Family Law 2 (Muslim Law) Unit 2

JIWAJI UNIVERSITY
RAGHAV MISHRA
B. Com LLB
IVth Semester
Roll No. 181162596
Muslim Law
UNIT 2
Marriage
Muta Marriage
Submitted To : Submitted By :
Mohd. Parvej Khan Raghav Mishra
Marriage
Islam, unlike other religions is a strong advocate of marriage. There is no place of
celibacy in Islam like the Roman Catholic priests & nuns. The Prophet has said
There is no Celibacy in Islam.
Marriage acts as an outlet for sexual needs & regulates it so one doesn’t become
slave to his/her desires. It is a social need because through marriage, families are
established and the families are the fundamental entity of our society. Furthermore
marriage is the only legitimate or halal way to indulge in intimacy between a man
and woman.
Islamic marriage although permits polygamy but it completely prohibits polyandry.

Polygamy though permitted was guarded by several conditions by Prophet but
these conditions are not obeyed by the Muslims in toto.
Marriage:-Pre Islamic Position
Before the birth of Islam there were several traditions in Arab. These traditions
were having several unethical processes like:-
(i) Buying of girl from parents by paying a sum of money.

(ii) Temporary marriages.
(iii) Marriage with two real sisters simultaneously.
(iv) Freeness of giving up and again accepting women
These unethical traditions of the society needed to be abolished; Islam did it and
brought a drastic change in the concept of marriage.
Purpose of Marriage
The word Zawj is used in the Quran to mean a pair or a mate. The general
purpose of marriage is that the sexes can provide company to one another,
procreate legitimate children & live in peace & tranquility to the commandments of
Allah. Marriage serves as a mean to emotional & sexual gratification and as a mean
of tension reduction.
Marriage compulsory or not?
According to Imams Abu Hanifa, Ahmad ibn Hanbal & Malik ibn Anas, marriage
in Islam is recommendatory, however in certain individuals it becomes Wajib or
obligatory. Imam Shafi considers it to Nafl or Mubah (preferable). The general
opinion is that if a person , male or female fears that if he/she does not marry they
will commit fornication, then marriage becomes Wajib. However, one should not
marry if he does not possess the means to maintain a wife and future family or if
he has no sex drive or if dislikes children, or if he feels marriage will seriously affect
his religious obligations.
Prophet said:-
When a man marries he has fulfilled half of his religion, so let him fear Allah
regarding the remaining half.
This very wording of Prophet marks the importance of marriage, thus it could be
well concluded that marriage in Islam is must.
Capacity for Marriage
The general essentials for marriage under Islam are as follows:-

(i) Every Mahomedan of sound mind and having attained puberty can marry.
Where there is no proof or evidence of puberty the age of puberty is fifteen years.
(ii) A minor and insane (lunatic) who have not attained puberty can be validly
contracted in marriage by their respective guardians.
(iii) Consent of party is must. A marriage of a Mahomedan who is of sound mind
and has attained puberty, is void, if there is no consent.
Kinds of Marriage
Under Muslim generally two types of marriage is recognized
(i) Regular Marriage (essentials discussed earlier)

(ii) Muta marriage
Muta Marriage
Muta marriage is a temporary marriage. Muta marriage is recognized in Shia only.

Sunni law doesn’t recognize it. (Baillie, 18). A Shia of the male sex may contract a
Muta marriage with a woman professing the Mahomedan, Christian or Jewish
religion, or even with a woman who is a fire worshipper but not with any woman
following any other religion. But a Shia woman cannot contract a Muta marriage
with a non muslim.
The essentials of Muta marriage are:-
(1) The period of cohabitation should be fixed.

(2) Dower should be fixed.
(3) If dower specified, term not specified, it could amount to permanent or regular
marriage.
(4) If term fixed dower not specified, it amounts to void marriage.
Aspects of Marriage
(i) Valid or Sahih

(ii) Irregular or Fasid
(iii) Void or Batil
Effect of Marriage (Sahih)
The lawful obligations which arise after marriage are as follows-

(i) Mutual intercourse legalized and the children so born are legitimate.
(ii) The wife gets power to get ‘Mahr’
(iii) The wife entitles to get maintenance.
(iv) The husband gets right to guide and prohibit the wife’s movement(for valid
reasons only)
(v) Right of succession develops.
(vi) Prohibition of marriage due to affinity.
(vii) Women bound to complete Iddat period & not to marry during Iddat period;
after divorce or death of husband.
The obligations and rights set between the two parties during and after the
marriage are to be enforced till legality. On the basis of a marriage husband and
wife do not get the right on one another’s property.
Conclusion
Marriage is a religious duty of every Muslim and it is considered to be a moral

safeguard and a social need. The Prophet has also said Marriage is my tradition
whosoever keeps away there from is not from amongst me.
Unlike Hindu where the marriage is a sacrament, marriages in Muslims have a

nature of civil contract. Marriage is necessary for the legitimization of a child.
When the marriage is done in accordance to the prescribed norms it creates
various rights and obligations on both the parties.

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JIWAJI UNIVERSITY

Islamic marriage although permits polygamy but it completely prohibits polyandry.

Marriage:-Pre Islamic Position

(i) Buying of girl from parents by paying a sum of money.

Marriage compulsory or not?

Capacity for Marriage

The general essentials for marriage under Islam are as follows:-

(i) Regular Marriage (essentials discussed earlier)

Muta marriage is a temporary marriage. Muta marriage is recognized in Shia only.

The essentials of Muta marriage are:-

(1) The period of cohabitation should be fixed.

(i) Valid or Sahih

The lawful obligations which arise after marriage are as follows-

Marriage is a religious duty of every Muslim and it is considered to be a moral

Unlike Hindu where the marriage is a sacrament, marriages in Muslims have a

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