MUSLIM MARRIAGE SACRAMENT OR A CIVIL CONTRACT ?

The Muslim jurists treat marriage both as a civil contract and a religious duty. Several authors of Anglo-Muhammadan Law apparently under the influence of modern conception of marriage or perhaps by reason of singular characteristics of Muslim Matrimonial Law have defined it as a civil contract. According to them, marriage among Mohammedans is not a sacrament, but purely a civil contract on the completion of which by proposal and acceptance, all rights and obligations which it creates arise immediately and simultaneously[1]

Their observation seems to be based on the fact that marriage, under Muslim Law, has similar characteristics as a contract. For instance, as marriage requires proposal (ijab) from one party and acceptance (qubul) from the other. Moreover, marriage requires presence of sound mind and free consent. The terms of marriage can also be altered within legal limits to suit individual cases.[2] Also, it can be dissolved through the provision of talaq. Though it is solemnised generally with the recitation of certain verses from the Quran, yet the Muhammadan law does not positively prescribe any service peculiar to the occasion.[3] Another view is that marriage is not purely a civil contract but a religious sacrament too. This view is also supported by judiciary.[4] Taking religious aspect into account Muslim marriage is an ibadat (devotional act) or ‘muamalat’, i.e. dealings with men. The latter view closely resembles the celebrated definition of Modestinus, Nuptiae sunt conjunction maris et feminae et consortium omnis, vitae divini et humani jusris communicatio.[5] The Prophet says “O assembly of youths, whoever among you is able to have, he should marry, for it is a restraint to the looks and he who is not able let him keep fast.” This is because marriage elevates the moral and spiritual standard of man. Nikah is my precept. Those of you, who are unmarried, are the unworthy of the deed. Marriage (nikah) among Muslims is a ‘solemn pact’ (mithaq-e-ghalid) between a man and a woman, soliciting each other’s life companionship, which in law takes the form of a contract (aqd).[6][7]

Justice Mahmood observed:

“Marriage among Muhammedans is not a sacrament, but pureply a civil contract; and though it is solemnized generally with the recitation of certain verses from the Quran, yet the Muhammedan law doesn’t positively prescribe any service peculiar to the occasion.”[8]

He described that Muslim marriage was dependent upon declaration or proposal of the one and the consent or the acceptance of the other of the contracting parties.

From the above observation, Justice Mahmood couldn’t be held to have taken the view that marriage is nothing but purely a civil contract. As per him the dower in the Muslim marriage shouldn’t be confused with consideration in the context of civil contract.

In the case of Amina v. Koye[9] it was observed that “We feel that we are not wrong if we say that there is an unfounded popular belief that no religious significance or social solemnity attaches to a Muslim marriage and it is merely a civil contract pure and simple.”

But in the case Yusuf v. Sowramma[10] there is a popular misconception by J. V.R. Krishna Iyer that no religious significance or social solemnity attach to Muslim marriage and it is merely a civil contract. The learned judge doesn’t put forward any definite argument and hasn’t gone through the principles of Shariah it is said.

Though sacramental nature of marriage is considered as an orthodox view it is also supported by the Judiciary. Anis Begum v. Mohammad Istafa, is a leading case on the point where C.J Sir Shah Sulaiman has tried to put a more balanced view of the Muslim marriage by holding it both a civil contract and a religious sacrament.[11]

As per Dr.Jung:

“Marriage though essentially a contract is also a devotional act, its objects are rights of enjoyment and procreation of children and regulation of social life in the interest of society.[12]

CONCLUSION

In the end, marriage in Islam is neither purely a civil contract nor a sacrament. It is without of none but the combination of the two. The passages from the sacramental indissolubility of marriage to the treatment of marriage, as a civil institution, may be a modern idea. It is a development of Anglo Muslim law. Marriage is nothing more or but the voluntary union of one man and one woman. The definitions that profound the thought of marriage as a contract only represents one aspect of Muslim marriage. They ignore its ethical significance and its religious value. They fail to realise the close and intimate relationship between religion and law in the Muslim faith. It is often easily concluded, that marriage is just a civil contract under Muslim Law. It completes all the conditions of a contract proposal and acceptance, free consent, and consideration.

From the religious angle, Muslim marriage maybe a devotional act. Marriage is not in need of all religious and spiritual values. Along with the secular aspect, it is also ingested within the elements of a sacred union of two souls means for spiritual ends.

In the Quran and Hadith, spouses are strictly enjoined to like and honor one another. Enjoyment and showering love and affection by all has been called a noble act. Marriage under Islam may be a sacrament keeping the view of Quranic injunction and traditions.

In the final discussion, it is often said that marriage in Islam is neither purely a civil contract nor a sacrament. It is barren of none but the blending of the two.


[1] https://lawbhoomi.com/muslim-marriage-a-contractual-sacrament/.

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] http://www.lawctopus.com/academike/marriage-under-muslim-law/#_edn5

[9] 1985 CriLJ 1996.

[10] AIR(1971) Ker. 261.

[11] (1933)55 AP 743.

[12] Supra at 8.

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