Table of Contents
CONCEPT OF MARRIAGE
A Muslim is someone who follows Islam, a monotheistic Abrahamic religion based on the teachings of the Prophet Muhammad as outlined in the Quran. In Muslim law, marriage is referred to as ‘nikah’. The nature of marriage under Muslim law is that of a civil contract, so one must fulfil all the conditions essential for the validity of a contract. Essentials of Valid Nikah are as follows:
1. Proposal and Acceptance (Ijab and Qubul)- In Muslim law, a proposal is referred to as ‘ijab’ and acceptance is referred to as ‘qubul’. For constituting a valid marriage, one party must give the proposal and the other must accept it. The proposal and acceptance must be done in the presence of both parties.
2. Competent to Contract- For constituting a valid nikah, both parties must be competent to contract. There are various factors which determine the competency of the parties such as:
- Age of majority
- Soundness of mind
- Both parties must be Muslim
The age of majority for Muslims is considered the age at which they attain puberty. It is presumed that parties attain puberty when they reach 15 years of age.
Case: Munshi vs Mt Alam Bibi (AIR 1972 Lahore 280) – In this case, it was held that a girl who has obtained puberty or is above 15 years of age is competent to enter into a contract of marriage.
3. Mahr (Dower)- Mahr is an amount of money which is paid by the groom to the bride as a consideration for marriage. The term Mahr is also referred to as dower. The dower is an unsecured debt against the husband. A Muslim wife, however, can relinquish her right to dower by voluntary renunciation or mutual agreement.
According to Mulla: “A dower is either a sum of money or property which the wife is entitled to receive in consideration of marriage from the husband.”
According to Wilson: “Mahr or dower was a form of consideration for the surrender of a person by wife.”
TYPES OF MAHR
1. Specified Dower (Mahr-i-Musamma)- If the amount of dower is specified in the contract of marriage, then such a dower is called as specified dower. The amount mentioned for dower can be specified at the will of the parties either before or after the marriage.
There are two kinds of specified dower:
- Prompt Dower: The dower which is payable immediately after marriage is called the prompt dower.
- Deferred Dower: The amount of dower which is paid on dissolution of marriage is known as the deferred dower.
2. Unspecified Dower (Mahr-i-Misl)-If the amount of dower is not specified under the contract of marriage, then such a dower is called as unspecified dower. This kind of dower is also known as proper dower.
There are various factors in determining the unspecified dower such as:
- Financial position of the bride’s father
- Personal qualifications of the wife
Case Reference:
Md Tanqeer Usmani vs State of Jharkhand (AIR 2013 Jhar 43) – In this case, the husband paid the Mahr to the brother of the wife, but the court held that the dower must be paid to the wife by the husband.
COMPARISON: MAHR-I-MISL vs MAHR-I-MUSAMMA
| Basis | Mahr-i-Misl | Mahr-i-Musamma |
|---|---|---|
| Definition | Not defined at the time of marriage | Defined at the time of marriage |
| Known as | Unspecified dower | Specified dower |
| Agreement | After the marriage | At the time of marriage |
| Marriage contract | Not written | Written |
KINDS OF MARRIAGE
1. Sahih Nikah (Valid Marriage)- Sahih nikah is also known as the valid marriage. It is a kind of marriage which fulfils all the essential requirements of a valid marriage. The major requirements of sahih nikah are:
- Offer and acceptance
- Capacity to marry
- Free consent of the parties
- Presence of two adult witnesses (in case of Sunni Muslims)
- Mahr
2. Fasid Nikah- Fasid nikah is also known as a voidable marriage. It is a kind of marriage which is defective but not void. It does not fulfill all the essential requirements for a valid nikah.
3. Batil Nikah (Void Marriage)- Batil nikah is a nikah which is unlawful and has no legal effect under Islamic law. Examples of Batil Nikah include:
- Marriage within prohibited degrees of relationship
- Marriage without consent
4. Muta Marriage- The term ‘mutah’ basically means pleasure. Muta marriage is a temporary marriage for the pleasure of the parties. This marriage is permissible in India only amongst the Twelvers (a Shia sect) and is not recognized by Sunni Muslims.
Essential points of Muta marriage:
- A Shia male can contract a valid muta with a Muslim woman or a woman professing Christianity, Judaism, or Zoroastrianism (fire worshipper).
- Dower is essential for a muta marriage, and if the marriage is consummated, the woman is entitled to full dower.
- Time period of muta marriage is fixed and can vary from hours to years.
- No divorce in muta marriage as the time is fixed.
- The wife has to observe a period of iddat after this marriage ends.
- The term of muta marriage can be extended with mutual consent.
- If the husband wants to end the marriage before the time, he can do so by giving a gift to the wife for the remaining time period.
- If the wife wants to end the marriage before time, she can do so by forfeiting part of her Mahr.
- Wife is not entitled to inherit the property.
- The children born from a muta marriage are legitimate and have rights over the father’s property.
- If the time period or Mahr is not fixed in a muta marriage, then it can be considered as void or invalid marriage.
Case Reference:
Syed Amanullah Hussain vs Rajamma[(1977) 1 Andh WR 123] – In this case, it was held that children begotten of muta marriage are legitimate and entitled to succeed the property of their father.
