The word Zawj is used in the Quran to mean a pair or a mate. The general purpose of marriage is that the sexes can provide company to one another, procreate legitimate children & live in peace & tranquility to the commandments of Allah. Marriage serves as a mean to emotional & sexual gratification and as a mean of tension reduction. 

Marriage:-Pre Islamic Position                                  

Before the birth of Islam there were several traditions in Arab. These traditions were having several unethical processes like:-

• Buying of girl from parents by paying a sum of money.
• Temporary marriages.
• (iii) Marriage with two real sisters simultaneously.
• (iv) Freeness of giving up and again accepting women.

These unethical traditions of the society needed to be abolished; Islam did it and brought a drastic change in the concept of marriage.

Ameer Ali – Marriage is an organization for the protection of the society. This is made to protect the society from foulness and unchestity.

Under Section 2 of Muslim Women (Protection of Rights on Divorce) Act, 1986 Marriage or Nikah among Muslims is a ‘Solemn Pact’ or ‘Mithaq-e-ghalid’ between a man & a woman, soliciting each other’s life companionship, which in law takes the form of a contract or aqd.

Muslim marriage can also be differentiated from a civil contract on the basis of following points:-

• It cannot be done on the basis of future happenings unlike the contingent contracts.
• (b) Unlike the civil contract it cannot be done for a fixed period of time. (Muta Marriage being an exception.)

Essentials of Marriage: 

The essentials of a valid marriage are as follows:-

(i) There should be a proposal made by or on behalf of one of the parties to the marriage, and an acceptance of the proposal by or on behalf of the other party.

(ii) The proposal and acceptance must both be expressed at once meeting.

(iii) The parties must be competent.

(iv) There must be two male or one male & two female witnesses, who must be sane and adult Mohammadan present & hearing during the marriage proposal and acceptance. (Not needed in Shia Law)

 (v) Neither writing nor any religious ceremony is needed.

Marriage is a civil contract between a man and a woman who is lawfully eligible to be his wife with the objective of joint life and breeding.

Essential Requisites or Requirement of the valid marriage

1. Offer & Acceptance

2. Presence of Witnesses

3. Capacity of the Parties

4. Free consent

5. No legal dissability

1. Offer & Acceptance

Marriage in Islamic law is a contract that is concluded by an offer made by one party and an acceptance given by the other. No particular form of words is required so long as the intention to conclude of marriage is clear. Under the Muslim law for the validity of a marriage there must be a proposal and acceptance at the same meeting. The proposal and acceptance must both be expressed at one meeting; a proposal made at one meeting and acceptance made at another meeting does not make a valid Muslim marriage. Neither writing nor any religious ceremony is essential.

2. Presence of Witnesses

Hanafi, Shafi and Hanbali schools require two adult male witnesses or one male plus two females. However, in Maliki and Ithna Ashari’s law the presence of witnesses is recommended but not mandatory, provided that in Maliki law sufficient publicity is given to the marriage.

3. Capacity of the Parties

Every Muslim of sound mind who has attained puberty, may enter into a contract of marriage. Puberty means the age at which a person becomes adult (capable of performing sexual intercourse and procreation of children). A person is presumed to have attained the age of puberty on the completion of 15 years. So the boy and girl who has attained puberty can validly contract a marriage .A marriage under Muslim law is perfectly valid if the parties have attained puberty and satisfied all other conditions specified by the law.

According to the child marriage restraint act 1929, a marriage of male below 21years of age and female below 18 years of age is child marriage. The act prohibits such marriage. The Act prescribes that for a valid marriage the minimum age for male is 21 and female is 18. The parties who are violating the provisions of Child Marriage Restraint Act are liable to be punished. Thus if two Muslims marry before attaining the age prescribed under the child marriage restraint Act they are liable to be punished. However the marriage between two Muslims who have attained puberty is valid though they have violated the provisions of Child Marriage Restraint Act.

4. Free Consent

Free consent of the parties is absolutely necessary for a valid marriage .If there is no free consent a Muslim marriage is void. Under the Muslim Law, a marriage of a Mohammedan who is of sound mind and has attained puberty is void; if it is brought about without his consent The marriage of a girl who has attained puberty and is of sound mind would be void if her consent is not obtained. When the consent to the marriage has been obtained by force or fraud, the marriage will be invalid, unless it is ratified. When a marriage was consummated against the will of the women, the marriage is void. The person who has been defrauded can repudiate the marriage.

Lunatics and minors who has not attained puberty may be validly contracted by their respective guardians. A minor is incompetent to give valid consent. The right to contract a minor in marriage belongs successively to the following persons:

i) Father

ii) Paternal Grand Father (h.h.s-How high soever)

iii) Brother and other male relations on the fathers side

iv) Mother

v) The maternal uncle or aunt and other maternal relations.

Under the Shia law only the father and the paternal grandfather are recognized as guardian for contracting marriage of a minor. If a minor, whether male or female, be contracted in marriage by a remoter guardian, while a nearer guardian is present and available and such nearer guardian does not give consent to the marriage, the marriage is void. But if the parties ratify it after attaining puberty, it will be valid. However if the nearer guardian be absent at such a distance as precludes him from acting, the marriage contracted by the remoter is also lawful.

5. No legal dissability

Under Muslim Law, marriage under certain circumstances is prohibited or not permitted. The prohibitions can be classified into two classes:

a. Absolute Prohibition

1) Prohibited degrees of relationship

Under the Muslim law marriage between persons who come within the blood relationship, or certain other relationship is prohibited. The prohibited relationships are the following:

(a) Consanguinity – Consanguinity means blood relationship and a prohibits a man from

marrying the following females

1. His mother or grandmother (however high so ever)

2. His daughter or granddaughter (how low so ever)

3. His sister whether full blood half blood or uterine blood

4. His niece or great niece (how low so ever)

5. His aunt (father’s sister or mother’s sister)or great aunt (how high so ever)

A marriage with a woman who comes within the relationship of consanguity is absolutely void.Children born out of that wed-lock are illegitimate.

(b) Affinity- A man is prohibited from marrying certain female relatives due to nearness of relationship. A man is prohibited from marrying

1. His wife’s mother grandmother (however high so ever)

2. His wife’s daughter or granddaughter (how low so ever)

3. His father’s wife or paternal grandfather’s wife (how high so ever)

4. Wife of one’s own son or son’s son or daughter’s son (how low so ever) A marriage with a woman comes within the relationship by affinity is void.

(c) Fosterage- It means the milk relationship. When a child is breast-fed/suckled by a

woman other than its own mother, she becomes the foster mother of the child. A man is

prohibited from marrying certain persons having foster relationship. According to Shia jurists fosterage includes the same limits of relationship prohibitive to marriage as consanguinity. A man may not marry the following females: 1.His foster-mother or grandmother (however high so ever)

2.His foster-sister (daughter of foster mother)

However Sunnis do not follow the same. Under the Sunni law, there are certain exceptions to the general rule of prohibition on the ground of fosterage and a valid marriage may be contracted with:

1.Sister’s foster mother, or 2.Foster’-sister’s mother, or 3.Foster-son’s sister, or 4.Foster- brother’s sister.

The Shia jurists refuse to recognize the exception permitted by the Sunnis. The above

mentioned prohibitions on account of ‘consanguinity’, ‘affinity’ or ‘Fosterage’ are absolute and the marriages contracted in contravention of these rules are void.

2) Polyandry Polyandry means marrying more than one husband. Polyandry is a form of polygamy in which a woman is having more than one husband at the same time. Under Muslim law Polyandry is prohibited and a married woman cannot marry second time so long as the first marriage subsists and the husband is alive.If a woman violated this prohibition and contracted a second marriage ,the marriage is void and the woman is liable to be punished for bigamy under section 494 of the Indian Penal Code.

B) Relative prohibition

Under Muslim Law, there are certain prohibitions, which are not absolute but only relative, and marriage in violation of such relative prohibitions will only be irregular and not void and at the moment when the irregularity is removed the prohibition ends and the marriage becomes valid.

The following are the relative prohibitions.

1) Unlawful conjunction

A man is prohibited from marrying two wives at the same time if they are related to each other by consanguinity, affinity or fosterage, which they could not have lawfully intermarried with each other if they had been of different sexes. Thus a Muslim cannot marry his wife’s sister while the wife is alive. But he can make the marriage valid by marrying his wife’s sister after the death or divorce of his first wife. Marriage with two such wives is an Unlawful conjunction.

Under sunni law a marriage in violation of the rule of unlawful conjunction is not void but only irregular. However under Shia law, a marriage in violation of the rule of unlawful conjunction is void. Under the Shia Law, a Muslim may marry his wife’s aunt, but he cannot marry his wife’s niece without her permission.

Guardianship in marriage

According to Sunni schools, marriage guardian shall be agnates. In the absence of agnates, guardianship shall be vested in relatives according to proximity; otherwise it will be vested in the Head of the State. In the Ithna  Ashari, the guardian is indispensable in order for the marriage of minors and majors of defective or no legal capacity to be valid. Guardianship in marriage falls under two categories:

1. Guardianship “With” the right of compulsion

2. Guardianship “Without” the right of compulsion

• Guardianship “With” the right of compulsion, which is exercised over a person of no or limited legal capacity wherein the guardian may conclude a marriage contract which is valid and takes effect without the consent or acceptance of the ward;

• Guardianship “Without” the right of compulsion, which is exercised when the woman possess the full legal capacity but delegates the conclusion of her marriage to a guardian.

Islamic law also requires the parties to a marriage contract to have the capacity to enter into the contract. According to Hanafi and Ithna Ashari’s any sane adult, whether male or female, has the capacity to conclude his or her own contract of marriage. According to traditional Islamic law, majority is attained at the onset of physical puberty. There is an irrefutable presumption of law that no female below the age of nine and no male below the age of 12 has attained majority and an equally irrefutable presumption that by the age of 15, majority has been reached by both sexes.

The right of a female to contract her own marriage is, however, not absolute according to Hanafi doctrine. Her guardian may seek dissolution of the marriage if she marries a man who is not her equal according to the law. Equality is determined with regard to piety, lineage, wealth and occupation. However, the right of the guardian to dissolve the marriage lapses if the woman becomes pregnant.

In Maliki, Shafi and Hanbali law a virgin woman may never conclude her own marriage contract. In Maliki law the hierarchy of marriage guardians follows strictly the order of succession. Accordingly, the son of the woman ranks before her father. In Hanbali law the guardian having first priority is the father, followed as in Maliki law by the paternal grandfather and the other agnostic kinsman. The woman only becomes capable of contracting herself in marriage when she ceases to be a virgin by reason of a consummated marriage or an illicit sexual relationship.

Classification of Marriages

There are three types of marriages in Sunni schools:-

1.Sahih –

 Firstly, there is “Sahih” marriage which is fully valid and effective. Under such a

marriage, sexual intercourse is lawful and the woman is entitled to both dower and

maintenance.

2.Batil Secondly, there is a “Batil” (void) marriage. 

Under such a marriage, no rights or obligations exist between the parties. Parties would be guilty of zina, save where the parties were unaware of the fact that the marriage was void. If a marriage is affected by a permanent impediment, then the marriage is declared void. The permanent impediments arise:

• Under the bar arising from relationship of blood, a man may not marry any ascendant or descendant, any descendant of his father or mother, or the immediate child of any ascendant, nor may a woman marry any corresponding male. Under the bar of fosterage, two persons who were suckled by the same foster-mother are permanently barred from marrying each other.

• The bar of affinity arises from marriage, so a man may not marry the former wife of any ascendant or descendant, or any ascendant or descendant of a former wife with whom he actually had consummated his marriage.

• Under the bar of polyandry, i.e. when a woman contracts a second marriage during the subsistence of her first marriage.

3.Fasid – Thirdly, there is a “Fasid” (irregular) marriage,

 which is middle way out. This is also no marriage, but can be regularized in certain conditions. Under such a marriage, no zina is committed and a dower is payable. An irregular marriage arises from temporary impediments, which occur when:

• There is an absence of witnesses.

• A woman who is already married.

• A woman who is still observing the idda period.

• A woman whom he has triply repudiated, unless she has married another man and that marriage has been terminated.

• A man may not marry at the same time two sisters or a mother and her daughter.

• A man who already has four wives may not validly marry a fifth.

• A Muslim man may contract marriage with a non-Muslim woman provided she is a khitabiyah.

• A Muslim woman, on the other hand, may only validly contract marriage with a Muslim man.

• According to the non-Hanafi schools of Sunni law, a marriage concluded by a woman herself without a guardian is also invalid as is a marriage concluded by a person performing haj.

• According to Maliki law, a person who is in a state of death sickness is prohibited from marriage.

The Effects of Impediments to Marriage(effects of void and irregular marriage)

The presence of an impediment to marriage may render the marriage either void or irregular. The impediments that have the potential to render a marriage void are those that are permanent and those where the impediment, although of a temporary nature, is one that the parties themselves have no power to remove such as if the woman is married to another man.

Where any other impediment exists, the marriage is not void but irregular. If the marriage is irregular certain effects flow from it:

• The parties may not be found guilty of zina.

• Any children born out of the union will be held to be legitimate.

• When the parties separate, and separate they must, the woman must observe an idda period.

A marriage, which may be held to be potentially void, will be regarded as irregular if the parties have acted in good faith, i.e. they were unaware of the existence of the impediment. This is the only instance where Islamic law recognizes ignorance of the law as a defense. Marriage has its own specific incidents and effects. The law defines the rights and duties of husband and wife, some of which are mutual and some of which are peculiar to one or the other of the parties:

• Mutual Rights – Legitimacy of children, inheritance, sexual intercourse.

• Rights of the Wife (Maintenance).