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ahmad4212
10-30-2012, 12:00 AM
Marriage

MARRIAGE

1. INTRODUCTION
2. MEANING OF MARRIAGE
3. DEFINITION OF MARRIAGE

Hedeya
According to Ameer Ali
4. OBJECTS OF MARRIAGE
5. NATURE
Hazarat Muhammad (PBUH) Says
6. CAPACITY FOR MARRIAGE
7. ESSENTIALS OF MARRIAGE

I. OFFER (IJAB)
II. ACCEPTANCE (QUBUL)
III. OFFER AND ACCEPTANCE MUST BE IN THE SAME MEETING
IV. FREEDOM
V. CONSIDERATION
VI. MAJORITY
VII. PERSONS OF OPPOSITE SEX
VIII. WITNESSES
(a) In case of Suni Marriage
(b) In case of shia Marriage

Qualification of Witnesses
IX. FREE CONSENT
8. LEGAL EFFECTS OF A VALID MARRIAGE
9. NUMBER OF WIVES
10. CONCLUSION

MARRIAGE

1. Introduction:
The celebration of the marriage contract is called nikah. Marriage is enjoined upon every Muslim, and celibacy is frequently condemned by the Holy Prophet Muhammad (SAW). It is related in the Traditions that the Holy Prophet (SAW) said, “When the servant of God marries, he perfects half of his religion.”
2. Meaning Of Marriage
Marriage means wedlock’s, 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
Hedaya
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.
A.A. Fyzee
Marriage in Islam is a contract and not a sacrament.
4. Objects Of Marriage
Following are objects of a marriage:
(i) Legalization of Sexual Inter course.
(ii) Procreation of children.
(iii) Preservation of human race.
(iv) Regulation of social life.

5. Nature
Mohammedan marriage is purely contractual. It is considered a religious duty. It is an act of Ibadat which is called Sunnat-Muwa-kkidah.
Hazrat Muhammad (PBUH) says:
“If a person is in a position to maintain his wife and pay the amount of dower, he must get himself married.”
6. Capacity For Marriage
(i) Every Muslim of sound mind, who has attained puberty may enter into a contract of marriage.
(ii) Lunatics and minors who have not attained puberty may be validity contracted in marriage by their respective guardians.
(iii) A marriage of a Muslim who is of sound mind and has attained puberty is void, if it is brought about without his consent.


7. Essentials Of Marriage
i Offer (Ijab)
There must be offer one party. It is also called Ijab.
ii Acceptance (Qubul)
The offer so made should be accepted by or behalf of the other party. It is called Qubul.
iii Both must be in same Meeting
The offer and acceptance must both be made at the same meeting. An offer made at another meeting do not constitute a valid marriage.
iv Freedom
The parties contracting marriage should be free persons. Marriage with a slave is permitted.
v Consideration
There must be some consideration in marriage which is Dower. The parties are bound to fix amount of dower at the time of marriage. A marriage without dower is void.
vi Majority
The parties contracting marriage should be major. The majority act does not apply on marriage, divorce, maintenance cases. Majority means age of puberty.
vii Persons of opposite sex
Marriage is a contract between two persons of opposite sex. There is no concept of marriage of same sex in Islamic personal law.
viii Witnesses
a. In case of Sunni Marriage
Either two male or one male and two female witnesses are necessary.
b. In case of Shia Marriage
No witness is necessary.
c. Qualification of Witness
i He /She should be adult and sane.
ii Free Consent
8. Legal Effects of a valid Marriage
Following are the legal effects of a valid marriage:
i Sexual intercourse becomes lawful.
ii Issues born out are legitimate.
iii The wife becomes entitle of maintenance.
iv The husband can restrain the movements of his wife in a reasonable manner.
v The wife has to go under a period of Iddat in case of
vi Death of her husband.
vii On the dissolution or divorce of marriage

9. Classification of Marriage:
Classification of marriage is as under:
i Valid
ii Void
iii Irregular

i Valid
A marriage which conformes in all respects with the law is called valid marriage.
ii 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.
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 Fosterage.
iv A marriage prohibited on the ground of consanguinity.
v A marriage with the wife of another person.
iii Irregular
An irregular marriage is one which is not unlawful in itself, but unlawful for something else. In irregular marriage, irregularity arises from accidental circumstances.
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 sisters at the same time.
v A marriage to a fifth wife.

10. Difference Between Void And Irregular Marriage.
• As to legal position
Void marriages has no lawful position.
Irregular marriage is not in itself unlawful.

• As to prohibition
In void marriage, the prohibition is perpetual and absolute.
Irregular marriage prohibition is temporary.

• As to legitimacy
In void marriage, the children born out of union are not legitimate.
In irregular marriage the children born out are legitimate.

• 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.

• As to legal effect
A void marriage has no legal effect.
An irregular marriage has legal effects after consummation.
• As to modification
A void marriage can not be modified into valid marriage.
An irregular marriage can be modified into valid marriage.

11. Kinds of Marriage under Shia Law
The Shia Law only recognizes two kinds of marriage i.e. valid and void marriage.

12. Modes Of Avoiding Irregular Marriage
Following are the modes of avoiding irregular marriage.
i By the court
The court can cancel the marriage if the matter is brought to its notice.
ii By husband
The husband can repudiate his wife.
iii By wife
The wife can also avoid the marriage by relinquishment.

13. Legal Effects Of A Valid Marriage
Following are the legal effects of valid marriage.
i The sexual intercourse becomes lawful.
ii Mutual rights of inheritance are established.
iii The children born out of the wedlock are legitimate.
iv The wife becomes entitled for maintenance.
v The wife becomes entitled to Dower.
vi Neither of the spouses acquires any interest in property of the other by reason of marriage.
vii The wife has to observe the Iddat in case of death of her husband or in case of divorce.
The rules of affinity come into operation in case of valid marriage.
Examples:
i A marriage without witnesses
ii A marriage with a woman observing Iddat.
iii A marriage prohibited on ground of difference of religion.

14. Legal Effects Of A Void Marriage
Following are the legal effects of valid marriage.
i The sexual intercourse becomes unlawful.
ii The void marriage creates no right and obligation upon any party.
iii The children born out of the wedlock are illegitimate.
iv The wife does not become entitled for maintenance and inheritance.

15. Legal Effects Of An Irregular Marriage
Following are the legal effects of valid marriage.
i The irregular marriage has no legal effect if consummation has not taken place.
ii If consummation has taken place, the irregular marriage has following effects:
iii The children born out of such marriage are legitimate.
iv The wife is entitled to dower.
v The wife has to observe the period of Iddat.
vi No right of inheritance is created between the husband and wife.
vii The issues are entitled to share the inheritance.

16. Disabilities:
a. Number Of Wives
A Muslim husband may have as many as four wives at the same time, but not more. If he marries a fifth wife when he has already four, such marriage would be irregular.
b. Religion:
i Difference of School
Muslims belonging to different schools may intermarry freely with one another, and a mere difference of a school of law, such as Shiite or Sunnite, Hanafi or Shafii is entirely immaterial.
ii Marriage with Non-Muslim
• According to Tyabji and Baillie, the rule among the Shi’ites is stricter. A Shi’ite, whether male or female cannot marry a non-Muslim in the nikah form, but he can not contract a mut’a with a kitabiyya.
• When a Muslim marries a Hindu woman, the marriage is only invalid and does not affect the legitimacy of the offspring.
• D.F. Mulla is of the view that a Muslim male may not contract a valid marriage with an idolatress or a fire-worshipper. Such marriage is not void but merely irregular. It was held in Ishan v. Panna Lal (1928).
• The marriage of a Muslim woman with a non-Muslim is only irregular, not void. The marriage of a Muslim woman with a non-Muslim is declared by the Quran to be batil, void and not merely irregular.
• According to A.A. Fyzee, a Muslim woman can not marry a Christian; such a union would be void.
• According to Ibn Kathir, marriage with an idolatress i.e. pagan woman is prohibited.
c. Foreign Marriage
• It was held in Risk v. Risk (1950) and in one another case Rex. v. Hammersmith (1917) that an unmarried Muslim may contract a valid marriage with an English woman before a registrar in England.
• A marriage between a Muslim and a non-Muslim woman, celebrated in a foreign country, is valid under Islamic Law if it is performed in accordance with the lex loci contractus.
d. Relationship
i Consanguinity
This bar is on the ground of blood relationship. A marriage with a woman prohibited by reason of blood relationship is totally void and the issue illegitimate.
ii Affinity
A man is prohibited from marrying certain relations by affinity. These are:
§ Ascendants or descendants of his wife
§ The wife of any ascendant or descendent. By way of exception, a man may marry the descendent of a wife with whom the marriage has not been consummated.
iii Fosterage
A man may not, for instance, marry his foster-mother, or her daughter, or his foster-sister. A marriage forbidden by reason of fosterage is void.

iv Unlawful Conjunction
A man is also forbidden to have two wives at the same time, so related to each other by consanguinity, affinity or fosterage that they could not have lawfully intermarried with each other if they had been of different sexes.
Under Hanafi law, generally speaking, disregard of the bar of unlawful conjunction renders the marriage irregular but not void.

17. Miscellaneous Prohibitions:
The Doctrine of Equality in Marriage (Kafa’a)
The Holy Prophet(PBUH) is reported to have recommended marriage with fit spouses:’ Marry your equals’. The Hanafis hold that equality (Kafa’a) between the two parties is a necessary condition in marriage. The following factors must be considered for determining equality:
i Family
ii Islam
iii Profession
iv Freedom
v Good Character
vi Means
18. Conclusion:
In short, marriage is not a sacrament but a civil contract between two persons of opposite sex. Every Muslim of sound mind and has attained age of puberty may enter into contract of marriage.