The Arabic term ‘nikah’ is used to describe marriage is transliterated into “the Union of Sexes” and under this Arabic term, marriage became a civil contract in Muslim Law, as intended by the Prophet Mohammed. It has since become one of the most sacrosanct social institutions known to Man, while providing equal importance and according equal rights to both sexes.
Introduction- The History Of Nikah
In pre-Islam Arabia, the laws were favourable towards men and discriminatory against women. Polygamy had to be accounted for in a very few blood relationships like in marriage with one’s real mother or sister. Marriages were of different kinds and divorce was simple and easy for men. Women were denied their basic rights since men were always considered superior. Women were treated as chattels, and were not given any right of inheritance and were absolutely dependent.it was prophet Mohammad who brought about a complete change in the position of women.
Prophet Mohammad placed a woman on a footing of almost perfect equality with men in the exercise of all legal powers and functions. Under the Muslim, Law marriage is considered a civil contract. After the marriage, women do not lose their individuality. She still remains a distinct member of the community.
The Arabic word ‘Nikah’ (marriage) means “the union of sexes” and in law, this means “marriage”. The term ‘Nikah’ has been used for marriage under Muslim law. ‘Nikah’ literally means, “to tie up together”. It implies a particular contract for the purpose of legalizing generation. Nikah in its primitive sense means carnal conjugation. It is a matrimonial contract as well as an institution that gives the women a particular and high status in the society. Nikah was to ensure stability in married life as it bound both the partners together for an indefinite period and also required the woman to be honoured with the mahr.
Islam, unlike other religions, is a strong advocate of marriage. There is no place for celibacy in Islam like the Roman Catholic priests and nuns. The Prophet has said, “There is no Celibacy in Islam.”
Classification of Marriage
Valid (sahih)
When all the legal requirements are fulfilled and there are no prohibitions affecting the parties, then the marriage is correct or ‘sahih’. The prohibitions can be permanent as well as temporary, in case of permanent prohibitions: the marriage will be void and if the prohibitions are temporary then the marriage is irregular.
Effects of a valid marriage
- The cohabitation between the husband and the wife becomes lawful.
- The children born out of a valid marriage are legitimate and they have right to inherit their parent’s properties.
- Mutual rights of inheritance between husband and wife are established. That is to say, after the death of the husband, the wife is entitled to inherit the husband’s properties and after the wife’s death, husband may also inherit her properties.
- Prohibited relationship for purposes of marriage is created between the husband and wife and each of them is prohibited to marry the relations of the other within prohibited degrees.
- The wife’s right to claim dower is fully established just after the completion of marriage.
- The marriage gives to the wife also the right of maintenance from her husband with immediate effect.
- After the dissolution of the marriage, the widow or the divorced wife is under an obligation to observe the Iddat, during which she cannot remarry.
Void (Batil)
The marriage being void ab initio creates no rights or obligations and the children born out of such marriage are illegitimate. A marriage forbidden by the rules of blood relationship, affinity or fosterage is void. Similarly, a marriage with the wife of another or a divorced wife during iddah period is also void.
Irregular (Fasid)
Due to lack of some formality, or the existence of an impediment which can be rectified, a marriage becomes irregular, However, this irregularity is not permanent in nature and can be removed. Thus, the marriage itself is not unlawful. It can be made valid once the prohibitions are rectified. Marriage in such circumstances or with following prohibitions are called ‘Fasid’.
- A marriage contracted without required number of witnesses;
- A marriage with women during her Iddat period;
- A marriage with women without the consent of her guardian when such consent is considered necessary;
- A marriage prohibited on account of difference of religion;
- A marriage with a woman who is pregnant, when the pregnancy was not caused by adultery or fornication;
- A marriage with a fifth wife.
Registration of Marriage under Muslim Law
Registration of marriage in Muslims is compulsory and mandatory, as a Muslim marriage is treated as a civil contract. According to section 3 of Muslim Marriages Registration Act 1981- “Every marriage contracted between Muslims after the commencement of this Act, shall be registered as hereinafter provided, within thirty days from the conclusion of the Nikah Ceremony”. Nikahnama is a type of legal document in Muslim marriages which contains the essential conditions/details of the marriage.
According to this act, a Nikahnama contains:
- Place of marriage (with sufficient particulars to locate the Place.)
- Full name of the bridegroom
- Age
- Address
- Full name of bridegroom’s father
- Whether father is alive or dead
- Civil condition of the bridegroom at the time of marriage whether – Unmarried Widower Divorced Married, and if so, how many wives are alive
- Signature or thumb impression of the bridegroom/Vakil/ Guardian according as the Nikah was performed in person by the bridegroom or through his Vakil or Guardian
- Full name of Nikah-Khan (that is the person conducting the Nikah Ceremony.)
- Signature of the Nikah-Khan (i.e. person conducting the Nikah Ceremony with date.)
- Amount of dower fixed
- Manner of payment of dower
- Name of witnesses with parentage, residence and address
Dissolution of Marriage
There are 2 categories of divorce under Muslim law:
- Judicial
- Extra-Judicial
The Extra-judicial mode of Divorce can further be divided into 3 subdivisions:
- By husband- talaaq, ila, and zihar.
- By wife- talaaq-i-tafweez, lian
- By mutual agreement- khula and mubarat
A divorce falls into 2 categories:
Talaaq-i-sunnat
It can further be divided into two categories:
i) Talaaq-i-ahsan
A single pronouncement of divorce is made during the period of tuhr (the period of purity between two menstrual cycles), followed by abstinence from sexual intercourse during the period of iddat. Here, the divorce can be revoked at any time before the completion of iddat, thus preventing hasty and unreasonable divorces.
ii) Talaaq-i-hasan
A husband is required to pronounce a formula of Talaaq three times, during three successive tuhrs. It is important that pronouncements are made when no intercourse takes place during any period of tuhr. The marriage is dissolved irrevocably, regardless to the period of iddat.
Talaaq-i-Biddat
It is a form of Islamic divorce which is instant in nature. It allows any Muslim man to legally divorce his wife by stating the word “Talaaq” three times in oral, written, or more recently, electronic form. This is prevalent among the Muslims in India, especially among the adherents Hanafi school of Islam. This is also known as “Triple Talaaq” and has been a subject to debate and controversy.
In Shayara Bano V. Union of India and Ors. It was submitted that:
“This practice of talaq-e-biddat (unilateral triple-talaq) which practically treats women like chattel is neither harmonious with modern principles of human rights and gender equality, nor an integral part of Islamic faith, according to various noted scholars. Muslim women are subjected to such to such gross practices which treats them as chattel, thereby violating their fundamental rights enshrined in Articles 14, 15, 21 and 25 of the Constitution. The practice also wreaks havoc to the lives of many divorced women and their children, especially those belonging to the weaker economic sections of the society.”
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