ALIGARH MUSLIM UNIVERSITY

Malappuram centre, kerala

Tutorial work — on the topic-
Marriage Is purely a civil contract among
Mohammedans

In the subject of Muslim Law-I

Submitted to-: Submitted By-:

Dr.Naseema PK (Asst.prof.). Vaibhav Teotia

18Ballb03/Gj3957
 Contents-
S.no. Particulars Pg.no.

1. Introduction 3

2. Definitions of marriage 3

3 Nature of marriage 4
• Characteristics as a civil contract
• Unlike civil contract

4 Capacity of a valid marriage 5

5 Formalities of a valid marriage 6

6 Legal effects of marriage 7

7 Conclusion 8

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Introduction:-
In pre-Islam Arabia, the laws were favourable towards men and discriminatory against women.
Polygamy had to be accounted for in a very few blood relationships like in marriage with one’s
real mother or sister. Marriages were of different kinds and divorce was simple and easy for
men. Women were denied their basic rights since men were always considered superior.
Women were treated as chattels, and were not given any right of inheritance and were
absolutely dependent.it was prophet Mohammad who brought about a complete change in the
position of women.

Prophet Mohammad placed a woman on a footing of almost perfect equality with men in the
exercise of all legal powers and functions.[i] Under the Muslim, Law marriage is considered a
civil contract. After the marriage, women do not lose their individuality. She still remains a
distinct member of the community. Islam, unlike other religions, is a strong advocate of
marriage. There is no place for celibacy in Islam like the Roman Catholic priests and nuns. The
Prophet has said, “There is no Celibacy in Islam.”

Definitions of marriage:-
Let us first examine some of the various definitions of a Muslim marriage and then to see
which of them is most suitable:

HEDAYA: Nikah in its primitive sense means carnal conjunction. Some have said that it
signifies conjunction generally. In the language of the law it implies a particular contract used
for the purpose of legalising generation.”

AMEER ALI: ‘’Marriage is an institution ordained for the protection of society, and in order
that human beings may guard themselves from foulness and unchastity.”

JUSTICE MAHMOOD: “Marriage among Mohammedans is not a sacrament, but purely a

civil contract.”

M.U.S. JUNG: “Marriage though essentially a contract is also a devotional act, its objects are
the right of enjoyment, procreation of children and the regulation of social life in the interest of
the society.”

ABDUR RAHIM: "The Mohammedan jurists regard the institution of marriage as partaking
both of the nature of ibadat or devotional acts and muamlat or dealing among men.”

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Among all the above definition, Abdur Rahim's definition is the most balanced one. By using
the two ingenious words "ibadat” and “muamlat”, he has summarized the whole concept of
Muslim marriage in one sentence. Let us approve this definition, and proceed to see why
Muslim marriage is not purely a civil contract, as Mahmood, J., emphasised, or as to why it is
not solely a way to procreate children.

Nature of marriage:-
Marriage according to the Mahomedan law is not a sacrament but a civil contract. All the
rights and obligations it creates arise immediately and, are not dependent on any condition
precedent such as the payment of dower by husband to a wife.

The Rajasthan High Court has made a very sound observation in the instant case that unlike a
Hindu Marriage, which is a sacrament, according to the Islamic Law, a marriage (" Nikah ") is
a permanent and unconditional civil contract (which comes into immediate effect) made
between two persons of opposite sexes with a view to mutual enjoyment and procreation and
legalizing of children. One of the essential features of a valid marriage is the payment of
"mehr" (dower). Although it is an obligation upon the husband, but the wife is well within her
rights to relinquish the said dower. Since the concept of contract is the basis of marriage, the
principles of a valid contract would be applicable to the relinquishment. Thus, the
relinquishment should be made voluntarily. It should not be made by duress, fraud,
misrepresentation, under influence or mistake. It should be made with free consent.

For a very informative consideration of the concept of marriage and divorce, see the judgment
of the Pakistan Supreme Court in Khurshid Bibi v. Mohd Amin . In this case Justice S.A.
Rahman who wrote the judgement says that "among Muslims, marriage 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 essence, it remains a contract between the parties." This
judgment, does not say that marriage is purely, a civil contract, or for that matter, a civil
contract. It merely regards to be in the nature of a civil contract.

Marriage under Muslim law has similar characteristics as a contract.For

instance:

• As marriage requires proposal (Ijab) from one party and acceptance (Qubul) from the
other so is the contract. Moreover, there can be no marriage without free consent and
such consent shouldn’t be obtained by means of fraud, coercion or undue influence.
• Just as in case of contract, entered into by a guardian, on attaining majority, so can a
marriage contract in Muslim law, be set aside by a minor on attaining the age of
puberty.

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 • The parties to a Muslim marriage may enter into any ante-nuptial or post-nuptial
agreement which is enforceable by law provided it is reasonable and not opposed to the
policy of Islam. As is the case with a contract.
• The terms of a marriage contract may also be altered within legal limits to suit
individual cases.
• Although discouraged both by the Holy Quran and Hadith, yet like any other contract,
there is also provision for the breach of marriage contract.

In a lucid and erudite judgment Pareed Pillay, J. of the Kerala High Court, in Adam v.
Mammad[], has set out the salient feature of Islamic law of marriage. In the case before him,
he held that where the girl’s father had given his consent, and the daughter had withheld hers,
no valid marriage had taken place. Here the judge cited J. Mahmood’s classic dicta in Abdul
Qadir’s case, and upheld that for the validity of a marriage, consent is a must.

Muslim marriage is not merely a contract because:

• unlike a civil contract, it cannot be made contingent on future event; and
• unlike civil contracts, it cannot be for a limited time (muta marriage is an exception).
• Unlike a civil contract, the analogy, of lien cannot be applied to a marriage contract.
Secondly, the contract of sale of goods may be canceled by unpaid seller. He may resell
the goods by rescinding such contract, whereas, in a contract of marriage, the wife is
not entitled to divorce her husband or to remain with a third person if a part of his
dower remains unpaid.

Capacity for marriage:-

(1) Every Mahomedan of sound mind, who has attained puberty, may enter into a
contract of marriage.

A Mahomedan girl of 15 years who has attained the age of puberty is competent to marry
without the consent of her parents.

Marriage under the Mahomedan Law is a civil contract. Hence it should attract all the incidents
of contract as any other stipulated in the Contract Act. The provisions of s. 64 of the Contract
Act, will be squarely applicable to a case such as the present one where the marriage has been
rescinded unilaterally. The provisions of s. 64 of the Contract Act are clear in this behalf and
require only that person to return the benefits under the Contract, at whose opinion the contract
is rescinded Muhammad Usaf Abasbhai Bidiwale v. Hurbanu Mansur Atar .

(2) Lunatics and minors who have not attained puberty may be validly contracted in
marriage by their respective guardians (270-275).

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(3) A marriage of a Mahomedan who is of sound mind and has attained puberty, is void,
if it is brought about without his consent.

The same rule applies in the case of a Shafei girl who has attained puberty.

Explanation.— Puberty is presumed , in the absence of evidence, on completion of the age

of fifteen years.

Formalities of a valid marriage :-

Marriage may be constituted without any ceremonial; there are no special rites, no officiants,
no irksome formalities. Nevertheless, following conditions are necessary:

i. Offer on the part of one party to the marriage.

ii. Acceptance by the other party.

Note:-The offer and acceptance may be made by the parties, or by the agents, if both are
competent. In case of legal incompetency, like minority or unsoundness of mind, the guardians
may validly enter into a contract of marriage on behalf of their wards.

iii. Presence of two witnesses were the parties are Hanafis; no witnesses are required if
parties are Shia.

iv. The words with which the marriage is contracted mum be clear and unambiguous.

v. The proposal and acceptance must both be expressed in one and the same meeting.

In certain cases where man and woman are living as husband and wife, the question may arise
whether they are presumed to be married.

According to the recognised view, if the cohabitation is continuous and prolonged, the man and
woman may be treated as husband and wife. The same presumption will also be there in the
case where the man acknowledges the woman as his wife, or the child born of the union as
legitimate.

But where impediments of a nature which render a valid marriage between the parties as
impossible, are present, no presumption of marriage may arise. Thus, where the woman is non
Kitabiya, related to the man within the prohibited degrees of relationship, the wife of another
person, and so on, she cannot be presumed to be the wife. In a case where a Buddhist Burmese
lady cohabited with a Muslim male for some time, the Privy Council observed that no

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presumption of marriage in such a case could arise. Similarly, cohabitation with prostitute
cannot give rise to the presumption of marriage.

Legal effects of valid marriage :-

Baillie gives a description of the legal effects of marriage, but the systematic treatment of this
point by Fyzee has been adopted here for convenience.

There are nine legal effects flowing from a valid marriage:

i). Sexual intercourse becomes lawful and the children born of the union are

legitimate;

ii.) The wife becomes entitled to her dower;

iii)The wife becomes entitled to maintenance;

iv). The husband becomes entitled to restrain the wife's movements in a reasonable

manner;

v)Mutual rights of inheritance are established;

vi). The prohibitions regarding marriage due to the rules of affinity come into operation ;

vii) The wife is not entitled to remarry after the death of her without observing iddah;

viii). Where there is an agreement between the parties, entered husband, or after the dissolution
of her marriage, into either cithe the time of the marriage or subset they are consistent with the
provisions or the policy quent to it, its stipulations will be enforced, in so far as of the law; and

ix.)Neither the husband nor the wife acquires any interest in property of the other by reason of
marriage.

Conclusion:-
we can easily conclude, that marriage is simply a civil contract under Muslim Law. It fulfils all
the conditions of a contract-proposal and acceptance, free consent and consideration.

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But from the religious angle, Muslim marriage is a devotional act. Marriage is not devoid of all
religious and spiritual values. Along with its secular aspect, it also partakes the elements of a
sacred union of two souls means for spiritual ends.

In the Quran and Hadith, spouses are strictly enjoined to love and honor each other. Enjoyment
and showering love and affection by each one has been called a noble act. Marriage under
Islam is sacrament keeping the view of Quranic injunction and traditions.

In the ultimate analysis, it can be said that the marriage in Islam is neither purely a civil
contract nor a sacrament. It is devoid of none but the blending of the two.