MARRIAGE UNDER MUSLIM LAW.
Marriage Is the solemnization or union of two souls together, they become bound to each other, and consequently, the marriage arises spousal duties, which both the husband and wife are obligated to follow through this wedlock. Muslim marriage is just like any other marriage, but the essence of the marriage is particularly similar to the conditions of a contract.
For a marriage to be valid under Muslim law, that are few conditions to the marriage that needs to be fulfilled.
- Offer and acceptance:
There must be ijab-o-qabool that translates to offer and acceptance. One party to the marriage must make an offer to the other inclusive of the dower amount, the dower amount is also known as property it could also be a sum of the amount or of any tangible value, which is offered to the woman in the marriage by the husband in exchange for her marrying the husband. The acceptance should be unconditional.
In Rashida Khatoon v. S.K. Islam, the boy made a promise to marry the girl but he did not make any offer to marry the girl, when they were living together without solemnization of marriage, and had a child out of wedlock, the child would be given the status but the woman would not be given the status of the wife, because there was only promise, no offer for the marriage and dower and likewise no acceptance. Hence, marriage will be considered void without ijab-o-qabool.
Whereas the parties to the marriage should be competent this further elaborates that, the parties must be of the sound mind to such an extent that they must be able to give their full and free consent to the marriage, and they should have attained the age of puberty to which they are capable of bearing children. In Muslim law, the parties to the marriage mandatorily must not be adults, but they should attain the age of puberty. A boy or a girl on attaining the age of puberty is free to marry as per their choice and the guardian will have no right to interfere.
3. No legal disability:
In addition to that, the marriage should not include an absolute or relative disability. Absolute disabilities are those relations where if marriage is contracted between two people would be void. An example of absolute disability could be a marriage between two people who are connected by blood relations. Legal disability arises from:
Consanguinity (Qurabat). blood relation which prevents a man from marrying,
His mother or grandmother
His daughter or granddaughter
His sister whether full or uterine, his niece or great-niece and,
His aunt or great aunt (from mother and fathers side)
Affinity (musharat): these are relationships that happen after marriage and it includes,
Wife’s mother or grandmother
Wife’s daughter or granddaughter, the marriage is prohibited only if the marriage with wife was consummated. The wife is the second wife who already bore children.
Wife of the father of the paternal grandfather
Wife of his son or son’s son
fosterage (riza): when the child under 2 years has been suckled by a woman, other than its mother, the woman becomes the foster mother of the child. A man cannot marry, marry his foster mother or the foster sister.
On the other hand, relative disabilities are such that, there are some irregularities in the marriage due to some defects occurring in the marriage. But the marriage could be rendered valid once these irregularities are removed from the marriage. One of the examples for relative disabilities could be when a marriage is a contract between 2 people who are of different religions or beliefs in a faith other than Mohammaden law. To elaborate, a marriage between a Muslim and a Hindu. Such marriage would be irregular and to render such marriage as valid, the irregularity must be removed. One possible solution to remove such irregularity would be the conversion of Hindu. However, it is important to mention the fact that However, Muslim women cannot marry any man who is not a Muslim.
Relative disability would arise from:
- unlawful conjunction: it simply means marrying two women, who are related to each other by consanguinity, affinity, or fosterage. This bar, however, can be removed by divorcing one of the women in a relationship.
- Marrying a fifth wife:in shia law, marriage with the fifth wife is completely void, but in sumni law, it is an irregular form of marriage and this irregularity can be removed by divorcing any of the former four wives.
- Absence of proper witness: the absence of witness will affect the contractual completeness of marriage and the marriage will become irregular, and this irregularity can be removed by pronouncing words of ‘ijab-o-qabool’ in the presence of the required number of witnesses.
Women undergoing iddat: iddat is considered a period of chastity in which a woman, after the marriage has been dissolved, either by death or divorce, remains in seclusion, and cannot marry another man. The main object of this period of iddat is to avoid any sort of confusion regarding the parentage of the child. The duration of iddat is as follows:
- Widowhood: 4 months 10 days
- Pregnancy: till miscarriage of birth of the child. If the delivery or miscarriage happens before 4 months 10 days and the remaining period shall be considered as iddat.
- In the case of talak: it is 3 lunar months i.e., 3 months and
- Irregular marriage: if consummation has not taken place then it is not necessary to observe iddat.
Any marriage, which fulfills all the above-mentioned conditions to the marriage would be rendered valid in the eyes of law, and in such a marriage, the husband and wife would have mutual rights of inheritance of each other, the children out of such wed would be legitimated and they would have the right of inheritance of property from both the parents.
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