Essential Conditions for Muslim Marriage in India

Islamic or Muslim marriage laws in India have been subjected to much scrutiny over the years. This article provides a concise explanation of the Essential Conditions for Muslim Marriage in India.

I. Essential Conditions for Muslim Marriage in India

It was Prophet Mohammad who brought a complete change in the status of women. He advocated for almost equal rights for women in the exercise of all legal powers and functions. In pre-Islamic Arabia, women were treated as movable possession of men and were not given any right of inheritance, and were totally dependent on men. Just like Hinduism, Islam is also a strong advocate of marriage.

Marriage or ‘nikah’ under Muslim law bears much resemblance to a civil contract. Its essential conditions involve:

• A clear offer and acceptance, which must be given in the same meeting
• A consideration from the husband’s side to the wife’s known as mehr or mahr,
• Between parties competent to contract
• Following Islam as a religion, or even those devoted to similar scriptures in the Sunni sect.

This is subject to certain prohibitions under the law, such as –

• • Bar to marriage during the period of iddat
  • Bar by Consanguinity
  • Bar by Affinity

II. Offer & Acceptance

It has been observed by the court in the case Abdul Kadir v. Salima and Anr. that a Muslim marriage is in the form of a civil contract and therefore the concept of offer and acceptance applies to a Muslim marriage just like a civil contract. An offer is called ijab in Muslim law and an acceptance is called qubul.

The offer is made by the husband. It can be either made by the man or a person who has been authorised by the man. Now, since a Muslim marriage is a contract, it is allowed to have certain pre-conditions to the marriage and on the fulfillment of the same, the marriage can be accepted by both the parties. It further needs to be asserted that these terms and conditions should be in consonance with legal principles and public policy.

What also needs to be understood is that these terms and conditions are to ensure that the rights of the woman in the marriage are safeguarded. Because, in a Muslim marriage, the man has the right to divorce the woman by way of talaq which is wider in effect than a Muslim woman’s right to divorce, called ‘khula’.

The instant talaq by way of uttering the word or the talaq-e-biddat has now been invalidated by the Hon’ble Supreme Court in the triple talaq case[1].

The acceptance needs to be carried out in a way, where the man or someone on his behalf and the woman or someone on her behalf needs to give their acceptance to the marriage. This needs to be taken in the presence of at least one male and two female witnesses who should be adult, sane Mohammedan.

The Shia sect of Muslims does not mandatorily require the norm of witnesses and it can be done away with. Moreover, if there is no witness to the marriage, it becomes a mere irregularity and not invalidation.

Moreover, acceptance can also be made by way of accepting the dower. Once the man offers the dower to the woman and she accepts the same, it means that the marriage is accepted.

An important condition regarding the offer and acceptance is that both must occur in the same meeting. Also, the offer of marriage should begin the marriage immediately i.e., an offer of marrying someone the next month is not a valid offer.

III. Consideration

Consideration under contract law simply means ‘something for something’. Hence, it is construed in a Muslim marriage that the woman must receive as a matter of right, a sum of money from the husband’s side called mehr or dower.

According to the prophet, this dower is a form of honour and respect given to a woman when she agrees to marry a man by way of accepting the dower. The practical purpose is to ensure the financial security of the woman in and after marriage.

The right to the dower of a woman can be exerted before cohabitation. The Allahabad High Court has said in the Nasra Begum v. Rizwan Ali AIR 1980 All 118 case that a woman’s family can refuse to send her to her matrimonial home if dower is not given. Once the dower is accepted by the woman, she in return agrees to marry the man. Therefore, the contract is complete.

The contract is, however, subject to the following conditions and prohibitions:

• The Competency of Parties

Two factors decide the competency of parties to enter into a marriage under Muslim law – the age, and soundness of mind.

Once the girl and boy have attained puberty, they become competent to be a party to the institution of marriage.

This also means that when the girl and the boy are sexually competent to consummate a marriage, they are allowed. Now, since it is based on physical and emotional features, it becomes difficult to ascertain the exact age at which it would be a valid marriage.

Throughout history, the usual age is 9 for a girl and 12 for a boy. With the passage of time, the Privy Council in the case Muhammad Ibrahim v. Atkia Begum & Anr. has set the maximum age at fifteen years and this age criterion applies to both the man and the woman[2]. The Privy Council gave two conditions:

1. Attainment of the age of 15 years of the woman
2. Attainment of puberty, whichever is earlier.

And once puberty is attained, the power of authorization either by self or to whoever is accepting on their behalf arises.

The other consideration is soundness of mind, where it must be seen whether it is a case of idiocy, i.e., consistent and permanent unsoundness, or lunacy, i.e., acquired unsoundness with periods of sanity in between. The former is entirely incompetent to contract but the latter may marry by giving consent in the period of sanity.

In the case of a minor or a lunatic person who is not capable to authorise, then the power of guardians, parents and family can be regarded. The offer and acceptance on their behalf can be given by the guardian.

The guardians who are allowed to authorise the marriage of a minor are:

1. The father,
2. The paternal grandfather or anyone higher
3. Brother
4. Mother
5. Maternal uncle or aunt or someone from the family. This is the hierarchy that needs to be adhered to when the marriage of a minor comes into question.
6. But when none of the guardians mentioned above is there, then a qazi or any government authority can assume the position of a guardian in the case of a minor child.

• The Religion of the Parties

In Muslim law, the religion of the parties plays a vital role. Since the marriage will be governed by Muslim laws, it needs to be given a certain status. However, the rules and sunnah (tradition) differ in the communities of Sunni Muslims and Shia Muslims:

1. Sunni law

In the case of the Sunni sect, when a man marries a woman from another sect, for example, if a Sunni man marries a Shia woman, then such a marriage is purely an inter-sect marriage. Such marriages are perfectly valid.

However, there is a difference when a woman is a Christian or a Jew. These are called the kitabia communities. The word ‘kitabia’ is derived from the word ‘kitab’ which means book. When there is a marriage which is between a Muslim and a kitabia, then such marriages are allowed and are valid as well.

However, if the woman is a non-Muslim and also does not belong to the kitabia community, then the marriage is a ‘Fasid’. This means the man has either married a Hindu or a non-Muslim nor from the kitabia community. Such marriages are irregular though they are not void. This irregularity can also be done away with if the woman converts into a Muslim woman. Thereby, the irregularity is removed and the marriage automatically becomes a valid marriage.

2. Shia law

Shia law is very conservative as compared to Sunni law. The Shia man traditionally can only marry a Muslim girl. Yes, this would include inter-sect marriage. Meaning a Shia man can marry a Sunni woman as long as she is a Muslim.

However, unlike Sunni law, a Shia man cannot marry a kitabi or a Hindu girl. And if such marriage takes place, then it automatically becomes void in Muslim law. However, if the girl converts into a Muslim, this deformity can be removed.

Shia law allows muta marriages. Muta marriage is one that is temporary or for a limited period of time. Traditionally, such marriages could be solemnized when the man in the marriage was travelling for long distances. In that case, a muta marriage could be performed to validate a marriage between a Shia man and a non-Muslim woman.

IV. Free Consent

For a valid marriage, the free consent of the parties is a must. If the consent is obtained by means of coercion, fraud, or mistake of fact, it is considered invalid and the marriage is considered void. In the case of Mohiuddin v. Khatijabibi, the Court held that a marriage is invalid if it is held without the free consent of the parties.

V. Certain Prohibitions to Marriage

• Marriage during Iddat

Iddat is a time period after the divorce or death of the husband in which the wife (widow or divorcee) is not allowed to marry anyone else. The purpose behind this is to see whether the woman remains pregnant with that husband’s child or not, so as to avoid any doubts regarding parentage. The period is 3 months in case of divorce, and 4 lunar months and 10 days in case of death.

The status of marriage entered into during iddat differs in the case of the Sunni and the Shia sects of Muslims.

The Sunni men are not allowed to marry during the iddat period. However, if they do, then the marriage shall assume the status of a mere irregularity and the validity of such a marriage cannot really be questioned. What this means is that the marriage will be deemed as invalid till the irregularity, i.e., till the period of iddat exists and upon its end, the irregularity will be removed and the marriage will become valid.

On the other hand, in the Shia sect, men are prohibited to marry during the iddat period. If a man does so, then such a marriage is considered void. This disability cannot be removed.

It needs to be highlighted that the period of iddat is only for a specific period of time. As soon as the expiry of this period, the women are allowed to re-marry and there is no prohibition or restriction for the same either in the Sunni sect or in the Shia sect.

• Consanguinity

Marriage between people within the prohibited degree of blood relation is barred in Muslim law as well. This means that marriage between people in blood relation up to a certain number of generations is invalid. For example, a man cannot marry his mother, grandmother, daughter, sister and niece.

• Affinity

Some other relationships are also considered void based on the closeness of the relationship. For example, a man cannot marry his wife’s grandmother.

Similarly, relationships based on fosterage are also barred to some extent. A man cannot marry one’s foster grandmother or foster sister. Under Sunni law, some relationships in fosterage are allowed. In the Shia sect, fosterage and consanguinity are on the same pedestal and both render a marriage invalid.

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References:

[1] Shayara Bano v. Union of India & Others. Available Here

[2] Atika Begum v Md. Ibrahim, Privy council. Available Here

3. Tahir Mehmood, Muslim law of India, 2^nd edition, 2016

4. Saif Mehmood and Tahir Mehmood, Introduction to Muslim Law, 2^nd edition, 2017

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1. Muslim Law; Notes, Case Laws And Study Material
2. Women and Child Rights; Notes, Case Laws & Study Material