Marriage (NIKAH)

Introduction

Muslims are broadly divided into two major sects Shias and Sunnis and there are four schools of thought under Sunni Muslim law namely:

• Hanafi
• Hanbali
• Maliki
• Shafi

Out of these four, the Hanafi school is dominant in India (The Hanafi school is named after its founder, Imam Abu Hanifa (699-767 CE), who was an Islamic scholar and jurist. He is considered as one of the most prominent figures in Islamic jurisprudence.). Due to these different sects and schools of thought, there are different types of marriages and divorce practices that are accepted in Muslim society. Different types of marriages are Sahih (valid) Marriage, Batil (void) Marriage, Fasid (irregular) Marriage, Muta Marriage.

Definition of Marriage

• Definition of Marriage (Nikah) - The Arabic word nikah (marriage) literally means the union of the sexes and in law this term means 'marriage'. In Baillie's Digest, marriage has been defined to be "a contract for the purpose of legalizing sexual intercourse, and procreation of children".
• In Hedaya (12th-century legal manual, considered as one of the most influential compendium): Nikah in its primitive sense means carnal conjunction.

Capacity to Marry

The following person can contract a Nikah:

• A person of sound mind.
• Persons not within the prohibited degrees of relationship. (E.g. Granddaughter, Sister, Niece, Wife’s Sister).
• Any person who has attained the age of puberty.
• In the case of lunatics or those who have not attained the age of puberty (below the age of 15) can legally contract marriage by their guardians.

Object of Marriage

The purpose of marriage is perpetuation of human race and attainment of chastity, continence, mutual love, affection and peace. According to Abdur Rahim, institution of marriage is established for the purpose of sanctioning sexual relations between two members of the opposite sexes with a view to preserve human species, the fixing of descent, restraining men from debauchery, the encouragement of chastity and the promotion of love and union between the husband and the wife and of mutual help in earning livelihood. In a nutshell, the objects of Muslim Nikah are as follows:

• Legalization of sexual intercourse.
• Procreation and legitimation of children for the purpose of:
  • Preservation of the human race.
  • Systematization of domestic and social life.

Nature of Muslim Marriage

• The nature of marriage under Muslim law is the same as a civil contract. It is entered into by both the parties by their free volition. In its formation it also takes the form of contract as there is offer and acceptance between the parties, giving the same right to husband and wife. But during the dissolution of marriage, the husband is given more rights than the wife as they are considered superior to women due to the patriarchal notion that men are physically and intellectually superior to women

Case Law

In the case of Abdul Kadir v. Salima (1886), it was observed that the character of Muslim marriage is similar to that of a civil contract, as like civil contract marriage under Muslim law requires offer (Ijab) from one side and acceptance (Qubul) from another side, which must be out of the free will i.e. without any coercion, undue influence and fraud on the part of both the parties. In case of both the parties being minor, they have the right to either set aside or follow the terms of marriage when they become major, as it is in the case of a contract.

Types of Marriage

• Temporary marriage (Muta marriage): Muta Marriage is a marriage for a fixed period only for the purpose of sexual pleasure. Muslim Law in the Shia sect (Athna Asharia school) recognizes the concept of Muta Marriage.
• Permanent Marriages: The different aspects of permanent marriages are following:
  • Sahih (valid) marriage - When all the essential conditions of a Muslim marriage are duly fulfilled, it is called a sahih nikah or valid marriage.
  • Batil (void) marriage - Marriages in violation of rules are known as Batil marriages. Those marriages which are in violation of conditions of affinity, fosterage, etc. are examples of Batil marriages (for example, marrying your mother's sister).
  • Fasid (irregular) marriage - When a marriage is not considered as valid marriage because it involves temporary impediments and prohibition which can be further rectified and removed to validate the marriage, it is called irregular or fasid marriage.

Essentials of Muslim Marriage

The general essentials of a Muslim Nikah are:

• Parties must have the capacity to marry.
• Proposal (ijab) and acceptance (Qabool).
• Free consent of both the parties.
• A consideration (Mehr).
• No legal Impediment.
• Witnesses (Sunni - 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; Shia - Witnesses are not necessary at the time of marriage.)

Registration of Marriage under Muslim Law

• Registration of marriage in Muslims is compulsory and mandatory, as a Muslim marriage is treated as a civil contract. According to Section 3 of Muslim Marriages Registration Act, 1981 - “Every marriage contracted between Muslims after the commencement of this Act, shall be registered as hereinafter provided, within thirty days from the conclusion of the Nikah Ceremony”.
• Nikah Nama is a type of legal document in Muslim marriages which contains the essential conditions/details of the marriage.

Presumptions of Marriage

• Marriage is a fact and must be proved by direct evidence, e.g. By witnesses present at the time of marriage or by producing the Nikah Nama (Marriage deed) signed by the parties. Thus, direct evidence is the best evidence.
• Sometimes direct evidence is not available as a Muslim marriage often takes place without any ceremony. In this case of absence of direct evidence, the marriage may be inferred from the circumstances. This is called presumption of marriage.
• In Muslim law presumption of marriage arises in the following three cases:

(a) When prolonged continual cohabitation is established between the parties as husband and wife, who have no legal impediment against their marriage;

(b) When the man acknowledges the woman to be his wife.

(c) When a man acknowledges a child as his legitimate offspring, then a presumption of valid marriage between the man and the mother of the child arises.

• If the behavior of the individuals involved is not conducive to a marital relationship, then no such presumption is established.