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INTRODUCTION DEFINITION OF NIKAH 1.Preliminary- nikah in pre Islamic Arabia,meant different forms of sex relationship between a man and a woman established on certain terms,in pre Islamic days,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 woman on a footing of almost perfect equality with men in the exercise of all legal powers and functions1.under the muslim law marriage is considerd as civil contract.after the marriage,women does not lose her individuality.she still remains a distinct member of community. 2.Definition- The legal contract between a bride and bridegroom as part of an Islamic marriage; the contract of Islamic marriage; Islamic marriage in general.
Nikah is an Arabic term used for marriage. It means "contract".The Quran specifically refers to marriage as "mithaqun Ghalithun,". Which means "a strong agreement". The original meaning of the work nikah work nikah is the physical physical relationship between man and woman. It is also used secondarily to refer to the contract of marriage which makes that relationship lawful. Which of the two meanings is is intended can be determined by the context in which it is used. As for the definition of marriage in fiqh, the simple de finition would go something like this: "A contract that results in the two parties physically enjoying each other in the manner allowed by the Shari'a." Since this only focuses on one aspect of o f the marriage contract, Muhammad Abu Zahrah (a modern scholar) defines it like this: "A contract that results in the man and woman living with each other and supporting each other within the limits of what has been laid down for them in terms of rights and obligations." Ibn Uthaimeen takes an even more comprehensive view of the institution of marriage in his definition of it as: "It is a mutual contract between a man and a woman whose goal is for each to enjoy the other, become a pious family and a sound society.” ESSENTIAL CONDITION OF NIKAH
Nikah is based on few conditions. co nditions. When these conditions are fulfilled, then a man and a woman are proclaimed as husband and wife and can live together and carry on their marital duties. These are: Essentials of Marriage
The essentials of a valid marriage are as follows:-
1 Hedaya,p.25
2 |Page (i) There should be a proposal propo sal made by or on behalf of one of the parties to the marriage, and an acceptance of the proposal by or on behalf b ehalf of the other party. A Muslim marriage requires proposal ‘Ijab’ from one party and acceptance ‘Qubul’ from the other side. This must be done in one sitting. (ii) The proposal and acceptance must both be expressed at once meeting. The acceptance must be corresponding to what is being offered.The marriage must be effectively immediate. If the Wali says “ I will marry her to you after two months”, there is no marriage. (iii) The parties must be competent. The two parties must be legally competent; i.e. they must be sane and adult. (iv) There must be two male or one o ne male & two female witnesses, who must be sane and adult Mahomedan present & hearing during the marriage proposal and acceptance. (Not needed in Shia Law) (v) Neither writing nor any religious ceremony is needed. Essentials Explored
Giving free consent to the marriage personally pe rsonally or through a close relative like father (called Wali). A man and woman say in clear voice three times that they accept acc ept (name of the person and his/her father name is called) as their husband/wife. The nikah contract requires the consent of both parties very strictly if they are adults. There is a tradition in some Muslim countries, outside of the religion, to pre-arrange a marriage for young children. However, the marriage still requires consent of the concerned man and woman when they reach adulthood when the wedding actually goes ahead. The amount of Haq-e-Mahr (marriage money) is agreed upon, announced, and paid to the bride at the spot or paid in the future.here the concept of marriage is different from from other religious marriage.in muslim marriages bridegroom paid the amount of money to the bride,and the amount is known as DOWER. Two adult free men witness the ceremony.or either 1 adult man and 2 women.but in no condition only women can be b e the witness of marriage.so as minor and insane person can not be the witness of marriage in islam. The nikah is publicised/advertised widely. AIM & OBJECT OF NIKAH
Like anything a Muslim does, marriage should only be undertaken after gaining an understanding of all that Allah has prescribed in terms of rights and obligations as well as gaining an understanding understanding of the the wisdom behind this institution. Nearly all peoples and all all societies practice marriage in some form, just as they practice business (buying and selling). Umar ibn Al-Khattab used to expel people from the marketplace in Madina who were not knowledgeable of the fiqh of buying and selling. Likewise, a Muslim should not engage in something as important as marriage without having understanding of the purpose of marriage in Islam as well as a comprehensive understanding of the rights and obligations which it brings about. One of the principles of Islamic Jurisprudence says that: that: "The default state of all things is lawfulness until until some evidence evidence shows otherwise." otherwise." Based on this, this, if new foods are discovered,
3 |Page they are considered lawful, unless there is some specific reason or attribute which would make it forbidden for example if it is causes intoxication. Relations between men and women do not follow this this general principle and in fact are opposite to it. it. The principle is that: that: "Relations between men and women are forbidden until some evidence shows otherwise." Procreation (Children)
One of the most important purposes of marriage is to continue and increase the population p opulation of the Muslims. Clearly, this goal could be achieved without marriage, but when actions are are undertaken in disobedience to Allah, they do not receive the blessing of Allah and the whole society is corrupted. The Prophet said: "Marry, for I will outnumber the other nations by you on Qiyama."
It should be stressed that the goal is not no t simply to produce any child that will live in the next generation. It is to produce righteous children who will be obedient to Allah and an d who will be a source of reward for their parents after they they die. The Prophet will NOT be boasting before the other nations on the day of Qiyama with children of Muslim parents who left the path of Islam. Thus it is the responsibility of Muslim parents to seek the means of g iving their children the training and education they need not just to grow, but to succeed as Muslims worshipping and obeying Allah. This obligation may include migration2, establishing of Muslim communities and schools and other obligations. As the scholars have said in another principle of fiqh: "That without which an obligation cannot be fulfilled is itself obligatory." Pleasure
Islam is the religion of the fitrah the fitrah3 - the religion which is consistent with the natural instincts and needs of mankind. It is not like like the man-made (of modified) religions religions which set unnatural constraints on people whether self-inflicted prohibition of marriage (nuns and monks, etc.), prohibition of divorce or monogamy. monogamy. Men are inclined toward women and women are are inclined toward men. Marriage is the the institution which fulfills this desire and channels it in ways pleasing to Allah Allah Most High. Allah mentions this attraction: attraction: “The love of the desires for women, sons, ... has been made attractive to people.”
The Messenger of Allah himself made clear that the attraction between the sexes is something natural and not something to be denied or suppressed - only channelled in the ways pleasing to Allah Most High, saying: "Women and perfume have been made beloved to me of this world of yours and my peace of mind is in the prayer."
2 hijrah 3 the religion which is consistent with the natural instincts and needs of mankind
4 |Page The desire of men and women for each other is an urge which needs to be fulfilled. If it is left unfulfilled, it will be a source of discord and disruption in society. society. For this reason, the Prophet ordered all men who are capable cap able of meeting the responsibilities of marriage to do it: "Whichever of you is capable should marry for it will aid him in lowering his gaze and guarding his body (from sin). As for the one who is not capable, fasting is his protection."
NATURE OF MUSLIM MARRIAGE The Prophet emphasised the necessity of marriage saying-"To live in marriage is to observe my way. He who turns away from this way is not of me".
RIGHTS & DUTIES Mutual Rights and Obligations:
Marriage is a union for life having mutually inclusive benefits and fulfilment for the contracting parties including the following: Preservation of chastity and security of gaze Companionship inside and outside home Emotional and sexual gratification Procreation and raising of any children by mutual consultation Agre Agreem ement ent to live live toge togeth ther er in a mutu mutual ally ly agre agreed ed count country ry and and esta establ blis ish h thei their r matrimonial home therein Working collectively towards the socio-economic welfare and stability of the family Maintaining their individual property rights but contributing to the welfare of the family according to their capacity Maintaining social contacts with family and friends mutually beneficial for the family
5 |Page Managing their individual activities/roles inside and outside the home by mutual consultation Obligations of the husband:
In addition to the mutual duties and obligations, the husband undertakes not to: abuse his wife/child(ren) verbally, emotionally, p hysically, or sexually desert/be absent from the marital home for more than 60 days unless by mutual agreement withhold economic contribution towards his wife/family sexually transmit disease or other transmissible diseases misuse /interfere with the wife’s property Obligations of the Wife:
In addition to the mutual duties and obligations the wife undertakes not to: abuse her husband/child(ren) verbally, emotionally, physically, or sexually desert/be absent from the marital home for more than 60 days unless by mutual agreement sexually transmit disease or other transmissible diseases misuse/interfere with the husband’s property
COMPOSITES OF MARRIAGE IN ISLAM Mahr4Mahr is the consideration for the contract of marriage between the parties. It may be in the form of money and/or goods given by the Bridegroom to the Bride in consideration for the marriage. It is an essential element of Muslim marriage and is exclusively reserved for the use of the female partner. Payment of Mahr of Mahr could could be immediate (prompt), or deferred. Full Amount of Mahr: Record the total value of the agreed Mahr , e.g., £5,000 in cash, or xyz weight in gold. a) Mu‘ajjal (Immediate/Prompt): (Immediate/Prompt): This means the total amount of Mahr of Mahr payable payable by the Husband at the time of signing of marriage contract. b) Mu’wajjal Mu’wajjal (Deferred (Deferred): ): This means the portion portion of the Mahr which is payable to the wife at a specified point in the marriage or at the time of dissolution of the marriage through divorce or death of the husband. Any deferred Mahr that remains unpaid at the time of dissolution becomes a debt against the former husband’s assets. Portion of the Mahr pai Mahr paid d at the time time of marriage: marriage: the amount of money money and/or and/or goods goods received received as Mahr at the time of marriage. This does not include general gifts to the bride from the bridegroom and/or his family unless these be expressly included in (a) above as part of the amount of Mahr of Mahr .
4 Dower-amonut paid by bridegroom to bride
6 |Page WitnessesAccor Accordin ding g to Islam Islamic ic law, law, a witne witness ss shoul should d be sane, sane, adult adult and and reliab reliable. le. This This requir requirem ement ent is gender/faith neutral. Hence, the Muslim Marriage Certificate requires to be witnessed by ‘two adult witnesses of good character’. TWO men can be the witness ONE man and TWO women can be the witness ONLY women can not be the witness INSANE and MINOR can not be the witness
Wali5Parents are responsible for the upbringing of their children. Out of respect and courtesy it is important that young people involve their parents or guardians throughout the process of marriage. However, parental or guardian’s legal role finishes when children reach adulthood. Thereafter their role is optional and complementary.
Divorce-
According to Islamic law, marriage is the most sacred commitment in life between two adults of opposite sex. It attempts to save it wherever possible. As a consequence divorce is regarded by Allah as the most ‘hated thing’. However, breakdown in marriage does take place for a variety of reasons. If the divorce is initiated by husband he has to pay the woman any Mahr that Mahr that remains unpaid. If the divorce is initiated by the wife,and the husband is found to be at fault by the arbiters she does not lose her Mahr her Mahr . But if she cannot prove his fault, she has to return to her husband husband whatever whatever Mahr amount amount she has alread already y receiv received. ed. If the wife wife initia initiates tes the divorc divorcee without without any grounds, grounds, this is called called ‘khula’ ‘khula’ and she must return whatever the husband has given her in consideration for the marriage.
Muslim Marriage Certificate- Is written agreement essential?
Quran does not ask for any written agreement of marriage. However, in recent times the legislatives of different Muslim societies have made it compulsory that every Muslim should be signed and registered with the government agencies. Without a marriage certificate, a marriage is not void or even irregular if it meets other requirements of a Muslim marriage contract. However, in most of the modern Muslim states it may be an offence to not get registered a Muslim marriage. Besides legal implications it is always advisable to inscribe the details of a Muslim marriage to avoid future problems. 5 parents
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LEGAL DISABILITY DISABILITY It means the existence of certain circumstances und er which marriage is not permitted.these prohibitions have been classified into four classes as follows: ABSOLUTE INCAPACITY RELATIVE INCAPACITY PROHIBITORY INCAPACITY DIRECTORY INCAPACITY
ABSOLUTE INCAPACITY
There is absolute prohibition of marriage in case o r relationship of consanguinity. In this case the situation is such that the relationship has grown up of the person through his/her father or mother on the ascending side, or through his or her own on the descending side. Marriage among the persons associated by affinity, such as through the wife it is not permitted. Marriage with foster mother and other related through such foster mother is also not permitted. )-it means blood relationships and bars a man from Consanguinity(qurabat )-it marryingMother or grandmother,Sister,aunt, niece etc. )-a man is prohibited from marryingAffinity(mushaarat )-a mother-in-law, step-grandmother, danghter-in-law, step-granddaughter, etc. Fosterage(riza)- when a child under the age of two years has been suckled by a woman other than his or her mother,the woman bocomes his foster mother,a man may not marry his foster mother or her daughter or foster sister
8 |Page A man cannot marry his foster mother, nor foster sister, unless the foster brother an d sister were nursed by the same mother at intervals widely separated. But a man may marry the mother of his foster sister, or the foster mother of his sister. EXCEPTION-
Sister’s foster mother Foster-sister’s Foster-sister’s mother Foster-son’s sister Foster-brother’s sister RELATIVE INCAPACITY
Relative incapacity springs from case which render the marriage irregular only so long as the cause which creaes the bar exist,the moment it is removed,the incapacity ends and the marriage becomes valid and binding. Unlawful union Marrying a fifth wife Marrying a woman undergoing iddat Marrying a non-Muslim Absence of proper witnesses Woman going for a second marriage even after the existence of o f the first marriage. Marrying pregnant women Marrying during pilgrimage Marrying own divorced wife PROHIBITORY INCAPACITY
It arises in the following cases: (a) Polyandry- it means the fact of having more than one husband.it is forbidden in the muslim system and a married women cannot marry second time so long as the first marriage subsists.
female with a non (b) Muslim woman marrying a non-muslim- a marriage of a muslim female muslim male made whether he be Christian or jew or an idolater or a fire worshipper is irregular in nature under sunni law and void under shia law. DIRECTORY INCAPACITY
This may arise out of:
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Marrying a woman “enciente” Prohibition of divorce Marriage during pilgrimage Marriage with a sick man
ASPECTS OF MARRIAGE VALID MARRIAGE (SAHIH)
Under the Muslim law, a valid marriage is that which has been constituted in accordance with the essential conditioned prescribed earlier. It confers upon the wife; the right of dower, maintenance and residence, imposes on her obligation to be faithful and obedient to her husband, admit sexual intercourse with him & observe Iddat. The lawful obligations which arise after marriage are as follows(i) Mutual intercourse legalized and the children so born are legitimate. (ii) The wife gets power to get ‘Mahr’ (iii) The wife entitles to get maintenance. (iv) The husband gets right to guide and prohibit the wife’s movement(for valid reasons only) (v) Right of succession develops. (vi) Prohibition of marriage due to affinity. (vii) Women bound to complete Iddat period pe riod & not to marry during Iddat period; after divorce or death of husband. The obligations and rights set between the two parties during and after the marriage are to be enforced till legality. On the basis of a marriage husban d and wife do not get the right on one another’s property.
IRREGULAR MARRIAGE (FASID)
Those marriages which are outcome of failures on part of parties in non fulfillment of prerequisites but then also are marriages; to be terminated by one of the party is termed to be Irregular marriages. They are outcome of(a) A marriage without witness (Not under Shia Law) (b) Marriage with fifth wife. (c) Marriage with a women undergoing Iddat. (d) Marriage with a fire-worshipper. (e) Marriage outcome of bar of unlawful conjunction. con junction. An irregular marriage has no legal effect before consummation but when consummated give rise to several rights & obligations. VOID MARRIAGE (BATIL)
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A marriage which is unlawful from it’s beginning. It does n ot create any civil rights or obligations between the parties. The offspring of a void marriage is illegitimate. They are outcome of-
(a) Marriage through forced consent. (b) Plurality of husband. (c) Marriage prohibited on the ground of consanguinity. (d) Marriage prohibited on the ground of affinity. (e) Marriage prohibited on the ground of fosterage.
IDDAT In Islam, iddah or iddat (Arabic: period (Arabic: period of waiting ) is a period after a divorce, during which a woman may not marry another man. The period is calculated on the number of menses that a woman has, usually three. Iddah three. Iddah was intended to ensure that the male parent of any offspring produced after the cessation of a nikah would be known. Iddat after death of husband 6-
Qur'an prohibits widows to engage themselves for four (4) lunar months and ten (10) days after the death of their husbands. Islamic scholars consider this directive to be a balance between b etween mourning of husband's death and protecting the widow from criticism that she from re-marrying too quickly after her husband’s death. This is also to ascertain whether a woman is pregnant pregnan t or not, since four and a half months is half the length of a normal pregnancy. Husbands should make a will in favor of their wives for the provision of one year’s residence and maintenance, unless the wives themselves leave the house or take any other similar step The Qur'anic verse relating to the period of iddah of iddah is: If any of you die and leave widows behind, they shall wait concerning themselves four months and ten days: When they have fulfilled their term, there is no blame on you if they dispose of themselves in a just and reasonable manner. And Allah is well acquainted with w ith what ye do. The directive of the Qur'an regarding the waiting period of a widow, are as under: Whoever from amongst you dies and leaves behind wives, the wives will hold themselves [from marriage] for four months and ten days. Then, when they have expired this period, there is no blame upon you in whatever they do regarding themselves, according to the recognized traditions. And God is fully aware of w hatever you are doing. And there is no blame upon you in proposing [marriage] to these women or in keeping such proposal to yourself - God is aware that you would mention it to them - but do not n ot make with them any secret commitments, except that you say a noble word to them. However, do not commit the marriage-contract with them, until the law has reached its prescribed time.
6 Iddat e wafaat
11 | P a g e The following is a summary of the main directives entailed in these verses: 1. The waiting waiting period period (Iddah) (Iddah) of a widow is four four months months and ten ten days; days; 2. During During this period, period, the woman is is not to marry marry another another husband; husband; 3. During During this period, period, a person person may declare declare his his intentions intentions of marry marrying ing the widow widow - in a socially acceptable manner - or he may keep such intentions to himself, yet he shou ld not make a secret commitment of marriage with the widow; and 4. The time time and place of the the marriage-cont marriage-contract ract should should be finalize finalized d and committed committed to only only after the period of four months and ten days has expired. These are the basic directives of the Sharia regarding the waiting period of a widow. It is also clear from another directive of the Qur'an that during this waiting period, the woman should not be turned out of her house. Iddat after divorce 7
Comparing this waiting period with the one prescribed for a divorced woman (i.e. three menstrual periods of the divorced woman), we see that the waiting period prescribed for a widow exceeds that, which is prescribed for a divorced woman by at least a month and a half. It is also clear from the stipulations of the Qur'an that the prescription of the waiting period for a divorced woman is with the basic purpose of ascertaining her condition with reference to pregnancy as well as to provide the divorcing couple co uple adequate time to review and, and , if possible, to revise their decision. Thus, in view of the increased prescription of waiting period in the case of a widow, it seems that the waiting period prescribed for a widow entails other purposes, besides merely ascertaining the woman's position with reference to pregnancy. The Muslim jurists and thinkers have generally construed this additional purpose entailed in the prescription of the waiting period for widows to be that of the widow's 'mourning' her deceased husband. The understanding of the Muslim jurists and thinkers seems to be quite logical and in consonance with sayings ascribed to the Prophet. However, it seems important to add that the prescription of a specified 'waiting' or 'mourning' period is for the purpose of safeguarding the woman against defamation, slander and ill-repute in society. It is specifically for this purpose that others are directed against making a 'secret' commitment of marriage with the widow or deciding about the time and place of the marriage-contract, during the prescribed period. It is reported that Muhammad advised widows to be extra modest in their appearance ap pearance and to even refrain from wearing any fragrance, during this period. All these directives and advice seem to point to the fact that a woman should not only be, but also appear to be in a state of mourning, so that her social circles do not get a chance to say a negative word about her. No other restrictions apply to a widow during her waiting period.
DURATION OF IDDAT
The Iddat of divorce commences immediately upon the pronouncement of repudiation and in case of invalid marriage if they are separated voluntarily then from the time of separation but if the separation is effected by the court then it starts with the issuance of judicial decree. In case of widowhood the period of Iddat begins with the decease of husband.If the information of divorce 7 iddat of Talaaq
12 | P a g e or of her husband’s death does not reach the wife until after the expiration of Iddat period, she is not bound to observe Iddat. The period is considered to have been passed. Iddat is normally observed in the following manner;
If the marriage is terminated by divorce or in consequence of annulment by the Court, then the Quran has specifically explained the situation in such words, “women who are divorced shall wait, keeping themselves apart, three (monthly) courses. And it is not lawful for them that they should conceal that which Allah hath created in their wombs if they are believers in Allah and the last day.” Therefore the divorced woman is bound to observe Iddat for three menstrual cycles i.e. the period of three complete courses of menstruation. If the wife is not subject to menstruation for any reason, due to young age or due to old age or due to some physical problem, then the duration of Iddat is three lunar months. In this regard the Quran has clarified the position of such women, “And for such of your women as despair of menstruation, (due to old age or sickness) if ye doubt, their period (of waiting) shall be three months, along with those who have it not (minors).” In the above two cases if the marriage has not been consummated nor any valid retirement has taken place then after the termination of marriage the woman is not required to observe Iddat. If the marriage is terminated by the death of a husband then the widow, if not pregnant, is under obligation to observe the Iddat for a period of four months and ten days. In this situation there is no exemption for the widow to escape from the obligation of Iddat. No matter if the marriage has not been consummated or the widow has not yet reached the age of menstruation or due to old age she is not subject to menstruation or any other physical problem has stopped the courses, The Iddat after death shall last for the forecited period because the Quran has very clearly stated the limit of this period, “Such of you as die and leave behind them wives, they (the wives) shall wait, keeping themselves apart, four months and ten days. And when they reach the term (prescribed for them) then there is no sin for you in aught that they may do with w ith themselves in decency. If a marriage is dissolved under a revocable form of divorce and the husband dies during the Iddat period of his divorced wife, it becomes obligatory upon the wife to observe a fresh Iddat of widowhood i.e. four months and ten days.In another case where the wife, who is not subject to mens menstr trua uati tion on,, is obse observ rvin ing g Idda Iddatt in term term of luna lunarr mont months hs,, durin during g the the said said perio period d if her her menstruation starts then she is bound to restart a fresh Iddat on the basis of monthly courses from the date of menstruation. If the wife is pregnant at the time of termination of her marriage (what ever the cause of termination may be) then her Iddat will expire with the delivery of a child. As far as the Iddat for a pregnant wife after the dissolution of marriage by divorce is concerned all the jurists are agree upon the point that her Iddat expires as soon as the child is born, no period is specified. There, however, is a difference of opinion among the jurists on the point where the widow is pregnant. IDDAT OF A PREGNANT WIDOW
In case of pregnancy, the widow is bound to observe the Iddat for a period which ever is the longest i.e. if the child is born before the period of four months and ten days then her Iddat is not over with the delivery but she will complete the normal specified period of Iddat (four moths & ten days). If the child is expected to be born after the specified period, then the Iddat will lost up till the delivery of a child. They consider it binding upon all widows who are pregnant or non pregnant, so according to their view the fore mentioned period of four months and ten days is the minimum obligatory period for a widow.
13 | P a g e The majority of jurists, do not accept the abo ve mentioned idea. According to them the Iddat period of a pregnant woman ends with the delivery of a child, no matter if a child is born a day after the dissolution of marriage or the death of a husband.Their idea is based upon the Quranic verse, “And for those with child, their period shall b e till they bring forth their burden. And whosoever keepeth his duty to Allah, He maketh his course easy for him.” According to this view the period of Iddat for a pregnant woman is the delivery of a child, no time limit is specified. MAINTENANCE DURING IDDAT
The husband is under obligation to pay for the wife’s maintenance during her period of Iddat, regardless of its duration. Thus, in the following cases the wife is entitled to maintenance during Iddat: When the marriage is dissolved by repudiation, no matter the repudiation was revocable or irrevocable, it was perfect or imperfect. When the marriage is dissolved by Lien (oath of imprecation) or by Illa (a vow of continence) or by way of Khula provided she has not renounced her right to maintenance. When the husband on attaining puberty, exercises the right of option and dissolves the marriage. When the marriage is dissolved by reason of the inferiority of dower or by reason of the husband’s inequality or his impotency. When a wife, who is not subject to menstruation, observing Iddat by months becomes subject to menstruation before the completion of specified period. She is entitled for maintenance in the additional period of Iddat because she is obliged to stay in Iddat for three full monthly courses. Widow is not entitled to maintenance even if she is pregnant; almost all the Muslim jurists have the same opinion in this regard.
MUTA MARRIAGE Muta marriage is a temporary marriage. Muta marriage is recognized in Shia only. Sunni law doesn’t recognize it.A Shia of the male sex may contract a Muta marriage with a woman professing the Mahomedan, Christian or Jewish religion, or even with a woman who is a fire worshipper but not with any woman following any other religion. But a Shia woman cannot canno t contract a Muta marriage with a non muslim. From pre-Islamic times, there exists another type of marriage called Muta marriage. The object of this marriage was to provide p rovide a man with a wife when whe n he is away fiom home for any reason. The distinguishing character of this type of marriage is
14 | P a g e that this contract is purely personal and it is made without any consultation with the relatives of the woman. The children of o f such marriages are legitimate and they have equal share in the property of the father, but unlike the ordinary wife, the wife in such marriage has no legal right of maintenance over the husband. She dbes not even inherit.the property of her husband, nor her husband has any share in her property. In Iran and other Shiate countries, this is a very common practice to take a woman for a fixed period. This time varies fiom a day to a year or several years. However, all the sects of Muslims agree that this type of marriage is unlawful and illegal except Akbarishiahs. The essentials of Muta marriage are:(1) The period of cohabitation should be fixed. (2) Dower should be fixed. (3) If dower specified, term not specified, it could amoun t to permanent or regular marriage. (4) If term fixed dower not specified, it amounts to void marriage.
RESTITUTION OF CONJUGAL RIGHTS The concept of matrimonial remedies is an indigenous part of muslim,Christian,jews and parsi marriage.a marriage under muslim law is a essentially a contract and a suit for restitution restitution of conjugal rights would be a suit for specific performance of the terms of the marriage contract.When either the husband or the wife has without a lawful cause withdrawn w ithdrawn himself or herself from the society of the other ,the aggrieved party may bring a suit for restitution of conjugal rights which literally menas-bring ones spouse back.In moonshee buzloor Vs. shumosinna begum8,it was held that where a wife w ife without a lawful cause ceases to cohabit coha bit with her husband,the husband may sue his wife for restitution of conjugal rights. Family and marriage are the basic institutions of any society. Every society has certain norms and rules which have led to the development of key concepts such as usage and custom. Marriage as an important institution has been recognized in the personal laws of all the religions. With the passage of time, the complexities increased with areas such as divorce, judicial separation and conjugal rights came up in personal law and it became necessary to codify the laws relating to marriage in personal laws. The restitution of conjugal rights is often regarded as a matrimonial remedy. The remedy of restitution of conjugal rights is a positive remedy that requires both parties to the marriage to live together and cohabit.
JUDICIAL INTERPRETATION IN MUSLIM MARRIAGE In Abdul Kadir vs. Salima 9 8 (1967) 1 MIA 551 9 (1886) 8 All. 149
15 | P a g e This case was argued before the Full Bench, Mr. Justice Mahmood said thatIn this view of the case the reference cannot, in my opinion be satisfactorily answered without considering, first, the exact nature and effect of marriage under the Muhammadan law upon the contracting parties; secondly, the exact nature of the liability of the husband to pay the dower; thirdly, the matrimonial rights of the parties as to conjugal cohabitation; and fourthly, the rules of the general law as to the decree of Court in such cases. There is one more consideration which I wish to add to the reasons which I have already given at such length in support of my view. The Muhammadan law of marriage recognizes nothing except right, in its legal sense, as the basis of legal relations and of those consequences which flow from them. And if the husband did not before payment of dower possess the right of cohabitation with his wile, it would follow as a necessary consequence in Muhammadan jurisprudence that, where the dower is prompt and cohabitation has taken place before the payment of such dower, the issue of such cohabitation would be illegitimate. In nawab sadiq ali khan vs. jai kishori
10
In the case of a shia female,the age of puberty begins with menstruation,it has b een held by the privy council in shia case that the age of the majority in the case of o f the girl is attained at the age of nine years. In pooja arya vs. state of UP 11
Where a muslim girl married a hindu boy,which created a furore in local communities,in cases like this law authorities buy peace at the cost of constitutional rights and privileges.
CONCLUSION After analyzing thoroughly the system of Islamic marriage a reasonable and prudent way of thinking would always conclude that the Islamic personal law with regards to marriage and divorce need to be changed a lot so to maintain its status in modern society. Marriage is a religious duty of every Muslim and it is considered to be a moral safeguard and a social need. The Prophet has also said “Marriage is my tradition whosoever keeps away there from is not from amongst me.” Unlike Hindu where the marriage is a sacrament, marriages in Muslims have a nature of civil contract. Marriage is necessary for the legitimization of a child. When the marriage is done in accordance to the prescribed norms it creates various rights and obligations on both the parties. It appears that Islamic law of marriage and divorce is not identical to the man made laws which are changed by man himself moment after moment. It is evident that the position of man and woman in the social set up of the community, is equal in every respect, but keeping in view the
10 (1928) 30 bom. LR 134 11 AIR 2006 All 60
16 | P a g e mindset of both the genders, Islam segregates the rights, duties and functions of both the gender and then declares their status with regard to family matters. If it is asked that are man and woman equal in Islamic way of life? There w ould not be simple positive or negative way of answer rather, one must scrutinize, examine and inspect closely and thoroughly their respective rights, duties and functions. And then placing a complete picture in front, it may be possible to answer the above abo ve question. In other societies of the world, wo rld, the state of affairs is not in concurrence to Islamic way of life. Tho se other societies always try to claim that man and woman are equal in every respect which is not a natural phenomenon.
Submitted by:Harshit Khare II year-B.A.LL.B.(Hons.) R230208020 UNIVERSITY OF PETROLEUM & ENERGY STUDIES
