MARRIAGE UNDER THE MUSLIM LAW
1. Nature: Under the Muslim law, marriage is a contract for the procreation and legalizing of children.
2. Eligibility: Every Mahomedan who has sound mind and who has attained puberty can enter into a contract of marriage. Lunatics and minors who have not attained puberty may be contracted in marriage by their guardian. Puberty is presumed at the age of 15 years.
3. Procedure for a marriage: There should be a proposal made by one or behalf of one of the parties and an acceptance by or behalf of the other party to the marriage. The proposal and acceptance shall be in the presence and hearing of two male or one male and two female adult Mohammedans as witnesses. The proposal and acceptance must be expressed at one meeting. Any writing or religious ceremony is not essential for a Muslim marriage.
4. Presumption of marriage: Under the following circumstances, a marriage is presumed, in the absence of direct evidence.
a. Prolonged and continual co-habitation as husband and wife.
b. Acknowledgement by man of the paternity of the child born to the woman.
c. Acknowledgement by man of the woman as his wife.
5. Irregular marriage: An irregular marriage is not unlawful, in itself, but unlawful for something else. The prohibition may be temporary or relative or the irregularity may arise from accidental circumstances. An irregular marriage has no legal effect before consummation. The children of an irregular marriage are legitimate. It may be terminated by either party before or after consummation. The following marriages are irregular marriages:
a. A marriage without witnesses.
b. If a Mahommedan marries a fifth wife when he already has four wives.
c. A marriage with a woman before completion of her iddat.
d. Marriage of a Mahomedan male with an idolatress or fire worshipper.
e. Marriage of a Mahommedan woman with a Jewish, Christian, an idolator or a fire worshipper.
e. Marriages where there is unlawful conjunction.
6. Void marriages: A void marriage is an unlawful marriage. There is absolute prohibition against such a marriage. It is no marriage at all and does not create any civil rights or obligations between the parties. The children of a void marriage are illegitimate. The following marriages are void:
a. The marriage of Mahommedan who has attained puberty and is of sound mind, but without his consent.
b. A marriage with a woman who has her husband alive or who has not been divorced by him.
c. Marriage of a Mahommedan with his mother, grandmother, daughter, grand daughter, his sister, niece or great niece (consanguinity reasons)
d. Marriage of a Mahommedan with his wife’s mother or grand mother, wife’s daughter or grand daughter, wife of his father or paternal grandfather, wife of his son, son’s son or daughter’s son(affinity reasons)
e. A marriage prohibited by fosterage.
7. Iddat: Iddat is the period during which a woman who is divorced or whose husband is dead is prohibited from remarrying. The prohibition is imposed to ascertain whether she is pregnant by her husband to avoid the confusion of parentage.
8. Inter religious marriages:
a. A Mahomedan male may marry a Jewish or Christian woman but not an idolatress or fire worshipper.
b. A Mahommedan woman cannot marry a Jewish, Christian, an idolator or a fire worshipper.
9. Sunni Shia marriages: A Sunni can marry a Shia.
10. Muta Marriage: a. Muta marriages are temporary marriages practised among Shias.
b. A Shia male may contract a muta marriage with a woman professing Mahomedan, Christian, Jewish or a fire worshipper.
c. A Shia woman cannot contract muta marriage with a non Muslim.
d. Conditions for the muta marriage: The period of co habitation and the amount of dower shall be fixed.
e. A muta marriage does not create mutual rights of inheritance between the man and woman, but the children are legitimate and can inherit from both the parents. A muta marriage is dissolved on the expiry of the term. A husband can put an end to the contract of marriage even before the expiration of the period.
11. Marriage of minors:
a. Minors (who have not attained puberty) are not competent to enter into a contract of marriage. They may be contracted in marriage by their guardian.
b. The right to contract a minor in a marriage lies successively to father, paternal grandfather, brother and other male relations on the father’s side. Thereafter the right lies on mother, maternal uncle or aunt and other maternal relations.
c. A minor girl can dissolve her marriage, on attaining puberty, under the provisions of the Dissolution of Muslim Marriages Act, 1939. Any repudiation must be confirmed by the court.
In Javed-vs- State ofr Haryana, AIR 2003 SC 3057, Supreme Court has held that Polygamy can be regulated or prohibited by legislation in the interests of public order, morality and health or by any law providing for social reform or welfare.
For example, Rule 28 of the Karnataka Civil Service Conduct rules, 1966 prohibits the second marriage for a government servant, who has a wife living, without the permission of government, even though the second marriage is permitted under his personal law. Similarly no female government servant shall marry any person, who has a wife living, without the permission of the government.