Muslim Marriage

Muslim law has derived from various ancient as well as modern sources which are codified and uncodified both like- Quran, Ijma, Qiyas, customs, urf, precedents, equity and various other legislations. Just like Hinduism, Islam has also given different types of marriage but, the Muslim concept of marriage differs from the Hindu concept
The general essentials of a Muslim Marriage are:

• Parties must have competent to marry.
• Proposal (ijab) and acceptance (qubool) must be made.
• Free consent of both the parties.
• A consideration (mehr).
• No legal Impediment.
• There must be sufficient witnesses which may differ in shia and sunni law.

When all the legal requirements are fulfilled and there are no prohibitions that could affect the parties, then the marriage is correct and called ‘sahih’. The marriage which is being voided creates no rights or obligations among each other and the children born out of such marriage are illegitimate children. A marriage that is forbidden by the rules of blood relationship or a marriage with the wife of another or a divorced wife during iddah period is also void and called as Batil.
There are times when due to lack of some formality marriage becomes irregular, however, this irregularity is not permanent in nature and can be rectified. Thus, the marriage is not unlawful and can be made valid once the prohibitions were rectified. Marriage in such circumstances is called ‘Fasid’.Following are the reasons when marriage becomes Fasid

• A marriage was done without the required number of witnesses;
• A marriage with women during the period of Iddat ;
• A marriage with women without the consent of her guardian in the case when such consent is considered necessary;
• A marriage prohibited because of difference in religion;
• A marriage with a woman who is pregnant and when the pregnancy was not caused by adultery or fornication;
• A marriage with the fifth wife.

Registration of marriage in Muslims is compulsory and mandatory because a Muslim marriage is treated as a civil contract. According to section 3 of the Muslim Marriages Registration Act 1981, “Every marriage contracted between Muslims after the commencement of this Act, shall be registered as hereinafter provided, within thirty days from the conclusion of the Nikah Ceremony”. Nikahnama must get after the marriage. It is a type of legal document which contains the essential details of the marriage.

There are two types of talaq in Muslims used to end the marriage those are
i) Talaaq-i-ahsan
A single pronouncement of divorce is made during the period of tuhr (the period of purity between two menstrual cycles), followed by restriction of sexual intercourse during the period of iddat. Here, the divorce can be revoked at any time before the completion of iddat and prevents hasty and unreasonable divorces.

ii) Talaaq-i-hasan
A husband is required to pronounce a formula of Talaaq three times in three successive periods of tuhrs. It is important that pronouncements are made when no sexual intercourse takes place during the period of tuhr. The marriage is dissolved irrevocably, regardless of the period of iddat.

It is also a form of Islamic divorce that is instant in nature. It allows any Muslim man to legally divorce his wife by stating the word “Talaaq” three times in oral or written form. This is prevalent among the Muslims in India, especially among the Hanafi school of Islam. This is also known as “Triple Talaaq” and has been a subject of debate and controversy.
In Shayara Bano V. Union of India and Ors.:
The court held that “This practice of talaq-e-biddat (unilateral triple-talaq) which practically treats women like chattel is neither harmonious with modern principles of human rights and gender equality, nor an integral part of Islamic faith, according to various noted scholars. Muslim women are subjected to such gross practices which treat them as chattel, thereby violating their fundamental rights enshrined in Articles 14, 15, 21, and 25 of the Constitution. The practice also wreaks havoc to the lives of many divorced women and their children, especially those belonging to the weaker economic sections of the society.”


Aishwarya Says:

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