Introduction of Muslim Marriage.
Muslim marriage, or Nikah, is a sacred and legal agreement between a man and a woman under Islamic law. It allows them to live together as husband and wife and have children in a lawful way. It is also seen as a religious duty that brings love, support, and a safe home for the family. The marriage takes place through a proposal and acceptance, usually in front of witnesses, and includes the giving of a dowry (mahr) by the husband to the wife.
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Muslim Marriage
Muslim Marriage:- Marriage in Islam is considered as a sacred bond between man and woman.
Marriage (called Nikah) is not considered a sacrament like in some other religions, but rather a civil contract between a man and a woman.
It is a legal agreement where both parties consent to live together as husband and wife, and it creates rights and duties for each of them.
The purpose of marriage in Islam is not only to allow lawful relations between man and woman but also to provide companionship, love, care, and the foundation for a family.
While it is contractual in nature, it also has a sacred and moral side, as it is highly encouraged in Islam for maintaining social order, protecting morality, and ensuring the upbringing of children in a lawful environment.
The question is whether marriage is just a contract or a religious sacrament.
Abdul kadir vs. Salima In this case it was held that marriage among Muhammadans is not a sacrament, but purely a civil contract.
In Khurshid BIBI v. Mohd Amin The supreme court of Pakistan laid down that ‘among muslims, marriage is not a sacrament, but is in the nature of civil contracts. Such a contract undoubtedly, has spiritual and moral overtones and undertones, but legally, in essence, it remains a contract between the parties.
In Anis Begum vs Mohammad Istafa It was held that marriage among muslims is not regarded merely as a civil contract but a religious sacrament too.
Muslim marriage is to be seen and understood as the combination of both contractual and sacramental aspects as has been rightly put as a combination of ibadat (devotional act) and mumamlat (social dealing)
It is indeed an agreement having many similarities with a civil contract, but not purely a civil contract.
It is a sacred union of two opposite sexes resembling with elements of contract does not mean that muslim marriage is purely a civil contract.
Essentials of a Muslim Marriage
Offer and Acceptance (Ijab and Qubool)
One party must make an offer (Ijab) and the other must accept (Qubool). Both should be done in the same meeting and in clear words.
Capacity of Parties
Both must be Muslims.
They must have attained puberty (usually 15 years in Muslim law).
Free Consent
Marriage must be based on free will. No force, fraud, or coercion is allowed.
Dower (Mahr)
A compulsory payment (money or property) from husband to wife. It can be prompt (payable immediately) or deferred (payable later).
Witnesses
Under Sunni law: Two adult Muslim witnesses are required (for both bride and groom).
Under Shia law: Witnesses are not compulsory, but recommended.
Prohibited Degrees
Marriage is not valid if it is with someone prohibited by blood (mother, sister, daughter), affinity (wife’s sister, wife’s mother), or fosterage (foster mother/sister).
One Meeting
the offer and acceptance must be completed in one place in one meeting. A proposal made at one meeting and acceptance at the another does not constitute a valid marriage.
Types of Muslim marriages —
Under Muslim personal law marriages are usually classified into
1. Valid marriage
2. Irregular/defective marriage and
3. void marriage
Valid marriage
Also known as sahih marriage
A marriage that satisfies all essential requirements of Nikah (offer & acceptance, capacity, consent, no prohibited relationship, proper dower etc.).
Effects: creates a lawful husband-wife relationship — lawful cohabitation, wife’s right to mahr, husband’s duty of maintenance, wife must observe iddat on dissolution, spouses may inherit from each other and children are legitimate with inheritance rights.
Irregular marriage
It is also known as fasid marriage.
A marriage with one or more defects/temporary impediments which do not make it absolutely null. The defect is of a kind that is capable of being removed.
These are invalid marriages which can become valid once the defect is removed.
If the impediments continues to be so, then such marriage is invalid and irregular.
Some grounds which make the marriage irregular are:
Marriage without witnesses
Marriage with fifth wife while four are in subsistence
Marriage with a woman undergoing iddat
Marriage with two sisters simultaneously
Void marriage
Also known as baatil marriage
These marriages are void ab initio (void from the start)
The defect in void marriage is absolute/permanent and cannot be removed.
These are no marriages at all and have no legal effects whatsoever.
A void marriage is an unlawful connection which produces no mutual rights and obligations between the parties.
The issues born out of void marriage are illegitimate.
Examples of Void Marriages
A man marrying his mother, sister, daughter, or granddaughter.
A man marries his foster-sister (who was breastfed by the same foster mother).
woman marrying two husbands at the same time Absolutely void.
What is Mahr and its types
Mahr(Dower)
Mahr is the amount of money, property, or valuable gift that the husband agrees to give to his wife at the time of marriage.
It is an essential element of a Muslim marriage.
The purpose of Mahr is to show respect to the wife and to provide her with financial security.
Once given, it becomes the wife’s personal property, and she can use it in any way she likes.
It is not a bride price or a dowry. Instead, it is the legal right of the wife, and the husband must pay it as a mark of respect and responsibility towards her.
Mahr is not just a custom, it is a requirement under Islamic law, mentioned in the Qur’an.
Even if the exact amount is not fixed at the time of marriage, the marriage is still valid, but the wife will always have a right to claim Mahr.
Most people relate Mahr with the consideration given in a contract of sale, but this is incorrect.
Mahr in Muslim law is not a price for the wife; rather, it is a compulsory gift in the form of money, property, or valuable items that the husband must give to his wife at the time of marriage.
Unlike consideration in a sale, which is the price for goods or services, Mahr is a symbol of dignity and obligation in marriage, and once given, it becomes the wife’s personal property.
Classification of Mahr
The classification of mahr is based on the nature of dower agreed at the time of Nikah. These are:
1.Specified mahr
It is the fixed amount of Mahr decided by the husband and wife (or their families) at the time of marriage. The amount can be in money, property, or any valuable thing.
Both parties must agree on the amount. It can be written in the marriage contract (Nikahnama) or simply agreed orally.
Once fixed, it becomes the legal right of the wife. She can claim it anytime, and the husband is legally bound to pay.
There is no strict limit in Islam; the amount can be large or small depending on the husband’s capacity.
Mahr should not be in any case less then 10 dirhams as per the Hanafi Jurists.
As per Maliki it should not in any case less then 3 dirhams
As per Shaafi and Hanabali no fixed minimum limit. Specified Mahr is further divided into:
Prompt Mahr (mahr-i-muajjal)
The mahr which is payable immediately on the demand of the wife at the time of marriage or after the marriage is called as Prompt Mahr.
The wife has the right to refuse conjugal relations until the Prompt Mahr is paid.
It is a mahr payable on demand.
If the husband refuses to pay, the wife can go to court to enforce her right.
Deferred Mahr (Mahr-i-Muwajjal)
The mahr which is payable or which becomes due on the dissolution of marriage either by death or divorce is called Deferred mahr.
This means if at the time of divorce the mahr is unpaid, the wife becomes entitled to receive that unpaid mahr immediately.
However, if there is any agreement between the parties, then it can be paid before dissolution of marriage.
If the deferred mahr is not paid, the wife can claim Deferred Mahr through the court.
2. Unspecified Mahr (Mahr-i-misl)
This is the Mahr which is not fixed at the time of marriage.
Even if the amount is not decided, the wife is still entitled to a reasonable Mahr.
Marriage is still valid even if no Mahr is specified at the time of Nikah.
The wife’s right to claim Mahr cannot be denied.
The amount of Mahr is decided later, based on what is considered reasonable and customary.
Factors considered include:
Social and economic status of the wife,
Mahr given to female relatives (like sisters or cousins),
Education, beauty, and family background,
Custom of the community.
The wife can claim her Mahr al-Mithl at any time, and it becomes her absolute property once paid.
If the husband refuses, the wife can approach the court, which will decide the reasonable amount.
3. Traditional Mahr (Mahr-i-Sunnat).
This mahr is recognized by the Shia school. It refers to the amount of mahr adopted by the Prophet Muhammad (SAW) for the marriage of his beloved daughter Fatima(RA) which is said to be 500 dirhams.
This mahr is also known as Mahr-i-Fatimi.
Effect of consummation of marriage on Mhar
The general rule among all the schools is that when the marriage has been consummated, the wife becomes entitled to entire mahr as specified and if not specified then she is entitled to unspecified mahr (Mahr-i-misl)
Where the mahr is specified, but the separation between husband and wife takes place before consummation of the marriage, she is entitled to half the specified mahr according to all the schools.
Where the mahr is not specified and separation takes place before consummation of marriage, then according to Hanafi law the wife is only entitled to present (some gift items) the amount of which depends upon the usages of the country and according to Shia law the wife is entitled to present which is to be regulated by the position and means of the husband.
Widows right of retention.
If the husband dies without paying the Mahr (dower) owed to his wife, the widow has the right to retain possession of her husband’s property that is already in her lawful possession.
She can hold it until her Mahr is fully paid.
The widow must already be in lawful possession of her husband’s property (for example, living in his house, or holding some of his land).
She does not get ownership of the property, only the right to keep possession until her claim is satisfied.
It is a kind of lien (like a legal hold).
She cannot sell or transfer the property, but she can use it until the payment of her Mahr.
This right can be exercised against the heirs of the deceased husband.
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