Marriage under Mohammedan law is a legal contract or civil contract between the bride and bridegroom and it is part of Islamic marriage. For the marriage of Muslims, the word ‘Nikah’ is used which means ‘contract’. Nikah is an Arabic term. The meaning of nikah is the physical relationship between man and woman. The ‘Quran’ specially refers to marriage as “Mithaqun Ghalithun” which means ‘a strong agreement’. This contract results marital rights and obligations between man and woman. Marriage under Mohammandan law is different from other religious marriage. This is not a religious ceremony performed by bride and bridegroom, but a contract which creates marital obligations between man and woman.
MOHAMMEDAN MARRIAGE IS NOT SACRAMENT BUT PURELY CIVIL CONTRACT
On the basis of juristic opinion, Mohammedan law, conditions of Muslim marriage, it can be easily recognized that Muslim marriage is a purely civil contract because it fulfils all the conditions of civil contract like proposal, acceptance, consideration etc. There is no religious ceremony performed in a Muslim marriage. There are some conditions of Muslim marriage which are similar as conditions of civil contract. Conditions of civil contract are as follows:
- Free consent
- Lawful Object
- Competency of the parties
Conditions or essentials of Muslim marriage are as follows:
- Ijab as Proposal
- Qubul as Acceptance
- Dower or Mahr as Consideration
- Free consent
- Competency of the parties
As we can see that all the essential of civil contract and Muslim marriage are similar. Ijab in Muslim marriage considered as proposal and acceptance is known as Qubul. A proposal should be made on the behalf of one party and accepted by another party at the same time. The proposal made and acceptance should be done in one meeting otherwise it is not a valid marriage.
Dower or Mahr is the consideration of marriage. It refers to the amount of money and property which a bridegroom has to give to bride as consideration of marriage for her financial security.
Free consent is the most essential point of Muslim marriage if the consent obtained under fraud, coercion or threat etc. it is not valid marriage and becomes void as similar to a contract.
Capacity to the parties means that the parties should be major, sound mind and Muslims. According to the Mohammedan law, age of marriage is considered as the age of puberty and age of 15 years.
There are some case laws where judgment goes into the favour of Muslim marriage is a sacrament whereas some goes into favour of Muslim marriage is a purely civil contract.
In case of Yusuf v. Sowaramma, held that there is a misconception by the Justice, V.R. Krishna Iyer that the Muslim law does not have any religious significance or social solemnity attach to Muslim marriage and it is a merely civil contract.
In case of Abdul Kadir v. Saliman and Anrs, Justice Mahmood observed that “marriage among mohammadans is not a sacrament but purely a civil contract” Muslim marriage is a civil contract and the aim of this definition in the eye of law that it provides legal validity to sexual intercourse or relationship between man and woman and legalise the children. Without a valid contract of marriage, the sexual intercourse between man and woman is Zina or sin under Muslim law.
Many of the jurists also support that Muslim marriage is not purely civil contract and sacramental. It is the combination of both of them. In case of Anis Begum v. Mohammad Istafa, it is a leading case law because C.J Sir Shah Sulaiman has tried to balance between the sacrament and civil contract in Islamic Marriage because as per my view, in Quran and Hadith mentioned that spouses are strictly enjoined to love and honour to each other. So, marriage under Islam is sacrament by Quran injunction and tradition. It is the blend of both of them.
It is not purely a contract because a civil contract depends upon the future happening and the loss caused by that future happening. Marriage has similarity like civil contract but it is not purely civil contract. A marriage contract does not depend upon future happening and the loss caused by that. This topic is still vague because many juristic said that it is a sacrament and many in favour of that this is a civil contract and many juristic has to opinion that it is the blend of both of them.
This article is written by Nishu Singh, 2nd Year and BA LLB student of Jagannath Institute of Management Studies (JIMS).
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