Define Marriage And Muta Marriage And Its Essentials Under Muslim Law

According to H.T Mazumadar in his book “Grammar of Sociology”, “Marriage is a socially sanctioned union of male and female, or a secondary institution devised by society to sanction the union and mating of male and female, for the purposes of: (a) Establishing a household, (b) Entering into sexual relations, (c) Procreating, and (d) Providing care to offspring.” Hindu Marriage is considered as a sacrament. It is the last of the 10 sacraments in the Hindu religion for the regeneration of men and obligatory for every Hindu who does not desire to adopt the life of a sanyasi. It runs according to the Hindu Marriage Act, 1955. In Islam, Marriage is considered as a contract between a male and a female. This is known as ‘Nikah’ which is an Arabic word meaning civil contract. In the words of Ronal Wilson, “Muslim marriage is a contract for the purpose of legalizing sexual intercourse and the procreation of children. According to Hedaya, “Marriage (Nikah) implies a particular contract used for the purpose of legalising children.” In the case of Abdul Kadir vs Salima And Anr. [(1886) ILR 8 All 149], Justice Mahmood has mentioned that, “Marriage among Mohammedans is not a sacrament but purely a civil contract.” Based on above-mentioned definitions, it may be said that in the eyes of law, a Muslim – marriage is a civil contract. The object of the marriage – contract is to provide legal validity to the sexual relationship of husband and wife and to legalise the children”. Without a valid contract of marriage, intercourse between a man and a woman is unlawful (zina).

Muta marriage is defined as a temporary union of male and female for a specified duration, on payment of some consideration. It is practised only by the Ithna Asharia Shias. It regarded as a temporary marriage. Muta is an Arabic word meaning ‘enjoyment’; therefore, it may be regarded as ‘marriage for pleasure’. In the earlier days of Islam, when the Arabs had to live away from their homes for a considerably long period either on account of wars or on trade – journeys, they used to satisfy their sex – desires through prostitution. To avoid the development of prostitution in society and to confer legitimacy upon children of such unions, temporary marriage was recognized and permitted by the Prophet for some time. But later on, when he felt that this concession was being exploited, he prohibited it. Caliph Omar had attempted to suppress and condemn the practice of Muta and tried his best to abolish it from society. Since then, the Muta form of marriage has not been in practice under any school of Muslim law except the Ithna Asharia Shia law.

Essentials of valid or legal marriage under Muslim Law-

1. Proposal and Acceptance: For a valid (Sahih) Muslim marriage, a proposal, known as “Ijab” for the marriage and the acceptance of the proposal “Qubul” is must. It must be done in one sitting in the presence of two witnesses i.e. in the presence of two male or one male and two female witnesses and a “mauvli” or kazi [Muslim priest]. The witness should be a Muslim and must be of sound mind. Absence of witnesses does not render a marriage void; it only makes it irregular. In fact, in Shia school, it is not considered as a necessary condition at all. The consent given by both parties should be free consent. But in Hanafi law if consent is given under force, threat, undue influence, coercion or intoxication; then also the marriage would be held valid. This is because it follows the traditions of Prophet Mohammad who says that three actions will be liable on a person even if it is done jest or seriously. These three actions are (i) Marriage; (ii) Divorce; (iii) Taking back a slave.

2. Competent to Contract: Parties performing the contract of marriage must be competent to contract i.e. above 18 years, of sound mind and Muslims. According to Muslim personal law every Muslim of sound mind who has attained puberty may enter into a contract of marriage. Puberty means the age at which a person becomes an adult (capable of performing sexual intercourse and procreation of children). According to Hedaya, the age of puberty for a male is 12 and for female, it is 9 years. But according to the Indian Courts, the age of puberty is 15 years. In the case of Muhammad Ibrahim Rashid vs Atkia Begum and Anr [16 Ind Cas 597] the Allahabad High Court held that a Muslim girl becomes major on either completion of 15 years of age or after attaining puberty at any earlier age. So, the boy and girl who has attained puberty can validly contract a marriage. Parties can marry before the age of puberty by the consent of their guardian. A party can dissolve the marriage after attaining the age of puberty. This is known as khyar-ul-bulgh or option of puberty. But there are some conditions regarding this, A boy can dissolve a marriage only if his first two guardian (father and paternal grandfather) had given the consent of marriage negligently or fraudulently and marriage was manifest of disadvantage. For a girl, it is given in section 2(vii) of Dissolution of Muslim Marriage Act, 1939. For obtaining a dissolution, girl has to show that (i.) marriage was performed before she attained the age of fifteen years; (ii) she repudiated the marriage before attaining the age of eighteen years; (iii) the marriage was not consummated. But, according to the Prohibition of Child Marriage Act, 2006, a marriage of male below 21years of age and female below 18 years of age is child marriage and a punishable offence. This provision applies in Muslim marriage too as per the judgements of various courts in various cases. So, the age of contracting marriage for a male is 21 years and for a female, it is 18 years.

3. Preferential Mate Selection: For the marriage of a Muslim girl, first preference is given to her parallel cousins and after that, to her cross cousins. But in modern days, this practice is not compulsory.

4. Religion of the Parties: A Sunni male can marry a Muslim female or a Kitabia (a person who believes in a revealed religion possessing a Divine Book that is to say Christianity and Judaism). He can validly marry a Jew or Christian but he can’t marry an idolatress or a fire-worshiper. A marriage, with an idolatress or a fire worshiper, is merely irregular (Fasid) and not void (Batil). A Muslim woman cannot marry a Kitabia or Non – Muslim man. Her marriage with a Non – Muslim will not be void but irregular. Under Shia law, Marriage with a Non – Muslim is strictly prohibited.The marriage of a Sunni male with a Shia female is not void. A marriage of a Muslim female with a non-Muslim male, whether he be a Christian, or a Jew or an idolator or a Fire-Worshiper is void under Shia Law. In case of Sunni, it is void according to Fyzee but irregular according to Mulla.

5. Free from legal disability: Muslim marriage must be free from legal disability i.e. must be according to Shariya law. Marriage must be free from the prohibited degree of relationship. Relationships which are prohibited from marriage are:

(I) Consanguinity: Consanguinity means blood relationship and prohibits a man from marrying her blood-related females. There are 7 relations of a Muslim which comes under consanguinity. These are:

  • His/her Ascendant
  • His/her Descendant
  • Father’s Descendent
  • Mother’s Descendent
  • Father’s and Mother’s Descendent
  • Ascendant Brother
  • Ascendant Sister

(II) Affinity: A man is prohibited from marrying certain female relatives due to the nearness of relationship. There are 4 relations of a Muslim which comes under Affinity. These are:

  • Ascendant’s Wife
  • Descendant’s Wife
  • Wife’s Ascendant
  • Wife’s Descendant

(III) Fosterage: It means the milk relationship. When a child of less than two years of age is breast-fed by a woman other than its mother, she becomes the foster mother of the child. A man is prohibited from marrying certain persons having a foster relationship. But there are certain exceptions of this under Sunni Law. A Sunni male can marry with

  • Sister’s Foster Mother
  • Foster Sister’s Real Mother
  • Foster Son’s Sister
  • Foster’s Brother Sister

Apart from these regulations, Muslim marriage also prohibits marriage with the fifth wife. Section 494 of the Indian Penal Code also prohibits Polyandry, and it is treated as an offence. According to Sunni Law, marriage with a woman during Iddat period is irregular but not void, while it is void in case of Shia.

Utkarsh Shubham

Faculty of Law, University of Allahabad

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