The Muslim marriage is governed not by the Indian Majority Act, 1875 but by Muslim law itself. According to Muslim Law, Marriage / 'Nikah' is a contract underlying a permanent relationship based on mutual consent.
Essential Features of Muslim Nikah
Only if both the parties are Hindus can the marriage take place under the Hindu marriage Act.
- - A Muslim marriage requires proposal (Ijab) from one party and acceptance (Qubul) from the other as is required for a contract.
- - There can be no marriage without free consent and such consent should not be obtained by means of coercion, fraud or undue influence.
- - Just as in case of contract, entered by a guardian, on attaining majority, so can a marriage contract in Muslim Law, be set aside by a minor on attaining the age of puberty.
- - The parties to a Muslim marriage may enter into any ante-nuptial or post-nuptial agreement which is enforceable by law provided it is reasonable and not opposed to the policy of Islam. Same is the case with a contract.
- - The terms of a marriage contract may also be altered within legal limits to suit individual cases.
- - Although discouraged both by the holy Quran and Hadith, yet like any other contract, there is also provision for the breach of marriage contract.
Requirements of Muslim Nikah
The solemnization of a Muslim marriage requires adherence to certain forms and formulas. They are called the essentials of a valid marriage. If any of these requirements is not fulfilled the marriage becomes either void or irregular, as the case may be. The essentials are as follows :
- - Proposal and Acceptance
- - Competent Parties
- - No legal Disability
Absolute Prohibition
There is absolute prohibition of marriage in case or relationship of consanguinity which means the relationship of the person through his/her father or mother on the ascending side, or through his or her own on the descending side.
Marriage among the persons related by affinity, ie, through the wife is not permitted. Marriage with foster mother and other related through such foster mother is also void.
Relative Prohibitions
- - Unlawful conjunction
- - Marrying a fifth wife
- - Marrying a woman undergoing iddat
- - Marrying non-Muslim
- - Absence of proper witnesses
- - Woman contracting a second marriage during the subsistence of the first marriage.
The following marriages are also prohibited:
- - Marrying pregnant women
- - Marrying own divorced wife
- - Marrying during pilgrimage
Procedure for Muslim Nikah
- - According to Muslim Law it is absolutely necessary that a man or someone on his behalf and the woman or someone on her behalf should agree to the marriage at one meeting and the agreement should be witnessed by two adult witnesses.
- - 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 or Qazi.
- - 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 or Qazi.
- - There must be reciprocity between offer and acceptance. The acceptance must not be conditional.
- - Under the Sunni Law, the proposal and acceptance must be made in presence of two males or one male and two female witnesses who are sane, adult and Muslim. Under Shia Law, witnesses are not necessary at the time of marriage. They are required at the time of dissolution of marriage.
- - The parties contracting marriage must be acting under their free will and consent.
Polygamy
The law permits a Muslim man four wives if he treats all of them equally. Since it is one of the religious practices it is claimed to be immune from any legislative enactment.
Dower or Mahr
Dower or mahr is an obligation imposed upon the husband at the time of the marriage as a mark of respect to the wife. It can be received by the wife by instituting an action as if it was a debt due to her. Dower can be in cash or in kind. It is divided into two parts one called 'prompt' payable at the time of marriage before the wife can be called upon to enter into conjugal domicile and the other 'deferred' to be discharged when the specified event occurs and on demand made by the wife. Till the dower is paid the widow has the right to retain possession of her husband's property.
Divorce
Marriage under Islam is only a civil contract and not a sacrament. A husband can leave his wife without any reasons merely by pronouncing the word "Talak" thrice. However, for a Muslim woman to obtain divorce certain conditions are necessary. The husband and the wife with mutual agreement can also put an end to the marriage.
