Muslim Marriage As A Civil Contract:
- Nikah is an Arabic word or term used for marriage which means union of
the series and carries a civil contract for the purpose of legalizing sexual
intercourse and legitimate procreation of children.
- The Quran specifically refers to marriage as Mithaqun Ghalithun
which means A Strong Agreement.
: Marriage is an organization for the protection of the society.
This is to protect the society from foulness and unchastity.
: He defines Muslim Marriage as a contract for the purpose of
legalizing sexual intercourse and procreation of children.
: In The case Abdul Rahim Vs Salima
( ILR 1886 8
Justice Mahmood commented on the nature of Muslim marriage that Muslim Marriage
is a civil contract and not a sacrament.
Why Muslim Marriage is a Civil Contract:
The essentials of a civil contract are:
- Free Consent
- Lawful Object
- Competency of The Parties
Similarly, essentials of Muslim marriage are:
- Ijab ( Proposal)
- Qubool (Acceptance)
- Dower ( Consideration)
- Free Consent
- Competency Of The Parties
Comparing both it seems the same conditions for both, thus we can say that
marriage under Muslim is a civil contract.
The object of civil contract:
- Legalizing the sexual intercourse
- Procreation of children
Muslim marriage as Sacrament viewProphet’s Saying:
- When a man marries he has fulfilled half of the religion, so let him
fear Allah regarding the remaining half.
- When a husband and wife look at each other with love, Allah look at them
with mercy.”- Sahi Bukhari 6:19 Tirmidhi
- The most perfect believer in faith is the one whose character is finest
and who is kindest to his wife”. - Ahmad 5/282 Tirmidhi
: The Mohammadan priests regard the institution of marriage as
per taking both the nature of Ibadat ( or devotional arts) and Muamlat ( or
dealing among person).
in a case: Anis Begum vs Mohammad Istafa Wali Khan (air
1933 all 634)
In the above case, he has said that in Islam, marriage is not only a civil
contract but also a sacrament.
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 happening unlike the contingent
- Unlike the civil contract it cannot be done for a fixed period of time.
( Muta marriage being an exception)
It is a matter of query still existing whether Muslim Marriage is only a civil
contract or an Ibadat and Muamlat. While unleashing the various definitions it
is quite a big problem to say which one is the most appropriate.
In my opinion although the essentials of a contract is fulfilled yet marriage
can never be said to be a contract because marriage can never be bondage between
the emotions and thinking of two persons.
Written By: Er Khaliqul Azam (DME, BE, MA, Pursuing LLB) - Ms Law College,