Table of Contents
INTRODUCTION
Marriage, in India, is a social need through which families are created. Also, families, in our society are fundamental entities. Family law is the body of law that administers the marriage, divorce, custody, adoption, support, paternity, and other domestic relations issues including matters related to non-marital couples and family units. Family law deals with the rights of people in families.
The laws relating to such matters in India are governed through different sets of personal laws namely, Hindu Law (regulating all Hindus including Jains, Buddhists and Sikhs), Muslim Law, Christian Law, Parsi Law, and a Special Law comprising Special Marriage Act.
Marriage under Muslim law
Marriage under Islam is a matrimonial relation and an institution that legalizes the sexual activities between a male and female for the object of procreation of kids, promotion of love, mutual support, and creation of families which are considered essential units in society. Just like Hinduism, Islam is also a strong advocate of marriage.
However, the Muslim conception of marriage differs from the Hindu conception according to which marriage is not a mere civil contract but a sacrament. According to many philosophers, marriage in Islam is a religious duty. Everyone must marry in order to fulfill one’s desire of procreating of kids legally.
A valid contract is necessary for Muslim marriage. Following are objects of a marriage.
- Legalization of sexual intercourse.
- Procreation of children.
- Preservation of the human race.
- Regulation of social life.
Essentials of marriage under Muslim law
- Parties must have the capacity to marry.
- Proposal (hijab) and acceptance (qubool).
- Free consent of both parties.
- A consideration (Mehr).
- No legal Impediment.
- Sufficient witnesses (different in Shia and Sunni).
Competency of Parties
The parties to the contract must be Major, Of Sound Mind & Muslims.
MAJOR
In Muslim marriage, the age when an individual reaches puberty is taken into account because of the age of puberty. Consistent with Hedaya, the age of Puberty for females is 9 years and for males, it’s 12 years.
The Privy Council in the case of Muhammad Ibrahim v. Atkia Begum & Anr. held that under Muslim law, a girl is considered to have attained the age of puberty if she has attained the age of 15 Years, or attained the state of puberty at an earlier age.
The same rule is also applicable to a Muslim Boy. Thus, it can also be said that in absence of any contrary, a Muslim is considered to have attained the age of puberty at 15 years. After attaining the age of 15, parties can give their own consent and there is no need of the consent of guardians.
If an individual may be a minor, i.e., not attained the age of puberty, the consent of the guardian is required to form the wedding lawful. The persons recognized as guardians under Muslim law are:
- Father,
- Paternal Grandfather,
- Brother or the other male member of the father’s family,
- Mother,
- Members of Maternal Relation.
The proper passes from one guardian to other, in absence of the previous one, so as of priority. In absence of any of those guardians, marriage could also be contracted by Qazi or other Government authorities.
SOUNDNESS OF MIND AT THE TIME OF MARRIAGE
Both parties should be of sound mind. A person of unsound mind has no capacity to enter into a contract and within the eyes of law, his consent is going to be considered as no consent.
Unsoundness is of two types i.e Idiocy and Lunacy
MUSLIM
The parties to enter into marriage must be Muslim regardless of their sect or subsect. a wedding is taken into account to be an inter-sect marriage if both the parties are Muslim belonging to different sects but the wedding is valid.
Consideration
It is mentioned as ‘Mahr’. It refers to the quantity of cash or other property which a bridegroom has got to give to the bride as a consideration of marriage. Its object is to supply the bride with a way of monetary security within and after the termination of the marriage.
within the case of Nasra Begum v. Rizwan Ali Allahabad supreme court held that the right to mahr comes into existence before cohabitation. The Court also concluded that if the wife may be minor, her guardians can refuse to send her to her husband until payment of the dower, and if she is in her husband’s custody, then she will even be brought back
Free Consent
For a legitimate marriage, free consent of the parties may be a must. If the consent is obtained by means of coercion, fraud, or mistake of fact, it’s considered invalid and therefore the marriage is taken into account as void.
In the case of Mohiuddin v. Khatijabibi, the Court held that a wedding is invalid if it’s held without the free consent of the parties.
Classification of Marriage
Sahih means Valid
When all the legal requirements are fulfilled and there are no prohibitions affecting the parties, then the marriage is correct or ‘sahih’. The prohibitions can be permanent as well as temporary, in case of permanent prohibitions: the marriage will be void and if the prohibitions are temporary then the marriage is irregular
Effects of a valid marriage
- The cohabitation between the husband and the wife becomes lawful.
- The children born out of a valid marriage are legitimate and they have the right to inherit their parent’s properties.
- Mutual rights of inheritance between husband and wife are established. That is to say, after the death of the husband, the wife is entitled to inherit the husband’s properties and after the wife’s death, the husband may also inherit her properties.
- A prohibited relationship for purposes of marriage is created between the husband and wife and each of them is prohibited to marry the relations of the other within prohibited degrees.
- The wife’s right to claim the dower is fully established just after the completion of the marriage.
- The marriage gives to the wife also the right of maintenance from her husband with immediate effect.
- After the dissolution of the marriage, the widow or the divorced wife is under an obligation to observe the Iddat, during which she cannot remarry.
Batil means Void
The marriage being void ab initio creates no rights or obligations and the children born out of such marriage are illegitimate. A marriage forbidden by the rules of blood relationship, affinity, or fosterage is void. Similarly, a marriage with the wife of another or a divorced wife during the iddah period is also void.
Fasid means Irregular
Due to a lack of some formality, or the existence of an impediment that can be rectified, a marriage becomes irregular, However, this irregularity is not permanent in nature and can be removed. Thus, the marriage itself is not unlawful. It can be made valid once the prohibitions are rectified. Marriage in such circumstances or with the following prohibitions is called ‘Fasid’.
- A marriage contracted without the required number of witnesses;
- Marriage with women during her Iddat period;
- A marriage with a woman without the consent of her guardian when such consent is considered necessary;
- A marriage prohibited on account of difference of religion;
- A marriage with a woman who is pregnant, when the pregnancy was not caused by adultery or fornication;
- A marriage with a fifth wife.
Nikah mut’ah means Muta
The term Muta means “pleasure marriage”. Muta marriage is a temporary agreement for a limited time period, upon which both parties agreed. There is no prescribed minimum or maximum time limit, it can be for a day, a month, or year(s). The marriage dissolves itself after the expiration of the decided period
However, if no such time limit was expressed or written, the marriage will be presumed permanent. This type of marriage is seen as prostitution by Sunni Muslims and thus, is not approved by Sunnis.
However, it is considered legitimate by the Twelver Shia sect, which is predominant in Iran and constitutes 90% of India’s Shia population. No witnesses are required for mut’ah. And just like in any other contract, the woman being a party can lay down conditions for her sexual union throughout this time limit, this can also include her daily maintenance. Her temporary husband must respect these conditions.
The marriage automatically dissolves at the end of the stated period. No matter how short the duration was, the woman has to practice abstinence lasting up to two menstrual cycles.
The temporary husband and wife can renew the contract but the husband must regardless of this pay the amount to the bride. The husband has a unilateral right to revoke the marriage mark of his superior position in the relationship. But the woman can refuse to be intimate with him or even leave him, but in such case, she must return back the amount she received from him.
India is a country that has partially approved live-in relationships; However, it will still be quite difficult for the Supreme Court to constitutionally invalidate this form of marriage.