In the pre-Islamic period, the concept of marriage in Arabian society was much disorganized. Women were considered as property of men. Marriage was performed only for the enjoyment and procreation of children. It was like selling of a girl by her father or guardian. In addition to that, the husband had the absolute right to divorce and limitless polygamy prevailed. The most atrocious practice of that time was ‘Nikah Ijtimah’. Under this, a group of fewer than ten men would assemble and would have sexual relations with her. If she became pregnant and delivered a child, she would send for all of them a few days after the delivery and none of them could refuse to come. When all the men gathered before her, she would say to them “You (all) know what you have done and now I have given birth to a child. So, it is your child” Naming whomever she liked and her child would follow him and he could not refuse to take him.
After the commencement of Islam, a defined form of marriage was introduced. This is known as ‘Nikah’. It is an Arabic word which means civil contract. Nikah is not only a matrimonial contract but also a social institution giving dignified independent status to married women. It says that in a marriage the husband must pay or promise to pay something to the wife as a mark of respect towards her. It prohibits limitless polygamy and restraints it to four wives at a time.
Muslim marriage as a contract has been defined from time to time. 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 clearly 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). Marriage also legalises the children born out of that marriage. It is therefore clear that juridically a Muslim marriage is a civil contract; it is not a sacrament.
The conditions of a Muslim – marriage is almost similar to that of a civil contract. Few similarities between a Muslim – marriage and a contract are:
1. Proposal and Acceptance: In a Marriage, a proposal, known as “Ijab” for the marriage and the acceptance of the proposal “Qubul” is must. This should in the presence of two witnesses i.e. in the presence of two male or one male and two female witnesses and a “maulvi” or kazi [Muslim priest].
It is just like the provisions of the Indian Contract Act, 1872 where a contract is an agreement; an agreement is a promise and a promise is an accepted proposal. Thus, every agreement must have a proposal from one side and its acceptance by the other.
2. Capacity of a Person to Contract Marriage: The second condition for accomplishment of this type of marriage is that the parties must be adult and of sound mind. Marriage of minors can only by consent of their parents.
According to section 11 of the Indian contract Act, 1872, only those persons who are major and are of sound mind can be the party to contract.
3. Free Consent: Any marriage is lawful only when there is free consent from the parties. In the case of Mohiuddin v. Khatijabibi [41 Bom L.R. 1020], it was held that marriage will be nullified if it is performed without the free consent of the parties.
According to section 19 of the above-mentioned Act, an agreement will be voidable if it not prepared by the free consent of the parties.
4. Discharge: Muslim marriage provides the discharge from marriage through its various forms of divorce (Talaq) like Talaq-ul-Bidaat, Talaq-ul-Sunnat, Khula, etc.
In the Indian Contract Act, 1872, section 37, 39, 62, 63, 64 and section 67 provides for the ways of discharge of the contract.
Given the points above, we come to the conclusion that Muslim marriage is a contract, and not a religious sacrament.
