Marriage

‘Nikah’ literally means joining together or union of the sexes. In law it

means marriage. ‘Nikah’ in the Quran has been described as ‘Hisn’
i.e. a fort- meaning the protection it affords –social, physical and moral
to the couple joined together in a wedlock1.‘Nikah’ is not solemnised
only for sexual enjoyment, the main aim is ‘sukun’ i.e. satisfaction or
comfort or peace of mind, love –‘Muaddat’ and Rahmat or kindness
or sympathy or compassion- according to Md. Ali’s translation of the
Holy Quran2.

Definitions:

According to Hedaya translated by Charles Hamilton3- Nikah is

defined as:

‘In the language of the law it implies a particular contract used

for the purpose of legalising generation.”4

1
Quran: Surah-al-Nisa the women-IV:28
2
Quran: XXX:21 p.92-93
3
Hamilton, Charles: The Hedaya. Lahore 1975.
4
p.25
According to Fatawa-i-Alamgiri,5

“Nikah is said to be a contract that is entered into by a man

with a woman for the enjoyment of the beneficiary rights over
her as an owner”.

This definition is not true as the concept of marriage developed as

companionship and not ownership.

According to Baillie (which is from Fatwai-i-Alamgiri):

“Marriage is a contract for the purpose of legalising sexual

intercourse, the procreation and legitimation of children and
the regulation of social life in the interest of the society by
creating the rights and duties between the parties
themselves, between each of them and the children born
from the union.

According to Mulla:

“A contract which has for its object the procreation and the
legalising of children”

5
Vol. II, p.2
These are distorted pictures of the Islamic concept of marriage. The
holy Quran describes marriage as a sacred covenant (Mithaq-e-
Ghaliz) between a man and a woman. Also in other verses of the holy
Quran6 the holy book ordains that man and woman are joined in
marriage so that they can live each other in love and solace. Also in
other verses7 that by marriage the man and woman pass into each
others protection. Repeatedly the holy Quran describes married man
and woman as Muhsan and Muhsanat i.e those men and women who
had entered the protective fortress of marriage8.

Thus marriage in Islam is much more then a contract for production of

children.9

6
(XXX:21 & VII:189)
7
Quran: II: 187
8
Quran: V: 6
9
Mahmood, Tahir: Personal laws in crisis. New Delhi 1986.p.66
Nature: According to Asaf A.A. Fyzee in his outlines of Mohammadan
Law (p.89)- the institution of marriage has three aspects:

1. Legal
2. Social and
3. Religious

In its legal aspect it has legalised sexual intercourse, procreation and

legitimation of children. In its social aspect it has given women higher
status. In its religious aspect it leads to the upliftment of man and is a
means for the continuance of the human race. In its legal sense
marriage is a contract. In the leading case of Abdul Kadir v. Salima
(1886) 8 All 149 Justice Syed Mahmud stated:

“A marriage among Mohammadan’s is not a sacrament but

purely a civil contract and though solemnised generally with
recitation of certain verses from the holy Quran, yet
Mohammadan law does not positively prescribe any service
peculiar to the occasion.”

But in Anisa Begum v. Md. Istafa10 it shows that marriage is not

regarded as a mere civil contract but as a religious sacrament ( cweÎ
ag©xq Abyôvb). In another leading case Khurshid Bibi v. Md. Amin 11
Justice S.A. Rahman said:

“Marriage among Muslim is not a sacrament but is in the

nature of civil contract. Such a contract undoubtedly has
spiritual and moral overtones and undertones but legally, in

10
(1933) 55 ALL 743
11
PLD 1967 (S.C) p.97.
 essence, it remains a contract between the parties which can
be subject of dissolution for good cause.”

HINDU MARRIAGE

World

LHG LWG
HG WG
H W

Society
 Sacrament
 Ritual
 Dowry
 Unbroken
 Blood to Blood
 Soul to Soul
 Muslim Marriage

W
H Contract

 Civil Contract
 No Ritual
 No Dowry

In practice I have seen that the marriages are usually broken for the
families and not the parties, thus it does influence. On the other hand
Nikah is a religious injunction and denominated by the prophet as his
Sunnah (teaching and practice). The holy prophet said, “Men marry
for their piety or their property, status or their beauty: but you should
marry for their piety (Ibadat). Thus, marriage partakes the nature of
Ibadat (worship) and muamalat (worldly affairs).
In substance a Muslim marriage is a contract but a sanctified religious
contract. Hence Muslim jurists regard Nikah to be both temporal and
religious at the same time. It is not purely a civil contract or a
sacrament but a religious, solemn and sacred covenant for life.

The main aim of marriage under Islam is to protect the society from
foulness and un-chastity and to continue the human race. It also
confers the full status of wife and children.

The Essential Requisites of a Valid Muslim Marriage:

1. Declaration or offer or proposal –Ijab on the part of one.

2. Acceptance or Qabul on the part of the other or if
minor guardians will accept. Consent by the bride is
essential. According to Justice Abu Md. Abdullah:
“Unless it is established by clear direct and specific
evidence that the woman gave her consent to the
 marriage anything just short of that, will not prove
marriage.”12

If marriage by guardians the bride has the option to

repudiate it by the doctrine of Khiyar-al-Bulugh or
option of puberty.

3. Before sufficient witnesses- two male or one male and

two females. The witness must be adult Muslim of
sound mind. But only females can’t be witnesses.
4. The words must indicate with reasonable certainty that
a marriage has been contracted. It must not be a mere
promise to marry at some future date.
5. The proposal and acceptance must both be expressed
at one meeting, e.g. agents may take consent and go
to the bridegroom.
6. The parties must be of sound mind – If lunatics not
insane they can be married by their guardians.13
7. The parties must have attained puberty (Hedaya says
girls attains puberty or maturity or menstruation at 9
years and boys at 12 years). According to Majority Act
1875 a person is major at 18 years otherwise they are
to be represented by their guardians. By the statutory
legislation of the Child Marriage Restraint Act, 1929
marriageable age was 14 for girls and 18 for boys. By
the Muslim Family Laws Ordinance , 1961
marriageable

12
Case Dr. A.L.M. Abdullah v. Rokeya Khatoon (1968) 31 DLR 213.
13
see Mulla –p.175, 186.
 age was 16 for girls and 18 for boys and the Child
Marriage Restraint (Amendment) Act, 1984
marriageable age was 18 for girls and 21 for boys.
8. Where there is marriage there is dower. It might be
implied or expressed- dower must be there.
9. It is necessary that men should be a Muslim and
female a Muslim or kitabia –not fire/idol worshipper
(AwMœ / gywZ© cyRvix).
10. There must not be any legal disability or bar to the union.
e.g. if they are related within prohibited degrees they
can’t marry.
11. There is no need of rituals, e.g. as Hindu law
saptapadi and lajohoma (AwMœ ¯^v¶x) is essential,
but Muslim marriage is a contract. I have said in my
thesis that this Mvu‡q njy` ceremony or Rusmat
ceremony and receptions are indispensable which
makes the social registration of the marriage and
makes it a social contract.

According to Fitzerald, Mohammadan Law (1931) p.38-39:

 A marriage feast is generally given by the bridegroom –almost

as a religious duty (but now it is given by the bride’s father).
 The presence of one or two wakil (agents) to represent in
each side and work on the details of the contract.
  The Kazi is ordinarily present by invitation of the party after
Kazis Act 1880 present for registration.

Thus, the legal incidents of marriage in Islam are remarkable for their
extreme simplicity as marriage many be constituted without any
ceremonies. Justice Akram14 said:

“In Islam marriage is a legal notion (Amr-i-Sharayee). It is

an act of piety (ibadat) The Nikah (contract of marriage) is
sunnat-e-muakkada- A rule of conduct, laid down by the
holy prophet. The observance with which is considered
meritorious and a deviation from which is regarded as a sin.
It is a contract “Uberima Fide”, requiring utmost good faith,
it originated a legal relation or consortium a partnership in
life, securing harmony, happiness, peace of mind, good
fellowship and connubial relations between the couple. The
marriage is solemnised by Nikah.”

In a valid marriage the husband is ahal possessed of the capacity and

the women a fit subject or Mahal to contract the marriage according to
Sharia. The pillar (rookn) on which it rests is the proposal and
acceptances by the two willing parties to it15.

14
Justice Akram in Iftikhar Nazir Ahmed v. Ghulam Kibria
15
Case:- Iftikhar Nazir Ahmad Khan v. Ghulam Kibria (1968) 20 DLR (WP) 196.
 Registration of Marriage:

There is no need for registration in a Muslim marriage as it is not

made obligatory in the Quran or in the Sunnah16.

On the other hand there is no prohibitive sanction against registration

of marriage17. Thus registration is not a requisite of a valid marriage
but provides a legal restriction for various kinds of protection, including
prevention of denial of the marriage, establishment of paternity. It also
strengthens inheritance rights for women and children, e.g. a man
can’t deny his marriage.

As early as 1876 there was a regulation, the Muslim Marriage and

Divorce Registration Act of 1876 but registration was voluntary. In
1961 the Muslim Family Laws Ordinance of 1961 under section 5
Marriage registration has been made compulsory and penalties are
provided for its contravention. In Bangladesh the Muslim Marriages
and Divorces (Registration) Act 1974 has superseded earlier acts and
made compulsory under section 5 in contravention punishment under
section 5(2) with simple imprisonment for a term which may extend to
3 months

16 Mahmood, Tahir: The Muslim Law of India Allahbadc1982, 2nd ed. p.57
17 Rahman, Tanzil-ur: A Code of Muslim Personal Law. Vol. I Karachi 1978, p.88
or with fine which may extend to 500 taka or with both. A study shows
25% of rural marriages are registered.18

Thus, registration is not for bureaucracy but for protection of women

and children. As security of documentary evidence is there marriage
can’t be denied by men.

It was also held by Justice Abu Md. Abdullah 19 that non registration of
marriage shows that there was no valid solemnisation of marriage.

“The solemnisation of the marriage if validity effected might

not be effected for non-registration of the marriage. But the
non-registration of marriage causes a doubt on the
solemnisation of marriage itself”.

Forms of Marriage:

There are three types of marriage:

i. Valid Marriage (Shahi Marriage)

ii. Irregular Marriage (Fasid Marriage)
iii. Void Marriage (Batil Marriage)

18 RDRS (Rangpur and Dinajpur Rural Services) and UNDP - Why marriages breakup Dhaka, 1990,
p. 15

19 In the case of Dr. A.L.M. Abdullah v. Rokeya Khatoon 21 DLR (1969) p.213-217
i. Valid Marriage: A marriage which confirms in all respects with the
law. It is termed as Shahi or correct or true in regard to legal
requirements and there is no prohibition either perpetual or temporary
affecting the parties. It is lawful and completely valid contract.

The legal effects of valid marriage has been elucidated by Justice

Mahmood in the leading case of Abdul Kadir v. Salima20:

“The legal effects of marriage are that it legalises the

enjoyment of husband and wife with each other in manner
which in this matter is permitted by the law.”

The legal effects of a valid marriage are:

1. Sexual intercourse become lawful and the children born of the

union are legitimate.
2. Wife becomes entitled to dower or ‘Mahr’.
3. Wife becomes entitled to maintenance or ‘Nafaqa’.
4. The wife is not entitled to remarry by dissolution of marriage
either by divorce or by death without observing Iddat/Idda.
5. A woman does not change her status by marriage; more-over
change of name is also not Islamic.
6. Mutual rights of inheritance,
7. The husband is entitled to restrain the wife’s movement in a
reasonable manner and exercise marital authority.
20
(1886) 8 ALL 147
ii. Fasid/Irregular Marriage: An irregular marriage is one which is not
unlawful in itself, it is unlawful for “some other things”. As where the
prohibition is temporary or relative or prohibition springs from an
accidental cause or circumstances and can be made valid e.g.
absence of witnesses. The following marriages are considered
irregular:

1. A marriage without witness.

2. A marriage with women under going iddat (waiting period to
remarry for divorce -3 months, for death-4 months 10 days).
3. A marriage with 5th wife by a person having 4 wives (by divorcing
any wife).
4. A marriage prohibited by reason of difference of religion (if the
women changes into a Kitabia as Christen or Jew but if into a
fire worshipper/idolalor the marriage is invalid)
5. A marriage by unlawful conjunction i.e. a man may not have at
the same time two wives who are so related to each other by
consanguinity, affinity or fosterage e.g. two sisters or aunt or
niece but by divorcing any wife it becomes legal.

Legal Effects of Irregular Marriage:

3. As to Dissolution: Neither divorce nor intervention of a court

is needed. One of them may say: “I have relinquished you”
and the unholy alliance ends.
4. As to consummation:
i. The wife is entitled to dower unspecified or specified
which ever is less.
 ii.
She is to obey iddat- but both on death and divorce it
is three menstruation courses.
iii. She is entitled to maintenance during Iddat.
5. As to Inheritance: No mutual rights of inheritance between
husband and wife.
6. As to Issue: The issues are treated legitimate and are entitled
to a share of inheritance.
iii. Void Marriage: Void marriage is a marriage which is unlawful in
itself. The prohibitions of such a marriage are absolute and perpetual /
permanent. A marriage with a woman prohibited by consanguinity,
affinity and fosterage are void marriage. Connections which are
unlawful in themselves are null and void ab initio (batil). From the
commencement of the union- marriage is considered as totally non-
existing- in fact and in reality. According to some books of fiqh, the
word void has been used for the following Dr. Tanzillur Rahman21:

1. Marriage with woman within prohibited degree.

2. Marriage of an infidel (non-Muslim) with a Muslim woman.
3. Marriage with a woman knowing to be the wife of another.
4. Marriage contracted by putting the man under duress.

Legal Effects of Void Marriage:

1. The issues are illegitimate.
2. No marriage at all.
3. It creates no civil rights and liabilities between the parties.

21
Rahman, Tanzil-ur: A code of Muslim Personal Law. Vol.I, Karachi 1978, p.111.
Under the Ithna Ashari law there is only valid and void marriages.
Thus the irregular marriages under Hanafi law are void under the
Ithna Ashari law. The Shia law specifically Ithna Ashari law does not
recognise the difference between irregular and void marriages22.

22
Fyzee, Asaf A.A.: Outlines of Muhammadan law. 1st ed. Bombay 1949, 2nd ed. 1955, 3rd ed. 1964, 4th ed.
New Delhi 1974.

Mullah, Farduji Dinshad: Principles of Mahomedan law. 10th ed. Calcutta 1933.

Tyabji, Faiz Badruddin: Muhammadan law. 3rd ed. Bombay 1940.