ISLAMIC PERSONAL LAW -1

MARRIAGE:
The central institution around which whole family life revolves
is the "marriage” as family starts with marriage. Before the
advent of Islam, many types! of sexual relations we prevailing in
Arab society. In those relations woman was a weak party. In
that era, the idea of sale of a woman was connected with
marriage, however, Islam reformed this concept making her the
principal contracting party.
Marriage signifies to Arabic term 'Nikah', which is a civil
contract made between two persons of opposite sexes with the
object of which is legalizing of sexual intercourse, the
procreation and legitimation of children and preservation of the
human race‫۔‬
The parties in marriage are known as husband and wife
OBJECTS OF MARRIAGE: The objects of marriage in Islam are as
under:-
1. Legalize of sexual intercourse;
2. Procreation of children;
3. The ordering of domestic life;
4. The discipline for care and responsibility for wife and
children;
5. Regulation of social life.
Nature of Marriage:
Marriage is a civil contract between husband and wife. It is also
religious duty and it is a Sunnah Muwakhida (such a Sunnah
which will amount to sin if it is left or not obeyed of).
Prophet (PBUH) said;
"If a person is in the position to maintain his wife and give
dower, he must get himself
married."
ESSENTIALS OF MARRIAGE: Following are the essentials of valid
marriage. If any of these requirements is not fulfilled, the
marriage becomes void or irregular. These essentials are:
1. Legal Capacity" (Ahliat):
The capacity for entering independently into contract of
marriage depends upon two conditions; (a) Sound mindness'
(Aaqil) (b) Majority (Baligh). However, minors and persons of
unsound mind can also be given in marriage tie through
guardians.
According to Shafiis and Malikis a girl even major cannot enter
into a valid marriage without the consent of her guardian.
According to Hanafi law, the woman can give consent with or
without a guardian (Wali).
2. Offer (ljab) and Acceptance (Qabool):
A valid marriage requires offer (Ijab) from one party and
acceptance (Qabool) from the other party. The consent of
parties to such offer and acceptance must be free without
coercion, fraud or undue influence.
3. Free Consent ( Raza ):
The consent of the parties must be free. If the consent of the
parties was taken under coercion, fraud then the marriage will
be considered as void.
Case Law: M. Imtiaz vs. The State
Federal Shariah Court held that an adult Muslim girl has every
legal right to marry of her own free will.
4. Dower ( Mahr )
Dower in marriage is so essential that even if it is not
mentioned at the time of solemnization of marriage, law will
presume it.
5. One Meeting (Majilis):
The proposal and acceptance must be in one sitting If proposal
is made at one meeting and an acceptance at another meeting,
there will not be a valid marriage. The words with which the
marriage is contracted must be clear and unambiguous.
6. Presence Of Witnesses: Under Sunni law, the proposal and
acceptance must be made in the presence of either two males
or one male and two females and these witnesses must be
sane, adults and Muslims as required by article 3 and 17 of
Qanoon-e-Shahadat Order. The absence of witnesses would
render marriage irregular not void. Under Shia law, the
presence of witnesses is not necessary.
7. No Legal Disability: The parties must not be legally disabled,
that is to say they must not be within prohibited degree, or so
related to each other as to make union unlawful.
KINDS OF MARRIAGE: Marriages are classified into valid
(Sahih), Irregular or Invalid (Fasid) and Void (Batil).
1. VALID (SAHIH): A marriage which fulfills all the legal
conditions is said to be valid. In other words, a marriage which
is neither invalid or irregular nor valid is valid.
LEGAL EFFECTS OF VALID MARRIAGE: Following are the legal
effects of valid marriage:
i. The spouses get the status of husband and wife;
ii. The children are legitimate and entitled to proprietary rights;
ii. Wife gets the right to Mahar and maintenance;
iv. Wife becomes obliged to observe IDDAT if marriage
consummated;
V. Wife and husband may retain their sects even after marriage;
vi. Wife or husband cannot marry certain relations even after
divorce.
2. INVALID OR IRREGULAR (FASID) MARRIAGE: An invalid
marriage is not unlawful itself, but it becomes unlawful, when
irregularity arises from accidental circumstances, or where the
prohibition is temporary or relative. Such
marriage can be made valid by redressing such irregularity
arose. Shia law does not recognize invalid marriage; they only
consider two kinds of marriage as valid and void. Thus the
following marriages are irregular:
i. A marriage contracted without witnesses;
ii. A marriage with a woman observing her IDDAT by either
divorce or death of her husband. Such marriage becomes valid
after the expiration of IDDAT period;
iii. A marriage by a man with fifth woman when he is already
married to four wives. Such marriage can be valid if man
divorces his either wife as not exceeding four wives;
iv. A marriage with such women together that they could not
intermarry if either of them is a male. Such as a marriage with
two sisters, two aunts, two nieces, etc. Such marriage can be
made valid if he divorces either sister.
V. A marriage prohibited on ground of difference of religion.
LEGAL EFFECTS OF IRREGULAR MARRIAGE: The legal effects of
an irregular marriage vary and depend upon its consummation.
An irregular marriage has not legal effect before consummation.
If consummation has taken place then following would be the
legal consequences:
i. Wife becomes entitled to dower;
ii. Wife is bound to observe IDDAT, but the duration of IDDAT
both on death and divorce is three months;
ii. The issues of marriage are legitimate and entitled to
inheritance.
iv. Although consummated, but an irregular marriage does not
create mutual rights of inheritance between husband and wife.
3. VOID (BATIL) MARRIAGE: A void marriage is one which is
unlawful in itself, the prohibition against marriage being
perpetual and absolute. Such a marriage is void ab initio and is
not a marriage at all. The following marriages are void:
İ. A marriage prohibited on the grounds of consanguinity,
affinity or fosterage;
ii. A marriage with a woman who is another man's wife;
ii. A marriage without consent of either party;
İv. Incase a person marries two sisters or five women and it
becomes impossible to know which marriage was contracted
first, all the marriages will be nullified. If incase priority of one is
known, the previous marriage will be valid and the others will
be void.
LEGAL EFFECTS OF VOID (BATIL) MARRIAGE: Following are the
legal effects of void marriage:
i. The sexual intercourse becomes unlawful;
ii. The void marriage creates no right and obligation upon any
party;
iii. The children born out are illegitimate;
iv. The wife does not become entitled to maintenance and
inheritance.