Prohibition In The Case Of Muslim Marriage


Under the Mohammedan law, Marriage is considered purely as a civil contract and even its essentials are similar to that of a civil contract, this was observed in the landmark case of Abdul Kadir v. Salima And Anr.[1] Under this law, the status of the marriage could be divided into three types-

  1. Sahih (Valid)
  2. Batil (Void)
  3. Fasid (Irregular/ Invalid)

A valid marriage is legitimate while a void marriage has no value in the eyes of law, hence it is to be assumed two people are not married if the status is void. An irregular marriage is one which is not valid and has some temporary legal issues, once that obstruction is removed that irregular marriage becomes valid.

There are generally two types of prohibitions which render a Mohammedan marriage invalid or void-

  1. Absolute Prohibition
  2. Relative Prohibition

These prohibitions are not the same and some factors of them can vary for the two major denominations of Islam, namely Shia and Sunni[2].

Under Shia law, there is no concept of irregular marriage, the Shia law only has either valid or void marriages; there is no difference in irregular and void marriages. Hence, under Shia law, all irregular marriages are void. According to Sunni law; there are there statuses of marriage: valid, invalid and void.

Absolute Prohibition

It is generally considered that a marriage is void if the prohibition regarding it is absolute. There is no possible method to change the status of marriage from void to valid if the prohibition is absolute and if someone marries against such prohibitions then that marriage is to be considered unlawful. Thus marriages prohibited on the ground of consanguinity, affinity, or fosterage are under absolute prohibition and are void.

  1. Consanguinity- It means a person is barred to marry with his close blood relatives like his niece, sister, aunt, etc.
  2. Affinity- It means a person is prohibited to marry someone in close relations, for example, his wife’s daughter, son’s wife, etc.
  3. Fosterage- When a lady other than the mother, breastfed a child under the age of two years, the lady turns to be the foster-mother of the child. A man is restricted from marrying the persons who come under the foster relationship.

Sunni law has some exceptions regarding the absolute prohibition of fosterage, but Shia law and jurists deny such exceptions and consider the fosterage the same as consanguinity[3] and consider the prohibitions to be absolute, all such marriages are rendered void.

Relative Prohibition

These prohibitions are those which render a marriage irregular or invalid. These are considered to be temporary bars, once these bars are lifted the marriage becomes valid.

All relative prohibitions make a marriage void under Shia law while they render them invalid in case of Sunni law. Below are some relative prohibitions which can render marriages invalid or void.

1. Unlawful Conjunction- This bars a man from marrying two different women at the same time if they are closely related to each other through consanguinity, affinity, or fosterage so that they could not have lawfully intermarried with each other if they had been of different sexes.

A Muslim man cannot marry a woman who is related to his wife by consanguinity, affinity, or fosterage, before the death of his wife or divorce.

However, a Shia male can marry his wife’s aunt but to marry her niece, there has to be the consent of his wife.

2. Marriage with a fifth wife- A Muslim man can marry up to four wives, if he wants to marry another woman he has to take divorce from one of her four wives. Hence, marriage with five or more women is unlawful under Islamic laws. Such marriages are invalid or irregular. Under both, Shia and Sunni laws, polygamy is valid up to four wives. Though it is not encouraged.

However, a Muslim woman cannot marry more than one man. As long as his first husband is alive or there has been no divorce, she cannot marry a second man. If she marries a second man, she is guilty of bigamy under section 494 of Indian Penal Code.

3. Absence of witness- Under Sunni law, the presence of a witness is very necessary for the validation of a marriage, just the presence of guardians is not enough and if there is no proper witness present, then the marriage itself becomes invalid[4].

However, under Shia law, the presence of a witness is not important. A marriage can be valid even if there is no witness present and marriages can be done in secret as well. But at the time of the dissolution of a marriage, the presence of a proper witness is required.

4. Differences of religion- Males and females of Shia and Sunni can marry among each other, however when it comes to religion, a Muslim woman marrying a non-Muslim man is generally considered to be void, but a Muslim man marrying a non-Muslim woman is considered to be invalid or irregular[5].

Under Sunni law, males can validly marry non-Muslims of Christianity and Judaism (not Hinduism) but cannot marry a fire worshipper. However, marriage with fire-worshippers will be considered irregular and not void. A Shia male and female cannot marry any person of other religions and all such marriages are considered to be void.

5. Marriage during Iddat- Iddat refers to a period of time which a woman must follow after getting out of her previous marriage and before remarrying. The time period could vary from one situation to another. The different time period is defined for the different situation of separations like divorce, death of husband, etc. Under Sunni law the marriage of a Muslim man with a woman, who is following the time of iddat is irregular but under Shia law, it is void. The child of such a marriage will be legitimate if it was born after 6 months, and the mother will be entitled to dower.

Apart from these, there are various other miscellaneous prohibitions like marriage with a pregnant woman is void, marriage during a pilgrimage is void, etc. Different jurists have different opinions on various prohibitions and validation of marriages under the two major denominations of Islam.

[1] (1886) ILR 8 All 149





This Article is Authored by Satrajit Somavanshi, 1st Year B.A.LL.B (Hons.) Student at Rajiv Gandhi National University of Law.

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