According to the Muhammadan law, marriage (nikah) is a civil contract, the object whereof is to legalise sexual intercourse and the procreation of children. This statement is, however, sometimes so overstressed, that the real nature of marriage is obscured, and it is forgotten that it has other important aspects as well, both social and religious.
One would do well to remember that marriage is recognised in Islam as the basis of society. It is no doubt a contract, but it is also a sacred covenant. The Prophet once delivered a sermon on marriage, and to this day, it is repeated (with a few variations) at Muslim marriages, as it contains a lot of practical advice and many noble sentiments.
As observed by Sir Shah Muhammad Sulaiman, C.J. (in Anis Begam v. Muhammad Istafa, (1933) 55 All. 743):
“It may not be out of place to mention here that Maulvi Samiullah collected some authorities showing that a marriage is not regarded as a mere civil contract, but as a religious sacrament.”
To constitute a valid marriage, no formality is required; nor is any religious ceremony necessary. The usual conditions necessary to constitute a valid contract are also necessary to constitute a contract of marriage. Thus, the parties must be of sound mind and they must not be within prohibited degrees of relationship.
Lunatics and minors who have not attained the age of puberty (i.e., completion of the 15th year) may be validly contracted in marriage by their respective guardians. In the case of a boy or girl who has not attained the age of puberty, the marriage is not valid unless the legal guardian has consented to it.
The three essentials of a Muslim marriage are:
1. Proposal and acceptance
2. Capacity to contract marriage
3. Absence of any impediment.
Each of these is discussed below in necessary details.
1. Proposal and Acceptance:
There should be a proposal (ijab) and an acceptance (qubul) of the proposal, both of which must be expressed at one meeting and in the presence of two male or one male and two female witnesses.
It is important both the proposal and acceptance must be expressed at one meeting; a proposal made at one meeting and an acceptance made at another meeting do not constitute a valid marriage. The usual form of proposal is “I have married myself to you”, and that of acceptance is “I have consented”. (Hedaya, 25)
Sir Ronald Wilson, in his Digest on Anglo-Mohammadan Law, observes as under:
“Words of proposal and acceptance must be uttered by the contracting parties or their agents (vakils) in each other’s presence and hearing, and in the presence of two male, or one male and two female witnesses, who must be sane and adult Muslims; and the whole transaction must be completed at one meeting.”
The above passage has been quoted with approval in several Indian cases, as for instance, in Aklemannessa v. Mohd. Halem (8 C.W.N., 705) and Sahabi Bibi v. Kumaruddin (15 C.W.N., 991)
The following illustrations will help to clarify what has been stated above:
(1) H says in the presence of two male witnesses, M and N: “I have married myself to W”, who is absent. On the information reaching W, she says: “I have accepted.” This does not constitute a lawful marriage, even though M and N are present when W accepts.
(2) H sends a messenger, or writes a letter to W, offering her marriage. W receives the messenger, and reads the letter in the presence of two male witnesses, and declares her acceptance of the offer, in their presence. This constitutes a lawful marriage.
(3) H appoints A as his agent for marriage; A contracts a marriage on behalf of H with a woman. Then, there is doubt as to whether H was married to W, or to some other woman, but H and W both says and believes that they were married. The marriage between H and W is established.
In the above cases, it will be seen that, in illustration (1), one does not find a proposal and an acceptance at one and the same meeting; hence, it is not valid. In illustration (2), there is a valid proposal and acceptance of the proposal in the presence of two witnesses, and thus it constitutes a lawful marriage. In illustration (3), an acknowledgement is presumptive proof of marriage.
From the illustrations given above, it will be seen that, to constitute a marriage among Muslims, no particular ceremonies are required. The question of marriage is one of fact. The fact of the marriage may be proved by direct evidence, by calling witnesses present at the time, or by producing the nikahnama signed by the parties.
It may also be proved by indirect evidence raising a presumption of marriage. Such a presumption does not arise merely from the fact of some years of cohabitation. It must be proved that man treated the woman as his wife, and recognised her as such, not merely casually, but with the intention and knowledge of giving her the status of a wife. (Roshanbi v. Suleman, 49 Bom. L.R. 328)
Neither writing nor any religious ceremony is essential for a valid Muslim marriage. The presence of witnesses, however, is nothing more than a mere matter of evidence; for a marriage without witnesses are fasid (irregular) only, and not batil (void); in fact, in Shia law, the presence of witnesses is not even necessary.
No particular form of proposal or acceptance is prescribed by Muhammadan Law. As observed in Bashiron v. Mohd. Hussain (AIR 1941 Oudh, 284)…
“Evidence that the wife gave her consent to the marriage and the husband agreed to the dower constitutes sufficient proposal and acceptance.”
Consent Obtained by Fraud or Force:
Under the Muslim law, therefore, if consent to a contract of marriage is obtained by force or fraud or the marriage is celebrated under compulsion, such marriage is invalid, unless ratified.
Mohiuddin v. Khatijabibi, 41 Bom L.R. 1020:
M, a Shaafi Mussalman, has four wives, by one of whom he had a daughter K. This wife was not on good terms with M, and was living along with K at her brother’s place in a different village. K had attained puberty. Thereafter, M arranged her marriage with S, a Shaafi male. K did not approve the match, and in order to have the marriage prevented, lodged information with the Police.
The marriage was, however, performed by her father against her wishes. It was held that the marriage was invalid, both because it was without the consent of, and against the wishes of, K, who was an adult virgin, and also because it was celebrated under compulsion.
Kulsumbi v. Abdul Kadir, I.L.R. (1924) 45 Bom. 151:
The plaintiff, a Muslim woman, was duly married to the defendant. She was pregnant, a fact of which her husband was not aware. Five months later, she delivered a fully developed child. The marriage was consummated. The plaintiff sued her husband for recovery of her dower. The Court held that the husband was liable and the concealment of pregnancy by the plaintiff did not render the marriage invalid.
2. Capacity to Contract Marriage:
The parties to the marriage should have either (i) the capacity to marry, or (ii) the capacity to be married. Persons who are not of sound mind, or who have not attained puberty, can be contracted in marriage by their respective guardians.
Capacity to Marry:
Under Muhammadan law, every Muslim who is of sound mind and who has attained puberty, has the capacity to marry.
Age of Majority:
Under Muhammadan law, majority is attained at puberty. It is to be noted that the provisions of the Indian Majority Act, 1875, do not apply to matters relating to marriage, dower and divorce. Thus, a Muslim becomes competent to enter into a contract of marriage when, being of sound mind, he (or she) attains puberty, even if he (or she) is under eighteen years of age. Under the Muhammadan law, in the matters of marriage, dower and divorce, puberty and majority are one and the same.
Under the Hanafi law, puberty in a minor of either sex, is presumed to have been attained on completion of the fifteenth year. In the case of a Shia female, the age of puberty begins with menstruation.
Puberty means the period of life at which persons become capable of begetting or bearing children. Puberty in the female usually commences at the thirteenth or fourteenth year in India. The Hedaya had laid down that the earliest period for a boy is twelve years, and that for a girl nine years.
It has been held by their Lordships of the Privy Council, with reference to a girl in a case under the Shia law, that the age of puberty is nine. (See Sadiq Ali Khan v. Jai Kishor, 30 Bom. L.R. 1346 (1350) PC.) But, under the Muhammadan law, as stated above, puberty is presumed, in the absence of evidence, on the completion of the age of fifteen years.
It should be noted that the Indian Majority Act has left entirely untouched the Muslim law of marriage, so that a person, though a minor under the Act, can contract a valid marriage, if he or she has attained puberty. As an indirect result of the Child Marriage Restraint Act, 1929, marriage of males under 21 and females under 18 are now prohibited. But this Act does not render such marriage void. It is merely a punitive Act, and lays down certain punishments for a breach of its provisions.
Proof of Age:
The question of age is a question of fact. Even if a birth certificate is not produced, age can be proved from other evidence.
Capacity to be married:
Under Muhammadan law, every person is capable of being married, although only a person who has attained puberty and who is of sound mind can contract marriage. A minor or a lunatic, as stated above, may be contracted in marriage by his or her guardian for marriage.
Guardianship in Marriage (Jabar):
A Muslim child of either sex who has not attained the age of puberty is incompetent to contract a marriage. A marriage contracted by a minor is a nullity. But a minor (i.e., anyone who has not attained the age of puberty) can be validly contracted in marriage by his or her guardian. The order of guardianship for the purpose of marriage is as follows:
(ii) Paternal grandfather, how highsoever;
(iii) Brother and other paternal relatives, in the same order as for inheritance;
(v) Other maternal relations within the prohibited degrees; — and failing all these,
(vi) The Government.
The only guardians recognised by the Shia law are the father and the paternal grandfather, how highsoever. A marriage brought about by a person other than the father or a grandfather is wholly ineffective, unless it is ratified by the minor on attaining majority.
Effect of Apostasy on the Right of Guardianship:
According to the strict Muhammadan law, an apostate (i.e., a person who has renounced the Muslim religion) has no right to contract his infant Muslim daughter, into marriage with another. But this rule of Muhammadan law has been abrogated by the Freedom of Religion Act, 1950, according to which no law or usage can inflict on any person who renounces his religion, any forfeiture of rights or property.
The power to contract a minor in marriage is a “right” within the meaning of the Act, and it is not forfeited by conversion from Islam. (Gul Muhammad v. Mussammat Wazir, (1901) 36 R R. 191)
“Write a short note on: Option of puberty”
Option of Puberty (Khyar-ul-Bulugh):
As stated above, a Muslim minor can be contracted in marriage by his or her guardian. But in such a case, the minor may choose, on attaining puberty, either to ratify the marriage, or to repudiate it. This option is called the “option of puberty”. The option of puberty is one of the safeguards by which Islam alleviates the incidence of pre-lslamic institutions pressing harshly against women and children.
Under the traditional Muslim law, when the minor’s marriage is contracted by the father or paternal grandfather, it is valid and binding upon the minor. It cannot be repudiated, unless it is shown that the father or the father’s father, as the case may be, has acted wickedly or heedlessly, or for the manifest disadvantage of the minor.
The above principle of Muhammadan law is now altogether revolutionised by the Dissolution of Muslim Marriages Act, 1939. By virtue of this Act, all restrictions on the option of puberty in the case of a minor girl whose marriage has been arranged by a father or grandfather have been abolished, and under S. 2 (vii) of the Act, a wife is entitled to the dissolution of her marriage if she proves the following facts, viz—
(a) That she was given in marriage by her father or other guardian;
(b) That the marriage has not been consummated (i.e. the marriage has not been “completed” by sexual intercourse between the husband and the wife):
(c) That the marriage took place before she attained the age of fifteen years; and
(d) That she has repudiated the marriage before attaining the age of eighteen years.
Where, however, the marriage is contracted by any other guardian, the minor has the option to repudiating the marriage on attaining puberty without specifying any reasons for doing so.
According to Shia law, a marriage brought about by a person other than a father or grandfather is wholly ineffective until it is ratified by the minor on attaining puberty.
Option when to be Exercised:
It may be noted that the option of puberty (khyar-ul-bulugh) must be exercised:
(i) By the wife, immediately on attaining puberty and being informed of the marriage and of her right to repudiate it;
(ii) By the husband, at any time before he ratifies the marriage, either by payment of the dower or by cohabitation; otherwise, the right to repudiate the marriage is lost.
The High Court of Allahabad has held that a Shia girl given in marriage by her father to a Sunni husband, has an option of repudiation on attaining puberty, unless the marriage has been ratified by consummation or otherwise, the reason given being that it would be contrary to all rules of equity or justice to force such a marriage on her, if on attaining puberty, she considers the marriage to be repugnant to her religious sentiments. (Aziz Bano v. Muhammad 1925 47 All. 823)
Following the above case, the Chief Court of Karachi has held that a wife is entitled to repudiate a marriage if the husband has been convicted for theft and is also charged with enticing away or detaining a married woman with a criminal intent. (Zubeda Begam v. Vazir Mahomed 940 190 I.C. 94)
Confirmation by the Court:
There is a conflict of judicial opinion on whether the repudiation of marriage on attaining puberty ipso facto dissolves the marriage or whether the dissolution must be confirmed by a Civil Court. The High Court of Lahore has held that a decree of a Court is not necessary to invalidate a marriage which has thus been repudiated by the wife, and later decisions of the same Court (now in Pakistan) have confirmed that the exercise of the opinion of puberty puts an end to the marriage, without the aid of any Court.
The Calcutta High Court has, however, held that, although no decree is required to confirm the repudiation, an order of the Judge is necessary, and the High Court of Madhya Pradesh has approved the view taken by the Calcutta High Court.
Effect of Khyar-ul-bulugh:
The effect of the exercise of the opinion of puberty is that the marriage ceases to be a marriage, and must be treated as having never taken place. But in the meantime, the parties remain husband and wife for the purposes of inheritance, which means that if either of them dies, the other will inherit from him or her in the capacity of wife or husband, as the case may be.
3. Absence of Impediments:
The third essential of a Muslim marriage is that there should be no impediment or prohibition to the marriage of the parties. Such impediments are of two kinds: (a) absolute, i.e., those which prohibit a marriage and render it void (batil); and (b) relative, i.e., those which do not impose an absolute prohibition, so that a marriage contracted in spite of them is merely invalid or irregular (fasid), but not void.