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F Law-1.Docx 10 April

The document discusses the nature of Muslim marriage. It can be viewed as either a purely civil contract or a religious sacrament. While it has characteristics of a contract, like requiring consent and allowing terms to be set, some jurists believe it is also a sacred covenant. Overall, Muslim marriage establishes rights and obligations, serves to procreate and legalize children, and regulates social life, making it both a contract and devotional act.

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75 views

F Law-1.Docx 10 April

The document discusses the nature of Muslim marriage. It can be viewed as either a purely civil contract or a religious sacrament. While it has characteristics of a contract, like requiring consent and allowing terms to be set, some jurists believe it is also a sacred covenant. Overall, Muslim marriage establishes rights and obligations, serves to procreate and legalize children, and regulates social life, making it both a contract and devotional act.

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Syed renoba
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 ANSWERS OF THE QUESTIONS DATES 10/04/2020

 ENROLLMENT NO.: GU17R0389


 SUBJECT: FAMILY-LAW 1

Q.NO.1: What is the meaning of Muslim marriage?

In Muslim law, marriage (nikah) is defined to be a contract, which has for its object the
procreation and the legalizing of children. Mahmood J. defines a Muslim marriage as a civil
contract upon the completion of which by proposal and acceptance all the rights and obligations,
which it creates, arise immediately and simultaneously (and are not dependent on any condition
precedent such as the payment of dower).

Q.NO.2: What are essentials of Muslim marriage?

1) Every Muslim of sound mind, who has obtained puberty, may enter into a contract of
marriage. A marriage brought about without the consent of such a Muslim is void.
2) There should be an offer or proposal (ijab) made by or on behalf of one of the parties and
on acceptance (qubul) of the proposal by or on behalf of other party. A long distance
telephone (speaker-phone) could be used when the parties are in different cities/countries;
however, the presence of witness is necessary.
3) Offer and acceptance of marriage must be in the presence and hearing of the two male
witnesses (or male and two female witnesses) who must be Muslim, of sound mind and
major. Witnesses are not necessary in Shia law.
4) Muslim law does not prescribe any specific words to be uttered at the occasion though
the usual form is: “I have married myself to you” and the other says, “I have consented
myself to you” (Hedaya, 25). The words used in offer and acceptance must clearly and
unequivocally convey the intention of marriage; if not so then consummation of marriage
cures the deficiency.
5) Offer and acceptance must be at one and in or at the same meeting otherwise marriage is
not valid.
6) If the parties are major, they must make offer and acceptance themselves, but for minors
and lunatics guardians can perform this function.
7) Neither writing nor any religious ceremony is essential (though a kazi and mulla is
usually present on the occasion who recites certain koranic verses).

Q.NO.3: What is the nature of Muslim marriage?

There is divergence of opinion with regard to the nature of Muslim marriage. Some jurists are of
the opinion that Muslim marriage is purely a civil contract while others say it is a religious
sacrament in nature.

Marriage under Muslim law has similar characteristics as a contract, like

 As marriage requires proposal (Ijab) from one party and acceptance (Qubul) from the
other so is the contract. Moreover, there can be no marriage without free consent and
such consent shouldn’t be obtained by means of fraud, coercion or undue influence.
 Just as in case of contract, entered into by a guardian, on attaining majority, so can a
marriage contract in Muslim law, be set aside by a minor on attaining the age of
puberty.
 The parties to a Muslim marriage may enter into any ante-nuptial or post-nuptial
agreement which is enforceable by law provided it is reasonable and not opposed to
the policy of Islam. As is the case with a contract.
 The terms of a marriage contract may also be altered within legal limits to suit
individual cases.
 Although discouraged both by the Holy Quran and Hadith, yet like any other contract,
there is also provision for the breach of marriage contract.

“Justice Mahmood” observed: Marriage among Muhammedans is not a sacrament, but purely a
civil contract; and though it is solemnized generally with the recitation of certain verses from the
Quran, yet the Muhammedans law doesn’t positively prescribe any service peculiar to the
occasion.”

“Abdul Rahim”, however says, that a Muslim marriage is both in the nature of ibadat, devotional
act, and muamalat, a dealing among men. Marriage is recognized in Islam as the basis of society.
It is no doubt a contract, but it is also a sacred covenant.

As per Dr.Jung:“Marriage though essentially a contract is also a devotional act, its objects are
rights of enjoyment and procreation of children and regulation of social life in the interest of
society.

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