The consummation of marriage removes some deficiencies of form in the performance of marriage. A valid retirement (al-khulwal-us-sahiha or khilwat-us-sahih) raises a presumption of consummation of marriage. The Radd-ul-Muhtar lays down that if parties, having to physical, moral or legal bar, retire into privacy; it raises a presumption of consummation of marriage.
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According to Ameer Ali, “Under the Hanafi and the Maliki law a presumption of consummation is raised from the retirement of the husband and wife into the nuptial chamber, under circumstances which lead to the natural inference of matrimonial intercourse.
ADVERTISEMENTS:
But when there is some legal, moral or physical impediment to such intercourses no presumption is raised, and the retirement is not valid. For example, when the parties are observing the obligatory fast of Ramajan or either husband or wife is suffering from an illness which prevents connubial relationship or a third (‘dicreet’) person is present in the room though he may be blind, the retirement into the nuptial chamber does not give rise to the presumption of consummation”.
It is also necessary that the place should be such where parties can really have privacy. If the place is exposed to public view or public has access or if it is open, unenclosed place, then, no presumption of consummation of marriage arises.
Under the Shia and the Shafi law, no absolute presumption of consummation of marriage arises from valid retirement. These schools insist that it is only actual consummation of marriage which gives rise to marital rights and obligations.
According to the Hanafi and the Maliki schools, the valid retirement is placed on the same footing as actual consummation of marriage for certain purposes; while for other purposes, actual consummation is necessary.
ADVERTISEMENTS:
According to the Fatwai Alamgiri, a valid retirement is equivalent to actual consummation for the following purposes; for confirmation of dower, for establishment of paternity, for the observation of iddat, for wife’s right of maintenance and lodgement, for unlawfulness of marriage by the husband with the wife’s sister, or with a fifth woman, and for the observance of time in the repudiation of marriage.
A valid retirement does not raise a presumption of consummation for the following purposes (in such cases, Muslim law insists on actual consummation of marriage): for making a person muhsan, or a daughter unlawful, or for making a divorced woman lawful to her first husband, or for the purpose of revoking repudiation, or for inheritance. It also does not replace actual consummation for the purpose of impairing virginity. Thus, if a man should retire with a virgin and then repudiates her she would subsequently marry as a virgin.