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Nature of Muslim Marriage Sacrament or Civil Contract

Muslim Marriage As A Civil Contract:

  • Nikah is an Arabic word or term used for marriage which means union of the series and carries a civil contract for the purpose of legalizing sexual intercourse and legitimate procreation of children.
  • The Quran specifically refers to marriage as Mithaqun Ghalithun which means A Strong Agreement.

Views:
Ameer Ali: Marriage is an organization for the protection of the society. This is to protect the society from foulness and unchastity.

Wilson: He defines Muslim Marriage as a contract for the purpose of legalizing sexual intercourse and procreation of children.

Justice Mahmood: In The case Abdul Rahim Vs Salima ( ILR 1886 8 ALL 149)

Justice Mahmood commented on the nature of Muslim marriage that Muslim Marriage is a civil contract and not a sacrament.

Why Muslim Marriage is a Civil Contract:

The essentials of a civil contract are:

  • Proposal
  • Acceptance
  • Consideration
  • Free Consent
  • Lawful Object
  • Competency of The Parties

Similarly, essentials of Muslim marriage are:

  • Ijab ( Proposal)
  • Qubool (Acceptance)
  • Dower ( Consideration)
  • Free Consent
  • Competency Of The Parties

Comparing both it seems the same conditions for both, thus we can say that marriage under Muslim is a civil contract.

The object of civil contract:

  1. Legalizing the sexual intercourse
  2. Procreation of children

Muslim marriage as Sacrament view

Prophet’s Saying:
  • When a man marries he has fulfilled half of the religion, so let him fear Allah regarding the remaining half.
  • When a husband and wife look at each other with love, Allah look at them with mercy.”- Sahi Bukhari 6:19 Tirmidhi
  • The most perfect believer in faith is the one whose character is finest and who is kindest to his wife”. -  Ahmad 5/282 Tirmidhi

Definitions:
Abdur Rahim: The Mohammadan priests regard the institution of marriage as per taking both the nature of Ibadat ( or devotional arts) and Muamlat ( or dealing among person).

Justice Suleman: in a case: Anis Begum vs Mohammad Istafa Wali Khan (air 1933 all 634)

In the above case, he has said that in Islam, marriage is not only a civil contract but also a sacrament.

Muslim marriage can also be differentiated from a civil contract on the basis of following points:

  • It cannot be done on the basis of future happening unlike the contingent contract.
  • Unlike the civil contract it cannot be done for a fixed period of time. ( Muta marriage being an exception)

Conclusion:
It is a matter of query still existing whether Muslim Marriage is only a civil contract or an Ibadat and Muamlat. While unleashing the various definitions it is quite a big problem to say which one is the most appropriate.

In my opinion although the essentials of a contract is fulfilled yet marriage can never be said to be a contract because marriage can never be bondage between the emotions and thinking of two persons.

Written By: Er Khaliqul Azam (DME, BE, MA, Pursuing LLB) - Ms Law College, Motihari 

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