THE LAWWAY WITH LAWYERS JOURNAL
VOLUME:-19 ISSUE NO:- 19 , JANUARY 28, 2025
ISSN (ONLINE):- 2584-1106
Website: www.the lawway with lawyers.com
Email: thelawwaywithelawyers@gmail.com
AUTHORED BY :- NANDANI KUMARI
EXPLORING THE NATURE AND DIVERSE FORM OF MAERRIAGE UNDER MUSLIM LAW: A COMPREHANCIVE ANANLYSIS
ABSTRACT
In Islam, marriage is viewed as a sacred bond established by Allah, playing a pivotal role in shaping family and social dynamics. This paper offers a detailed analysis of the regulations governing marriage within Islam, drawing on primary Islamic texts, including the Quran, Hadith, and scholarly interpretations. Key topics discussed include the marriage contract (Nikah), the essential requirement of mutual consent, considerations of compatibility between spouses, the role of the dowry (Mahr), the rights and obligations of both partners, the concepts of monogamy and polygamy, the procedures and conditions for divorce, the importance of family support, and the promotion of mutual respect and kindness in marriage.
The aim of this research is to provide a comprehensive understanding of Islamic marriage, illustrating how adherence to these principles helps build strong, harmonious, and fulfilling relationships rooted in faith and respect. The study also emphasizes the importance of seeking divine guidance (Istikhara) when considering marriage, as well as the values of fairness, compassion, and mutual understanding. Ultimately, this paper seeks to enhance the understanding of Islamic marriage and its ongoing significance in modern society, underlining its role in promoting emotional, social, and spiritual well-being.
Keywords:
Marriage in Islam, Nikah, Mahr (Dowry), Consent, Compatibility, Rights and Responsibilities, Monogamy, Polygamy, Divorce in Islam, Family Support, Mutual Respect, Seeking Guidance, Quran, Hadith, Islamic Marital Laws.
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1.1 INTRODUCTION
Under Muslim law Islamic marriage is an institution sanctioned by religious and legal principles, facilitating the union between a man and a woman for purposes including procreation, mutual support, and the formation of families, which are integral to societal structure. Contrary to Hindu beliefs, Islam views marriage not merely as a civil contract but as a sacred sacrament, with many scholars considering it a religious duty. In Islam, marriage is perceived as a pathway to fulfilling the desire for lawful progeny.
Islamic jurisprudence draws from a variety of sources, both codified and non-codified, such as the Quran, Ijma (consensus), Qiyas (analogical reasoning), customs, urf (local customs), precedents, and principles of equity. Among the Sunni sects, including Hanafi, Hanbali, Maliki, and Shafi’i, there exists recognition of each other’s legitimacy, fostering centuries-long legal discourse and interaction.
In India, the Hanafi school of Islamic law holds prominence, influencing legal interpretations and practices regarding marriage and other aspects of Islamic jurisprudence.
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1.2. RESEARCH OBJECTIVE
To comprehensively analyses the nature and different forms of marriage according to Islamic law, focusing on understanding its legal, cultural and social dimensions. The purpose of the study is specifically:
- To study the basic principles governing marriage in Islamic law, to study its religious meaning and legal framework.
- Investigate the differences in marriage practices in different Muslim communities and regions, taking into account cultural traditions, customs and historical influences. 3. Assess the role of gender dynamics and the rights and responsibilities of spouses in Islamic marriages, including aspects of equality, consent and family responsibilities 4. Assess the impact of modernization, globalization and socio-economic factors on contemporary Muslim marriage practices by analyzing changes in attitudes, norms and legal reforms.
- Explore the challenges and debates surrounding issues such as polygamy, divorce and dissolution of marriage in the context of Islamic law and contemporary societies. 6. Identify the intersections between Islamic marital law and civil legal systems in multicultural societies by examining the convergence and divergence of legal frameworks and practices.
- Consult Islamic scholars, legal experts and religious authorities on the interpretation and application of marriage laws and their impact on individual rights and freedoms. 8. Make recommendations to address emerging issues and promote the harmonious coexistence of Islamic marriage practices and the broader legal framework in diverse cultural contexts.
To achieve these goals, the study aims to provide a comprehensive understanding of the complexities and nuances of Islamic marriage. modern law to advance its Islamic scholarly debate, legal reform and social dialogue on an important aspect of jurisprudence and social life.
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1.3. RESEARCH QUESTIONS.
- What are the most important principles and legal framework governing marriage in Islamic law and how do they differ from different schools of Islam? 2. How do cultural traditions, customs and historical influences shape different forms of marriage in Muslim communities around the world?
- What are the roles and rights of spouses in Islamic marriages and how do gender dynamics affect these roles in different cultural and legal contexts?
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1.4. RESEARCH METHOLOGY
In conducting a comprehensive analysis of the nature and various forms of marriage in Islamic law, a multifaceted research methodology is used. A comprehensive literature review is conducted to examine scholarly articles, legal texts, and historical sources to understand the basic principles and development of Islamic marriage practice. This provides a solid theoretical framework for the study.
In addition, case studies from different regions and communities are analyses to explore the nuances of Islamic wedding practices and traditions. Surveys and interviews are used to gather empirical data and insights from individuals in Muslim communities that include diverse perspectives on marital dynamics, preferences, and experiences. Legal analysis involves reviewing relevant legal documents, cases and statutes to understand the legal framework governing marriage under Islamic law.
Comparative analysis is used to contextualize Islamic marriage practices within broader social and cultural norms. Ethnographic research methods involve immersing oneself in specific Muslim communities, observing wedding ceremonies, and interacting with community members to gain first-hand knowledge of their wedding customs and rituals. Finally, a quantitative analysis of the survey data is conducted to identify trends and patterns related to marriage preferences and attitudes in Muslim communities.
Ethical considerations are paramount during the research process, including obtaining informed consent from participants, ensuring confidentiality and respecting cultural sensitivities and religious beliefs. This comprehensive research methodology aims to provide a nuanced understanding of the complexities of marriage in Islamic law, taking into account its cultural, legal and social dimensions.
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2.MARRIAGE DEFINED
The nature of Muslim marriage has been subject to dispute, with various definitions offering different perspectives. While some regard it as a legal process facilitating procreation and legitimizing children, others see it as a union to protect society from moral decay. Some scholars perceive it as a combination of devotional acts and social dealings.
Mahmood J. asserts that it is a civil contract under Muslim law, as affirmed by the Muslim Women (Protection of Rights on Divorce) Act, 1986.
However, the question remains whether it is solely a civil contract or also an act of devotion and social interaction.
Despite meeting the criteria of a contract, marriage transcends mere legalities, forming a deep emotional bond between individuals.
Scholars like J. Sarah Sulaiman argue that in Islam, marriage is not just a civil contract but also a sacrament. This distinction is evident in several aspects: it cannot be based on future events like contingent contracts, and it is not limited by a fixed duration, except in the case of Muta Marriage.
- NATURES OF MARRIAGES UNDER MUSLIM LAW.
This marriage is concluded according to the principles of Islamic law. It is also not limited to one man and one woman if he can fulfil the requirements and conditions set by Islamic law. A valid Islamic marriage requires the following conditions to be fulfilled: there must be a clear proposal and acceptance, witnesses, a bride price and a guardian. It is emphasized that Islamic law and customary marriages are in no way inferior to legal marriages.
In this regard, the Supreme Court case Jade Simi v. Okotie Eboh who ruled that “the status of marriage under Islamic law or common law is well recognized in that country and such marriages should not be accorded a lesser status than marriage under the Marriage Act.”1.
1(1996) 2NWLR (Pt 429) 128, at 142
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- Essentials of Marriage under Muslim Law The basic principles of a valid marriage are: –
(i) One of the parties to the marriage, or on his behalf, should propose and the other party, or on his behalf, should accept the proposal.
(ii) The offer and acceptance must be made in the same meeting.
(iii) The parties must be qualified.
(iv) There must be two male or one male and two female witnesses who at the time of the Offer and Acceptance must be a Mahomedan of sound mind and of full age. (Not required in Shia law)
(v) No writing or religious ceremony required.
5.Classification of Marriage
- Valid (sahih) If all the requirements of the law are met and there are no prohibitions for the parties, the marriage is valid or “sahih”. Bans can be permanent or temporary, in the case of permanent bans the marriage is annulled and if the bans are temporary, the marriage is illegal.
Consequences of a valid marriage o Cohabitation between a man and a woman becomes legal. o Children born of a valid marriage are legal and have the right to inherit the property of their parents.
o Mutual rights of inheritance arise between husband and wife. In other words, after the death of the husband, the woman has the right to inherit her husband’s property, and after the death of the wife, the man can also inherit his property.
o for the purpose of marriage, a prohibited relationship is created between a man. and his wife. husband and both are forbidden to marry within the limits.
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o The right of a woman to demand marriage is fully established. immediately after the end of the marriage2.
o The marriage also gives the wife the right to receive maintenance from her husband with immediate effect.
o After the divorce, the widow or divorced woman is obliged to observe the Idda, during which she cannot remarry.
- Void (Batter) A preliminary annulment of a marriage does not create any rights or obligations, and children born of such a marriage are illegitimate. A marriage prohibited by the rules of consanguinity, consanguinity or consanguinity is void.
Marriage with another wife or a divorced woman during the iddah period is also void. • Irregular (Fasid) Although there are formalities or obstacles that can be corrected, the marriage becomes irregular. However, this irregularity is not permanent in nature and can be removed. Thus, marriage is not illegal per se. This can be done in force if the prohibitions are fixed. A marriage performed under such circumstances or with the following prohibitions is called “fasid”. o Marriage concluded without the required
number of witnesses; o Marriage with women during the Iddat period; o Marriage with women without the consent of the guardian, if such consent is considered necessary;
o Marriage is divorce prohibited due to;
o Marriage with a pregnant woman, if the pregnancy was not due to adultery or fornication;
o Marriage with a fifth wife.
2 https://lawbhoomi.com/nature-of-muslim-marriage/
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- Nikah Mut’ah, also known as temporary marriage or marriage of joy, is a type of arranged marriage where both parties agree to a fixed-term contract. The duration can
vary from as short as a day to as long as a year, with the marriage automatically dissolving at the end of the term if not explicitly extended.
This practice is accepted by Iran’s Twelfth Shia sect but rejected by Sunnis who consider it akin to prostitution.
In Iran, it’s referred to as “sigah” and has specific rules, including a time limit ranging from one hour to 99 years. Unlike permanent marriage (nikah), temporary marriage requires financial compensation for the bride. Witnessing the marriage isn’t necessary, and the woman can set conditions for the relationship, including financial support3.
The marriage ends automatically at the agreed-upon time, but it can be extended with the man paying a fee per menstrual cycle. While the man can unilaterally revoke the marriage, the woman can refuse intimacy or leave, in which case she must return the compensation received.
India has partial acceptance of cohabitation, but legally invalidating Nikah Mut’ah remains challenging. While some view it as a form of prostitution, proponents argue that it provides a contractual framework superior to informal arrangements.
- Registration of Marriage under Muslim Law Under Islamic law, marriage registration is obligatory as Muslim marriage is considered a civil contract. As per the Muslim Marriage Registration Act 1981, every marriage between Muslims must be registered within thirty days of the Nikah ceremony.
The Nikah Nama, a legal document in Islamic marriage, includes key details such as the place of marriage, groom’s full name, age, address, father’s name (whether alive or deceased), groom’s marital status (single, widow, divorced, married with details of current wives), and the signature or thumb mark of the groom or his representative.
3 https://blog.ipleaders.in/marriage-under-muslim-law/
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Additionally, it includes details of the Nikah Nama, the person officiating the ceremony, including their signature and the date4. The document also outlines any payment made, its method, and the particulars of witnesses including their names, parentage, residence, and address.
- Dissolution of Marriage
The only necessary condition for divorce under Muslim law is marriage between the two parties.
According to Islamic law, a marriage can be dissolved in many ways and means. There are four ways in which a husband can be divorced.
- Talaq-ul-Sunnat:
– Husband can announce divorce when wife is not menstruating.
– Wife must observe Iddat, during which no sexual intercourse allowed. – If intercourse occurs during Iddat, divorce is impliedly revoked.
– Applicable even during menstruation if marriage not consummated.
– Most accepted form of divorce.
- Talaq-ul-Biddat:
– Also called triple talaq, considered sinful.
– Divorce irrevocable after three pronouncements.
4 https://blog.ipleaders.in/handbook-marriage-divorce-muslim-law/
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– Recognized by Sunni Law only.
– Remarriage requires nikah halala, where wife marries and divorces another man. – Ruled unconstitutional in India by Supreme Court in Shayara Bano case.
- Ila:
– Husband declares he won’t have sexual relations with wife.
– Wife observes Iddat, divorce becomes irrevocable after.
– Not practiced in India.
- Zihar:
– Husband compares wife to prohibited kin (e.g., mother, sister). – Wife can seek judicial remedies but not divorce.
– Husband can revoke by fasting, feeding people, freeing a slave. – No longer practiced.
- Talaq-e-Tafweez:
– Delegated divorce, wife granted power by husband.
– Husband must be of sound mind and over 18.
– Agreement can be made before or after marriage.
– Wife can seek divorce if agreement terms not fulfilled.
– Husband’s right to divorce remains intact.
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Divorce of wife
Talaq-e-Tafweez
✞ It is also known as delegated divorce.
✞ The husband has the right to transfer this power to the wife, the wife must be healthy and over 18 years of age.
✞ This type of talaq is also called an agreement that the parties may enter into before or after marriage.
✞ If the terms of the contract are not fulfilled, the woman can ask for a divorce. ✞ The only way a woman can ask for a divorce is a divorce. The right of the husband to divorce his wife is preserved, this does not prevent the right of a man to declare divorce. ✞ Marriage by mutual consent
Khula
✞ It means ‘laying down’ where the man transfers the power. his wife. ✞ This is done by mutual agreement between husband and wife, where the wife pays the husband from her property for the release.
✞ The wife releases Mehr and other rights in favor of her husband.
✞ Thus the wife buys a divorce from the husband.
✞ The woman proposed, which the man accepts.
✞ Women must follow the Iddah after the Khula.
Mubarat
✞ It means “freedom”, liberates/releases the parties from marital rights. ✞ Divorce is the mutual consent of the parties to get rid of from each other. ✞ Its formalities are the same as Khula where one party makes a proposal and the other accepts.
✞ Women must follow Idda.
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Divorce by judicial decree under Muslim Dissolution of Marriage Act, 1939
Lian
✞ This divorce occurs when the husband falsely accuses the wife of adultery. ✞ He can go to court to file for an ordinary divorce. Under the Islamic Divorce of
Marriage Act, 1939.
✞ The divorce must be based on a false accusation of adultery by a woman and her husband.
✞ The accused spouse must be sane and over 18 years of age.
✞ A divorce will not be granted before the marriage. dissolved the court approves the divorce, once the divorce is approved, the divorce becomes irrevocable. ✞ The husband can prevent the divorce by withdrawing the wife’s false accusation of adultery before the court decides.
Faskh
✞ If a man and a woman feel that they are not compatible, they can ask for a divorce. ✞ Section 2 of the Divorce Act 1939 sets out the grounds on which a woman can ask for a divorce.
✞ What a man does not know for 4 years. And neglected the maintenance of his wife for two years.
✞ The husband was sentenced to at least 7 years in prison.
✞ The husband neglected his marital duties for three years without any reasonable cause. ✞ The husband is powerless. The husband suffers from insanity (two years), of leprosy or of a virulent venereal disease.
✞ A woman who was married before the age of 15 years, renounces marriage after the age of 18 years, provided that the marriage does not take place.
✞ Her husband treats her. cruelly, for example by imposing physical violence. make defamatory statements affecting his reputation, etc.
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The rights granted by personal laws based on religion are not absolute. For example, two of the most popular and important decisions of the Supreme Court in this regard are discussed below in the case of Mohd. Ahmed Khan vs Shah Bano, Shah Bano divorced her husband Mohammed Ahmed Shah at the age of 62 and she and her five children were rejected and kicked out of the marital home. When she approached the Madhya Pradesh High Court to restore the Rs 200 alimony her husband had suspended and increase it to Rs 500, her husband immediately granted her triple talaq or Talaq-ul-Biddat using the defense of non-payment of alimony as she was no longer his wife. But the court awarded Shah Bano maintenance under Section 125 of CrPC as he is incapable of earning or supporting himself. Although this was against the provisions of Islamic law, Section 125 of the KRPC prevailed over personal law and made the sentence enforceable5.
Similarly, in Shayara Bano vs Union of India, married to Rizwan Ahmed, Shayara Bano was a victim of domestic violence when she visited her parents. Rizwan Ahmed sent her a divorce letter of Talaq-ul-Biddat announcing immediate divorce. . He petitioned the Supreme Court to declare triple talaq, nikah halala and polygamy unconstitutional. While the court upheld only the requirement of triple talaq, declaring it unconstitutional, it also said that until the government formulates an explicit talaq law, the ban on triple talaq for men and women remains in effect. Talaq-ul-Biddat or triple talaq is unconstitutional because it violates Article 14 of the Constitution in two ways;
Firstly, it discriminates Muslim women from Muslim men on the basis of gender, because only Muslim men have the right to pronounce triple talaq, and secondly, it is discrimination based on religion, women who do not belong to any other religion are complicit in the cruelty. and injustice. the practice of triple talaq, excluding Muslim women. Talaq-ul-Biddat also violates Article 21 of the Constitution because they have the right to live with dignity. Muslim women are subjected to the humiliating and cruel treatment of Talaq-ul-Biddat, which reduces their presence to nothing more than unwanted beings. in the eyes of the spouse and society. The Qur’an never allows arbitrary divorce, without a valid reason and reconciliation process6. Thus, Islamic personal laws prevail if they do not conflict with the right of women to lead a dignified life or conflict with the Constitution.
5 Mohd. Ahmed Khan vs Shah Bano Begum And Ors on 23 April, 1985 AIR 945, 1985 SCR (3) 844 6 Shayara Bano vs Union Of India And Ors. Ministry Of Women on 22 August, 2017 AIR 2017 SC 4609,
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6.CONCLUSION
In conclusion, the study of the nature and various forms of marriage under Islamic law reveals a rich collection of traditions, beliefs and practices that vary in different cultural contexts. From the traditional Islamic marriage contract known as Nikah to more modern interpretations of marriage such as Misyar and Mutah marriages, it is evident that there is no uniform approach to marriage within the Muslim community. Despite the variety of forms, it is important to understand that at the core of all these variations is the relationship between partners. The basic principle of consent and respect. The emphasis on equality, communication and understanding in Islamic marriages underscores the importance of building strong, healthy relationships based on trust and cooperation. As we continue to explore and understand the complexities of marriage under Islamic law, it is important to approach. The thing these discussions with an open mind and a willingness to include different perspectives. By embracing the diversity of
Muslim marriages, we can foster a greater appreciation of the richness and complexity of Islamic legal traditions and promote a more inclusive and understanding society.
7.BIBLIOGRAPHY
✞ https://blog.ipleaders.in/marriage-under-muslim-law/
✞ https://indiankanoon.org/doc/332673/
✞ https://www.drishtijudiciary.com/landmark-judgement/muslim-law/shamim arav-state-of-up-2002-sc-
✞ https://indiankanoon.org/doc/115701246/
✞ https://blog.ipleaders.in/shayara-bano-v-union-of-india
✞ http://vidhiparivartan.co.in/wp-content/uploads/2021/06/Paper-6.pdf
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