In Muslim law, marriages are of three kinds:
(i) Sahih i.e., true, which is a completed valid contract;
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(ii) Batil i.e., bad in its foundation, and one which is a completely void agreement; and
(iii) Fasid, i.e., irregular, or one which is good in its foundation, but unlawful in its attributes. In the batil and fasid kinds of marriages, there are no mutual rights of inheritance between husband and wife.
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In Muhammadan law, marriages that are not valid may be either irregular (also sometimes referred to as invalid) or void. This distinction is peculiar to Sunni law alone. Under Shia law, marriage is either valid or void. Marriages that are irregular under Sunni law are void according to Shia law.
The following are the three important points of difference between a void (batil) and an invalid (fasid) marriage:
1. As to Definitions:
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A batil marriage is altogether illegal, and does not create any civil rights and obligations between the parties. In such cases, there is neither dower, nor iddat, nor legitimacy of the children. Thus, a marriage which is prohibited on the ground of consanguinity, affinity, or fosterage, is void, the prohibition against such a marriage being unconditional and absolute. Similarly, a marriage with a woman who is the lawful wife of another is void.
An irregular (fasid) marriage, on the other hand, is good in its foundation, but unlawful in its attributes because of the lack of some formality or the existence of some impediment. The lack of formality may subsequently be made up, or the impediment may subsequently be removed. In other words, such a marriage is not unlawful in itself. Thus, in a marriage:
(i) Without witnesses, the irregularity arises from accidental circumstances, and may be removed by a subsequent acknowledgement, express or implied, before sufficient witnesses.
(ii) Without the guardian’s consent, the objection may be removed if the guardian subsequently ratifies it.
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(iii) With a fifth wife, the impediment may be removed by the husband divorcing one of his earlier four wives,
(iv) With a woman undergoing iddat, the impediment ceases on the expiration of the period of iddat.
(v) With an idolator or fire-worshipper, the impediment may be removed if the woman is converted to Islam.
(vi) With a woman so related to the wife that if one of them had been a male, they could not have lawfully inter-married, this impediment may be removed by the man divorcing the wife who constitutes the obstacle. Thus, if a man, who has already married one sister, marries another, he can divorce the first, and thus regularise the second marriage.
[All these are instances of invalid (fasid) marriages.]
2. As to their Legal Effect:
The effect of a batil marriage is that it creates no civil rights or obligations between the parties, but after consummation, the wife becomes entitled to customary dower only.
A fasid marriage has no legal effect before consummation. Even after consummation, the husband and wife have no mutual rights of inheritance between themselves, but the issues of such a marriage are legitimate. If consummation has taken place, the wife is (i) entitled to dower, proper or specified, whichever is less; and (ii) bound to observe iddat.
3. As to Issues of the Marriage:
The issues of a void (batil) marriage are illegitimate; those of a fasid marriage are legitimate.
A valid Muslim marriage confers upon the wife the rights of (i) Dower; (ii) Maintenance; (iii) Suitable matrimonial residence; (iv) Equal affection and impartially, if she has a co-wife; and (v) Right to the society, and up-bringing of her infant children, even in case of a divorce.
A Muslim marriage imposes upon the wife the obligations (i) to be faithful and obedient to her husband; (ii) to admit him to sexual intercourse, due regard being had to health and decency; (iii) to suckle her own children, if the husband cannot afford a wet nurse, and (iv) to observe iddat.
A Muslim marriage creates between the parties prohibited degrees of relationship and reciprocal rights of inheritance. It also confers upon both the parties the right to marital confidence. But the husband acquires no rights over his wife’s property.