Marriage (nikah) under Muslim Law

Essentials of marriage

(1)    Proposal and acceptance- marriage becomes complete only when the other party accepts the offer. Essentials- the words conveying proposal and acceptance must be uttered in each other’s presence or in the presence of their agents who are called vakils. The transaction should be completed at one meeting. There must be reciprocity between offer and acceptance. Acceptance must be unconditional. Sunni law requires presence of two male witnesses[1] while there is no such requirement under shia law. There should be free will and consent.

(2)    Competent parties- muslim who is of sound marriage and has attained puberty can enter into marriage. Puberty is the age at which a person can perform sexual intercourse and have children. Guardian’s consent is required in case of marriage of minors, however, the person on attaining puberty has option to repudiate or confirm marriage (khayar-ul-bulugh[2]).

Option of puberty can be exercised by the male by express declaration, payment of dower or cohabitation.

If the option of repudiation is taken, marriage ceases to be marriage. The option can be exercised before attaining the age of 18 years, provided that the marriage has not been consummated.

Age and marriage:

Saghir: age less than 7 years, marriage void

Sariri: between 7 and 15 years, guardian can give consent in marriage. His own free consent is not valid.

Bulugh: over 15 years of age, can give consent in marriage.

(3)    No legal disability-

(a)    Absolute incapacity or prohibition

(i)                  Consanguinity (qurabat)- blood relations- mother, grandmother, daughter, grand daughter, sister(full, consanguine, uterine), niece, grand niece, aunt or grand aunt.

(ii)                Affinity (mushaarat)- wife’s mother or grandmother, daughter or granddaughter, father’s wife, grandfather’s wife, wife of son or grandson.

(iii)               Fosterage (riza)-foster mother or her daughter or foster sister. However, under sunni law, a man can marry his sister’s foster mother, foster sister’s mother, foster son’s sister or foster brother’s sister.

(b)   Relative incapacity

(i)                  Unlawful conjunction- marrying two women so closely related that they could not have intermarried had they been of opposite sexes[3].

(ii)                Polygamy or marrying a fifth wife

(iii)               Absence of proper witnesses (only in sunni law)

(iv)              Difference of religion- sunni male can marry any kitabia

(v)                Woman undergoing iddat

(c)    Prohibitory incapacity

(i)                  Polyandry

(ii)                Muslim woman marrying a non Muslim

(d)   Directory incapacity

(i)                  Marrying a pregnant woman

(ii)                Prohibition of divorce

(iii)               Marriage during pilgrimage

(iv)              Marriage with a sick man

 

Void, invalid and valid marriages

Valid marriage-essential conditions:

(i)                  Proposal and acceptance

(ii)                Free consent

(iii)               Proposal and acceptance must take place at single meeting in front of proper witnesses.

(iv)              Soundness of mind, majority and capacity to give consent

(v)                There should be no impediment to marriage

Void (batil) marriage- there are no legal effects of such marriages and the children born are illegitimate. Void marriages under shia law:-

(i)                  Marriage in violation of absolute incapacity

(ii)                Marriage with wife of another person during that marriage

(iii)               Marriage with one’s own divorced wife during legal bar

(iv)              Marriage prohibited by unlawful conjunction

(v)                Marriage with fifth wife

(vi)              Marriage during pilgrimage

(vii)             Marriage with non muslim

(viii)           Marriage with a woman undergoing iddat

Irregular or invalid (fasid) marriage- (only under sunni law)

(i)                  Marriage contracted without witnesses

(ii)                Marriage with fifth wife

(iii)               Marriage with woman undergoing iddat

(iv)              Marriage with non scriptural woman

(v)                Marriage by an unauthorized person

(vi)              Marriage contrary to the rules of unlawful conjunction

Effect of irregular marriage

Before consummation- there is no legal effect and wife is not entitled to dower

After consummation- wife has to observe iddat, she is entitled to prompt dower and maintenance during her iddat.

Rights and duties of husband and wife under valid marriage

(a)    Mutual rights and duties

(i)                  Inheritance right

(ii)                Sexual intercourse

(iii)               Prohibited degrees of relationship created

(iv)              Lawful conditions between them become binding on them

(b)   Rights of wife and duties of husband

(i)                  Maintenance

(ii)                Equal treatment and separate sleeping apartment in case there are more than one wives

(iii)               Dower

(iv)              Entitled to visit and be visited by her blood relations

(v)                Refuse to live with husband if he keeps an idol worshipping concubine in same house and claim maintenance

(vi)              Entitled to use an apartment from which she may exclude all persons except her husband

(c)    Rights of husband and duties of wife

(i)                  She is bound to observe strict conjugal fidelity

(ii)                She is bound to allow her husband conjugal union

(iii)               She is bound to obey his legal commands

(iv)              She is bound to reside in his house and observe purdah if necessary

(v)                She is bound to observe iddat on divorce or husband’s death

Presumption of marriage

(1)    Presumption of prolonged and continuous cohabitation

(2)    Recognition of the relation by family, friends and neighbours

(3)    Acknowledgement by the husband of wife

(4)    Acknowledgement by man that the children are legitimate

Restitution of conjugal rights

When a man brings a suit of restitution of conjugal rights, the wife can challenge it on the following grounds:

(1)    Validity of marriage

(2)    Cruelty

(3)    False charge of adultery

(4)    Non-payment of prompt dower

(5)    Ex communication

(6)    Agreements

(7)    Lian and zihar

(8)    Apostacy

(9)    Repudiation of marriage

(10)Impotency of husband

(11)Non-Payment of dower money

Muta marriage (only under shia school)- Muta marriage is a temporary marriage contracted for a fixed period of time.

Essential conditions:

(1)    Period is fixed

(2)    Mahr must be fixed

(3)    Rule of four wives does not operate

(4)    There must be a proper contract, declaration and acceptance

Legal incidents:

(1)    No mutual rights and inheritance

(2)    Children legitimate

(3)    Marriage dissolved on expiry of term

(4)    Divorce not recognized

(5)    If marriage is consummated, wife entitled to full dower, otherwise half dower

(6)    Wife not entitled to maintenance

(7)    There is no minimum duration

(8)    There is no limit to number of wives

(9)    Husband not bound to provide private residence

(10)Iddat of death 4 months 10 days, extended in case of pregnancy. If no cohabitation, iddat is not necessary.

Difference between shia and sunni marriage

(1)    Under sunni law, proposal and acceptance need not be in any particular form, specific terms in shia law

(2)    Marriage under compulsion valid under sunni law, void under shia

(3)    Witnesses essential under sunni law, not in shia law

(4)    Muslim male can marry kitabia under sunni law, not in shia law

(5)    Marriage during pilgrimage valid under sunni law, void under shia law

(6)    Muta not permissible under sunni law, allowed in shia law

(7)    Valid retirement[4] recognized in sunni law, not in shia law

 

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[1] 2 male witnesses or 1 male and 2 female witnesses

[2] Khyar-ul-bulugh is known as option of puberty. In cases of consent in marriage given by guardian, the minor on attaining puberty has the option to either repudiate or acknowledge the marriage.

[3] Eg marrying two full sisters, mother and daughter, etc

[4] Valid retirement means that the husband and wife are in such circumstances that there is no reason why they cannot have intercourse.

Negligence

The tort of negligence comprises of a breach of duty to care caused due to omission to do something. It is the failure to exercise the care that a reasonably prudent man would observe under given circumstances. The term ‘negligence’ can mean two things under the law of Tort. It might be the mode of committing a tort or it might be a separate tort in itself.

Essential elements of negligence

(1)    Duty to take care owed by the defendant to the plaintiff

(2)    Breach of duty committed by the defendant

(3)    Breach of duty resulting in injury to the plaintiff

In the case of Donoghue v Stevenson, the general principles regarding the tort of negligence were laid down. In this case, a snail was found in Mrs. Donoghue’s bottle of ginger beer and she fell ill after drinking the contents of the bottle. The manufacturing company was held liable. The House of Lords held that the manufacturer owed a duty of care to her, which was breached, because it was reasonably foreseeable that failure to ensure the product's safety would lead to harm of consumers.[1]

Duty to take care- it means a legal duty and not a moral, religious or social duty. It depends upon the reasonable foresee ability of injury. Where the injury cannot be foreseen or is too remote, there is no liability for damage.

Burden of proof- in case of negligence, the burden of proof lies on the plaintiff to prove negligence on the part of the defendant. Once it has been proved, the burden lies on the defendant to prove that the incident was a result of an inevitable incident, an act of God (vis major)[2] or there was contributory negligence on the part of the plaintiff.

Medical negligence- doctors are bound by a duty to care for the best interests of their patients and provide the best treatment. Any negligence in their treatment may result in major health problems or even death of the patient. Accidentally leaving surgical equipments inside the body, negligently performing sterilization operations, providing wrong treatment, or causing abortions or amputations due to wrongful or delayed treatment, etc are issues under which the doctor may be held liable for medical negligence.

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[1] www.wikipedia.com

[2] Ryan v Young

Guardianship under the Hindu law

Under the provisions of Hindu law, guardians can be of the following kinds:

(1)    Natural guardians

(2)    Testamentary guardians

(3)    Guardians appointed or declared by the court

Natural guardians

Section 6 of the Hindu Minority and Guardianship Act provides who the natural guardians are.

The natural guardian of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family property), are –

in the case of a boy or an unmarried girl-the father, and after him, the mother; provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;

in case of an illegitimate boy or an illegitimate unmarried girl-the mother, and after her, the father;

in the case of a married girl-the husband:

Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section-

if he has ceased to be a Hindu, or

if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi).

Father: father is the natural guardian of all of his legitimate children and he is the natural guardian of his illegitimate children after the mother.

Mother: mother is the natural guardian of her illegitimate children and of her minor legitimate children after the father.

In Geetha Hariharan v Reserve Bank of India[1], the validity of Section 6 was challenged. The court observed that “the word ‘after’ did not necessarily mean after the death of the father, on the contrary, it [means] ‘in the absence of’ be it temporary or otherwise or total apathy of the father towards the child or even inability of the father by reason of ailment or otherwise.”

Husband: husband is the natural guardian of his minor wife.

Rights of a natural guardian

A natural guardian has the following rights in respect of minor children:

(a)    Right to custody

(b)   Right to determine the religion of children

(c)    Right to control the education

(d)   Right to control movement

(e)   Right to reasonable chastisement

Natural guardian’s power over minor’s property

Section 8 lays down that a natural guardian can do all acts that are necessary or reasonable and proper for the benefit of the minor or for the realization, protection or benefit of minor’s estate.

Section 8 states that: (1) The natural guardian of a Hindu minor has power, subject to the provisions of this section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realization, protection or benefit of the minor's estate; but the guardian can in no case bind the minor by a personal covenant.

(2)       The natural guardian shall not, without the previous permission of the court-

(a)       mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of  the immovable property of the minor, or

(b)       lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority.

(3)       Any disposal of immovable property by a natural guardian, in contravention of sub-section (1) or sub-section(2), is viodable at the instance of the minor or any person claiming under him.

(4)       No court shall grant permission to the natural guardian to do any of the acts mentioned in sub-section (2) except in case of necessity or for an evident advantage to the minor.

 

Testamentary guardians

Section 9 provides that:

(1)              A Hindu father entitled to act as the natural guardian of his minor legitimate children may, by will, appoint a guardian for any of them in respect of the minor's person or in respect of the minor's property (other than the undivided interest referred to in section 12) or in respect of both.

(2)              An appointment made under sub-section (1) shall have no effect if the father predeceases the mother, but shall revive if the mother dies without appointing, by will, any person as guardian.

(3)       A Hindu widow entitled to act as the natural guardian of her minor  legitimate children and Hindu mother entitled to act as the natural guardian of her minor legitimate children by reason of the fact that the father  has become disentitled to act as such, may, by will, appoint a guardian for any of them in respect of the minor's person or in respect of the minor's property (other than the undivided interest referred to in section 12) or in respect of both.

(4)       A Hindu mother entitled to act as the natural guardian of her minor illegitimate children may, by will, appoint a guardian for any of them in respect of the minor's person or in respect of the minor's property or in respect of both.

(5)       The guardian so appointed by will has the right to act as minor's guardian after the death of the minor's father or mother, as the case may be, and to exercise all the rights of a natural guardian under this Act to such extent and subject to such restrictions, if any, as are specified in this Act and in the will.

(6)       The right of the guardian so appointed by will shall, where the minor is girl, cease on her marriage.

Section 9(5) of the Hindu Minority and Guardianship Act lays down that the testamentary guardian has the power to exercise all the rights of the natural guardian, subject to the restrictions, if any, laid down by the will or by the Act. A testamentary guardian cannot sell minor’s property without prior permission of the court.

Guardians appointed by the court

The appointment of a guardian by the court is regulated by the Guardians and Wards Act, 1890. The district court has the power to appoint or declare a guardian in respect of person or separate property of the minor. But it has no jurisdiction to appoint a guardian of minor’s undivided interest in the Mitakshara joint family property[2].

However, if all coparceners are minors, the court may appoint a guardian in respect of entire joint family property.

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[1] AIR 1999 SC

[2] Section 12 Hindu Minority and Guardianship Act