Muslim law is an uncodified civil law. In Muslim law the marriage is a civil
contract where there is no prescribed religious ceremony for the marriage. The
bride and the groom enter into the contract of marriage known as Nikah which is
an Arabic word which means a contract . The Quran specifically refers to
marriage as mithaqun Ghalithun , which means a strong
agreement . The original
meaning of Nikah is to have a physical relationship between a man and woman for
the procreation of children and also the women’s are honoured with the mahr.
Muslim law has been derived from various codified and uncodified sources like-
Quran, Sunnat, Ijma, Qiyas, customs, legislation, precedents and equity, concise
and justice. There are 4 major Sunni school of thoughts- Hanifi, Maliki, Shafai
and Hanabli and 3 major Shia school of thoughts- Itna-Arshiya, Ismalia and Zyda.
In India, Hanifi School of Islamic law is dominant.
Registration of marriage:
As the nikah is considered as a contract or consideration is paid in the name of
bride. This kind of document is considered as legal document in case of Muslim
marriage is known as nikah-nama.
- Name of the parties
- Details and address of the parties
- Signature of the parties
- Guardian/ parents name of the parties
- Signature of guardians
- Name of the witnesses
- Name of the officiating priest
- Signature of officiating priest
- Details regarding dower or mehr
Essentials of marriage:
- Proposal and Acceptance- It means Ijaab and Qubul . When one parties
offers the contract for marriage it is called Ijaab and when it accepted by the
other party known as Qubul which should be done in one sitting.
- Competent Parties- Competent parties mean the capacity to enter into the
contract. Both the parties which are entering into the contract of marriage
should be made with free consent otherwise marriage will be considered as
void marriage. The parties should be of sound mind and must have attained
the age of puberty. The marriage of minors and lunatics can be conducted by
- Sufficient Witness- Under Sunni law, the marriage should be conducted in
presence of two male Muslim or one male and two female Muslim, absence of
witness would render the marriage as violable. Under Shia law, there is no need
of witness. When the marriage is in written it is known as ‘Nikah Nama or Kabin-
- No legal disability-
a) Absolute Prohibition-
i. Consanguinity- Consanguinity
means the blood relations or relations before marriage. A male cannot marry his-
· His mother or grandmother
· His daughter or grand-daughter
· His sister, whether full blood or half blood or uterine blood
· His niece
· His aunt ( father’s sister or mother’s sister)
Marriage with a woman in prohibition of consanguinity is void and children born
ii. Affinity- Affinity means the
relations which starts after the marriage.
· His wife's mother or grand-mother
· His wife's daughter or grand-daughter
· Wife of his son or son's son or daughter's son
A marriage with a woman prohibited by reason of affinity is void.
iii. Fosterage- Fosterage means relation
by milk. A male cannot marry a woman who he has sucked her milk, even if she is
other than his own mother.
iv. Polyandry- Woman is not allowed to
marry more than one husband. It is prohibited under Muslim law. She can marry
only when the first marriage is dissolved otherwise it will be a punishable
offence under S. 494 of IPC as bigamy and the marriage will be declared as null
and void marriage.
b) Relative Prohibition-
i. Unlawful conjunction- A male is
not allowed to marry two women at same time if they are related to each other by
consanguinity, fosterage of affinity.
ii. Polygamy- In Muslim law men’s are
allowed to have more than one wife but a maximum of four wives at the same time.
But if he marries a fifth wife when he has already four, then the marriage will
be considered as irregular and not void. But the fifth marriage is valid after
the death or divorce of any of his four wives.
iii. Absence of Witness- Under Sunnis law
it is essential that at least two male witnesses or one male or two female
witnesses must be present to give evidence that the contract was properly
entered into between the parties. The witnesses must be of sound mind, should
have attained the age of majority and Muslim.
In Shia Law, presence of witnesses is not necessary.
iv. Difference in religion- a male either Shia or Sunni marrying either Shia or Sunni is a valid marriage. If male Sunni
marrying female non-Muslim if she is Kitabia then the marriage would be
considered as valid marriage and if she is Hindu then the marriage would be
Irregular. If male Shia marrying female non-Muslim if she is Kitabia or Hindu
then the marriage would be considered as Void.
v. Iddat period- If the marriage is
dissolved by death then the wife has to observe the iddat period for 4months and
10days and if it is dissolved by divorce then the iddat period is for 3 months.
Types of marriage:
- There are 3 types of marriage in each Sunni and Shia law-
- Sunni law- Valid, Void and Irregular marriage.
- Shia law- Valid, Void and Mutta marriage.
- Valid marriage- Valid marriage is also known as Sahih marriage. Marriage
will be considered as valid if-
i. Proper proposal and acceptance is
ii. Proper consideration has been
iii. The marriage between two parties is
of free consent
iv. The parties should be competent enough
v. No legal disability should be
i. The women gets the status of
ii. She has the right to maintenance
and right to property.
iii. The children born out of the Sahih
marriage are legitimate.
- Void marriage - Also known as Batil marriage. This marriage does not
create any type of legal obligations and rights and duties on the parties.
Marriage will be considered as void if-
i. If the marriage is performed in
violation of absolute prohibition
ii. If the marriage is done with such a
women who is already the wife of other
iii. If the marriage is done with his own
divorced wife without following the legal process of Ha-La-La.
i. The women will not get the status
of wife .
ii. No maintenance and property rights to
iii. Children born out of void marriage are
iv. If the marriage has be consummated then
the wife will be entitled for the payment of dower.
- Irregular marriage - Also called Fasid marriage will be considered as
irregular if it is performed in violation of relative prohibition.
A. Before consummation- marriage before consummation is a void marriage and
wife is not entitled to obtain dower from the husband and wife is not bound to
observe the iddat period.
B. After consummation- women will not get the status of wife. She has no
right in property or maintenance. Children born out of this marriage are
legitimate and wife is bound to observe the iddat period of 3months.
- Muta marriage - Muta marriage is also known as temporary marriage or
marriage for pleasure. This type of marriage is recognised under
itna-asharia-shia marriage. This marriage is contracted for a particular period,
on a fixed amount and all the legal provisions should be fulfilled for such
There is no concept of divorce and marriage will be dissolved
automatically after the expiry of the time period. If the husband want to leave
the wife early before the assigned time, then he can leave by making the full
payment of dower as a gift of un-expired time period known as Hiba-a –muddat
(gift). But if the wife wants to leave the husband before the expiration of the
time period then the husband has the right to deduct the amount.
- Women will get the status of wife up to the period of contract.
- If the marriage has been consummated, she is entitled for full dower
otherwise for half.
- After expiration of time period no maintenance and property right is
given to women.
- Children born will be legitimate.
- The iddat period is for 3 months.
Mahr / Dower:
Earlier mahr was a sale price but now it is considered a s a token of respect.
Mahr is the amount to be paid by the husband to the wife as a token of respect.
Mahr is of two types-
- Specified mahr (mahr-i-mussama)
i. Prompt dower (mahr-i-muajjal)
ii. Deferred dower (mahr-i-muwajjal)
- Proper mahr (mahr-i-misl)
Specified mahr- Under such concept an amount is fixed to be paid and it can be
fixed before the marriage, during the marriage or even after the marriage. If
such amount is fixed in writing it is known as mahr-i-nama. Though there is no
such minimum or maximum limit for mahr but earlier under Sunni law minimum mahr
was of 10 dehrum while under Shia law the maximum amount was 500 dehrum which
was fixed in prophet daughter’s marriage. Under Sunni law if any person was not
able to pay this minimum amount then a way was suggested by prophet to read the
Quran to his wife.
i. Prompt mahr- It is immediately payable on demand during
the marriage. Under such concept fewer amounts or a small amount is kept because
the amount is to be paid on demand and the wife has the right to ask anytime
even the next day of marriage.
ii. Deferred mahr- In deferred mahr the heavy amount is kept to
be paid and is payable only after the dissolution of marriage.
Proper mahr- if no such amount is fixed at the time of marriage or the marriage
is contracted on aground that the party will not demand the dower, even then the
husband is bound to give the dower which will be decided by the court of law on
the basic ground such as-
- Beauty of the wife
- Her father’s position
- Her husband’s position and so on.
Available to women against non-payment of dower in case of both specific and
- She has the right to refuse the conjugation of marriage, but the once
them marriage is consummated and this right is lost.
- She has the right to file a suit for recovering the amount and entitled
for simple interest on such amount.
- She can have a lawful possession over the property till receiving the
Therefore certain conditions need to be followed for the valid marriage under
the Muslim law.