Under Muslim law, various categories of prohibited relationships are laid down, in violation of which two persons are not permitted to marry each other. These are: (i) consanguinity, (ii) affinity, (iii) fosterage, and (iv) unlawful conjugation. The first three are absolute impediments to marriage and render it batil, null and void; while the last is a temporary impediment and renders the marriage fasid (irregular).
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On the prohibited relationship, the Koranic verses run thus, “Marry not women whom your fathers have had as wife (except that is already past) for this is an uncleanliness, an abomination, and an evil way”.
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“We are forbidden to marry your mothers, your daughters, your sisters, and your aunts, both on the father’s and on the mother’s side; your brother’s daughters and your sister’s daughters; your mothers who have given your birth and your foster-sisters; your wife’s mothers; your step-daughters born of your wives with whom yet have cohabited”, “You are also prohibited to take to wives two sisters (except what is already past), and to marry women who are already married”.
Consanguinity:
The prohibition on the ground of consanguinity is a prohibition to marry some of the blood relations; the Muslim law-givers reckon the prohibition from the male’s side. The relations with whom a Muslim male is absolutely prohibited from marrying (violation of which renders the marriage null and void) are:
(a) His mother or his grand-mother how high soever,
(b) His daughter or grand-daughter how low sover,
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(c) His sister, full, consanguine or uterine,
(d) His niece or great-niece how low soever, and
(e) His aunt or great-aunt both on father’s side and mother’s side how high soever.
The expressions “how high soever” and “how low soever” means ascendants of any degree and descendants of any degree. For example, one cannot marry his mother, mother’s sister, father’s sister, or father’s father’s father’s sister, and so on. Similarly, one cannot marry one’s brother’s daughter, brother’s daughter’s daughter, or brother’s daughter’s daughter’s daughter. In some cases, these degrees of ascent or descent are reckoned on both sides. Thus, one cannot many one’s father’s sister as well as mother’s sister or ascendants through them.
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The prohibition on the ground of consanguinity is identical in all the schools of the Sunnis and Shias.
Affinity:
The prohibition on the ground of affinity relates to prohibition of marrying certain persons, relationship with whom arises on account of marriage. The peculiarity of this doctrine is that all the schools of Muslim law both the Sunnis and the Shias, with the exception of the Shafii schools, hold the view that relationship by affinity comes into existence, not merely when a marriage is valid, but also when it is invalid. Not merely this, relationship comes into existence from an adulterous connection, and a person is prohibited from marrying all relations of the woman with whom the relationship by affinity would have arisen, had he married her.
The Shafis do not subscribe to this view, and the prohibition of affinity does not arise on the basis of adulterous relationship. The Shias, on the other hand, go a step further, and hold the view that a perpetual prohibition arises by any of impudicity between two adolescent youths. All the schools of the Shias and the Sunnis agree that, once a valid marriage is contracted, the prohibition by affinity arises even though the marriage has not been consummated.
The prohibited relations on the basis of affinity are:
(i) One’s wife’s mother or grandmother how high soever,
(ii) One’s father’s wife or father’s father’s wife how high soever,
(iii) One’s wife’s daughter or grand-daughter how low soever, and
(iv) One’s son’s wife or son’s son’s wife how low soever.
The rule is also applicable to women. Thus, a woman cannot marry her daughter’s husband or daughter’s daughter’s husband how low soever.
The prohibited relationship with wife’s daughter, or wife’s daughter’s daughter, arises only if the marriage is consummated.
A marriage entered into in violation of the rule of affinity is null and void.
Fosterage:
All schools of the Sunnis and the Shias agree that prohibited relationship arises on the basis of fosterage, but they differ in detail. The Shias take the view that foster relationship arises only when the child has been actually nourished at the breast of the foster-mother; in that case all prohibited relationships arise as they arise on the basis of consanguinity or affinity. The Sunnis do not go to that extent. They permit a marriage with the following foster relations:
(a) Marriage of the father of the child with the mother of his child’s foster-mother,
(b) With her daughter,
(c) The marriage of the foster-mother with the brother of the child whom she has fostered, and
(d) The marriage with the foster-mother of an uncle or aunt. The prohibitions arising out of consanguinity, affinity and fosterage are applicable to both man and woman.
Relative Impediments:
Under this head, we would discuss those impediments which render a marriage, either irregular or does not affect its validity at all, the impediments being of a recommendatory or moral nature. The relative impediments are:
(i) Prohibition on the basis of unlawful conjugation,
(ii) Prohibition from marrying a woman undergoing idda,
(iii) A marriage performed in violation of the doctrine of equality,
(iv) Marriage while on pilgrimage, and the like.
Unlawful Conjugation:
The prohibition of unlawful conjugation lays down that a man may not have at the same time two wives who are so related to each other by consanguinity, affinity or fosterage, that if either had been a male, they could not have lawfully intermarried. Thus, a person cannot marry two sisters or an aunt and her niece.
The Shias permit a marriage with wife’s aunt, but one can marry one’s wife’s niece only with the wife’s permission. The rule of unlawful conjugation applies only when the first marriage subsists. Thus, if one had divorced his wife, then one is free to marry one’s wife’s sister or wife’s aunt.
The predominant view is that under the Sunni law, such marriages are not void, but irregular, though Fyzee complains that this is so by judicial legislation, otherwise in accordance with the Koran, such marriage should be void.
It is submitted that the decisions holding such marriage as irregular are in consonance with the spirit of Muslim law which leans heavily against illegitimacy. If such marriages are considered to be irregular, the children will be legitimate, otherwise they will be bastards.
Under the Shia law, marriages in violation of rule of unlawful conjugation are void.
Marriage with a woman undergoing idda:
Let us first understand the term “Idda” or “Iddat’. The Muslim law lays down that when a marriage is dissolved by divorce or death, the woman must wait for some time before she can remarry. The period, during which she is prohibited for remarrying, is known as idda. The abstinence from remarrying is imposed with a view to ascertaining the pregnancy of the woman, so as to avoid confusion of paternity.
The different periods of idda are provided depending upon the manner in which the marriage is dissolved. Thus, when a marriage is dissolved by divorce, the woman must perform idda of three menstruation courses, if she is subject to them, if not, of three lunar months. If it is found that she is pregnant, then the period of idda continues till she delivers the child.
But if the marriage has not been consummated, she is not bound to observe any idda and is free to remarry immediately. When the marriage is dissolved by death of the husband, the wife is to observe idda, whether the marriage is consummated or not, for a period of four lunar months and ten days. If the woman is pregnant at the time of the death of the husband, then the period of idda is four lunar months and ten days, or until delivery, whichever period is longer.
The period of idda commences immediately from the day the marriage is dissolved, even though the woman may come to know of the divorce or death of the husband later on. And if she comes to know of it only after the termination of the period of idda, she need not perform any idda.
Muslim law lays down that one should not marry a woman who is undergoing idda. Not merely the woman is prohibited from marrying during the period of idda, even the husband of the woman cannot remarry during the period she is undergoing idda.
It is a settled view that a marriage performed during the period of idda is not void, but merely irregular. But under the Shia law, such a marriage is void.
Marriage in violation of doctrine of equality:
The doctrine of equality in marriage reflects the Koranic enjoinment that all Muslims are brothers. In the family law, it means that marriage should be between two equals. The Hedaya lays down: “cohabitation, society, and friendship cannot be completely enjoyed excepting by persons who are each other’s equal….. as a woman of high rank and family would abhor
society and cohabitation with a mean man; it is requisite, therefore, that regard be had to equality with respect to the husband, that is, the husband should be equal of the wife”. In Muslim law, this principle has come to mean that the man should be equal to woman, though the woman need not be equal to man, since, it is asserted, that the husband can raise her to his own rank.
The Hanafi law lays down several conditions of equality, such as the family must be equal, the man should be free, Muslim, of good character and good means.[268] According to the Malikis and the Shias, only two conditions are necessary, viz., the man should be a Muslim and should have ability to maintain his wife.
In its application to modern conditions, how far the doctrine of equality can be applied, is doubtful. If a minor has been married to a totally unsuitable person, then, in certain cases, the minor has the opinion of repudiating the marriage on attaining majority. But if an adult marries herself to an unequal person, it is submitted that no court of law in India can annul such a marriage.
Ameer Ali opines that if a woman were to contract a runaway marriage with a servant of the family, then such a marriage would be annulled on an application from the wall. It is submitted with great respect that this cannot be so even if the girl happens to be a princess or a daughter to a great industrialist. Fyzee also seems to support Ameer Ali’s view.
According to him, the rule may be formulated thus: “Where a woman, being of age, contracts herself in marriage with a man who is not her equal (ghayr kuf), without the consent of any of those male relations who would be entitled to be guardians of her marriage (wali) if she were a minor, the court on the application of such relations has the power to rescind the marriage”.
This is rather a peculiar position, if the so-called wali (there is no wali of an adult in the Hanafi law) does not file proceedings, such runaway marriages will be valid. Thus, the custodian of equality is the so-called wall it is submitted that no court of law in modern India will hold such marriages invalid.
However, there is a possibility of developing law of annulment of marriage on the basis of this doctrine .in another direction. The doctrine of equality should apply to physical capacity. If either party turns out to be impotent, then the other party should have a right to get the marriage annulled. But then, it should be clear, it is submitted that the right of getting the marriage annulled belongs to either party to the marriage and not to the so-called wali.
Other impediments:
The Ithana Ashari and the Safii laws lay down that a person, who is on a pilgrimage, should not mariy. For example, a person enters the sacred precincts of the Kaba in pilgrim-dress, finds another woman there and marries her; the marriage will not be valid. It is submitted that such a marriage cannot be declared null and void by any Indian court.
Muslim law prohibits a man from remarrying the woman whom he had already divorced by the triple talak, unless the woman marries another man, the marriage is actually consummated with him and, then he divorces her. A marriage in violation of this rule is invalid.
Proof of marriage by acknowledgement:
When in a trust deed executed by late Nizam, certain ladies at one place were called “wives” at another place “ladies of position”, this could not be considered as a valid proof of marriage by acknowledgement.
Recovery of marriage expenses by the bride’s father:
Where after the solemnization of marriage, bridegroom, his father and the barat returned back to their place without the bride, being angry with her father for his refusal to pay for services of the nautch-girl accompanying the barat. The father of the bride brought a suit for recovery of Rs. 2000 incurred by him for gas, lights, bands, etc., and also the expenditure incurred by him for feeding the barat and other expenses. The court allowed these expenses, even after the girl has repudiated the marriage. The Madhya Pradesh High Court observed:
……subsequent exercise by minor-wife of her option of repudiation does not wash away husband’s primal sin of abandoning his spouse as his legal duty to give her food and shelter arises immediately on solemnization of the marriage.
She and her parents too can maintain action against her husband even after she repudiates the marriage or it is dissolved otherwise through Court because her parents’ obligation towards her ceases with her marriage and on passing of that to her husband.
The court applying the doctrine of restitution, observed that all the expenditure incurred by bride’s father was not without consideration. That was evidently a non-gratuitous act, the benefit of which was enjoyed by the bridegroom and his father and therefore both were legally liable for those expenses because the girl’s father had no legal obligation towards them to incur that expenditure though consideration was daughter’s marriage.