This article has been written by Ms. Snehil Anand, a 4th  year student of Christ Academy Institute of Law, Bengaluru.

ABSTRACT

In India, Marriage is a sacrament between two individuals with the aims to procreate the future generation. India being a secular country widens its ambit for all the religion and culture. Marriage, a cornerstone of Indian society and stands at the nexus of tradition, culture, and law. India respects all the religions and have made personal laws to implement the same. Muslim law is a mixture of codified and uncodified rules. The Muslim Marriage in India is governed by Muslim Personal Law (Shariat) Application Act, 1937. The uncodified laws are guided by the principles of Islamic law. Within the Muslim community, the institution of marriage is deeply interwoven with socioeconomic factors, shaping the dynamics and legal aspects of matrimonial relationships. This article aims to explore the profound impact of socioeconomic influences on Muslim marriages in India, shedding light on legal dimensions while highlighting the broader socio-economic implications.

MUSLIM MARRIAGE 

Marriages in Muslim is referred as Nikah. It is a contract for the legalization of intercourse and the procreation of children. Ameer Ali cites an ancient text defining its objects as:

“Marriage is an institution ordained for the protection of society, and in order that human beings may guard themselves from foulness and unchastity.”

Mahmood, J in the leading case of Abdul Kadir v. Salima observed, Marriage among Muhammadans is not a sacrament but purely a civil contract; and though solemnized generally with recitation of certain verses from the Qur’an, yet the Muhammadan law does not positively prescribe any service peculiar to the occasion. The objects, therefore, are the promotion of a normal family life and the legalization of children. It is to be distinguished from the modern notion of marriage by the toleration of a modified form of polygamy. It is a contractual relation between two parties which is set in accordance to the terms and conditions of the Nikahnama. The parties entering into the marriage must have attained the age of puberty. According to Indian laws the age of puberty is considered as 15 years of age but there is no specific age bar defined in Islamic Law. If the person is minor, i.e. below the age of 18 years then he/she can be represented by their guardian in the Nikah. The marriage satisfies all the components of a contract. The first step is Ijab, a proposal made to the other party which is fulfilled by acceptance of pronouncement of the word “Qubul”. The consent given by the parties must be of free will and not under any coercion, fraud, misrepresentation or undue influence. Consideration being the most important element of a contract is given to the bride from the groom which is called Mehr or Dower. The party competent to enter into a Muslim marriage must be Muslim, sound mind and attained the age of puberty. Under Sunni law, the presence of two witnesses is mandatory for a valid marriage. Generally, the two witnesses are males, but in the absence of any male, two females can become witnesses to the marriage. Marriage in the absence of any witness is considered as irregular marriage. The witnesses must be of sound mind, adults and Muslims. However, in Shia law, no witness is required for a valid marriage.  

ASPECTS OF MUSLIM MARRIAGE

The Muslim Marriage or Nikah is a contractual relation and has social, legal and religious aspect.

Social Aspect

The social realm of Muslim marriages, akin to other marital unions, focuses on specific objectives, such as:

1. Establishment of a structured domestic life.
2. Procreation and upbringing of offspring.
3. Provision of care and responsibility towards the spouse and children.
4. Contribution to the perpetuation of the human race.
5. Achievement of chastity, mutual love, continence, affection, and fostering an environment of peace within the marital relationship.

These objectives underscore the social significance of Muslim marriages, showcasing their interconnection with societal constructs. In the legal case of Anis Begum v. Mohd. Istafa (1933), Chief Justice Sulaimaan highlighted that Muslim marriage transcends being solely a civil contract. He emphasized its essence as a union founded upon affection, love, and a sense of companionship. He further underscored its dual nature, acknowledging it as both a civil contract and a religious sacrament.

Legal Aspect

In the legal realm, within the Muslim community, marriage is regarded as a civil contract due to its analogous features to contractual agreements. These characteristics include:

Proposal and Acceptance: Similar to a contract, marriage involves an offer (Ijab) by one party and acceptance (Qubul) by the other party.

Free Consent: Just as in a contract, the concept of free consent is pivotal. Marriage necessitates the voluntary agreement of both parties, devoid of coercion, fraud, force, or undue influence.

Minor’s Rights: In cases where guardians arrange a marriage for a minor, the minor holds the right to repudiate the marriage upon reaching the age of majority, which aligns with the age of puberty in Muslim law. This entitlement to repudiate is known as khyar-ul-bulugh. Similarly, a contract initiated by a guardian on behalf of a minor can be annulled or regulated by the minor upon attaining majority.

Ante-Nuptial and Post-Nuptial Agreements: Parties entering into a marriage are permitted to establish ante-nuptial or post-nuptial agreements, provided they comply with enforceable legal standards. These agreements must be reasonable and consonant with their religious beliefs.

Nikahnama Alterations: The terms stipulated in the nikahnama (marriage contract) can be modified based on the preferences of the bride and groom, as long as these alterations adhere to legal boundaries and regulations.

Religious Aspect

Another perspective on Muslim marriage contends that it holds the status of a religious sacrament rather than being solely a civil contract. Certain legal scholars perceive it as an Ibadat, signifying a devotional practice. The Prophet’s standpoint underscores the indispensability of marriage for every capable and responsible Muslim, essential for assuming the care of a wife and children.

The reasons substantiating its distinction from a mere contract are:

1. Unlike a mere civil contract, Muslim marriage isn’t contingent upon future events.
2. A contract is typically undertaken for a limited or specified duration but marriages are not for a particular time period, exceptions exist, such as in muta marriage.
3. Notably, Muslim marriage lacks the concept of the right to lien, which is present in civil contracts.
4. The dower, a payment to the wife, symbolizes honor and respect within the context of Muslim marriage.

Consequently, it can be asserted that marriage in Islam embodies contractual elements but is also revered as a sacred practice. Its primary objective is to safeguard society from moral corruption and maintain chastity. Abdul Rahim presented a balanced interpretation, defining Muslim marriage as an amalgamation of ibadat, a devotional act, and dealings among individuals.

PRACTICES IN MUSLIM MARRIAGE

In India, Majority of the population follows Hinduism that defines the way of life. While Muslim population is approximately to 20 Crore, making it the second most practiced religion in India. The law of the land states that no statues or provisions can be in violation to the Constitution of India. The Part III of the Constitution states the fundamental rights given to the Indian Citizens which cannot be violated and constitutional remedies is provided under Article 32. The Muslim Personal Law is codified as well as uncodified in nature. It follows the rules of Quran and its interpretation by the various schools. The socio-economic factors of Muslim Marriage in Indian Society are as follows:

POLYGAMY

In Islamic Law, polygamy is still. The law was made to give women status and recognition in the society. Polygamy was practiced in India by the hindu but after the British colonial era it was abolished. The term polygamy technically means either the male or female have more than one spouse, however, it is commonly understood and referred solely to the man having more than one wife. The correct term for this is polygyny. Polyandry is where the woman has more than one marriage partner.

The Quran explicitly gives a man permission to marry more than one woman:

“… then marry other permissible women, two three or four. But if you are afraid of not treating them equally, then only one… That makes it more likely that you will not be unfair.”

Whilst this verse simply allows a man to marry, due to the actions of the Prophet Muhammad, the majority of scholars regard polygyny as a Sunnah and therefore a rewardable act, provided the condition in the verse is fulfilled in that all are treated equally. A Muslim man can marry up to four women simultaneously. Islam does not object to polygyny- the practise of the male partner having more than one wife. In fact, polygyny has been a recognised practice amongst all past nations. It existed among the Aethenians, Chinese, Babylonians, Assyrian and Egyptians. Polygyny was also permitted by Christianity and Judaism. There is no clear text in the Gospels forbidding polygamy and the Torah mentions that the Prophet Soloman” had seven hundred wives and three hundred concubines.

Polygyny is common in the Arab countries but remains largely uncommon in Pakistan, despite both being Muslim countries and probably is intertwined with culture as well as religion. Polygyny, indeed polyandry was rife in pre-Islamic Arabia. The majority of Muslims in the UK are from the Indian sub-continent, where the practice polygyny is uncommon.. This obviously has criminal implication of bigamy in England. 

In Quoraishi v Quoraishi [1985] F.L.R. 780, the parties were both Muslim and doctors by profession They married in Pakistan in 1964. In the 1970’s they came to live in the UK There were no children of the marriage. The husband wished to have children and broached the subject of taking on a second wife with his first wife, who did not consent. In 1979, the husband took a job in Kuwait and subsequently married a Bangladeshi woman by proxy. despite his first wife not consenting. The first wife repeatedly asked her husband to divorce the second wife, but he refused and she eventually left him. The first wife made a complaint of desertion but the justices held that the wife left her husband solely because of the second marriage. The court had the benefit of expert evidence and both parties agreed that consent of the first wife was not required if a husband chose to take a second wife. The justices therefore dismissed her complaint of desertion. Later, the husband petitioned for divorce on the grounds that his wife had deserted him. The only issue before the courts was whether the wife had just cause to leave him. Butler-Sloss J. concluded that since the parties had resided in England for over ten years and were both educated, the action of the husband taking a second wife without the consent of the first wife jeopardised his first marriage and therefore constituted just cause for leaving him.

Hussain v Hussain [1982] 3 All E.R. 269, Opinions vary on whether consent is required. A woman can make it a condition of her contract that the husband is prohibited from taking a second wife whilst b married to bet. In August 2008, the Muslim Council of Britain, together the Muslim Institute, unveiled the new Marriage Contract for Muslims which includes a condition whereby the husband waives his right to polygyny. The judge’s findings on the subject of Islamic law were most unlikely to have any significance beyond the particular case in which she was making her findings of fact.

MUTA MARRIAGE

A muta marriage survives from the pre-Islamic Arabian custom where the solemnization between men and women gave rise to no mutual rights and obligations. All the requisite formalities of marriage, such as offer and acceptance, have to be observed in the muta marriage. The majority of Muslims believe that muta marriages are prohibited in Islam. These were marriages stipulated for a period of time, temporary period. It is narrated by Sabra al Juhani in a hadith of the Prophet Muhammad that he was with the Messenger of Allah when he said:

“O people! I have been informed about people contracting mut’a marriages with women. Allah has forbidden that until the Day of Rising. Anyone who has any such arrangement with them should give it up but you should not take back anything you have given them. “

According to majority Sunni opinion, muta marriages are invalid. The Hanafi’s argue that although muta marriages did take place at the time of the Prophet Muhammad, they have now been abrogated. The abrogation has been established through the ijma of the sahabah. It is said by some scholars that Imam Malik did not accept that muta marriages were no longer valid as there was no evidence directly abrogating it. However, most commentators maintain that attributing this view to Imam Malik is incorrect as the books of the Maliki’s do not contain a narration that permits muta marriages. To the contrary, it is stated in al-Mudawaadnah that a nikah for a stipulated period, be it long or short is not permitted. In his Muwatta, Imam Malik included a tradition which stated the Prophet prohibited muta on the Day of Khaybar. It was considered to be a practice of Imam Malik that whenever he related a tradition, he would adopt it and act upon it. Amongst the Shia’s, only the Ithna Ashari school recognises muta marriage. 

SOCIO ECONOMIC IMPACT

The laws do not explicitly regulate these factors, they intricately shape the choices and outcomes within marital relationships. India boasts a diverse legal framework governing marriages, including personal laws specific to different religious communities. The Muslim personal law, derived from Islamic sources, provides guidelines on marriage, divorce, maintenance, and inheritance among Muslims. However, this legal framework intersects with socioeconomic factors, influencing the practical realities of marriage.

Education acts as a catalyst for social change within Muslim marriages. Educated individuals, especially women, are more likely to challenge traditional norms, seek compatibility, and assert their legal rights within marriages. Education empowers individuals to understand and exercise their legal rights in areas such as divorce, maintenance, and property rights.

Economic disparities often pose significant challenges within Muslim marriages. Financial constraints influence the type of marriage ceremonies, the practice of providing Mehr (dower), and even access to legal recourse in case of disputes. Economic limitations can impede individuals from seeking legal remedies due to financial constraints associated with legal procedures.

CONCLUSION

Cultural norms and societal expectations significantly impact legal aspects of Muslim marriages. Despite legal provisions safeguarding women’s rights in marriage, societal pressures sometimes hinder their practical realization. The complexity arises from the intersection of customary practices, societal norms, and legal rights. Efforts to address the impact of socioeconomic factors on Muslim marriages require a comprehensive approach involving legal interventions and policy measures. Sensitizing legal practitioners, community leaders, and the public about the nuances of personal laws and their interaction with socioeconomic factors is crucial.

The interplay between socioeconomic factors and the legal landscape significantly shapes the contours of Muslim marriages in India. While laws provide a framework, their application and effectiveness are deeply influenced by socioeconomic realities and cultural norms. Understanding this intersection is pivotal in formulating holistic approaches aimed at fostering equitable and harmonious marital relationships within the Muslim community.

REFERNCES

• Islamic law, by Rafia Arshad, Sweet & Maxwell , South Asian edition
• Outlines of Muhammadan Law, by Asaf A. A. Fyzee, fifth edition
• Family Law in India, by Prof. G.C.V. Subha Rao, Tenth edition , Narender Gogia & Company