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Registration and Conditions under Muslim Law

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.

  1. Name of the parties
  2. Details and address of the parties
  3. Signature of the parties
  4. Guardian/ parents name of the parties
  5. Signature of guardians
  6. Name of the witnesses
  7. Name of the officiating priest
  8. Signature of officiating priest
  9. Details regarding dower or mehr

Essentials of marriage:

  1. 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.
  2. 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 their guardians.
  3. 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- Nama
  4. 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 are illegitimate.

    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.
  1. Valid marriage- Valid marriage is also known as Sahih marriage. Marriage will be considered as valid if-
    i. Proper proposal and acceptance is made
    ii. Proper consideration has been decided (mehr)
    iii. The marriage between two parties is of free consent
    iv. The parties should be competent enough
    v. No legal disability should be present

    Legal consequences-
    i. The women gets the status of wife.
    ii. She has the right to maintenance and right to property.
    iii. The children born out of the Sahih marriage are legitimate.
  2. 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.

    Legal consequences-
    i. The women will not get the status of wife .
    ii. No maintenance and property rights to women.
    iii. Children born out of void marriage are ill-legitimate.
    iv. If the marriage has be consummated then the wife will be entitled for the payment of dower.
  3. Irregular marriage - Also called Fasid marriage will be considered as irregular if it is performed in violation of relative prohibition.

    Legal consequences-
    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.
  4. 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 marriage.

    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.

Legal consequences-

  1. Women will get the status of wife up to the period of contract.
  2. If the marriage has been consummated, she is entitled for full dower otherwise for half.
  3. After expiration of time period no maintenance and property right is given to women.
  4. Children born will be legitimate.
  5. 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-

  1. Specified mahr (mahr-i-mussama)
    i. Prompt dower (mahr-i-muajjal)
    ii. Deferred dower (mahr-i-muwajjal)
  2. 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-

  • Education
  • Beauty of the wife
  • Her father’s position
  • Her husband’s position and so on.

Legal remedies-
Available to women against non-payment of dower in case of both specific and proper dower-

  1. She has the right to refuse the conjugation of marriage, but the once them marriage is consummated and this right is lost.
  2. She has the right to file a suit for recovering the amount and entitled for simple interest on such amount.
  3. She can have a lawful possession over the property till receiving the full amount.

Therefore certain conditions need to be followed for the valid marriage under the Muslim law.

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