This article has been written by Mr Rutvij Vyas, a second year student of Faculty of Law, GLS University

Abstract

This article delves into the interesting realm of family law, focusing on marriage as a pivotal aspect and probing whether it is viewed as a civil contract or a sacrament. Islamic law, with its historical perspective, has consistently regarded marriage as a civil contract, primarily aimed at legitimizing sexual relations and facilitating the procreation of offspring. This article explores the procedural intricacies, essential components, and various forms and types of Muslim marriage to unravel the reasons behind its inherently contractual nature. Ultimately, it contends that Muslim marriage embodies a dual identity—fundamentally a civil contract, yet enriched with a devotional essence. In simpler terms, the article demystifies the complexities of Muslim marriage, shedding light on its legal foundations, and underscores the coexistence of contractual and spiritual dimensions within this institution. In the tapestry of Muslim marriage, the threads of commitment are intricately woven into the fabric of a contractual union, where the legal binds harmonize with the sacred intentions, creating a matrimony that is both a civil agreement and a spiritual covenant.

Keywords:- marriage, civil contract, Mehr, Sharia law

Introduction 

In Islam, the matrimonial bond is strongly encouraged, setting it apart from other religions that embrace celibacy. The Prophet Mohammed emphasized, “There is no celibacy in Islam.” The Quran, in Surah-Al-Nisa (4:1), underscores the importance of maintaining equity in marital relationships. One of the most astonishing features of marriage in Muslim law is its contractual nature. Marriage is also referred to as Nikah in Sharia law. Nikah, from the very beginning, has been defined as a civil contract to validate sexual intercourse and ensure the protection of children. As stated by Shyama Charan Sircar, “Marriage among Muslims is not a sacrament but purely a civil contract.” The basic requirement of Muslim marriage is ‘mutual agreement’ and ‘free consent.’ According to Islamic teachings, marriage is a sacred contract between a man and a woman, creating a union based on love, mutual consent, and the pursuit of righteousness.

According to Fyzee, nikah is an institution with manifold objectives, including the fixing of descents, restraining men from debauchery, and the preservation of species. In Islamic law, marriage is polygamous in nature, limited to four wives, but subsequent marriages are irregular and not void. Marriage contracts. In the landmark case of Abdul Kadir v. Salma and anr.(1886) ILR 8 All 149 , J. Mahmood  highlighted that Muslim marriage is purely a civil contract rather than a sacrament.

Process of Muslim Marriage

1. Engagement Ceremony (Khitbah):-In this ceremonial union, both men and women make a mutual decision to become engaged with the intention of marrying at a predetermined time.
2. Proposal and Acceptance:– According to Sharia law, a Muslim marriage commences with the proposal, known as IJAB, from either party. The recipient of the proposal must accept it by reciting the acceptance note, Qubool. It is crucial that this process involves free consent, devoid of coercion, undue influence, or fraud by either party. Parties may also engage in post-nuptial or ante-nuptial agreements, which should align with Islamic principles and be legally enforceable. The terms of the marriage can be established or modified within certain limits to accommodate individual preferences.
3. Mehr (Dower):-Mehr is an obligation where the groom commits to paying a pre-determined amount or an agreed-upon item such as land, gold, utensils, furniture, or other goods to the bride. The payment is made directly to the bride, fostering her financial independence from her parents. As per Encyclopaedia of Islam, “The Mehr is one of the essential condition for  Muslim marriage, without which the marriage is null and void.”
4. Nikahnama (Marriage Contract):-The Nikahnama is a marriage contract signed by both the bride and groom. It contains comprehensive details about the marriage and is endorsed by witnesses, comprising two male witnesses or one male and two female witnesses. The document outlines the terms of the relationship and the agreed-upon Mehr amount, serving as a written contract and proof of the marriage.
5. Marriage Feast (Walima):-The Walima is a celebratory feast organized by the groom after the consummation of marriage and the signing of the Nikahnama. This event is akin to post-wedding receptions.
6. Registration:-Every marriage must be registered within thirty days from the Nikah ceremony.

After thorough interpretation of the marriage ceremony as per Muslim law, it is self-evident that the nature of Muslim marriage is contractual however we can also say that there is a significant role of religious ceremonies in the Muslim marriage but those religious ceremonies are appended to be Civil ceremonies and thus it gives social acceptance to nikah, their performance or non-performance does not affect their validity.

Essential conditions of Muslim Marriage

In accordance with Islamic principles, a Muslim marriage is subject to essential conditions that, when absent, render the marriage void. It is imperative to adhere to these conditions to ensure the validity of the union. The following key elements constitute the foundational framework for a valid Muslim marriage:

15. Mental and Puberty Requirements: Both parties involved must be of sound mind and have reached the age of puberty. In the absence of proof of puberty, marriage becomes permissible upon reaching age of 15. This condition underscores the importance of mental capacity and maturity in contracting a marriage.
16. Competency to Contract: Parties must be competent to enter into a contract. Minors or individuals deemed lunatic or insane, who have not yet reached puberty, require the consent of their guardians to validate the marriage. This ensures that individuals incapable of fully comprehending the implications of marriage are protected by the guidance and approval of their guardians.
17. Valid Proposal and Acceptance: The proposal and acceptance, fundamental components of a Muslim marriage, must occur in a single meeting. This condition emphasizes the importance of clear and unambiguous communication between the parties involved in formalizing the marriage contract.
18. Consent of Parties: Valid consent of both parties is essential for the marriage to be recognized. If consent is obtained through fraudulent means, misrepresentation, undue influence, or coercion, the marriage is deemed invalid. This safeguards the integrity of the marital contract and ensures that it is entered into willingly and knowingly. In a clear judgment of Hon’ble Kerala high court it was held that, where the girl’s father has given the consent and bride had withheld hers, marriage is not valid. 
19. Dower (Mehr): The concept of Dower (Mehr) holds significance, as highlighted in the case of Nasra Begum vs. Rizwan Ali. It was established that the right to Mehr precedes cohabitation. The absence of Mehr may result in the wife or her guardians refusing cohabitation. This condition underscores the financial aspects and rights associated with the marriage contract.

1. Free from legal disability- Marriage is not permitted if parties are related in 2 forms
2. Absolute prohibition- When bride is groom’s Mother, Grandmother, daughter or grand daughter, sister (includes full blood/ half blood/ uterine), niece, aunt or great aunt; wife’s mother, daughter, grand daughter, step mother, son’s wife or grandson’s wife or daughter’s son’s wife. Futhermore when bride is related with foster age, the marriage is void.
3. Relative prohibition- in such circumstances, marriage is not void but irregular;
4. When the bride is related with previous wife of groom, by consanguinity or affinity or fosterage.
5. When the bride is not Muslim, Christian, Jew or Parsi, also when the bride is Muslim and groom is Non- Muslim.
6. When the bride is in the period of iddat.
7. When the witness are not proper.
8. other prohibitions/ miscellaneous prohibitions

Types of Marriage  

In accordance with Muslim law, marriage contracts are classified into four major types based on their validity. Understanding these classifications is crucial for comprehending the nuances within the framework of Islamic marital unions.

1. Valid (Sahih) Marriage: Also known as “nikah,” a valid marriage occurs when there is a legitimate proposal and acceptance in a single meeting, with the free and voluntary consent of both parties. Moreover, the individuals involved must be capable of entering into a marriage contract, possessing sound minds, and having attained puberty.
2. Irregular (Fasid) Marriage: This type of marriage arises due to the absence of specific formalities or the existence of prohibitions. The irregularity can be rectified to render the marriage valid. Some instances leading to an irregular marriage include: A. The bride being the fifth wife of the groom. B. A marriage between individuals of different faiths. C. The bride being in the period of iddat. D. Invalidation or non-compliance with witness norms. E. The bride being pregnant. F. The bride being a minor without the guardian’s consent.
3. Temporary (Muta) Marriage: This form of marriage involves a fixed time period specified in the Nikahnama. Once this designated period expires, the marriage relationship automatically dissolves. Temporary marriage, commonly practiced among Shia Muslims, is characterized by its time-bound nature.
4. Void (Batil) Marriage: A marriage becomes void when it fails to meet the essential conditions of a valid marriage. Void marriages are declared null and void under certain circumstances, including:
   • Marriages within degrees of prohibited relationships by consanguinity, affinity, or fosterage.
   • Polyandrous marriages.
   • Marriages between Muslim women and non-Muslim men.

Understanding the intricacies of these four types of marriages as defined by Muslim law is crucial for ensuring clarity and adherence to the legal and ethical aspects of Islamic matrimonial practices.

 Conclusion 

In the leading case of Yusuf v. Sowramma AIR 1971 Ker 261, Justice V.R. Krishna Iyer asserted that ‘no religious significance or social solemnity attach to Muslim marriage and it is merely a civil contract’. According to juristic opinions, it can be deduced that Sharia law treats marriage primarily as a civil contract. A contract, defined as an agreement enforceable by law, parallels the concept of Muslim marriage where the agreement is formalized through the signing of a contract by the bride and groom in the presence of witnesses. For the marriage to be considered valid (sahih), this agreement must fulfill essential elements.

However, when examined from a religious and spiritual standpoint, Muslim marriage takes on a more profound dimension. It is regarded as a devotional act, emphasizing the duty of spouses to love and honour each other. Therefore, the ultimate analysis of Muslim marriage reveals a duality – it is a civil contract by nature, yet infused with a devotional spirit.

This dual nature of Muslim marriage signifies that while it is legally binding as a civil contract, it also carries a spiritual and religious significance. The contractual aspect ensures legal enforceability, while the devotional dimension underscores the moral and ethical responsibilities of the spouses. This amalgamation of legal and spiritual elements makes Muslim marriage a unique institution, blending the practicalities of a civil contract with the emotional and moral commitments inherent in a devotional act.

In essence, the characterization of Muslim marriage as a civil contract does not negate its religious and spiritual importance. Instead, it acknowledges the dual nature of this union, emphasizing both its legal standing and the moral obligations it entails.

Reference 

1. Abdul Kadir v. Salma and anr.(1886) ILR 8 All 149
2. Yousuf Rawther vs Sowramma 1971 AIR Ker 261
3. Family law, Dr Paras Diwan,978-93-95759-10-6,13th Edn.
4. Muslim Law in India And abroad, Tahir Mohammed, 9789350356975, second edn.
5. This article was originally written by-  Basant Khyati  published on Lawyers club India. The link for the same is herein https://www.lawyersclubindia.com/articles/marriage-under-muslim-law-13977.asp
6. Outlines of Muhammadan law, Asaf A. A. Fyzee.978-0-19-564814, 9th edition 
7. The Muhammadan Law, Sircar Shama Churun, 1875