marriage in term of law

8/13/2019 Marriage in term of law

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Marriage Page 1of 20

Marriage1. INTRODUCTION

2. MEANING OF MARRIAGE3. DEFINITION OF MARRIAGE

Hedeya

According to Ameer Ali

4. OBJECTS OF MARRIAGE

5. NATURE

Hazarat Muhammad (PBUH) Says

6. CAPACITY FOR MARRIAGE

7. ESSENTIALS OF MARRIAGE

I. OFFER (IJAB)

II. ACCEPTANCE (QUBUL)

III. OFFER AND ACCEPTANCE MUST BE IN THE SAME MEETING

IV. FREEDOM

V. CONSIDERATION

VI. MAJORITY

VII. PERSONS OF OPPOSITE SEX

VIII. WITNESSES

(a) In case of Suni Marriage

(b) In case of shia Marriage

Qualification of Witnesses

IX. FREE CONSENT

8. LEGAL EFFECTS OF A VALID MARRIAGE

9. NUMBER OF WIVES

10. CONCLUSION

MARRIAGE

1. Introduction:

The celebration of the marriage contract is called nikah. Marriage is enjoined upon every Muslim, and

celibacy is frequently condemned by the Holy Prophet Muhammad (SAW). It is related in the Traditions

that the Holy Prophet (SAW) said, When the servant of God marries, he perfects half of his religion.

2. Meaning Of Marriage

Marriage means wedlocks, the mutual relation of the husband and wife. It is a contract for the

legalization of intercourse and procreation of children.

3. Definition Of Marriage

Hedaya


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Marriage is defined to be a contract which has for its object the procreation and legalizing of children.

According to Ameer Ali

Marriage is an institution ordained for the protection of society, and in order that human being may

guard themselves from foulness and unchastity.

A.A. Fyzee

Marriage in Islam is a contract and not a sacrament.4. Objects Of Marriage

Following are objects of a marriage:

(i) Legalization of Sexual Inter course.

(ii) Procreation of children.

(iii) Preservation of human race.

(iv) Regulation of social life.

5. Nature

Mohammedan marriage is purely contractual. It is considered a religious duty. It is an act of Ibadat

which is called Sunnat-Muwa-kkidah.

Hazrat Muhammad (PBUH) says:

If a person is in a position to maintain his wife and pay the amount of dower, he must get himself

married.

6. Capacity For Marriage

(i)Every Muslim of sound mind, who has attained puberty may enter into a contract of marriage.

(ii)Lunatics and minors who have not attained puberty may be validity contracted in marriage by their

respective guardians.

(iii)A marriage of a Muslim who is of sound mind and has attained puberty is void, if it is brought about

without his consent.

7. Essentials Of Marriage

i Offer (Ijab)

There must be offer one party. It is also called Ijab.

ii Acceptance (Qubul)

The offer so made should be accepted by or behalf of the other party. It is called Qubul.

iii Both must be in same Meeting

The offer and acceptance must both be made at the same meeting. An offer made at another meeting

do not constitute a valid marriage.

iv Freedom

The parties contracting marriage should be free persons. Marriage with a slave is permitted.

v Consideration

There must be some consideration in marriage which is Dower. The parties are bound to fix amount of

dower at the time of marriage. A marriage without dower is void.

vi Majority

The parties contracting marriage should be major. The majority act does not apply on marriage, divorce,

maintenance cases. Majority means age of puberty.

vii Persons of opposite sex


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Marriage is a contract between two persons of opposite sex. There is no concept of marriage of same

sex in Islamic personal law.

viii Witnesses

a. In case of Sunni Marriage

Either two male or one male and two female witnesses are necessary.

b. In case of Shia MarriageNo witness is necessary.

c. Qualification of Witness

i He /She should be adult and sane.

ii Free Consent

8. Legal Effects of a valid Marriage

Following are the legal effects of a valid marriage:

i Sexual intercourse becomes lawful.

ii Issues born out are legitimate.

iii The wife becomes entitle of maintenance.

iv The husband can restrain the movements of his wife in a reasonable manner.

v The wife has to go under a period of Iddat in case of

vi Death of her husband.

vii On the dissolution or divorce of marriage

9. Classification of Marriage:

Classification of marriage is as under:

i Valid

ii Void

iii Irregular

i ValidA marriage which conformes in all respects with the law is called valid marriage.

ii Void

A void marriage is one which is unlawful in itself, the prohibition against the marriage being perpetual

and absolute. So it is no marriage at all.

Examples:

i Marriage without the consent of either party.

ii A marriage prohibited on the ground of affinity.

iii A marriage prohibited on the ground of Fosterage.

iv A marriage prohibited on the ground of consanguinity.

v A marriage with the wife of another person.

iii Irregular

An irregular marriage is one which is not unlawful in itself, but unlawful for something else. In irregular

marriage, irregularity arises from accidental circumstances.

Examples:

i A marriage without witnesses.

ii A marriage with a woman observing Iddat.

iii A marriage prohibited on ground of difference of religion.


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iv A marriage with two sisters at the same time.

v A marriage to a fifth wife.

10. Difference Between Void And Irregular Marriage.

As to legal position

Void marriages has no lawful position.Irregular marriage is not in itself unlawful.

As to prohibition

In void marriage, the prohibition is perpetual and absolute.

Irregular marriage prohibition is temporary.

As to legitimacy

In void marriage, the children born out of union are not legitimate.

In irregular marriage the children born out are legitimate.

As to rights and obligations

In void marriage, no civil rights and obligations are arisen.

In irregular marriage, if consummation has taken place some rights and obligations are arisen.

As to legal effect

A void marriage has no legal effect.

An irregular marriage has legal effects after consummation.

As to modification

A void marriage can not be modified into valid marriage.

An irregular marriage can be modified into valid marriage.

11. Kinds of Marriage under Shia Law

The Shia Law only recognizes two kinds of marriage i.e. valid and void marriage.

12. Modes Of Avoiding Irregular Marriage

Following are the modes of avoiding irregular marriage.

i By the court

The court can cancel the marriage if the matter is brought to its notice.

ii By husband

The husband can repudiate his wife.

iii By wife

The wife can also avoid the marriage by relinquishment.

13. Legal Effects Of A Valid Marriage

Following are the legal effects of valid marriage.

i The sexual intercourse becomes lawful.

ii Mutual rights of inheritance are established.

iii The children born out of the wedlock are legitimate.


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iv The wife becomes entitled for maintenance.

v The wife becomes entitled to Dower.

vi Neither of the spouses acquires any interest in property of the other by reason of marriage.

vii The wife has to observe the Iddat in case of death of her husband or in case of divorce.

The rules of affinity come into operation in case of valid marriage.

Examples:i A marriage without witnesses

ii A marriage with a woman observing Iddat.

iii A marriage prohibited on ground of difference of religion.

14. Legal Effects Of A Void Marriage


i The sexual intercourse becomes unlawful.

ii The void marriage creates no right and obligation upon any party.

iii The children born out of the wedlock are illegitimate.

iv The wife does not become entitled for maintenance and inheritance.

15. Legal Effects Of An Irregular Marriage


i The irregular marriage has no legal effect if consummation has not taken place.

ii If consummation has taken place, the irregular marriage has following effects:

iii The children born out of such marriage are legitimate.

iv The wife is entitled to dower.

v The wife has to observe the period of Iddat.

vi No right of inheritance is created between the husband and wife.

vii The issues are entitled to share the inheritance.

16. Disabilities:

a. Number Of Wives

A Muslim husband may have as many as four wives at the same time, but not more. If he marries a fifth

wife when he has already four, such marriage would be irregular.

b. Religion:

i Difference of School

Muslims belonging to different schools may intermarry freely with one another, and a mere difference

of a school of law, such as Shiite or Sunnite, Hanafi or Shafii is entirely immaterial.

ii Marriage with Non-Muslim

According to Tyabji and Baillie, the rule among the Shiites is stricter. A Shiite, whether male or female

cannot marry a non-Muslim in the nikah form, but he can not contract a muta with a kitabiyya. When a Muslim marries a Hindu woman, the marriage is only invalid and does not affect the

legitimacy of the offspring.

D.F. Mulla is of the view that a Muslim male may not contract a valid marriage with an idolatress or a

fire-worshipper. Such marriage is not void but merely irregular. It was held in Ishan v. Panna Lal (1928).

The marriage of a Muslim woman with a non-Muslim is only irregular, not void. The marriage of a

Muslim woman with a non-Muslim is declared by the Quran to be batil, void and not merely irregular.

According to A.A. Fyzee, a Muslim woman can not marry a Christian; such a union would be void.


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According to Ibn Kathir, marriage with an idolatress i.e. pagan woman is prohibited.

c. Foreign Marriage

It was held in Risk v. Risk (1950) and in one another case Rex. v. Hammersmith (1917) that an

unmarried Muslim may contract a valid marriage with an English woman before a registrar in England.

A marriage between a Muslim and a non-Muslim woman, celebrated in a foreign country, is valid

under Islamic Law if it is performed in accordance with the lex loci contractus.d. Relationship

i Consanguinity

This bar is on the ground of blood relationship. A marriage with a woman prohibited by reason of blood

relationship is totally void and the issue illegitimate.

ii Affinity

A man is prohibited from marrying certain relations by affinity. These are:

Ascendants or descendants of his wife

The wife of any ascendant or descendent. By way of exception, a man may marry the descendent of a

wife with whom the marriage has not been consummated.

iii Fosterage

A man may not, for instance, marry his foster-mother, or her daughter, or his foster-sister. A marriage

forbidden by reason of fosterage is void.

iv Unlawful Conjunction

A man is also forbidden to have two wives at the same time, so related to each other by consanguinity,

affinity or fosterage that they could not have lawfully intermarried with each other if they had been of

different sexes.

Under Hanafi law, generally speaking, disregard of the bar of unlawful conjunction renders the marriage

irregular but not void.

17. Miscellaneous Prohibitions:

The Doctrine of Equality in Marriage (Kafaa)

The Holy Prophet(PBUH) is reported to have recommended marriage with fit spouses: Marry your

equals. The Hanafis hold that equality (Kafaa) between the two parties is a necessary condition in

marriage. The following factors must be considered for determining equality:

i Family

ii Islam

iii Profession

iv Freedom

v Good Character

vi Means

18. Conclusion:In short, marriage is not a sacrament but a civil contract between two persons of opposite sex. Every

Muslim of sound mind and has attained age of puberty may enter into contract of marriage.


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Essentials Of Marriage

Q. Define marriage (Nikah) what are its essentials. (2005)

Q. Define marriage. what are the essentials of a valid marriage according to Islamic

law? (2003)

Q. Define marriage? explain the essential conditions of a lawful marriage.

(2000)(2001)(2006/A)

1. Introduction:

Marriage of Nikah is a civil contract, which is made by parties for the sole purpose and object of

benefiting themselves according to Shariat it is a method to legalize the cohabitation of a man and a

woman and issues out of this union are legitimate. under Islamic law, contract of marriage, need not to

be proved through a written document.

2. Meaning of marriage:

Marriage means wedlocks, the mutual relation of the husband and wife. it is a contract for the


3. Definition of marriage:

Hedeya:

Marriage is defined to be a contract which has for its object the procreation and legalizing of

children.

According to Ameer Ali:

Marriage is an institution ordained for the protection of society, and in order that human being

may guard themselves from foulness and unchastity.

4. Objects of marriage:

Following are objects of a marriage.

(i) Legalization of sexual inter course.

(ii) Procreation of children.

(iii) Preservation of human race.

(iv) Regulation of social life.

5. Nature:


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Muhammedan marriage is purely contractual. it is considered a religious duty. it is an act of

Ibadat which is called Sunnat-Muwa-Kkidah.

Hazrat Muhammad (P.B.U.H) says:

If a person is in a position to maintain his wife and pay the amount of dower, he must get

himself married.

6. Capacity for marriage:

(i) Every Muslim of sound mined, who has attained puberty may enter into a contract of

marriage.

(ii) Lunatics and minors who have not attained puberty may be validity contracted in marriage

by their respective guardians.

(iii) A marriage of a Muslim who is of sound mind and has attained puberty is void, if the is

brought about without his consent.

7. Essentials of marriage:

Following are the essentials of a marriage.

I. Offer (Ijab)

There are must be offer by one party. it is also called Ijab.

II. Acceptance (Qubul)

The offer so made should be accepted by or behalf of the other party. it is called Qubul.

III. Offer and acceptance must be in the same meeting:

The offer and acceptance must both be made at the same meeting. an offer made at another

meeting do not constitute a valid marriage.

IV. Freedom:

The parties contracting marriage should be free persons. marriage with a slave girl is permitted.

V. Consideration:

There must be some consideration in marriage which is dower. the parties are bound to fix

amount of dower at the time of marriage. a marriage without dower is void.

VI. Majority:

The parties contracting marriage should be major. the majority act does not apply on marriage,


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divorce, maintenances cases. majority means age of puberty.

VII. Persons of opposite sex:

Persons of opposite sex:

Marriage is a contract between two persons of opposite sex. there is no concept of marriage of

same sex in Islamic personal law.

VIII. Witnesses

(a) In case of Suni marriage:

Either two male or one male and two female witnesses.

(b) In case of Shia marriage:

No witnesses is necessary.

Qualification of witnesses:

The witness should be

(i) Adult

(ii) Sane

IX. Free consent:

Marriage is only valid under free consent. no person can be compelled by guardian to marry.

8. Legal effects of a valid marriage:

Following are the legal effects of a valid marriage.

(i) Sexual intercourse becomes lawful.

(ii) Issues born out are legitimate.

(iii) The wife becomes entitled to dower

(iv) The wife becomes entitled of maintenance.

(v) The husband can restrain the movements of wife in reasonable manner.

(vi) The wife has to go under period of Iddat in case of.

(a) death of her husband


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(b) on the dissolution or divorce of marriage.

(vii) Rules of Affinity come into operation.

(viii) Mutual rights of ingeritance are established.

(ix) A woman does not change her status.

9. Number of Wives:

A Muslim husband may have as may as four wives at the same time, but not more. if he marries

a fifah wife when he has already four, such marriage would be irregular.

10. Conclusion:

To conclude I can say that marriage is not a sacrament but a civil contract between two persons

of opposite sex. every Muslim of sound mind and has attained the age of puberty, may enter into

contract of marriage. the main essentials of marriage are proposal, acceptance, witnesses, free consentand consideration which is called dower.

Legal Effects Of Marriage

Q. Define marriage. discuss legal effects of valid, and irregular marriage. (2002)

Q. What is marriage? what do you understand by valid, irregular and void marriages? (1999)

1. Introduction:






Marriage means wedlock, the mutual relation of the husband and wife. it is a contract for the



Hedeya:


children.



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4. Proof of marriage:

Marriage can be proved by two modes.

(i) By the direct evidence of the witnesses.

(ii) By the written document i. e. documentary evidence.

5. Presumption of marriage:

If there is no direct evidence or documentary evidence such case prolonged and continues living

together as husband and wife shall be presumed as marriage.

6. Classification of marriage:

Classification of marriage is as under.

(a) Valid.

(b) void.

(c) Irregular.

(a) Valid:

A marriage which conforms in all respects whit the law is called valid marriage.

(b) Void:

A void marriage is one which is unlawful in itself the prohibition against the marriage being

perpetual and absolute. so it is no marriage at all.

(I) Examples:

(i) Marriage without the consent of either party.

(ii) A marriage prohibited on the ground of affinity.

(iii) A marriage prohibited on the ground of consanguinity.

(v) A marriage with the wife of another person.

(c) Irregular:

An irregular marriage is one which is not unlawful in itself, but unlawful for something else. in

irregular marriage irregularity arises from an accidental circumstances.


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(II) Legal effect of valid marriage:


(a) Lawful sexual intercourse:

The sexual inter course becomes lawful.

(b) Mutual rights of inheritance:

Mutual rights of inheritance are established.

(c) Legitimacy of child:

The children born out of the wedlock are legitimate.

(d) Right of maintenance:

The wife becomes entitled for maintenance.

(e) Right of dower:

The wife becomes entitled to dower.

(f) No right of interest in property:

Neither of the spouse acquire any interest in property of the other by reason of marriage.

(g) Observation of iddat:

The wife has to observe the iddat in case of death of her husband or in case of divorce.

(h) Rules of affinity:

The rules of affinity come into operation in case of valid marriage.

(I) Examples:

(i) A marriage without withnesses.

(ii) A marriage with a woman observing Iddat.

(iii) A marriage prohibited on ground of difference of religion.

(iv) A marriage with two sister at the same time.

(v) A marriage to a fifth wife.

(II) Legal effects of void marriage:


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Follwoing are the legal effects of void marriage.

(a) No rights and obligation:

The void marriage creates no right and obligation upon any party.

(b) Illegitimate childern:

The childern born out of such marriage are illegitimate.

(c) No rights to inheritance:

The death of one them dose not entitle the other to inherit form the deceased.

(III) Legal effect of irregular marriage:

(i) Legal effect where consummation has not taken place:

The irregular marriage has not legal effect if consummation has not taken place.

(ii) Legal effect if consummation has taken place:

If consummation has taken place the irregular marriage has following legal effects.

(a) Legitimacy of children:

The children born out of such marriage are legitimate.

(b) Right of dower:

The wife is entitled of dower.

(c) Observation of iddat:

The wife has to observe the period of iddat.

(d) Right of inheritance:

No right of inheritance is created the husband and wife.

(f) Right of issues:

The issues are entitled to share the inheritance.

7. Conclusion:

To conclude I can say that, the legal effects of three kinds of marriages are different in nature. a

void marriage being illegal is null and void abinitio. an irregular marriage is not unlawful in it self but it

has no any legal effect before consummation.


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Impendiments To A Valid Marriage

Q. What are impediments to a valid marriage under Islamic law? (2004)(2005)

1. Introduction:

Marriage is a civil contract between two persons of opposite sex which has for its object the

procreation and the legalizing of children. Islamic personal law lays down some prohibition to a valid

marriage on different grounds. a Muslim can marry a person with whom marriage is allowed under

Shariat law. so there must be complete absence of impediments for a valid marriage.

2. Quranic verses:

Alnisa 22-24.

All others are lawful, provided ye seek them in marriage with gifts from your property, desiringchasity, not lust, seeing that ye derive benefit from them, give them their dowers at least, as prescribed,

but if after a dower is prescribed, ye mutually agree to vary it, there is no blame on you and God is all

knowing.

3. Meaning of impediment:

Impediment to a valid marriage means to stop a person to marry a woman or a woman to marry

a man on the grounds of consanguinity, affinity, or fosterage, on the grounds of consanguinity, affinity,

or fosterage.

4. Kinds of impediment:

I. Permanent:

Perpetual or permanent impediment to a valid marriage arises on account of consanguinity,

fosterage and affinity. in such case impediment is absolute and eternal.

II. Temporary:

Temporary impediment arises from prohibition in the way of marriage which is not permanent

in its nature and the hindrance is liable to be removed.

5. Various grounds of impediments:

I. Ground of consanguinity:

A man is prohibited from marrying.

(i) His mother or his grandmother.


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(ii) His daughter or grand daughter how high soever.

(iii) His sister, whether full, consanguine or uterine.

(iv) His niece or great nice howlosover.

(v) His aunt or great-aunt how high soever.

Effect.:

A marriage prohibited by reasons of consanguinity is void.

II. Ground of affinity:

A man is prohibited form marring:

(i) His wife, s mother or grandmother howhighsoever.

(ii) His wife, s daughter or grand daughter howlosovever.

(iii) His father, s wife or paternal grand father howhighsoever.

(iv) The wife of his son or his son, s or daughter son howlsoever.

Effect:

A marriage prohibited by reason of affinity is void.

III. Ground of fosterage:

A man can not marry to this foster mother or his foster sister and foster mother, s sister all

come within the prohibited degrees.

(i) Exceptions:

A man can marry to

(i) Sister's foster-mother.

(ii) Foster sister's mother.

(iii) Foster son'sister.

(iv) Foster brother's sisters.

Effect:

A marriage with a woman. prohibited by reason of fosterage is void.

IV. Ground of unlawful conjunction:


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A Muslim may not have at the same time two wives who are so related to each other by

consanguinity, affinity or fostrage, that if either of them had been a made, they could not have lawfully

intermarried, as for instance, two sisters, or aunt and niece.

Effect:

A marriage with a woman prohibited by reason of unlawful conjunction is irregular.

V. Ground of difference of religion:

A Muslim male may contract a valid marriage not only with a Muslim woman, but also with a

Kitabia, that is, a Jewess or a Christain, but not with an idolatress or a fire worshipper. a marriage,

however with an idolatoress or a fire worshipper is not void but irregular.

VI. Ground of iddat:

A man can not marry a woman observing period of iddat.

Effect:

A marriage contracted with a Muhammeden lady before the expiry of iddat is irregular.

6. Plurality of husband:

It is unlawful for a wife to have more than one husband at the same time. such marriage under

Islamic law is viod.

Legal effect:

(i) A Muslim woman marriage again in the life time of her husband is liable to be punished under

criminal laws of Islam.

(ii) The off-spring of such marriage can not not be acknowledged as legitimate.

7. Conclusion:

To conclude I can say that the marriage among Muslim is not a Sacrament, but purely a civil

contract. for a valid marriage there should be no impediments or disabilities to the marriage. Islamic law

imposes certain restrictions on the right of a person to enter into martial relation with a person of

opposite sex.


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Irregular And Void Marriage

Q. Define 'marriage'. what is the difference between irrgular and void marriages. (1998)(2001)

1. Introduction:






Marriage means wedlocks, the mutual relation of the husband and wife. it is a contract for the



Hedeya:


children.




4. Classification of marriage:

Classification of marriage is as under.

(a) Valid.

(b) void.

(c) Irregular.

(a) Valid:

A marriage which conforms in all respects whit the law is called valid marriage.

(b) Void:

A void marriage is one which is unlawful in itself the prohibition against the marriage being

perpetual and absolute. so it is no marriage at all.


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(i) Examples:

(i) Marriage without the consent of either party.

(ii) A marriage prohibited on the ground of affinity.

(iii) A marriage prohibited on the ground of consanguinity.

(v) A marriage with the wife of another person.

(c) Irregular:

An irregular marriage is one which is not unlawful in itself, but unlawful for something else. in

irregular marriage irregularity arises from an accidental circumstances.

(i) Examples:

(i) A marriage without witnesses.

(ii) A maggiage with a woman observing Iddat.

(iii) A marriage prohibited on ground of difference of religion.

(iv) A marriage with two sister at the same time.

(v) A marriage to a fifth wife.

5. Difference between void and irregular marriage:

I. As to legal position:

Void marriage has no lawful position.

Irregular marriage is not in itself unlawful.

II. As to prohibition:

In void marriage the prohibition is perpetual and absolute.

In irregular marriage prohibition is temporary.

III. As to legitimacy:

In void marriage the children born out of the union are not legitimate.

In irregular marriage the children born out are legitimate.

IV. As to rights and obligations:

In void marriage no civil rights and obligations are arisen.


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In irregular marriage if consummation has taken place some rights and obligations are arisen.

V. As to legal effect:

A void marriage has no legal effect.

An irregular marriage has legal effects after consummation.

VI. As to modification:

A void marriage cannot be modified into valid marriage.

An irregular marriage can be modified into valid marriage.

6. Kinds of marriage under Shia law:

The Shia law only recognizes two kinds of marriage viz, valid and void marriage.

7. Capacity to contract marriage:

(i) Parties must be able to understand the nature of their act.

(ii) The parties must be adult.

(iii) There should be free will of the parties.

(iv) There should be no element of compulsion.

(v) There should be no legal disability.

8. Modes of avoiding irregular marriage:

Following are the modes of avoiding irregular marriage.

(a) By the court:

The court can cancel the marriage if the matter is brought to its notice.

(b) By husband:

The husband can repudiate his wife.

(c) By wife:

The wife can also to avoid the marriage by relinquishment.

9. Conclusion:

To conclude I can say that the marriage is a civil contract. according to Sunnhi law a marriage

which is not valid may be either void or irregular. the Shai law recognized only two kinds of marriage. a


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void marriage is not lawful whereas irregular marriage is not unlawful but unlawful for some other

reason.

marriage in term of law

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