Marriage Under Muslim Law – Law Notes

Definition:

According to Islamic law Muslim marriage is a civil contract. It is a Union of two souls, for love Between two bodies for procreation and legalization of children.

★ According to D.F.Mulla, “marriage is a contract between two person of the opposite sex for procreation and legalization of children “

★ AA Fygee said, it is a contract for legalizing of intercourse and the procreation for children.

★ According to Tayabji, marriage brings about a relation Based on and arising from a permanent contract for intercourse and procreation of children, Between a man and a woman

★ Sir Ameer Ali said, marriage is an institution ordained for the protection of society, and in Order that human beings may quard themselves from soundless and unchastity.

Polygamy in Islam:

Monogamy is the rule of Islam, while polygamy is an exception. Under exceptional circumstances, Islam allows a man to have more than one wive at a time. The holy Quran expressly states; “Marry such woman as seem good to you, two, three or four, but if you fear that you cannot do equal justice to them all, then marry only one”. (Al Quran, 4:3.)

Importance of Marriage:

Family is the primary unit of human race. Marriage tie is responsible for the growth of civilization. The institution of marriage helps develop the feelings of love and service between two persons of opposite sex. The mutual love between husband and wife is not based merely on momentary passion, rather on responsibility, faithfulness and other finer qualities of head and heart which lay the foundation of civilization.

· The Quran States, “And one of his signs quiet of mind in them, and he put between you love and compassion.”

· The Prophet (sm) said, “the best of you are those who are best to their wives.”

· The Quran States, “And marry those among you who are single as well as your virtuous servants and maids. If they are poor, Allah will enrich them from His bounty. Let those who do not find marry, keep themselves chaste until Allah gives them means out of his grace.” (Al Quran 24-32-33)

· Hazrat Muhammad (sm) laid stress upon married life. He said to of his three companions who talked of fasting in day time and keeping awake in prayer during the night and keeping away from marriage: “I keep fast and I break it, and I pray and I sleep and I am married, so whoever inclines to any path other than my sunnah, he is not my follower.” (Bukhari)

· The Prophet said, “When a man marriages, he has fulfilled half of the religion, so let him fear Allah regarding the Remain half.” (Mishkat- 660)

· The Holy Quran declares, ” they (your wives) are an apparel for you and you are an apparel for them.” (Al-Quran 2:187)

Requisites for Valid Marriage:

1. Proposals and acceptance (Izab and Qabul):- Marriage like other contracts, requires declaration and acceptance for its constitution and both must be expressed, without any sort of ambiguity, demonstrating intention. Acceptance and offer should be similar and must be expressed at one meeting. The acceptance must not be conditional.

2. Competency of the parties: The parties to a marriage must have the capacity of entering into a contract. Every Muslim of sound mind and not a minor or slave, who has attained puberty may enter into a contract of marriage.

Puberty means the age at which a person becomes capable of performing sexual intercourse and procreating children.

֍ In the Child Marriage Restraint Act 1929, the age of marriage is 21 years for males and 18 years for females.

3. Free consent of the parties: When the parties are adults, they must have free consent, without it marriage will be invalid.

4. Presence of witnesses: Under Sunni law, the proposals and acceptance must be made in the presence of two males or one male and two female witnesses who are sane, adult and Muslim.

֍ Under Shia law witnesses are not necessary at the time of marriage, they are required at the time of dissolution of marriage.

5. Dower: A dower is a sum of money or other property which the wife is entitled to receive from the husband in consideration of marriage. It is an obligation imposed by law upon the husband as a mark of respect to the wife.