Concept of Marriage in Muslim Law

Muslim Marriage: Concept, Legal Framework & Contemporary Developments

Introduction

Marriage in Islam holds a central place in both faith and society. Unlike religious traditions that celebrate lifelong celibacy for priests or monks, Islam encourages marriage as the preferred path to moral conduct, companionship, stability, and continuation of family life. A well-known saying of Prophet Muhammad declares: “Marriage is my tradition; whoever turns away from my tradition is not of me.”

Islam does not view marriage as merely a civil arrangement or solely as a sacred sacrament. Rather, it is a solemn pact (Mithaq-e-Ghalid) — a moral, legal and spiritual relationship between a man and a woman, grounded in mutual rights and responsibilities. Modern Muslim personal laws across the world increasingly emphasise consent, dignity, fairness, and welfare of children as core objectives of marriage.

Pre-Islamic Arabian Background

Before the advent of Islam, a variety of marriage customs existed in Arabia, many of which were socially harmful or ethically questionable, such as:

• Buying or acquiring women against their will from parents or guardians
• Temporary unions without stable protection for women
• Marriage with two real sisters simultaneously
• Unrestricted giving up and taking back of women at the whim of men

Islam reformed these practices by laying down rules of consent, limiting certain forms of marital relationships, fixing rights and obligations, and granting women an independent legal personality in marriage, property and inheritance.

Definition and Nature of Muslim Marriage (Nikah)

Classical jurists and modern scholars have described Muslim marriage in different but complementary ways:

• Hedaya: Marriage is a lawful process by which sexual relations and procreation are legitimised between a man and a woman.
• Ameer Ali: Marriage is a social institution meant to protect society from immorality and unchastity.
• Abdur Rahim: The institution of marriage in Islam partakes of both the nature of Ibadat (devotional act) and Muamlat (dealings among human beings).
• Mahmood J. in Abdul Kadir v. Salima^[1] emphasised that, under Muslim law as applied in India, marriage is more in the nature of a civil contract than a sacrament.
• Muslim Women (Protection of Rights on Divorce) Act, 1986 (Section 2) recognises marriage or Nikah as a “solemn pact” (Mithaq-e-Ghalid) between a man and a woman seeking each other’s life companionship, which in law takes the form of a contract (aqd).

In substance, Muslim marriage can be described as:

“A contract in form, a spiritual and moral commitment in essence.”

It satisfies classic elements of a contract (offer, acceptance, free consent, capacity, etc.), but at the same time has religious and ethical dimensions that go beyond ordinary commercial contracts.

Purpose of Marriage in Islam

The Qur’an uses the term Zawj to denote a pair or mate. The purposes of marriage, as highlighted by the Qur’an and Sunnah, include:

• Companionship and mutual support
• Tranquility, affection and mercy between spouses
• Legitimate satisfaction of sexual needs
• Procreation and preservation of lineage
• Formation of a stable family unit as the basic unit of society

The Qur’an (30:21) states that God created spouses “that you may find tranquillity in them, and He placed between you affection and mercy,” indicating that marriage is not only for procreation but also for emotional and spiritual fulfilment.

Is Marriage Obligatory?

Juristic opinions differ regarding whether marriage is obligatory (wajib) or recommendatory:

• The Hanafi, Maliki and Hanbali schools generally consider marriage recommended, but it becomes obligatory for a person who fears falling into zina (fornication or adultery) if he or she remains unmarried.
• The Shafi’i school often regards it as preferable (mandub) rather than strictly obligatory.

At the same time, classical and modern scholars agree that a person may delay or avoid marriage if:

• He or she genuinely lacks financial means to maintain a spouse and children;
• Has no ability or inclination for marital relations; or
• Feels that marriage would seriously interfere with other major religious obligations.

The famous hadith that “when a person marries, he has completed half of his religion, so let him fear Allah regarding the remaining half” underlines the importance of marriage as a safeguard to faith and morality.

Legal Capacity for Marriage

Classically, the requirements for legal capacity to marry are:

• Every Muslim of sound mind who has attained puberty can enter into a valid marriage independently.
• Where there is no proof of puberty, it is presumed at 15 years; however, many modern legal systems, including India by statute, fix a higher minimum age (often 18 years or more) for both males and females, regardless of religion.
• A minor or lunatic who has not attained puberty can be validly contracted into marriage by a lawful guardian (wali) under classical law, though modern child marriage laws and constitutional principles discourage and penalise child marriage in practice.
• Free and informed consent of the parties is essential; forced marriages are void or illegal under contemporary standards and may attract criminal consequences.

Essentials of a Valid (Sahih) Marriage

For a marriage to be valid under Muslim law, the following conditions are generally required:

• There must be a clear proposal (Ijab) made by or on behalf of one party and a clear, corresponding acceptance (Qubul) by or on behalf of the other.
• Offer and acceptance must be made in the same meeting, in the presence of witnesses (under Sunni law).
• The parties must be competent: of sound mind and having capacity to marry.
• There must be no legal prohibition between the parties by reason of consanguinity, affinity or fosterage.
• There must be two adult male Muslim witnesses or one male and two female Muslim witnesses (Sunni law). Under Shia law, the requirement of witnesses is less strict.
• Neither written form nor any special religious ceremony is absolutely mandatory under classical law, though registration is now strongly encouraged or legally required in many jurisdictions, including India, to secure proof of marriage and protect rights.

The consent must be free; it must not be obtained by coercion, undue influence, or serious fraud. Modern legal regimes and international human rights instruments strongly condemn forced marriages, especially of women and minors.

Polygamy and Polyandry

Islam permits polygyny — a man may marry up to four wives — subject to the strict condition of justice and equal treatment among them. The Qur’an (4:3) states that if a man fears he will not be able to do justice, he should marry only one. Polyandry (a woman having more than one husband at the same time) is prohibited.

While polygyny is religiously permitted, it is neither compulsory nor the norm. Many scholars describe it as an exception allowed in specific circumstances (for example, to care for widows and orphans in times of social need) rather than a universal right to be exercised at will.

Modern Legal Regulation of Polygamy

In several Muslim-majority countries and in India, polygamy is regulated or restricted through statutory law and judicial decisions. Common conditions include:

• Obtaining permission of a court or religious authority before a second marriage;
• Proving financial capacity and ability to treat all wives fairly and equally;
• In some jurisdictions, obtaining consent of the existing wife or wives.

Indian courts have clarified that polygamy is not an essential religious practice protected under the Constitution. In Javed v. State of Haryana^[2] and Khursheed Ahmad Khan v. State of U.P.^[3], the Supreme Court of India held that a Muslim man’s right to have multiple wives can be regulated by the State in the interest of social welfare and gender justice.

Temporary Marriage (Muta)

Muta or temporary marriage is recognised in Shia jurisprudence but not in Sunni schools of law. A valid Muta marriage requires:

• A specified period of cohabitation;
• A specified dower (mahr);
• Capacity and consent of the parties.

If the period is specified but dower is not, the marriage is generally treated as void; if dower is specified but the term is not, it may be treated as a regular permanent marriage. Many modern statutes and legal systems, including those applicable in India to Sunnis, do not recognise muta as a valid form of marriage.

Classification of Marriages: Sahih, Fasid and Batil

1. Valid (Sahih) Marriage

A sahih marriage is one that fulfils all the essential requirements discussed above. Its legal effects include:

• Sexual relations between the spouses become lawful.
• Children born of the union are legitimate and entitled to inheritance.
• The wife is entitled to dower (mahr) and maintenance (nafaqah).
• Mutual rights and obligations arise, including rights of companionship, residence, and in many cases succession.
• Prohibitions of marriage due to affinity (e.g., marriage with mother-in-law) come into effect.
• The wife must observe iddah upon divorce or death of the husband.

2. Irregular (Fasid) Marriage

A fasid or irregular marriage arises when some requirements are not met but the union is not absolutely prohibited. Examples include:

• A marriage without witnesses (in Sunni law);
• Marriage with a woman in her iddah period;
• Marriage with a fifth wife while four existing marriages subsist;
• Marriage with a fire-worshipper or a woman not belonging to the permissible religious categories under the applicable school of law;
• Marriage prohibited due to unlawful conjunction.

An irregular marriage has no legal effect before consummation. After consummation, however, certain rights and liabilities may arise, such as legitimacy of children and obligation of dower, though not all consequences of a valid marriage follow.

3. Void (Batil) Marriage

A batil or void marriage is unlawful from the very beginning and produces no legal consequences between the spouses. Examples include:

• Marriage with a close blood relative prohibited by consanguinity;
• Marriage prohibited by affinity (e.g., with one’s foster mother or daughter);
• Marriage prohibited by fosterage (raza);
• Marriage with a woman who already has a husband (polyandry);
• Marriage brought about by serious coercion or fraud under modern legal standards.

Children born of a void marriage are generally considered illegitimate in classical law, though modern courts may extend certain protections in the best interests of the child.

Rights and Obligations Arising from Marriage

Rights of the Wife

• Dower (Mahr): A mandatory payment or promise from the husband to the wife, payable immediately or deferred, as a mark of respect and security.
• Maintenance (Nafaqah): Right to financial support, including food, clothing, residence and other basic needs, so long as she fulfils her marital obligations and the marriage subsists.
• Residence: Right to live in a suitable matrimonial home.
• Protection and Dignity: Right to be treated with kindness, respect and fairness; modern laws also protect against domestic violence and cruelty.
• Post-marital rights: Right to maintenance during iddah and, in many cases, to a fair and reasonable provision on divorce under statutes and judicial precedent.

Rights of the Husband

• Right to companionship and consortium of the wife.
• Right to marital intimacy within lawful bounds.
• Right to reasonable obedience in matters consistent with Shariah and law; this is balanced by his duty to maintain, protect and deal with the wife justly.

Mutual Rights and Duties

• Mutual fidelity and exclusivity in sexual relations.
• Mutual respect, cooperation and consultation in family affairs.
• Joint responsibility for the welfare, education and upbringing of children.
• Succession rights as per the rules of Muslim inheritance, unless modified or affected by statutory law.

Contemporary interpretations emphasise equality, mutuality and partnership in marriage rather than a strictly hierarchical understanding of roles.

Indian Case Law on Muslim Marriage

Indian courts have played an important role in interpreting Muslim marriage law in the light of constitutional values:

• Abdul Kadir v. Salima (1886) 8 All 149^[1] — The Allahabad High Court observed that Muslim marriage, though having religious aspects, is in its legal character more akin to a civil contract.
• Anees Begum v. Mohammad Istafa (1933) 55 All 743^[4] — The Court reiterated the contractual and yet solemn nature of Muslim marriage.
• Javed v. State of Haryana (2003) 8 SCC 369^[2] — The Supreme Court held that polygamy is not an integral part of Muslim religion and can be regulated by the State; a law disqualifying persons having more than two children from contesting elections was upheld, despite its impact on a polygamous Muslim’s choices.
• Khursheed Ahmad Khan v. State of U.P. (2015) 8 SCC 439^[3] — The Supreme Court again held that a Muslim man’s practice of polygamy is not an essential religious practice and can be subjected to reform and restriction in the interest of social welfare.
• Shayara Bano v. Union of India (2017) 9 SCC 1^[5] — The Supreme Court declared instant triple talaq (talaq-e-biddat) unconstitutional, emphasising gender justice and equality, and paving the way for further reform in Muslim personal law.

These decisions collectively show that while Indian courts respect religious freedom, they also uphold constitutional principles of equality, dignity and social reform in interpreting Muslim marriage law.

Conclusion

Marriage in Islam is a religious duty for many, a moral safeguard, and the foundation of family life. It is at once a civil contract and a solemn spiritual commitment. When contracted with free will, justice, compassion and responsibility, it fulfils the objectives of Shariah: protection of faith, life, lineage, intellect and property.

Contemporary developments in Muslim personal law — in India and worldwide — focus on:

• Strengthening women’s rights and protection from abuse;
• Regulating or restricting polygamy in the interest of justice;
• Discouraging child marriage through statutory age limits;
• Making registration of marriage a norm for legal security;
• Balancing religious freedom with constitutional values and human rights.

A legally sound and ethically lived Muslim marriage thus becomes not only a personal commitment but also a building block of a just and harmonious society.

References

1. Abdul Kadir v. Salima, (1886) 8 All 149.
2. Javed v. State of Haryana, (2003) 8 SCC 369.
3. Khursheed Ahmad Khan v. State of U.P., (2015) 8 SCC 439.
4. Anees Begum v. Mohammad Istafa, (1933) 55 All 743.
5. Shayara Bano v. Union of India, (2017) 9 SCC 1.