Muslim Marriage Act

Indian Majority Act, 1875 do not govern the Muslim marriage but the Muslim law itself

Controls it. According to Muslim Law, Marriage or ‘Nikah‘ as the Muslims call the nuptial

Ceremony is an agreement underlying a permanent relationship based on mutual approval.

Essential Features of Muslim Nikah

l A Muslim marriage requires

proposal called the Ijab from one

party and acceptance or Qubul from

the other as is necessary for a

contract.

l There can be no marriage except

For the free consent and such

Consent should not be obtained by

Means of compulsion, deception or

Unjustified influence.

l Just as in case of agreement,

Entered by a guardian, on attaining

Majority, so can a marriage contract

In Muslim Law, be set aside by a

Minor on attaining the age of

Puberty.

l The parties to a Muslim marriage

may enter into any ante-nuptial or post-nuptial agreement, which is enforceable by law,

provided it is sensible and not opposed to the policy of Islam. In the case with a contract the

same policies are followed.

l The terms of a marriage contract may also be changed within the legal limitations to suit

individual cases.

l Although discouraged both by the holy Quran and Hadith, yet like any other contract,

there is also provision for the violation of marriage contract.

Requirements of Muslim Nikah

The solemnization of a Muslim marriage needs strict following of certain rules and

regulations. They are called the basic fundamentals 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 of Muslim marriage are as follows:

l Proposal and Acceptance

l Competent Parties

l No legal Disability

Absolute Prohibition

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.

Relative Prohibitions

l Unlawful union

l Marrying a fifth wife

l Marrying a woman undergoing iddat

l Marrying a non-Muslim

l Absence of proper witnesses

l Woman going for a second marriage even after the existence of the first marriage.

l Marrying pregnant women

l Marrying during pilgrimage

l Marrying own divorced wife

Procedure for Muslim Nikah

l According to Muslim Law it is necessary that a man or someone on his behalf and the

woman or someone on her behalf should give their consent to the marriage at one meeting

and two adult witnesses should witness the agreement.

l The words meaning proposal and acceptance must be spoken in each other‘s presence or

in the presence of their agents, who are called Vakils or Qazi.

l The other circumstance for a valid marriage is that the contract must be completed at one

meeting. A proposal made at one meeting and an acceptance at another meeting does not

constitute a valid marriage.

l There must be exchange of views between offer and acceptance. The acceptance must

not be restricted.

l Under the Sunni Law, the proposal and acceptance must be made in presence of two

males or one male and two female witnesses who are sane, adult and Muslim. Under Shia

Law, witnesses are not necessary at the time of marriage. They are required at the time of

dissolution of marriage.

l The parties arranging the marriage must be giving their free will and consent.

l Polygamy - The Muslim law permits a Muslim man to have four wives, provided he treats

all of them equally.

Dower or Mahr - It is an obligation imposed upon the husband at the time of the marriage

as a mark of reverence to the wife. The wife can receive it by instituting an action as if it

was a debt due to her.

Divorce - Marriage under Islam is only a civil agreement and not a sacrament. A husband

can leave his wife without any reasons or merely by pronouncing the word "Talak" thrice.

However, for a Muslim woman to obtain divorce certain circumstances are necessary. The

husband and the wife with mutual agreement can also put an end to the marriage.

Like Hindu law, followers of Islam have their own personal law, which states that Nikaah or

marriage is a contract, may be permanent or temporary, and permits a man four wives if he

treats all of them equally. There should be a proposal or ‘offer,‘ made by or on behalf of

one of the two parties;

The Muslim marriage law also states that to have a valid marriage under the Muslim law, if a

person is of sound mind, normal and has attained puberty at the age of 15 his or her

marriage cannot be performed without his or her consent. There are certain prohibited

relationships, whose marriage is considered void. Like mother and son, grandmother and

grandson, uncle and niece, brother and sister and nephew and aunt.

l An ‘acceptance‘ of such proposal or ‘offer‘ by or on behalf of the other party;

l The ‘offer‘ and ‘acceptance,‘ both, must be expressed in the same meeting. There is no

Prescribed form for proposal and acceptance. However, a proposal made at one meeting and

An acceptance made at other meeting, will not constitute a valid marriage ;

l The offer and acceptance must be made in the presence of two male witnesses, or one male

and two female witnesses, who must be adult Mohammedans of sound mind; iv. A marriage,

contracted without witnesses, is not void but is considered irregular. Such irregularity can be

cured by consummation.

However, according to Shia law, the presence of witnesses is not necessary in any matter.

Muslim Marriage Act 1939 Muslim Marriage Act also has a provision for separation under the

name of dissolution of Marriage act, 1939. Both the parties to the marriage contract have an

opinion for divorce, but the husband‘s right in this respect is much greater than that of the

wife. In case of divorce a husband can leave his wife without any reasons merely by

pronouncing the word "Talak" thrice. Like in Hindu marriage act, divorce can also take place due

to mutual agreement between the husband and the wife, which is known as Mubarat. Khula is

another way of ending a Muslim marriage, which is a form of divorce with the consent and at

the initiative of the wife. The wife gives or agrees to give a consideration to the husband for her

release from the marriage tie. In this form relieving the husband from payment of mahr to the

wife may be a consideration.

A woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her

marriage on any one or more of the following grounds, namely:

(i) That the whereabouts of the husband have not been known for a period of four years;

(ii) That the husband has neglected or has failed to provide for her maintenance for a period of

two years;

(iii) That the husband has been sentenced to imprisonment for a period of seven years or

upwards;

(iv) That the husband has failed to perform, without reasonable cause, his marital obligations

for a period of three years.

(v) That the husband was impotent at the time of the marriage and continues to be so;

(vi) That the husband has been insane for a period of two years or is suffering from leprosy or

a virulent venereal disease.

(vii) That she, having been given in marriage by her father or other guardian before she

attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen

years.

In case of the dissolution of marriage by any means discussed above the man and the woman

can remarry immediately. In fact, unlike in a Hindu marriage, Muslim widow is encouraged to be

remarried and that‘s a responsibility of the Muslim community.

--

Haider Ajaz