All that is necessary for the conclusion of a Muslim marriage is that there should be a proposal (ijab) of marriage made by, or on behalf of, one of the parties, and accepted (qubul) by or on behalf of the other, at one and the same meeting. If the proposal is made at one meeting and is accepted at another then, it does not result in a valid marriage.
Among the Sunnis the proposal and acceptance should be made in the presence and hearing of two adult male witnesses (or one male and two female witnesses). The Shias do not insist on the presence of witnesses.
Muslim law does not prescribe any specific words to be uttered on the occasion though the words used in the proposal, and the acceptance, must clearly and unequivocally convey the intention to be married. The Rudd-ul-Muhtar says that marriage does not depend on the use of any express terms so long as the purpose is distinctly understood.
The usual (though not prescribed) form is: “I have married myself to you”, and the other says, “I have consented myself to you”. When the proposal is made by the bridegroom to the father of the bride, the usual form is: the bridegroom addresses the father of bride thus: “Many your daughter to me”, and the bride’s father replies, “I have consented”.
The Ithna Ashri law requires the use of the following Arabic words, “tawiz” or “nikah”. But even if proper words are not used, consummation on marriage cures the deficiency, and all incidents of a valid marriage flow from it. If parties are unable to utter the Arabic word, the equivalent words in the language they understand may be spoken.
The Hanafi law requires that the contract of marriage must be expressed in words implying sale (bay) or gift (hiba), or transfer of ownership (tamlik), or any other expression implying permanent union. Use of words implying hire or pledge is not proper.
Ordinarily, in India, marriages among all sects are solemnized by a person conversant with the requirements of law, who is designated for the occasion by the kazi or the mulla Two other persons formally appointed for the purpose, act on behalf of the contracting parties, with certain number of witnesses, and the terms are usually embodied in a deed or marriage called kabin namah.
In the deed of marriage all the conditions of marriage such as the amount of dower, mode of its payment, questions relating to custody of children, or any other conditions which the contracting parties desire to lay down, are incorporated.
In India, ordinarily and usually, Muslim marriages are celebrated at the bride’s father or guardian’s residence, in the presence of agents (vakils) and guests some of which act as witnesses. It is also usual that kazi or mulla is present on the occasion who recites certain Koranic verses and confers benediction on the parties.
From the contractual concept of Muslim marriage, it flows that the consent of the parties if adult, or of their guardians, if minors, must be expressed clearly and unequivocally by them or their agents. Among the Hanafis and the Shias, an adult person is himself or herself competent to give the consent and no consent of the wali is necessary.
If a party is not competent to enter into a contract, either on account of infancy, or insanity, then the consent of the guardian for marriage is necessary. The Shafii law, on the one side, insists that consent to marriage must be given by the girl herself, the wali merely communicates that consent; on the other, it insists that the girl, even though adult, cannot herself convey the consent—it must be conveyed through the wall.
The Malikis also take this view. It appears that according to these schools, a female is emancipated only on her marriage. A Shafi virgin adult girl can contract a valid marriage without the consent of her father or a wall Among the Hanafis and the Shias, an adult woman can herself contract a valid marriage; she may, as well, choose to marry through her wali.
Thus, the offer and acceptance of the offer in one and the same meeting are the only essential element of formality of marriage. It may be oral or it may be in writing. But Muslim law does not insist on any type of writing or any religious ceremony. Even Mulla is not needed. Nor is the presence of Kazi mandatory.