CHAPTER – 4 (MARRIAGE)

MARRIAGE
‘NIKAH’ literally means joining together or union of sexes. In law it means
marriage. NIKAH in the Quran has been described as Hisn i.e. a fort –meaning
the protection it affords – social, physical, and moral to the couple joined
together in a wedlock. Nikah is not solemnized only for sexual enjoyment, the
main aim is sukun i.e. satisfaction or comfort or peace of mind, love-
Muddat and Rahmator kindness or sympathy or compassion- according to Md.
Ali’s translation of the Holy Quran.
DEFINITION OF MARRIAGE OR NIKAH
According to Hedayatranslated by Charles Hamilton-Nikah is defined as:
“In the language of the law it implies a particular contract used for the purpose
of legalizing generation.”
According to Fatwa- e -Alamgiri:
“Nikah is said to be a contract that is entered into by a man with a woman for
the enjoyment of the beneficiary rights over her as an owner.”
This definition is not true as the concept of marriage developed as
companionship and not ownership.
According to Baillie:
“Marriage is a contract for the purpose of legalizing sexual intercourse, the
procreation and legitimation of children and the regulation of social life in the
interest of the society by creating the rights and duties between the parties
themselves, between each of them and the children born from the union”.
According to Mulla:
“A contract which has for its object the procreation and legalizing of children”.
Justice Mahmoodin the leading case of Abdul kadir v. Salima (1886), held
that “ Marriage among Mohammadans is not a sacrament but purely a civil
contract”.
To Abdur Rahim : “ The Mohammadan jurists regard the institution of marriage
as partaking both of the nature of Ibadat or devotional acts and Muamalator
dealings among men”.
Among all the above definitions, Abdur Rahim’s definition is the most balanced
one. By using the two ingenious words ibadat and muamalat, he has
summarized the whole concept of Muslim marriage in one sentence.
QURANIC MEANING
These are distorted pictures of the Islamic concept of marriage. The Holy Quran
describes marriage as a sacred covenant (Mithaq-e-Ghaliz) between a man and
woman. Also in other verses of the Holy Quran (30:21 & 7:189) the holy Book
ordains that man and woman are joined in marriage so that they can live each
other in love and solace. Also in other verse (2:187) that by marriage the man
and woman pass into each other’s protection. Repeatedly The Holy Quran
describes married man and woman as Muhsan and Muhsanat i.e. those men and
women who had entered the protective fortress of marriage(5:6). Thus marriage
in Islam is much more than a contract for production of children.
In substance a Muslim marriage is a contract but a sanctified religious contract.
Hence Muslim jurists regard Nikah to be both temporal and religious at the
same time. It is not only purely a civil contract or a sacrament but a religious,
solemn and sacred covenant for life.
The main aim of marriage under Islam is to protect the society from foulness
and un-chastity and to continue the human race. It also confers the full status of
wife and children.
Nature/Aspects of Muslim Marriage:
Marriage in Islamic law is treated as an ‘ibadat’ or a righteous act. Islam enjoins
every capable man and woman to marry. Emphasizing that celibacy is not
considered a virtue in Islam, Doi relates that “the Prophet orders Muslims to get
married as soon as they can”. Thus, marriage under Islam clearly got a religious
overtone.
Again, marriage under Islamic law is unique for its simplicity unlike in many
other religions. Middle Eastern writers like Nasir distinguish it from the
sacramental concept of Christian marriage, while South Asian authors almost
always contrast the Muslim contracts of Nikah with the Hindu concept of
marriage as an indissoluble sacrament or sanmskara.
Offer and acceptance are the two basic pillars of a marriage where no religious
ceremonial is essential to perform. This particular feature of marriage led many
to equate marriage with a civil contract. It appears that some classical jurists
termed it as a contract, but the court in the modern time at first treated it as a
‘purely civil contract’ as in the Abdul Kadir vs. Salima, which regarded the
first judicial authority in this regard, while khurshid Bibiidentified it as a
contract of ‘civil nature’.
The judgment in Abdul Kadir v. Salima, is one of those classic
pronouncements of the illustrious Mr. justice Mahmood , which has acquired so
great a reputation that its obiter dicta carries the legal sanctity of ratio
decidendi.
Describing the nature of Muslim marriage, Justice Mahmood says:
“Marriage among Mohammadans is not a sacrament but purely a civil contract;
and though it is solemnized generally recitation of certain verses from the
Quran, yet the Mohammadan law does not positively prescribe any service
peculiar to the occasion. That it is a civil contract is manifest from the various
ways and circumstances and under which marriages are contracted or
presumed to have been contracted. And though a civil contract, it is not
positively prescribed to be reduced to writing, but the validity and operation of
the whole are made to depend upon the declaration or proposal of one, and the
acceptance or consent of the other of the contracting parties, or of their natural
and legal guardians before competent and sufficient witnesses; as also upon the
restrictions imposed, and certain of the conditions required to be abided by
according to the peculiarity of the case ”.
Justice S A Rahman observed in Khurshid Bibi Case that a ‘marriage among
Muslims is not a sacrament, but is in the nature of civil contract. Such a contract
undoubtedly has spiritual and moral overtones but legally, in essence, it remains
a contract between the parties. It is submitted that Khurshid Bibi’s opinion, in
contrast to that of Abdul Kadir, reflects the real nature of marriage in the
appropriate sense. Because, though marriage in Islamic law is of contractual
nature, it has at the same time some fundamental differences from a purely civil
contract.
Differences
v As regards consideration:
Common law—no consideration, no contract, but in marriage no consideration---
dower is not consideration.
v As regards capacity of Parties:
Ø Marriage can be performed between two natural persons only while contract
may be between natural and legal persons.
Ø Religious faith of the parties is also important.
v As regards rights and Duties:
Deed of contract determines rights and duties--- sharia determines that.
v As regards presence of witness:
Compulsory in marriage while not so in a contract.
v As regards contingency: there may be contingent contract but no such
contingent marriage.
v Regarding duration: contract may be for specific duration while marriage is
not.
v Regarding its nature: marriage is mandatory on capable persons while it
option to enter into a civil contract.
Besides, after considering the aspects of a Muslim marriage, we will be able to
see why Muslim marriage is not purely a civil contract or as to why it is not
solely a way to procreate children.
There are three principal aspects of a Muslim marriage:
1. Legal aspect:
Juristically it is a contract and not a sacrament. It has three characteristics:
a) There can be no marriage without consent;
b) As in contract, provision is made for its breach, to wit, the various kinds of
dissolution by act of parties or by operation of laws;
c) The terms of marriage contract are within legal limits capable of being
altered to suit individual cases.
2. Social aspect:
In its social aspects, three important factors must be remembered:
a) Islamic law gives to the woman a definitely high social status after marriage.
b) Restrictions are placed upon the unlimited polygamy of pre-Islamic times, and
a controlled polygamy is allowed.
c) The prophet, both by example and precept, encouraged the status of
marriage. He positively enjoined marriage to all those who could afford it. The
Messenger of Allah (PBUH) said. “ O young men! Any of you who are able to
marry should do so. It lowers the eyes and protects the private parts. Any of you
who are unable to do should fast. Fasting is a protection for you” ( Al-Bukhari) .
And the well-known saying attributed to the prophet: “there is no monkery in
Islam”, expresses his attitude towards celibacy briefly but adequately.
3. Religious aspect:
While considering the social and legal aspects, the aspect of religion is often
neglected or misunderstood. Seen from the religious angle, Muslim marriage is
an ibadat( devotional act). First, let us consider the Quranic injunctions
regarding marriage. Marriage is recognized in Islam as the basis of society. It is
a contract, but it is also a sacred covenant. Temporary marriage is forbidden.
Marriage as an institution leads to the uplift of man and is a means for the
continuance of the human race. The Holy Quran describes marriage as ‘a sacred
covenant , love between man and woman (4: 21).
In another words of the Quran, “men and women are joined in marriage. So
that, they can live each other in love and solace” (7:189)
It further says that “ By a marriage the man and woman pass into each other’s
protection”(2:187).
Secondly,the tradition of the Prophet (PBUH) follow the same lines. The Prophet
was determined to raise the status of woman. He asked people to see their
brides before marrying them, and taught that nobility of character is the best
reason for marrying a woman. Moreover, the following traditions may also be
considered:
“ He who marries, completes half his religion; it now rests with him to complete
the other half by leading a virtuous life in constant fear of God”.
“ There are three persons whom the Almighty Himself has undertaken to help-
first, he who seeks to buy his freedom; second, he who marries with a view to
secure his chastity; third, he who fights in the cause of God”.
Prophet (SM) further said,” No institution of Islam is liked by Allah more than
that of marriage”.
The prophet is reported by some of the writers to say that marriage is equal
to jehad; it is sinful not to contract a marriage; it is a Sunnah; and it is
obligatory on those who are physically fit.
In Anisa Begum v. Md. Istafa (1933),Sir Shah Muhammad Sulaiman C.
J. observed that ,‘marriage’ is not only a civil contract but a religious sacrament
(too).
Now, if marriage is nothing but a civil contract, then keeping in view the above
traditions we could say: He who enters into a civil contract completed half of his
religion; the Almighty Himself has undertaken to help the person who enters
into a civil contract; civil contract is equal tojehad; it is obligatory on every
physically fit Muslim to enter into a civil contract; and so on…All these
inferences are patent absurdities, and are untenable.
In the words of Ameer Ali, marriage is “for the protection of society, and in
order that human beings may guard themselves from foulness and unchastity”.
Imam -Al- Ghazali, the famous jurist and philosopher, regards marriage as a
means “ of attaining nearness to God”.
Furthermore, Muslim marriage is not a civil contract, because-
a) Unlike civil contracts, it cannot made contingent on a future event; and
b) Unlike civil contracts, it cannot be for a limited time (muta marriage is an
exception and not a rule).
It has, thus, seen that Abdur Rahim’s definition is by far the best, as it gives
proper weihtage to both the aspects of marriage, namely, temporal and
religious

ESSENTIAL REQUISITES OF A VALID MARRIAGE

1. Declaration or offer or proposal- Ijab on the part of one
2. Acceptance or Qabul on the part of the other or if minor, guardians will
accept. Consent by the bride is essential. According to justice Abu Md. Abdullah:
“Unless it is established by clear direct and specific evidence that the woman
gave her consent to the marriage anything just short of that ,will not prove
marriage”
If marriage by guardians the bride has the option to repudiate it by the doctrine
of khiyar-al-Bulugh or option of puberty.
3. Before sufficient witnesses- two male or one male and two females. The
witness must be adult Muslim of sound mind. But only females can’t be
witnesses.
4. The words must indicate with reasonable certainty that a marriage has been
contracted. It must not be a mere promise to marry at some future date.
5. The proposal and acceptance must both be expressed at one meeting, e.g.
agents may take consent and go to the bridegroom.
6. The parties must be of sound mind- if lunatics not insane they can be married
by their guardians.
7. The parties must have attained puberty (Hedaya says girls attain puberty or
maturity or menstruation at 9 years and boys at 12 years). According to
the Majority Act, 1875 a person is major at 18 years otherwise they are to be
represented by their guardians. By the statutory legislation of theChild
Marriage Restraint Act, 1929 marriageable age was 14 for girls 16 for boys.
By the Muslim Family Laws Ordinance, 1961 marriageable age was 16 for
girls and 18 for boys and the Child Marriage Restraint (Amendment) Act,
1984 marriageable age was 18 for girls and 21 for boys.
8. Where there is marriage there is dower. It might be implied or expressed –
dower must be there.
9. It is necessary that men should be a Muslim or Kitabia-not fire/idol
worshipper.
10. There must not be any legal disability or bar to the union e.g. if they are
related within prohibited degrees they can’t marry.
11. There is no need of rituals, e.g. as Hindu Law Saptapadi and lajohoma are
essentials, but Muslim Marriage is a contract.
According to Fitzerald, Mohammadan Law (1937),
Ø A marriage feast is generally given by the bridegroom- almost as a religious
duty (now it is given by the bride’s father).
Ø The presence of one or two wakil (agents) to represent in each side and work
on the details of the contract.
Ø The Kazi is ordinarily present by invitation of the party after the Kazis Act
1880 present for registration.
Thus, the legal incidents of marriage in Islam are remarkable for their extreme
simplicity as marriage may be constituted without any ceremonies. Justice Amir
Ali said:
“In Islam marriage is a legal notion ( Amar-i-Sharayee). It is an act of piety
(Ibadat). The Nikah (contract of marriage) is Sunnat-e-Muakkada—a rule of
conduct laid down by the prophet. The observance with which is considered
monotonous and a deviation from which is regarded as a sin. It is a contract
“Uberine Fide”, requiring utmost good faith, it originated a legal relation or a
legal relation or consortium a partnership in life, securing harmony, happiness,
peace of mind, good fellowship and connubial relations between the couple. The
marriage is solemnized by Nikah.

REGISTRATION OF MARRIAGE
There is no need for registration in a Muslim marriage as it is not made
obligatory in the Quran or in the Sunnah.
On the other hand, there is no prohibitive sanction against registration of
marriage. Thus registration is not a requisite of a valid marriage but provides a
legal restriction for various kinds of protection, including prevention of paternity.
It also strengthens inheritance rights for women and children, e.g. a man can’t
deny his marriage.
As early as 1876 there was a regulation, the Muslim Marriage and Divorce
Registration Act of 1876 but registration was voluntary. In 1961 the Muslim
Family Laws Ordinance of 196, u/s 5 marriage registration compulsory and
penalties are provided for its contravention. In Bangladesh the Muslim Marriage
and Divorce (Registration) Act,1974 has superseded earlier Acts and made
compulsory u/s 5 in contravention punishment u/s 5(4) with simple
imprisonment for a term which may extend to 2 years or with fine which may
extend to 3000 taka or with both. A study (by Rangpur and Dinajpur Rural
Services and UNDP) shows 25% of rural marriage are registered.
Thus, registration is not for bureaucracy but for protection of women and
children. As security of documentary evidence is the marriage can’t be denied
by men.
The case laws in Bangladesh also affirm the view that a marriage does not
become void or irregular for want of registration. If the marriage can be proved
by other appropriate evidences, the courts recognize the marriage as valid. As
in Abdur Rakib (Md) (Shahin) vs. Shertaj Khatun And another (2008) the
Appellate Division Of the Supreme Court of Bangladesh considered an
unregistered marriage as valid, affirming the decision of the High Court division.
It was also held by Justice Abu Md. Abdullah in the case of Dr. A.L.M. Abdullah
v Rokeya Khatun,21 DLR(1969) that non-registration of marriage shows that
there was no valid solemnization of marriage.
“The solemnization of the marriage if validity effected might not be effected for
non-registration of the marriage. But the non-registration of marriage causes a
doubt on the solemnization of marriage itself”.

Women’s Capacity to marry

Before the onset of physical puberty, no one- male or female – can contract a
marriage except through the guardian. Thus, during the minorities of both boys
and girls no gender discrepancy exists. However, once they attain puberty, the
Imams differed regarding the capacity to marry. There is no difference of
opinion regarding the full legal capacity of the boys who can contract their
marriages without taking consent from guardians. Similarly, it is the unanimous
opinion of all jurists that a thayyiba adult girl (a non-virgin girl who lost her
virginity either by her earlier her earlier marriage or illicit intercourse) also can
contract her own marriage without the consent of her wali.However, the jurists
differed on the point of the contractual capacity of virgins to contract their own
marriages.
Most of the Imams agreed that virgin women, even after attaining their puberty,
do not acquire full legal capacity to marry, as they require the consent of their
guardians. Imam Abu Hanifa is the most liberal one who granted full legal
capacity to contract her own marriage without obtaining the consent of her wali.
Thus, as regards the virgin women, there are two prominent opinions that
prevail among different madhabs:
1. Women have the full legal capacity: consent of wali is not required:
It is said in the famous Hanafi book titled ‘Kanz al Daqaiq’ that an adult virgin
can contract her own marriage without the consent of her wali. This is the
position taken by Imam Abu Hanifa. Imam Abu Yusuf and Imam Muhammad. The
shias adopted the similar view.
Hafiz Abdul Waheed vs, Asma Jahangir K.L.R.1997: a Hanafi Muslim
woman aged 22 years, Saima Shah, had married a man of her own choice in
February 1996. He was a college lecturer and Saima’s father, a rich and
powerful businessman, did not consider him an appropriate choice. It appears
that, using his considerable influence, he filed a suit to secure his daughter’s
custody and a petition under Pakistan’s notorious Zina Ordinance,1979to
harass his unwanted son-in-law. A three-member bench of the High Court of
Lahore ultimately held, in a majority judgment delivered on March 10,1997, that
marriage without the consent of a guardian is not invalid and that the father’s
case was not maintainable.
2. Women do not have the full legal capacity: consent of wali is
required
According to the majority of schools, Shafi, Maliki and Hambali, consent of wali is
an essential element for the validity of a marriage. Thus, an adult virgin cannot
contract her own marriage and she requires the consent of her guardian for the
validity of her marriage. They cited a Hadith that says-‘The non-virgin woman is
worthier to organize her affairs than her guardian. As for the virgins, she must
be asked for permission’.
Present position of Shafi, Maliki and Hanbali Scholars: Modern reforms
regarding the requirement of consent of wali:
v In kuwait, a woman cannot marry without the presence and consent of her
wali. However, kowaiti law recognized a significant right of women: ‘in cases in
which the father of a Kuwaiti woman has refused her choice of husband, the
Sunni Family Law grants a woman the right to appeal the decision of her wali in
family court.
If a Kuwaiti woman marries outside Kuwait the head of the bride’s family can ask
the court to annul such a marriage constituted outside Kuwait.
v In U.A.E ‘a woman may go to a court of law as early as at age 15, the legal
age for marriage, to defend her right to marry a Muslim citizen of her choice if
her male guardian forbids her marriage.
v According to the present Moroccan Family Code,2004 ‘Men and women
acquire the capacity to marry when they are of sound mind and have completed
eighteen full Gregorian years of age.”(Article-19).
In Malaysia, article 7 of the Islamic Family Law maintains the requirement of
the guardian’s consent in order for the marriage to be valid. HowevWomen’s
Capacity to marry
Before the onset of physical puberty, no one- male or female – can contract a
marriage except through the guardian. Thus, during the minorities of both boys
and girls no gender discrepancy exists. However, once they attain puberty, the
Imams differed regarding the capacity to marry. There is no difference of
opinion regarding the full legal capacity of the boys who can contract their
marriages without taking consent from guardians. Similarly, it is the unanimous
opinion of all jurists that a thayyiba adult girl (a non-virgin girl who lost her
virginity either by her earlier her earlier marriage or illicit intercourse) also can
contract her own marriage without the consent of her wali.However, the jurists
differed on the point of the contractual capacity of virgins to contract their own
marriages.
Most of the Imams agreed that virgin women, even after attaining their puberty,
do not acquire full legal capacity to marry, as they require the consent of their
guardians. Imam Abu Hanifa is the most liberal one who granted full legal
capacity to contract her own marriage without obtaining the consent of her wali.
Thus, as regards the virgin women, there are two prominent opinions that
prevail among different madhabs:
3. Women have the full legal capacity: consent of wali is not required:
It is said in the famous Hanafi book titled ‘Kanz al Daqaiq’ that an adult virgin
can contract her own marriage without the consent of her wali. This is the
position taken by Imam Abu Hanifa. Imam Abu Yusuf and Imam Muhammad. The
shias adopted the similar view.
Hafiz Abdul Waheed vs, Asma Jahangir K.L.R.1997: a Hanafi Muslim
woman aged 22 years, Saima Shah, had married a man of her own choice in
February 1996. He was a college lecturer and Saima’s father, a rich and
powerful businessman, did not consider him an appropriate choice. It appears
that, using his considerable influence, he filed a suit to secure his daughter’s
custody and a petition under Pakistan’s notorious Zina Ordinance,1979to
harass his unwanted son-in-law. A three-member bench of the High Court of
Lahore ultimately held, in a majority judgment delivered on March 10,1997, that
marriage without the consent of a guardian is not invalid and that the father’s
case was not maintainable.
4. Women do not have the full legal capacity: consent of wali is
required
According to the majority of schools, Shafi, Maliki and Hambali, consent of wali is
an essential element for the validity of a marriage. Thus, an adult virgin cannot
contract her own marriage and she requires the consent of her guardian for the
validity of her marriage. They cited a Hadith that says-‘The non-virgin woman is
worthier to organize her affairs than her guardian. As for the virgins, she must
be asked for permission’.
Present position of Shafi, Maliki and Hanbali Scholars: Modern reforms
regarding the requirement of consent of wali:
v In kuwait, a woman cannot marry without the presence and consent of her
wali. However, kowaiti law recognized a significant right of women: ‘in cases in
which the father of a Kuwaiti woman has refused her choice of husband, the
Sunni Family Law grants a woman the right to appeal the decision of her wali in
family court.
If a Kuwaiti woman marries outside Kuwait the head of the bride’s family can ask
the court to annul such a marriage constituted outside Kuwait.
v In U.A.E ‘a woman may go to a court of law as early as at age 15, the legal
age for marriage, to defend her right to marry a Muslim citizen of her choice if
her male guardian forbids her marriage.
v According to the present Moroccan Family Code,2004 ‘Men and women
acquire the capacity to marry when they are of sound mind and have completed
eighteen full Gregorian years of age.”(Article-19).
v In Malaysia, article 7 of the Islamic Family Law maintains the requirement of
the guardian’s consent in order for the marriage to be valid. However, it allows
for the possibility to replace the guardian’s consent by authorization of a judge
where the wali refuses his consent without sufficient reason.
Bride’s Consent
Generally speaking, a marriage is of contractual nature and so it is essential that
both parties to the agreement must give their consent to the marriage. Thus,
the consent of the both bride and bridegroom is essential to constitute a
marriage. However, interestingly, there is an opinion according to which a
guardian may contract a marriage without asking for consent of the bride.
* Consent of non-virgin bride: It is unanimous opinion of all jurists that
the consent and permission of an adult non-virgin are required to constitute a
valid marriage. Any marriage contracted by the guardian of a non-virgin bride
without her consent or permission is void.
* Consent of virgin bride: To Imam Abu Hanifa, permission and consent of an
adult virgin is essential to constitute a marriage. But, to all other three Schools,
a father can marry off her daughter without asking for her permission.
It is submitted that there are a number of Hadith in support of Imam Abu
Hanifa’s opinion. The prophet said that ‘as for the virgin, her father must ask her
permission. In another Hadith, Abdullah Ibn Buraydah relates on the authority of
his father that, “Once there was a girl who came to the messenger of Allah
complaining. She said, ‘my father has married me off to his nephew to elevate
himself’. There upon the Prophet gave her the choice (to cancel it or not). She
said, I accept what my father has done. But I wanted that women should know
that fathers cannot compel them into marriage”.
Thus it appears that a guardian does not have any compulsive authority to
contract a marriage for their children going against their consent.

OPTION OF PUBERTY
If a Muslim minor has been married during minority by guardian, the minor has
the right, on attaining majority, to repudiate such marriage. The right of a minor
boy or girl, on attaining puberty, of repudiating their marriage contracted by
their guardians including their father and grandfather during their minority, is
called ‘Option of Puberty/ Khiyar-al-Bulugh’.
In case a girl is aware of the marriage she must exercise this right to the option
immediately on attaining puberty. Any unreasonable delay would deprive her
right of option. But she does know that she has this right, it is prolonged until
she is acquainted with the fact that she has such a right. In Fatwa-e-Alamgiri, it
is laid down :
“When a woman attains puberty and enquires the name of her husband or the
amount of the specified dower, or salutes the witness, the option of puberty is
extinguished”.
In classical Muslim Law a minor girl contracted in marriage by father or
grandfather could not repudiate her marriage. This restriction has been removed
by the Dissolution of Muslim Marriage Act ,1939 and the Muslim Family
Law Ordinance,1961.
Exercise of the right by female:
In the case of a girl married during minority, she is entitled to a dissolution of
her marriage if she proves the followings:
1. That she was given in marriage by her father or other guardian;
2. That the marriage took place before she attained the age of 18 years [before
15 years (1939), 16 years (Muslim Family Laws Ordinance,1961) 18 years –
Amendment in 1986],
3. That she repudiated the marriage before she attained the age of 19 years
(before 18 years).
4. That the marriage has not been consummated.
Under section 2( of the Dissolution of Muslim Marriage
Act,1939 (amended in 1986) that she, having been given in marriage by her
father or other guardian before she attained the age of 18 years repudiated the
marriage before attaining the age of 19 years. Provided that, the marriage has
not been consummated.
The option of puberty can be exercised through a substantive suit filed by the
wife and not in a husband’s suit for restitution of conjugal rights. The marriage
subsists until the repudiation is confirmed by the court.
The option is lost if she after having attained puberty permits the marriage to be
consummated. But mere consummation is not enough; it must be with wife’s
with consent with knowledge of her right.
Exercise of the right by male:
A male has the same right of option of puberty. But in his case there is no
statutory period of time within which he must exercise his right. The option can
be exercised on his attaining majority. The option can be ratified on attaining
puberty by:
i. Express declaration,
ii. Payment of dower, or
iii. Cohabitation.
It’s Effect:
The mere exercise of the option to repudiate does not severe the marital tie.
Under Dissolution of Muslim Marriage Act the repudiation by option of
puberty must be confirmed by the court. Until the time, the marriage subsists. If
any party dies before confirmation of the option of puberty by a court of law the
other party has the right of inheritance. If an option of repudiation is made
successfully, the marriage ceases to be a marriage, and consequently it is
treated as having never taken place.

FORMS OF MARRIAGE
There are three types of marriage:
1. Valid marriage (Sahih marriage)
2. Irregular marriage (Fasid marriage)
3. Void marriage (Batil marriage)
1. Valid marriage: A marriage which confirms in all respects with the law. It is
termed as Sahih or correct or true in regard to legal requirements and there is
no prohibition either perpetual or temporary affecting the parties. It is lawful and
completely valid contract.
Legal Effects of a valid marriage:
The legal effects of valid marriage have been elucidated by Justice Mahmood in
the leading case of Abdul Kadir v Salima (1886):
“The legal effects of marriage are that it legalizes the enjoyment of husband
and wife each other in manner which in this matter is permitted by the law.”
The legal effects of a valid marriage are:
a. Sexual intercourse becomes lawful and the children born of the union are
legitimate.
b. Wife becomes entitled to dower or ‘Mahr’.
c. Wife becomes entitled maintenance or ‘Nafaqa’.
d. The wife is not entitled to remarry by dissolution of marriage either by divorce
or by death without observing Iddat.
e. A woman does not change her status by marriage; moreover, change of name
is also not Islamic.
f. Mutual rights of inheritance.
g. The husband is entitled to restrain the wife’s movement in a reasonable
manner and exercise marital authority.
2. Fasid /Irregular Marriage: An irregular marriage is one which is not
unlawful in itself, it is unlawful for “some other things”. As where the prohibition
is temporary or relative or prohibition springs from an accidental causes or
circumstances and can be made valid e.g. absence of witnesses.
It is argued that the middle category, fasid marriage, was created for, among
others, protecting people from the rigorous punishments of ‘zina’. The Hanafis
created the ‘irregular’ or ‘fasid’ category of marriage while his two disciples, Abu
Yusuf and Muhammad, have not recognized as an independent category of
marriage. The views of Imam Shafi, Malik and Hanbal also are different from that
of Imam Abu Hanifa. However, this classification although was done by Hanafi, it
has been subsequently popularized as a Sunni classification. The Ithna
Ashari and Fatimid schools of law do not distinguish between void and irregular
marriages.
Test to determine an irregular marriage
Although there is no single total test to determine which marriage is irregular,
the South Asian literature on this point provided two popular tests:
v First test: perpetual or temporary nature of the prohibition
A marriage constituted in violation of any impediment of perpetual nature
(which arises due to consanguinity, affinity or fosterage) is void. Whereas a
marriage constituted in violation of any impediment of temporary nature is a
fasid marriage. As: a marriage with a woman who is undergoing iddat. This test
was supported by Syed Ameer Ali, Tyabji and Abdur Rahim.
v Second Test: Certainty test
If a marriage is certainly ‘prohibited’ then that is void. On the other hand, if
there is any uncertainty about the validity of marriage, then that marriage will
be considered to be an irregular marriage. This test was introduced by Karamat
Hossain J in Ata Mohd. Vs. Saiqul Bibi (1910).
VERMA, AN Indian author of Islamic law, classified irregular marriage into two
categories:
1. Irregular marriages convertible into valid marriages: a marriage
becomes irregular for certain defect. The first category of fasid marriage
consists of the irregular marriages which are convertible into a valid marriage
after removal of the defects. As: marriage without witness. To him, such
marriage can be validated after consummation of the marriage, which removes
the defect.
2. Irregular marriages not convertible into valid marriages: it consists of
those defective marriages which are not curable merely by removing such
defects rather the parties need to be separated and they have to contract
another fresh marriage. As:
ü Where a person has got four wives and marries a fifth one while one of the
other four wives is undergoing her iddat for divorce.
ü Where a person marries a relation who is prohibited on the ground of unlawful
conjunction.
ü Where a person marries a woman who is undergoing iddat for death or divorce
for another husband. Etc.
But, his classification has been questioned by many on the ground of generally
accepted principle of validating an irregular marriage i.e. no irregular marriage
can be converted into a valid marriage except the parties are separated and
they contract a fresh marriage.
So, it is safer to analyze irregular marriages case by case.
The following marriages are considered irregular:
a) A marriage without witness.
Most of the authorities are preponderantly of the view that such marriages are
irregular. Menski and David Pearl mention that a man and woman who contract
a marriage without witnesses are under a duty, as in all fasid marriages, to
separate and conduct a fresh marriage. However, some authors, like Verma,
said it can be validated by only removing the defect by consummation basing on
some case laws. But such opinion of validating of a fasid marriage does not
seem to be inconformity with the accepted sharia position.
b) A marriage with women undergoing iddat (waiting period to remarry for
divorce – 3 months, for death-4 months 10 days).
c) A marriage with 5th wife by a person having 4 wives and contracts
marriage with a fifth one. Even if the fifth wife is taken during the iddat period of
one of his earlier four wives, the fifth marriage will be irregular. If one of the four
wives were to die or to be divorced the illegal union would be capable of simple
regularization.
d) A marriage prohibited by reason of difference of religion (if the women
changes into a Kitabia as Christian or Jew- but if into a fire worshipper/ idolater,
the marriage is invalid).
e) A marriage by unlawful conjunction: A man may not have at the same
time two wives who are so related to each other by consanguinity, affinity or
fosterage e.g. two sisters or aunt or niece. Likewise, one cannot marry the aunt
of his wife during the subsistence of his marriage with the wife.
In prohibiting such a marriage the Holy Quran in Sura IV, Verse 23 says: ‘And
two sisters in wedlock at one and the same time, except for what is past; for
Allah is oft-giving’.
The majority opinion is that a marriage constituted in violation of the prohibition
against unlawful conjunction is fasid. However, there are some jurists who think
such a marriage is void.
Logically, the marriage is constituted violating a temporary prohibition i.e. it is
not like that he cannot marry the second woman, but he cannot combine them,
and as such it is reasonable to term it as fasid one. It is the opinion of Fatwa-i-
Alamgiri.
However, Hedaya differed to which it is a void marriage. Supporting it, Fyzee
also termed such marriage as void one because, the Quran explicitly prohibited
such marriage.
However, if a man marries the sister of his wife during the iddat period of the
wife (whom he divorced) then the marriage is with the wife’s sister will
unanimously be irregular.
Legal Effects of Irregular Marriage:
i. As to Dissolution:
Neither divorce nor intervention of a court is needed. One of them may say: “I
have relinquished you” and the unholy alliance ends.
ii. As to Consummation:
a) The wife is entitled to dower Unspecified or specified whichever is less.
b) She is to obey iddat-but both on death and divorce it is three menstruation
courses.
c) She is entitled to maintenance during Iddat.
iii. As to Inheritance: No mutual rights of inheritance between husband and
wife.
iv. As to Issue: The issues are treated legitimate and are entitled to a share of
inheritance.
METHOD OF VALIDATING AN IRREGULAR MARRIAGE
It is an erroneous belief that an irregular marriage becomes regular by removal
of the defect. An irregular marriage cannot continue by removing its defect;
rather, on discovery of an irregular marriage, the parties to it will be separated
and the marriage will come to an end. They can the remarry each other. That
will be a new marriage for them not the continuation of the earlier irregular one.
Thus, there are three steps:
1. Separation of the parties.
2. Iddat by the wife if the union was consummated.
3. Fresh marriage
However, there is one exceptional case, according to Imam Abu Malik, in case of
absence of witnesses. Because, he did not consider the actual presence of the
witnesses in the marriage ceremony, rather due publicity of the marriage will be
sufficient to make the marriage valid.

3.Void marriage: Void marriage is a marriage which is unlawful in itself. The

prohibitions of such a marriage are absolute and perpetual/ permanent. A
marriage with a woman prohibited by consanguinity, affinity, and fosterage are
void marriage. Connections which are unlawful in themselves are null and
void ab-initio. From the commencement of the union- marriage is considered as
totally non-existing- in fact and reality. According to some books offiqh , the
word void has been used for the following Dr. Tanzilur Rahman:
· Marriage with woman within prohibited degree.
· Marriage of an infidel (non-Muslim) with a Muslim woman.
· Marriage with a woman knowing to be the wife of another.
· Marriage contracted by putting the man under duress.
Legal effects of a Void Marriage:
a. The issues are illegitimate.
b. No marriage at all.
c. It creates no civil rights and liabilities between the parties.
Under the Ithna Ashari law there is only valid and void marriages. Thus the
irregular marriages under hanafi law are void under the Ithna Ashari law. The
Shia Law specifically Ithna Ashari law does not recognize the difference between
irregular and void marriages.
PROHIBITION OR RESTRICTION OF MARRIAGE
There are seven main restrictions for a Muslim to enter into a contract of
marriage:
v Absolute Prohibitions: Consanguinity, Affinity and Fosterage: (Sura Nisa:
Ayats- 23- 25)m
Ø Consanguinity (Qurabat): A man is prohibited from marrying:
a) His mother or grandmother how high so ever (hhs);
b) His daughter or granddaughter how low so ever;
c) His sister whether full or consanguine or uterine;
d) His niece or great-niece how low so ever;
e) His aunt or great aunt how high so ever.
The marriage is totally void and the children are illegitimate.
Ø Relations – Affinity(Mushaart): A man is prohibited to marry certain
relations by affinity:
a) Ascendants or descendants of his wife.
b) The wife of any ascendant or descendants.
Ø Fosterage(Riza): A man can’t marry his foster mother or sister.
Md. Mujibur Rahman in his book has said there are certain exceptions in
fosterage e.g.:
a) Foster sister’s mother
b) Sister’s foster mother
c) Foster Son’s mother
d) Foster Brother’s Sister
e) Foster brother’s aunt.
v NUMBER:
Islamic law is that a Muslim man can marry four wives but if more than four
wives, it is irregular. Muslim women can marry one husband at a time only.
v RELIGION:
Ø Difference of Schools: Muslims belonging to different schools may
intermarry freely with one another, and a mere difference of school of law, such
as Shiite or Sunni, Hanafi or Shafi’i, is entirely immaterial. Each spouse retains
his or her own status on marriage, and no rule of law compels the wife to adopt
the husband’s school: there is thus no mergence as in the law of domicile.
Ø Difference of Religion:
A Muslim male can marry Muslim female of any sect or a Kitabiya believing in
revealed scriptures e.g. Jews or Christians. But if he marries an idolatress or fire
worshippers then his marriage is irregular and the issues are legitimate (Ameer
Ali). But Muslim women can’t marry anyone except a Muslim. According
to Fyzee, the present position appears to be that the Nikah of a Muslim man
with an idolater or fire worshipper is irregular marriage but not void. But
according to Mulla, marriage of a Muslim woman with a non-muslim is only
irregular not void (Ameer Ali). This is incorrect statement of the law as marriage
of a Muslim woman with a non-Muslim is decided by the Holy Quran(2:221) to be
batil or void and not merely irregular. And so in Raddul Muhtar and Darr-al-
Mukhtar, such marriage is absolutely void and if cohabitation, it is zina.
Hodkinson concluded that Ameer Alis’s view has been rejected by the majority
of jurists and the majority view has until now been accepted by the courts.
The recent family code adopted by in Morocco in 2004 also declared such a
marriage as completely void, not merely irregular or defective.
In Bangladesh under the Special Marriage Act, 1872, a civil marriage is allowed.
It provides for a marriage between two persons regardless of religion; provided
that—
a) Neither party is an idiot or lunatic
b) Neither party has a spouse living
c) Male 21 years and female 18 years
d) Parties not within prohibited degrees of relationship
e) Marriage may be solemnized outside Bangladesh but both parties are citizens
of Bangladesh and domiciled in Bangladesh. The succession of the parties in a
civil marriage is administered under section 15 to 18 of the Succession Act 1925

POLYGAMY
Polygamy in Islamic law is a qualified right by which a Muslim man is permitted
to marry up to four wives. Recently there has been a lively debate about
whether the right was allowed as a general rule or as an exception for natural
calamities.
In Sura-al-Nisa, it is ordained that the husband has the option to have four
wives at a time, provided the husbands possess the capacity of dealing them
justly among the wives in all respects. However, the problem of Adl (equality
between wives has been categorized as technical) adl only.
Islamic law permits restricted polygamy with a view to meet natural
eventualities/ calamities. Recently there have been two trends: one is modernist
view allowing it as an exception to general rule and the traditional view taking it
as a general rule. This qualified right is being abused in society putting many
women in great trouble.
The Muslim Family Laws Ordinance, 1961 was promulgated by the
President of Pakistan, Field Marshal Ayub Khan in 2nd March,1961 to meet the
demands of women in Pakistan and to give effect to the report of
the Commission of Marriage and Family Laws of 20th June 1956. The dissenting
note was also given by one of the members of the Commission Maulana
Ehteshamul Huq on 30th July 1956. On this pressure from the modernist and the
traditionalist trend of reform the Muslim Family Laws Ordinance came into
being.
In the Pakistani period by the promulgation of the Muslim Family Laws
Ordinance,1961, the right of Polygamy has been curtailed by providing some
form of administrative assent before a subsequent or second marriage.
The Commission of Marriage and Family Laws,1956was of the opinion that
a man intending second marriage should seek permission of the court
explaining the special circumstances leading to the necessity of such marriage
(as given in Muslim Family Laws Rules, Sec. 14):
“That the 1st wife is insane or is suffering from some incurable diseases or that
there are other exceptional circumstances which makes his second marriage an
inescapable necessity and he is not taking a second wife merely because he
wishes to marry a prettier or a younger woman than his first wife.”
By section 6 of the Muslim Family Laws Ordinance 1961 the right of polygamy
has been curtailed, it states:
1.No man, during the subsistence of an existing marriage, shall, except with the
previous permission in writing of the Arbitration Council, contract another
marriage, nor shall any such marriage contracted without such permission be
registered under the Muslim Marriages and Divorces (Registration) Act, 1974.
Application to the Chairman: the application must contain the following two
things: first, the reason for such marriage, and
Second: whether the existing wife/wives has/have given consent to the
polygamous marriage.
As in section 6(2) says: “An application for permission under sub-section (1)
shall be submitted to the Chairman in the prescribed manner, together with the
prescribed fee, and shall state the reasons for the proposed marriage, and
whether the consent of the existing wife or wives has been obtained thereto.”
Rule 15 of the MFLR, 1961 says:
An application under sub-section (1) of section 6 for permission to contract
another marriage during the subsistence of an existing marriage shall be
Ø in writing,
Ø shall state whether the consent of the existing wife or wives has been
obtained thereto,
Ø shall contain a brief statement of the grounds on which the new marriage is
alleged to be just and necessary,
Ø shall bear the signature of the applicant, and
Ø shall be accompanied by a fee of twenty five Taka.
Grounds for granting permission:
The law has given the Arbitration Council the power to give permission for
polygamous marriage. In section 6(3) the law says: On receipt of the application
under sub-section (2), the Chairman shall ask the applicant and his existing wife
or wives each to nominate a representative, and the Arbitration Council so
constituted may, if satisfied that the proposed marriage is necessary and just,
grant, subject to such conditions, if any, as may be deemed fit, the permission
applied for.
However, what should be the basis for taking a decision which marriage is just
and necessary and which one is not?
Rule 14 of the MFLR,1961 has provided a guideline for taking such decision:
“ In considering whether another proposed marriage is just and necessary
during the continuance of an existing marriage the arbitration Council may,
without prejudice to its general powers to consider what is just and necessary ,
have regard to such circumstances, as the following amongst others:
Ø sterility
Ø physical infirmity
Ø physical unfitness for the conjugal relations
Ø willful avoidance of a decree for restitution of conjugal rights
Ø insanity on the part of an existing wife”.
In the case of Abul Basher v. Nurun Nabi, the High Court Division held:
“It seems that the legislative intent of section 6 of Muslim Family Laws
Ordinance 1961 is to restrict the practice of polygamy and to permit it only in
cases where it appears reasonable to the Arbitration Council”.
Procedure and Remedy against such decision: Section 6(4)
In deciding the application the Arbitration Council shall record its reasons for
the decision, and any party may, in the prescribed manner, within the
prescribed period, and on payment of the prescribed fee, prefer an application
for revision to the Assistant Judge concerned and his decision shall be
final and shall not be called in question in any Court.

Legal consequence of contracting a polygamous marriage without such

permission: Section 6(5)
If the Arbitration Council does not give consent and a man marries for a second
or subsequent time, he is liable to be prosecuted and punished but the marriage
is valid.
Any man who contracts another marriage without the permission of the
Arbitration Council shall-

(a) pay immediately the entire amount of the dower, whether prompt or
deferred, due to the existing wife or wives, which amount, if not so paid, shall be
recoverable as arrears of land revenue; and
(b) on conviction upon complaint be punishable with simple imprisonment which
may extend to one year, or with fine which may extend to ten thousand taka,
or with both.
c)the wife can also dissolve the marriage u/s 2(a) of the Dissolution of
Muslim Marriage Act,1939 (Amended by Muslim Family Laws Ordinance), If
the husband has taken an additional wife without permission.