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View Full Version : Define 'marriage'. what is the difference between irrgular and void marriages. (1998)



vustudents
09-03-2012, 12:57 AM
Q. Define marriage? what do you understand by valid, irregular and void marriage. (2006/S)
1. Introduction:
Marriage of Nikah is a civil contract, which is made by parties for the sole purpose and object of benefiting themselves according to Shariat it is a method to legalize the cohabitation of a man and a woman and issues out of this union are legitimate. under Islamic law, contract of marriage, need not to be proved through a written document.
2. Meaning of marriage:
Marriage means wedlocks, the mutual relation of the husband and wife. it is a contract for the legalization of intercourse and procreation of children.
3. Definition of marriage:
Hedeya:
Marriage is defined to be a contract which has for its object the procreation and legalizing of children.
According to Ameer Ali:
Marriage is an institution ordained for the protection of society, and in order that human being may guard themselves from foulness and unchastity.
4. Classification of marriage:
Classification of marriage is as under.
(a) Valid.
(b) void.
(c) Irregular.
(a) Valid:
A marriage which conforms in all respects whit the law is called valid marriage.
(b) Void:
A void marriage is one which is unlawful in itself the prohibition against the marriage being perpetual and absolute. so it is no marriage at all.
(i) Examples:
(i) Marriage without the consent of either party.
(ii) A marriage prohibited on the ground of affinity.
(iii) A marriage prohibited on the ground of consanguinity.
(v) A marriage with the wife of another person.
(c) Irregular:
An irregular marriage is one which is not unlawful in itself, but unlawful for something else. in irregular marriage irregularity arises from an accidental circumstances.
(i) Examples:
(i) A marriage without witnesses.
(ii) A marriage with a woman observing Iddat.
(iii) A marriage prohibited on ground of difference of religion.
(iv) A marriage with two sister at the same time.
(v) A marriage to a fifth wife.
5. Difference between void and irregular marriage:
I. As to legal position:
Void marriage has no lawful position.
Irregular marriage is not in itself unlawful.
II. As to prohibition:
In void marriage the prohibition is perpetual and absolute.
In irregular marriage prohibition is temporary.
III. As to legitimacy:
In void marriage the children born out of the union are not legitimate.
In irregular marriage the children born out are legitimate.
IV. As to rights and obligations:
In void marriage no civil rights and obligations are arisen.
In irregular marriage if consummation has taken place some rights and obligations are arisen.
V. As to legal effect:
A void marriage has no legal effect.
An irregular marriage has legal effects after consummation.
VI. As to modification:
A void marriage cannot be modified into valid marriage.
An irregular marriage can be modified into valid marriage.
6. Kinds of marriage under Shia law:
The Shia law only recognizes two kinds of marriage viz, valid and void marriage.
7. Capacity to contract marriage:
(i) Parties must be able to understand the nature of their act.
(ii) The parties must be adult.
(iii) There should be free will of the parties.
(iv) There should be no element of compulsion.
(v) There should be no legal disability.
8. Modes of avoiding irregular marriage:
Following are the modes of avoiding irregular marriage.
(a) By the court:
The court can cancel the marriage if the matter is brought to its notice.
(b) By husband:
The husband can repudiate his wife.
(c) By wife:
The wife can also to avoid the marriage by relinquishment.
9. Conclusion:
To conclude I can say that the marriage is a civil contract. according to Sunnhi law a marriage which is not valid may be either void or irregular. the Shai law recognized only two kinds of marriage. a void marriage is not lawful whereas irregular marriage is not unlawful but unlawful for some other reason.