-Muslim

Absence of proper witnesses

Woman contracting a second marriage during the subsistence of the first marriage.

The following marriages are also prohibited:

Marrying pregnant women

Marrying own divorced wife

Marrying during pilgrimage

Essentials of Marriage

The essentials of a valid marriage are as follows:-

(i) 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.

(ii) The proposal and acceptance must both be expressed at once meeting.

(iii) The parties must be competent.

(iv) There must be two male or one male & two female witnesses, who must be sane and adult Mahomedan present & hearing during the marriage proposal and acceptance. (Not needed in Shia Law)

(v) Neither writing nor any religious ceremony is needed.

Essentials Explored

(i) A Muslim marriage requires proposal ‘Ijab’ from one party and acceptance ‘Qubul’ from the other side. This must be done in one sitting.

(ii) The acceptance must be corresponding to what is being offered.

(iii) The marriage must be effectively immediate. If the Wali says ” I will marry her to you after two months”, there is no marriage.

(iv) The two parties must be legally competent; i.e. they must be sane and adult.

(v) The women must not be from the forbidden class.

(vi) The consent given must be free consent,. It must not be an outcome of compulsion, duess, coercion or undue influence.

Kinds of Marriage

Under Muslim generally two types of marriage is recognized 

(i) Regular Marriage (essentials discussed earlier)

(ii) Muta marriage

Muta Marriage: –

Muta marriage is a temporary marriage. Muta marriage is recognized in Shia only. Sunni law doesn’t recognize it. (Baillie, 18). A Shia of the male sex may contract a Muta marriage with a woman professing the Mahomedan, Christian or Jewish religion, or even with a woman who is a fire worshipper but not with any woman following any other religion. But a Shia woman cannot contract a Muta marriage with a non muslim.

The essentials of Muta marriage are:-

(1) The period of cohabitation should be fixed.

(2) Dower should be fixed.

(3) If dower specified, term not specified, it could amount to permanent or regular marriage.

(4) If term fixed dower not specified, it amounts to void marriage.

Aspects of Marriage

(i) Valid or Sahih

(ii) Irregular or Fasid

(iii) Void or Batil

(i) Valid or Sahih Marriage: - 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.

(ii) Irregular or Fasid Marriage: – 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 he 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.

(iii) Void or Batil Marriage:- 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.

Effect of Marriage (Sahih)

The lawful obligations which arise after marriage are as follows-

(i) Mutual intercourse legalized and the children so born are legitimate.

(ii) The wife gets power to get ‘Mahr’

(iii) The wife entitles to get maintenance.

(iv) The husband gets right to guide and prohibit the wife’s movement(for valid reasons only)

(v) Right of succession develops.

(vi) Prohibition of marriage due to affinity.

(vii) Women bound to complete Iddat period & not to marry during Iddat period; after divorce or death of husband.

The ob ligations and rights set between the two parties during and after the marriage are to be enforced till legality. On the basis of a marriage husband and wife do not get the right on one another’s property.

THE MARRIAGE CEREMONY:

1. Engagement or Mangni: Does not qualify the future spouses to go out together, even if the parents consent. Man and woman become permissible for each other only after the performance of Nikah.

2. Dowry: The unislamic system of demanding and accepting dowry must be avoided at all costs. Shariah does not make any expense incumbent on the bride/bride’s parents. Even the marriage expenses, it is recommended to be borne by the bridegroom. However, the bride can bring whatever she wants of her free will, and it will always belong to her.

3. Other Unislamic Customs: Many other unislamic customs have crept into the marriage ceremony of some Muslims. These customs are either borrowed from non-Muslim cultures or continue because they are established in past generations. One must avoid them if they are against the Shariah, even if some people are displeased. Other customs like the breaking of coconut etc. also do not feature among the Islamic rituals. All actions, customs etc., which show disrespect to Islam or weaken the importance of Islam, have to be avoided.

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4. Haraam Acts: Some of the rituals in marriage ceremonies are absolutely Haraam like the playing of music. It is also Haraam for ladies to go for mixed gatherings without proper Hijab. Such things invite divine wrath and take away the blessings of this auspicious occasion. In the Islamic Law, marriage is an Aqd, a contract. The components of this contract are as follows:

A. Proposal: In Islam the process of proposal by a man to a woman for her hand in marriage, or for that matter, to her family, is encouraged. Islam considers this natural, and recommends it as an act of respectability and dignity for women.

B. Mahr: And the intending husband is asked to offer a Mahr to the bride. Holy Quran says, And give women their Mahr as a free gift, but if they of themselves be pleased to give up to you a portion of it, then eat it with enjoyment and with wholesome result. (Surah Nisa 4:4)

The following points are worthy of consideration:

a) Mahr must be agreed upon by the marrying partners themselves, not by parents.

b) Mahr is her right, to which her husband remains indebted.

c) It is a free gift and not her price.

The Mahr may be cash, kind or non-material (like training or teaching something). It can be paid up front or can be in form of promise to pay upon demands decided prior to the solemnization of marriage. Moajjal (immediate), Muwajjal and Indat-talab (on demand). However, it is much recommended to pay it before or at the time of Nikah itself.

C. The Nikah Ceremony: According to Shariah, the wife-to-be says, ‘An Kah’tu nafsaka a’lal mah’ril ma’loom’. (“I have given away myself in Nikah to you, on the agreed Mahr.”).Immediately, the man (bridegroom) says, ‘Qabiltun Nikaha’. (“I have accepted the Nikah.”).With these pronouncements, they become husband and wife.

If the marrying partners are not able to recite the formula in Arabic, one or two persons or priests are appointed and authorized to officiate. One who represents the bride would first seek her explicit consent to officiate on her behalf, and so would the other who acts on behalf of the groom. Naturally, there would be a slight variation in the pronouncements, because the persons reciting them are appointees. A person who represents the bride would initiate by saying, “Ankah’tu muwakkilati muwakkilaka a’lal mah’ril ma’loom.” (“I give away in Nikah the woman who has thus appointed and authorized me, to the man who has authorized you, on an agreed Mahr.”)

The groom’s representative would respond, “Qabiltunnikaaha limuwakkili a’lal mah’ril ma’loom.” (“I accept the Nikah on behalf of the one who has appointed me, on the agreed Mahr.”)

It is mustahab to recite a brief discourse or Khutba before the Nikah formula is enunciated. In this Khutba, Allah is praised for His Wisdom in regulating the lawful process of procreation, and then the traditions from Holy Prophet Muhammad (s.a.w.) are also recited.

D. Time of Marriage Ceremony: Though basically marriage is allowed at all times, there are some days on which marriage is not recommended; some of these are based on ahadith and some on cultural, historical reasons.Generally, we can categorize these days into three: (a) There are some ahadith which say that it is makruh (not recommended) to have a marriage ceremony on the days when the moon is in the constellation of Scorpio (this is known as al-qamar fil aqrab or qamar dar aqrab), during the last two or three days of the lunar months, and on Wednesdays. (b) There are certain days of the Islamic calendar, which have become associated with the early events of the Islamic history; for example, the 10th of Muharram is the day of mourning for the massacre at Karbala or the day of Holy Prophet Muhammad’s (s.a.w.) death in Safar, etc. Since such days are commemorated by the Muslims as days of mourning, it is socially and, to some extent, religiously not recommended to have a marriage ceremony on such days.

Shia Ithna Ashari (Twelver Shias), especially in India and Pakistan, rarely perform marriage ceremony between the 1st of Muharram and the 8th of Rabi al-Awwal as this period includes the mourning days of Muharram culminating in the martyrdom of Imam Askari (a.s.). The 9th Rabi al-Awwal is celebrated as Eid-e-Zahra..If there is a need, however, Nikah, can be performed at any time.

E. Permission of the Bride-to-be/Father: The girl’s consent is necessary and has to be taken by her representative, directly.

In case of a virgin/spinster the father’s or the grandfather’s permission is also necessary. However if the permission is unreasonably withheld under some conditions or the girl has no father/paternal grandfather it is not necessary. However, a woman who is not a virgin, does not require any permission in case of remarriage.

Conclusion

Marriage is a religious duty of every Muslim and it is considered to be a moral safeguard and a social need. The Prophet has also said “Marriage is my tradition whosoever keeps away there from is not from amongst me.” Holy Quran says: And marry those among you who are single and those who are fit among your male slaves and your female slaves; if they are needy, Allah will make them free from want out of His grace; and Allah is Ample-giving, Knowing. (Surah Nur 24:32).The above ayat begins with the words Wa Ankehoo (And marry …) The imperative form of the word ‘nikah’ implies that either it is obligatory or highly recommended. According to scholars, though marriage is a highly recommended act, it becomes obligatory when there is a chance of falling into sin.Holy Prophet Muhammad (s.a.w.) says, “No house has been built in Islam more beloved in the sight of Allah than through marriage.”

On another occasion Holy Prophet Muhammad (s.a.w.) said: “The best people of my nation (Ummat) are those who get married and have chosen their wives, and the worst people of my nation are those who have kept away from marriage and are passing their lives as bachelors.”Imam Ali (a.s.) exhorts, “Marry, because marriage is the tradition of Holy Prophet Muhammad (s.a.w.).” Holy Prophet Muhammad (s.a.w.) also said, “Whosoever likes to follow my tradition, then he should know that marriage is from my tradition.”

Unlike Hindu where the marriage is a sacrament, marriages in Muslims have a nature of civil contract. Marriage is necessary for the legitimization of a child. When the marriage is done in accordance to the prescribed norms it creates various rights and obligations on both the parties.