THE NATURE OF MUSLIM MARRIAGES FROM CONTRACTUAL DIVERSITY TO RELIGIOUS UNIFORMITY IN INDIA
This work explains the status of contractual Marriage and sacramental Marriage. According to majority of Jurists stipulations in Marriage contract are valid or invalid. Valid Marriage fulfils are the prescribed conditions of a valid Marriage, which are being mentioned in the Muslim Personal Law. If a Marriage is performed and any of the prescribed legal conditions is violated, it said to be an invalid Marriage. In this context, this paper attempts to locate the role and status of Marriage and divorce. Also Challenges in Reforming Muslim Personal Law in India. A Muslim wife can protect herself to strengthen her marital relationship is also discussed here. This paper also describes the concept of registration of Marriage and Muta Marriage along with attempt to explain about the status of Dower in India.
Contractual Marriage, Sacramental Marriage, Valid Marriage, Void Marriage, Irregular Marriage, Hedaya, Registration of Marriage, Muta Marriage, Dower, Remission of Dower, Enforcement of Dower, Challenges faced by Muslim Women, Talaq, Triple Talaq, Lian, Juidicial Divorce, Extra Judicial Divorce
INTRODUCTION OF MARRIAGE
Islam, unlike other religion, strongly believes Marriage is a social necessity. The purpose of Muslim Marriage is creation of families to act as an fundamental unit of the society. Islam abhors the idea od celibacy, considering Marriage to be the only legitimate way for the establishment of sexual intimacy between a man and a women.
The Arabic word Nikkah stands for union of sexes and in law, it means Marriage. The term Nikkah in literal sense means to tie up together. In pre-islamic arabia the status of a female was not at par with the men and it was subjected to discrimination between men and women. Earlier polygamy was in practice. As per Hedaya, the Prophet Muhammed gave rights to the women for the equal footing with the men in exercise of all the legal powers and functions. Basic objective of Nikkah is Procreation of children and legalization of the sexual relationship. Herein, the discussion is about the Muslim Marriage, Definition of Muslim Marriage, Essentials of Muslim Marriage, Classification of Marriage under Muslim Law, Registration of Marriage, Nature of Marriage, Muta Marriage, Dower, Divorce.
Beginning with the Definition of Muslim Marriage-
Prophet Muhammad- Marriage is my sunna and those who do not follow are not my followers.
Dr. Jang view of Muslim Marriage- “ Marriage though essentially a contract is also a devotional act; it’s object are rights of enjoymentand procreation of children and regulation of social life in interest of society.”
According to Justice Mehmood in the landmark case of Abdul Qadir v. Salima, Nikkah is a civil contract and on the other hand, it is also sacramental in nature.
CJ Sulaiman’s viewpoint on Muslim Marriage in the case of Anis Begum v. Mohammed Istefa, Marriage in mohammedan law is not only a civil contract without any religious and moral customs because it also believes in the union of two souls together by the virtue of love, affection and togetherness.
Amir Ali stated that Marriage is an organization for the protection of the society. This is to protect the society from foulness and unchastity.
CERTAIN ESSENTIALS FOR VALID MARRIAGE
There should be a valid proposal by one party and acceptance of the proposal by other party.
There should be same meeting for the proposal and acceptance.
The parties must be competent to marry. Muslim person who is of sound mind and attained the age of puberty is considered to be competent.
The consent must be given freely with any undue influence, coercion or fraud.
The formality for the Marriage is offer, same meeting, reciprocity, registration and witness. In sunni, it requires two male witness, one male can be replaced by two female. In shia, witness is not required.
THE CONTRACTUAL NATURE AND SACRAMENTAL NATURE OF NIKKAH
MARRIAGE AS A CIVIL CONTRACT
The reason why Muslim Marriage is considered to be a civil contract are as follows:-
- PROPOSAL AND ACCEPTANCE- The Marriage requires proposal and acceptance which is similar to that of a contract.
- FREE CONSENT- Consent given without coercion, fraud and undue influence, is an essential element of Muslim Marriage.
- AGE OF MAJORITY- In case the Marriage was entered into by the guardian, it can be set aside by the minor on attaining the age of majority.
- VALID CONDITIONS- The parties in relation to the Marriage can be pre- determined by the parties provided that any such conditions should not be opposed to Islam.
- TERMS AND CONDITIONS- The terms and conditions on which the Marriage was contracted can be altered within the legal minits.
- BREACH OF CONTRACT- There are also provisions for the breach of contract of Marriage, although i.e. not favoured by the quran or the sunnat.
MARRIAGE AS A SACRAMENT
- Marriage cannot be entered into any future event or be made contingent.
- Marriage cannot be entered for a limited time; exception to muta Marriage.
- There is no such concept of lien
CLASSIFITION OF MUSLIM MARRIAGE
Muslim Marriage can be divided into two sect- Shia and Sunni law. In Sunni, there are three types of Marriages i.e. Sahih (valid), Batil (void), Fasid (irregular). However Shia, there only two types of Marriages i.e. valid and void, it doesn’t gives recognition to irregular Marriage.
Valid Marriage (sahih)- A Marriage which fulfils are the prescribed conditions of a valid Marriage, which are being mentioned. A valid Marriage give rise to following legal implications.
- The sexual intercourse becomes legal when the parties acquire the status of husband and wife with each other.
- Parties acquire mutual right of inheritance.
- The Wife gets right to live with her husband and she also acquire the right of maintenance.
- The Wife acquires the right to be paid dower or Mahr, dower is a amount of money paid by the husband to the wife at the time of nikkah or anytime after nikkah.
- The wife is under the obligation to be obedient and faithful to her husband and admit herself to sexual intercourse with her husband at reasonable time and place.
- The valid Marriage establishes prohibition of Marriage due to affinity on both the sides, such as, the husband cannot marry his wife’s sister.
- The husband acquires the power of reasonable chastisement i.e. a punishing power and correction against the wife and if she is rebellious and disobedient.
- The husband gets the right to restrict the movement of the wife if there is a valid reason to do so.
- The children born out of valid Marriage are considered to be legitimate child.
- If the Marriage dissolves due to divorce or death of the husband, the wife is under the obligation to perform Iddat. The main objection of Iddat is to ascertain pregnancy of the wife, basically it is to avoid confusion of parentage.
Void Marriage- If a Marriage is performed and any of the prescribed legal conditions is violated, the Marriage becomes void i.e. batil. And it does not give birth to any legal rights to either parties. There is no legal effect before or after consummation of the Marriage.
The wife cannot claim maintenance but the wife has right to claim dower if the Marriage has been consummated. If the child is born out of void Marriage, the child is considered to be illegitimate child.
In void Marriage, the parties are free to separate from each other at anytime and it does not require divorce. Under shia law, the some instances of void Marriage are as follows:-
- If Marriage in violation of absolute incapacity.
- If Marriage with the wife of another person where the Marriage is still subsisting.
- If remarrying one’s own divorced wife if a legal bar exists.
- If Marriage prohibited by reason of unlawful conjunction.
- If Marriage is performed with a fifth wife.
- If Marriage during the pilgrimage.
- If Marriage with any non-Muslim.
- If Marriage with a woman undergoing Iddat.
Irregular Marriage (fasid)- An irregular Marriage is not considered to be void from its inception but can be cured by removing the impediments or irregularities, for instance, Marriage of a Sunni male with a fire worshiper is irregular which can be made valid by the wife’s conversion to Islam. Marriages which are considered to be irregular under sunni law, are void under shia law. Shia law does not gives recognition to irregular Marriage.
Some instances of irregular Marriage under sunni laws are as follows:
• Marriage with a fifth wife.
• Marriage with a woman undergoing Iddat.
• Marriage with a non-scriptural woman.
• Marriage with the wife’s sister during Iddat of the divorce wife.
• Marriage contrary to the rules of unlawful conjunction.
• Marriage contracted without witnesses.
REGISTRATION OF MARRIAGE UNDER MUSLIM PERSONAL LAW
Registration of Marriage in Muslims is compulsory and mandatory, as a Muslim Marriage is treated as a civil contract. According to section 3 of Muslim Marriages Registration Act 1981- “Every Marriage contracted between Muslims after the commencement of this Act, shall be registered as hereinafter provided, within thirty days from the conclusion of the Nikah Ceremony”. Nikahnama is a type of legal document in Muslim Marriages which contains the essential conditions/details of the Marriage.
According to this act, a Nikahnama contains:
1. Place of Marriage (with sufficient particulars to locate the Place.)
a. Full name of the bridegroom
d. Full name of bridegroom’s father
e. Whether father is alive or dead
f. Civil condition of the bridegroom at the time of Marriage whether – Unmarried Widower Divorced Married, and if so, how many wives are alive
g. Signature or thumb impression of the bridegroom/Vakil/ Guardian according as the Nikah was performed in person by the bridegroom or through his Vakil or Guardian
h. Full name of Nikah-Khan (that is the person conducting the Nikah Ceremony.)
i. Signature of the Nikah-Khan (i.e person conducting the Nikah Ceremony with date.)
j. Amount of dower fixed
k. Manner of payment of dower
l. Name of witnesses with parentage, residence and address.
While Marriage under Muslim law is mainly classified based on its validity, the Shia law recognizes another kind of Marriage called Muta Marriage.
The word Muta means “enjoyment”. Muta Marriage is a temporary Marriage with a woman for a fixed period for the purpose of pleasure. Muta Marriage is void under Sunni law which treats Marriage to be a permanent union. The fixed period of a Muta Marriage may be a day, month, year or a term of years.
A male Shia Muslim may contract Muta Marriage with a Muslim, Christian or Jewish woman or with a woman who is a fire-worshipper but not with a woman following any other religion. However, a Shia woman cannot contract Muta Marriage with a non-Muslim.
For a Muta Marriage to be considered as valid, there are 2 conditions- (a) the period of cohabitation should be fixed and (b) the Dower should be fixed.
Some landmark cases:
In the case of Abdul Qadir vs Salima And Anr. Justice Mahmood has clearly mentioned that “Marriage among Mohammedans is not a sacrament but purely a civil contract.” Based on above mentioned definitions, it may be said that in the eyes of law, a Muslim – Marriage is a civil contract. The object of the Marriage – contract is to provide legal validity to the sexual relationship of husband and wife and to legalise the children.
Anis begum v. Mohammed Istefa
Justice Shah Suleman had tried to put a more balanced view of Muslim Marriage by holding it both a civil contract and a religious sacrament.
Atika Begum v. Mohammed Ibrahim
The privy council has laid down a clear law about the age of puberty in the following words: “According to the Muslim law, a girl becomes major on happening of either of the two events- (i) On the completion of her fifteen year.
(ii) On her attaining the state of puberty at an earlier period.
The same rule is applicable in reference to the age of boy. Does it may be said that in the absence of evidence to the contrary, a Muslim is presumed to have attained the puberty at the age of fifteen years.
STATUS OF DOWER IN INDIA
Dower is also known as Mahr under Muslim personal law.
Mulla defines Dower as a sum of money or other property which the wife is entitled to receive from her husband in consideration of the Marriage.
Mahr is an amount of money gifted to the bride by the groom at the time of nikkah.
Hedaya defines Dower as a token of respect given by the husband to the wife at the time of Marriage. Dower is also called Mahr.
Abdul Rahim, in his book Muhammadan Jurisprudence, states that “Mahr is either a sum of money or other form of property to which wife becomes entitled by Marriage. It is not a consideration proceeding from the husband for the contract of Marriage but it is an obligation imposed by the law on the husband as a mark of respect for the wife.”
Ameer Ali- Dower is consideration which belongs absolutely to wife.
Justice Mehmood- money or other property promised by the husband to be paid or delivered to the wife in consideration of Marriage, and even if no dower is expressly fixed or mentioned at the Marriage ceremony the law confers the right of Dower upon the wife.
Classification of Dower/ kinds of Dower
Dower is mainly classified into two types namely- (a) Specified dower i.e. dower which is fixed and (b) proper dower, which is dower that has not been fixed. Specified dower is further sub-categorized into prompt dower and deferred dower.
If the amount of dower has been fixed by the parties before the Marriage or at the time of Marriage, it is called specified dower or Mahr-i-musamma. Execution of deed for fixing the dower is not necessary under Muslim law. If the bridegroom is a minor or a person of unsound mind, the dower is generally fixed by his father/guardian.
Dower fixed by the guardian is binding on the minor who cannot, after attaining the age of puberty, take the plea that he was not a party to it. Under Sunni law, dower fixed by the father is binding on the son though he is not personally liable for it.
Under Shia law, if the son has no means to pay the dower fixed by the father, the father becomes liable to pay it. Specified dower can be paid before or at the time of or anytime after the Marriage.
In Kukkiya Begum vs. Radha Kishan , the Allahabad High Court held that amount of dower fixed earlier may be increased after the Marriage by mutual consent.
Specified dower is of the following types:
•Prompt dower – A specified dower which is payable immediately after the Marriage or at any other time on the wife’s demand is called prompt dower. It may be realized before or after consummation and it does not get deferred after consummation of the Marriage.
•Wife has the right to sue for recovery of prompt dower even after consummation of the Marriage. Unless the Marriage has already been consummated, the husband becomes entitled to enforce conjugal rights only after the payment of prompt dower.
In Rabia Khatoon vs. Mukhtar Ahmed, the Allahabad High Court held that the wife may refuse to live with her husband and to admit to sexual intercourse until prompt dower has been paid. It was further held that prompt dower is payable on demand and proof of sexual intercourse between the parties is not necessary for claiming payment.
•Deferred dower – If a specified dower is not payable immediately after Marriage and is payable upon the happening of any event or after the expiry of a particular period or upon the dissolution of Marriage, it is called deferred dower or Mahr-i-Muwajjal. The wife is not entitled to demand payment of deferred dower unless otherwise agreed upon by the parties. The wife’s interest in deferred dower is a vested one and not a contingent one. On the death of the husband, the wife has the right to relinquish her dower but the relinquishment must be voluntary.
If no period or event has been fixed for payment of the deferred dower, it shall be payable on the termination of the Marriage by divorce or by the death of either party.
If the amount of dower has not been fixed between the parties, before or at the time of Marriage, the wife is entitled to get a reasonable amount from the husband as dower. This dower is called proper dower or Mahr-i-Misl. It is payable on demand by the wife. Even if the Marriage has been solemnized on the condition that the wife shall not claim dower, she is still entitled to claim proper dower from the husband. The amount of proper dower is generally fixed by the Court taking the following factors into consideration:
• personal qualifications of the wife.
• wife’s age, beauty, fortune, understanding, and virtue.
• the social position of the wife’s father’s family.
• economic status of the husband.
• dower generally settled for women in wife’s father’s family such as her sister, paternal aunt or paternal parallel cousin, etc.
Remission of Dower
Remission means to remit or give up. Wife is empowered to remit the Dower if she wants. Remission of dower is solely on the discretion of wife. It is open to lady to relinquish her entire dower debt in whatever claim she had on account of the dower debt against the heir of his husband.
Enforcement of Dower
Wife or widow can claim for unpaid portion of dower which is an unsecured debt, due to her from her husband or his estate, respectively. Wife or widow has the right to go for an actionable claim. During her life time the wife can recover the debt herself from the estate of the deceased. The heirs of the wife including the husband become entitled to her dower of pre- deceased husband.
Widow has right vis-a-vis other creditors of her deceased husband to have it satisfied out of his estate.
In the case of Kapoor Chanad v. Kadar-un-nisa, Supreme Court observed: The wife is like any other creditor of the husband and cannot, therefore, claim priority for the dower debt over other creditors. The widow’s claim for dower debt has priority over the other claims of the other heirs. The heirs of the deceased husband are not personally liable for the dower debt of the widow. The liability of an heir is to be measured not by his interest in the estate but by the assets which come to his hands.
Rights of the Dower
(i) Right to refusal to cohabit- Wife can refuse to perform her conjugal relationship and suspend intercourse until the Prompt Dower is meant to be paid if the Marriage is not consummated. If the wife is minor then guardian of the wife can refuse to send her to his husband house until the dower is paid.
If the Marriage is consummated , wife can lose all her right.
(ii) Right to dower as debt-
Dower is an unsecured debt which wife or widow or divorcee can recover from husband as he is alive and after the death of the husband, they can recover their share from his property or estate.
In Hamira Bibi v. Zubaida Bibi,
Privy Council held that dower ranks as a debt and widow is entitled along with other creditors to have her dower recovered on death of husband out of his estate.
(iii)Right to retain possession
If the widow has the possession of estate of her deceased husband, then she can retain the position until her debt was recovered. On the contrary, retaining the possession doesn’t give any right to wife to alienate the property.
In the case Zahoor Ahmad v. Jainandan Singh,
The court was of the opinion that wife has only interest for personal enjoyment of property in her possession but she has no right to alienate the property.
Qasim Hussain Reg v. Begum Kaniz Sakina, it was held by the Allahabad High Court that when the wife had relinquished her right to dower before the divorce and was going through the iddat period, she cannot claim her Right after the completion of iddat and the dower cannot be enforced.
Anis Begum v. Muhammad Istafa Wali Khan, Istafa, Rs. 15,000 was the immediate Dower. For some time, the wife and husband were living together, and they bore a daughter. Later, Anisa left her husband’s house and refused to return until she was pleased with the immediate Dower. The husband Istafa filed a lawsuit for conjugal rights compensation.
In this case, Sulaiman, C.J. held that a husband had no absolute right to unconditionally assert conjugal rights. The courts can make the restitution decree dependent on payment of the Prompt Dower unpaid to their wife even though they already have a Marriage. Therefore, 15,000/-was passed for the husband, subject to his payment of Rs. The order for restitution of the conjugal right.
The recent judicial reforms of Muslim law encouraged and drew indirect support from ongoing changes in matrimonial practices among Indian Muslims. Partly in response to these reforms, some conservative Muslim elites began attempts to reduce the incidence of the triple talaq and polygamy, to include in marriage contracts rights for women to initiate divorce and to get a substantial dower from their ex-husbands upon divorce, and to get community courts to recognize these rights. As community courts consider the majority of Muslim matrimonial disputes, the future of Muslim law in India depends crucially on patterns of adjudication in these courts, over which all the branches of government exercise only limited influence.
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~By Soumil and Prakriti Raj
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