Muslim Personal Law - Marriage

Marriage in Muslim Law

 Marriage or nikah, according to Muslim law is defined to be a ‘contract
which has for its object the procreation and legalising of children’.
 "A contract that results in the man and woman living with each other and
supporting each other within the limits of what has been laid down for
them in terms of rights and obligations."
 Marriage is an institution ordained for the procreation of society, and in
order that human beings may guard themselves from foulness and
unchastity.
 Essentials of valid Muslim marriage
 The essentials of a valid marriage are as follows:-

1. There should be a PROPOSAL made by or on behalf of one of

the parties to the marriage, and an ACCEPTANCE of the proposal
by or on behalf of the other party.
2. The proposal and acceptance must both be EXPRESSED AT
ONE MEETING. The acceptance must be corresponding to what is
being offered. The marriage must be effectively immediate.
3. The parties must be COMPETENT. The two parties must be
legally competent; i.e. they must be sane and adult(attained
puberty).
4. There must be two male or one male & two female
WITNESSES, who must be sane and adult Muslims present &
hearing during the marriage proposal and acceptance.
5. The consent of the parties or of their guardians must be a FREE
CONSENT.
6. There must not be any PROHIBITION OR IMPEDIMENT in
contracting the marriage.
 CAPACITY FOR MARRIAGE
Every Muslim of sound mind, who has attained puberty may enter into the contract of
marriage.

A marriage of a Muslim, who is of sound mind and has attained puberty, is void, if it is
brought about without his consent.

Both the parties, in order to enter into a valid marriage contract must be of sound mind
and must have attained puberty i.e. the age of 15 years.

Marriage of minors and lunatics can however be contracted with the consent of their
guardians.
• Mahr (Dower) is a mandatory payment, in the form of money or
possessions paid or promised to pay by the groom, or by groom's father,
to the bride at the time of marriage, that legally becomes her property.
• While the mahr is often money, it can also be anything agreed upon by
the bride such as jewellery, home goods, furniture, a dwelling or some
land.
• Mahr is typically specified in the marriage contract signed during an
Islamic marriage. It is paid to the wife and to her only as an honour and
respect given to her and to show that the groom has a serious desire to
marry her and is not simply entering into the marriage contract without
any sense of responsibility and obligation or effort on his part.
 Absence of Impediments
• Under Muslim Law, marriage under certain circumstances is prohibited or not permitted. The prohibitions can be
classified into two classes:
• Absolute Prohibition
• Relative prohibition
• A) Absolute Prohibition
Absolute Prohibition:
• 1) Prohibited degrees of relationship
Under the Muslim law marriage between persons who come within the blood relationship, or certain other
relationship is prohibited. The prohibited relationships are the following:
(a) Consanguinity : Consanguinity means blood relationship and a prohibits a man from marrying the
following females

1. His mother or grandmother (however high so ever)

2. His daughter or granddaughter (how low so ever)
3. His sister whether full blood half blood or uterine blood
4. His niece or great niece (how low so ever)
5. His aunt (father’s sister or mother’s sister)or great aunt (how high so ever)
A marriage with a woman who comes within the relationship of consanguity is absolutely void.
(b) Affinity : A man is prohibited from marrying certain female relatives due to
nearness of relationship. A man is prohibited from marrying
1. His wife's mother grandmother (however high so ever)
2. His wife's daughter or granddaughter (how low so ever)
3. His father's wife or paternal grandfather's wife (how high so ever)
4. Wife of one's own son or son's son or daughter's son (how low so ever)
A marriage with a woman comes within the relationship by affinity is void.
(c) Fosterage: It means the milk relationship. When a child is breast-fed/suckled by a
woman other than its own mother, she becomes the foster mother of the child. A
man is prohibited from marrying certain persons having foster relationship.

2) Polyandry
Polyandry means marrying more than one husband. Polyandry is a form of polygamy
in which a woman is having more than one husband at the same time. Under Muslim
law Polyandry is prohibited and a married woman cannot marry second time so long
as the first marriage subsists and the husband is [Link] a woman violated this
prohibition and contracted a second marriage ,the marriage is void.
Relative prohibition:
• 1) Unlawful conjunction
A man is prohibited from marrying two wives at the same time if they are related to
each other by consanguinity, affinity or fosterage.
• 2) Marrying a fifth wife (Polygamy)
Muslim law permits polygamy (Marrying more than one wife ) with a restriction of
maximum four wives. So a Muslim can have four wives at the same time. If he marries
a fifth wife when he has already four, the marriage is not void, but merely irregular.
But the fifth marriage can be made valid after the death or divorce of any one of the
four wives of his earlier marriages. Under the shia law marriage with the fifth wife is
void.
• 3) Absence of proper witnesses- Under the Sunni law at least two male or one male
and two female witnesses must be present to testify that the contract was properly
entered into between the parties. The witnesses must be of sound mind, adult and
Muslim. A marriage without witnesses is irregular.
Under the Shia law the presence of witnesses is not necessary. The marriage is
contracted by the spouses themselves or their guardians in private are held valid. The
absence of witnesses does not render the marriage void but only invalid.
4) Differences of religion (Marriage with non-muslim)
• In Shias, marriage with non muslim -void

• In Sunnis,

MALE FEMALE MARRIAGE

Muslim male Muslim Female Valid

Muslim male Non Muslim Female Valid

(kitabia)

Muslim male Non Muslim Female Irregular

(idolatress/
fire worshipper)

Non Muslim male Muslim Female Irregular / Void

5) Marriage during IDDAT
• Under Muslim law, a woman who is undergoing iddat is prohibited from
marrying during that period.
• Iddat is the period during which the female is supposed to remain in
seclusion following divorce or death of husband.
• The period of Iddat is prescribed as under:
[Link] case termination marriage by divorce- three lunar months or three
menstrual courses
[Link] case of widow- 4 months and 10 days
[Link] case the woman is pregnant - till the delivery
• Under Sunni Law a marriage with a woman undergoing Iddat is irregular
and not void.
• Under Shia law a marriage with a woman who is undergoing Iddat is void.
Muslim Personal Law - Divorce
Dissolution of Muslim Marriages Act 1939
A woman married under Muslim law shall have the right to obtain a decree of divorce
to dissolve her marriage on one or more of the following grounds, namely:

• That the husband's whereabouts were unknown for four years;

• That the husband neglected or did not provide for her maintenance for a period of
two years;
• That the husband has been sentenced to imprisonment for a term of seven years or
more;
• That the husband has not fulfilled his marital obligations without reasonable cause
for a period of three years;
• That the husband was impotent at the time of the marriage and continues to be so:
to obtain a decree of divorce on this ground, the wife must prove that the husband
was impotent at the time of the marriage and is impotent until the suit is filed;
• If the husband has been insane or suffering from a virulent venereal disease for two
years;
• That she, having been given in marriage by her father or other guardian
before the age of fifteen years, has repudiated the marriage before the
age of eighteen years, provided the marriage has not been
consummated;
• That her husband treats her cruelly means:
• habitually assaults her or makes her life miserable by cruel conduct, even if such
conduct does not amount to physical abuse, or
• is linked to women of questionable character or lives a notorious lifestyle, or
• attempts to make her lead an immoral life, or
• disposes of her property or prevents her from exercising her legal rights to it, or
• prevents her from maintaining her religious profession or practice, or
• If he has more than one wife, he does not treat her fairly in accordance with the
injunctions of the Holy Quran.
INSTANT TRIPLE TALAQ CASE
 (As per Muslim
Personal law)

(Instant Triple Talaq)

• Shayara Bano was married to Rizwan Ahmed for 15 years. In 2016, he divorced her through instantaneous
triple talaq (talaq -e biddat). She filed a Writ Petition in the Supreme Court asking it to hold three practices –
talaq-e-biddat, polygamy, nikah-halala – unconstitutional as they violate Articles 14, 15, 21, 25 of the
Constitution.

• Talaq-e- bidat is a practice which gives a man the right to divorce his wife by uttering ‘talaq’ three times in one
sitting without his wife’s consent.
• Nikah Halala is a practice where a divorced woman who wants to remarry her husband would have to marry and
obtain a divorce, from a second husband before she can go back to her first husband.
• And polygamy is a practice which allows Muslim men to have more than one wife.

Shayara Bano v. Union of India

Issues
• 1. Whether the practice of talaq-e-bidat (specifically - instantaneous triple talaq) an essential religious practice of
Islam?
• 2. Whether the practice of Triple Talaq violates any fundamental right?

Verdict
The 5 Judge Bench pronounced its decision in the Triple Talaq Case, declaring that the practice was unconstitutional
by a 3:2 majority.
 The Muslim Women (Protection of Rights on Marriage) Act , 2019

• Declaration of Talaq: The Act makes all declaration of talaq, including in written or electronic form, to be void
(i.e. not enforceable in law) and illegal. The Act defines talaq as talaq-e-biddat or any other similar form of talaq
pronounced by a muslim man resulting in instant and irrevocable divorce.
• Offence and Penalty: The Act makes a declaration of talaq a cognizable offence, attracting up to 3 years
imprisonment with a fine. (A cognizable offence is one for which a police officer may arrest an accused person
without warrant)
• Cognizable Offence: The offence will be cognizable only if information relating to the offence is given by married
woman (against whom talaq has been declared), or any person related to her by blood or marriage.
• Bail: The Act provides that the Magistrate may grant bail to the accused. The bail may be granted only after
hearing the woman (against whom talaq has been pronounced), and if the Magistrate is satisfied that there are
reasonable grounds for granting bail.
• Compounding Offence: The offence may be compounded (i.e. the parties may arrive at a compromise) by the
Magistrate upon the request of the woman (against whom talaq has been declared). The terms and conditions
of the compounding of the offence will be determined by the Magistrate.
• Allowance: A Muslim woman against whom talaq has been declared, is entitled to seek subsistence
allowance from her husband for herself and for her dependent children. The amount of the allowance will be
determined by the Magistrate.
• Custody: A Muslim woman against whom such talaq has been declared, is entitled to seek custody of her minor
children.