“Nikah, in its primitive sense, means a carnal conjunction. Some have said that it signifies conjunction generally. In the language of law it implies a particular contract used for the purpose of legalizing generation.” – Hedaya [1]
Muslim marriage has been considered a contract that legalises the procreation of children. Justice Mahmood in Abdul Kadir v. Salima [2] defines it as a purely civil contract and rejects its nature as a sacramental institution. However, despite o having similarities with a civil contract, Muslim marriage is not absolutely a one. It is a religious unit that attaches various values to itself. Muslim law has been interpreted by different schools (Shia law, Sunni law) in their own particular way; thereby Muslim marriage can be broadly considered of the following kinds:
- Sahih Nikah (Valid Marriage): The word ‘sahih’ means correct or valid. The sahih marriage is the one in which all the essential conditions of the Muslim marriage have been followed:
• There is a proposal made by one party and it has been accepted by the other.
• The marriage has taken place in front of witnesses. Under Sunni law, the presence of two males or one male and two females who are sane, adult and Muslim is required. Under Shia law, requirement of witnesses is not essential at the time of marriage.
• The proposal has to be accepted in the same meeting it has been made, i.e., the marriage should constitute in one meeting.
• Parties should have the capacity to marry; they should be of sound mind and in their age of puberty. As per Hedaya, the age of puberty for girls is 9 years and for boys is 12 years.
• The parties should be capable of giving free consent. In the case of minor or lunatic, the consent of guardian on their behalf is admissible.
• There should not be any legal disability- absolute (consanguinity, affinity, fosterage) or temporary (unlawful conjunction, polygamy, absence of proper witnesses, marriage with a woman undergoing iddat, different religions).
Effect of a Valid Marriage: On completion of all the conditions mentioned above, the marriage becomes valid, i.e., it gives rise to mutual duties and obligations that husband and wife have to follow during the course of their marriage. The sexual intercourse becomes lawful; the children born out of a valid marriage are legitimate. Further, the parties become entitled to inherit each others’ property. Wife is entitled to dower and is obligated to observe iddat in case of dissolution of marriage or death of the husband.
- Batil Nikah (Void Marriage): A void marriage is a marriage that does not fulfil the necessary conditions of a valid marriage. In batil marriage no legal rights and obligations are followed. Following kind of marriages are considered void:
• A marriage falling under prohibited degrees of relationship, i.e., marriage between the parties having blood relations.
• Marriage prohibited by the reason of affinity.
• Marriage with foster mother or foster sister. The exception in case of fosterage is observed by Sunnis, where marriage is valid with sister’s foster mother, or foster sister’s mother, foster son’s sister, or, foster-brother’s sister.
• Marrying a woman who is undergoing iddat is also void under Shia law.
• Marriage with the fifth wife.
• Marriage with someone else’s wife provided her marriage is still subsisting.
The above mentioned list is not exhaustive hence more kinds of marriage might be void as considered by rules of a certain school of Muslim law.
Effect of a Void Marriage: A void marriage does not stimulate any legal obligations or rights on the parties. Wife is not entitled to dower or maintenance. The children born out of such marriage are considered illegitimate thereby bearing no right of inheritance of property. In the void marriage, parties do not need to follow legal procedure of divorce; they can simply separate and marry some another person if they want without legal formalities.
- Fasid Marriage (Irregular Marriage): Irregular marriage is an invalid marriage that does not fulfill partial conditions of a valid marriage. However, once the irregularities are removed it commutes into a valid marriage. The concept of irregular marriage is recognized only under Sunni law. According to Shia law, a marriage has to be one of valid or void nature, no middle path has been offered as such. The following marriages might be considered irregular marriages under Sunni law:
• Marriage in the absence of witnesses. Parties can remarry in the presence of witnesses to render their marriage valid.
• Marriage with the fifth wife. It will be a valid marriage if husband gives divorce to one of his four wives and then marry the fifth one.
• Marriage with a woman observing iddat. The kind of marriage will be valid if the parties contract it after the expiration of the iddat period.
Effect of an Irregular Marriage: If the irregular marriage has been consummated, then the wife will be entitled to dower. Moreover, she will be obliged to undergo iddat. The children born out of such marriage are legitimate. In case the irregular marriage has not been consummated, the wife is not entitled to dower nor do the parties require legal formalities to separate from each other.
- Muta Marriage: The term ‘muta’ means enjoyment. Thus muta marriage has a fixed period of time and is entered for the purpose of sexual pleasure. This kind of marriage is only recognized by Shia sect of Muslims. Following are some features of the muta marriage:
• The period of a muta marriage should be fixed at the time when it is contracted.
• The parties to such marriage should be the age of puberty and sound mind. Moreover, alike valid marriage, proposal and acceptance has to made and the consent of the parties should be free.
• Muta marriage does not stimulate any mutual rights of inheritance among the parties.
• The children born out of a muta marriage are considered legitimate and they can inherit from both the parents.
• For dissolution of the muta marriage the expiry period (as mentioned in the contract) is taken into consideration. The marriage will itself terminate once the expiration period has been reached. The husband may propose a gift called Hiba-i-muddat for early dissolution the marriage.
• In case the marriage has not been consummated, the wife is entitled to only half-dower. If the marriage has been consummated then she is entitled to full dower.
Conclusion: There are various Muslim sects that follow their own modified versions of Muslim marriage. For instance, witnesses are considered necessary for a valid marriage under Sunni law but not under Shia law. Though, broadly classified there are four types of Muslim marriages: valid marriage, void marriage, irregular marriage and muta marriage. In brief, a valid marriage is one that follows proper conditions and ceremonies as specified by the concerned Muslim sect. Void marriage, also called batil marriage, is considered invalid marriage mainly due to the presence of certain legal disabilities. Irregular marriage is a temporarily invalid marriage and can be recognized as valid after the removal of some irregularities. Muta marriage is a marriage that is set for a certain fixed time period. It is recognized by the Shia sect and is not followed under Sunni law.
References:
Aqil Ahmed, Mohammedan law, Central Law Agency, Twenty-Sixth Edition (2016), chapter-7
- Hedaya, p. 25
- (1886) 8 All. 149 at 154