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
Nice blog, check this also - Nikah Matrimony Site for Muslim Girl
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