In the landmark case of Abdul Kadir v. Salima and Anr
., judge Mahmood observed
nature of Muslim marriage purely as a civil contract rather than a sacrament.
Based on his observations, we can conclude that the objective of Muslim marriage
is to legalize sexual relationship of male and female and also procreation of
child. Thus, a valid contract is necessary for Muslim marriage. The essentials
of Muslim marriage are very much similar to that of a Civil Contract.
In this Article we will be dealing with the essentials of a Valid Muslim
Essentials of a valid Muslim Marriage:
The essentials of a valid Muslim Marriage (Sahih) are as follows:
- Proposal and Acceptance
In a Muslim Marriage, proposal is referred to as 'ijab' and acceptance of the
same as qubul. A proposal should be made by or on behalf of one party and the
same should be accepted by the other party. For a valid Muslim marriage,
proposal and acceptance should be carried out at the same meeting. If a proposal
is made at one meeting and the acceptance of the proposal is done in the second
meeting, it is not considered as valid.
- Competency of Parties
The parties to the contract must be (i) Major, (ii) Of Sound Mind & (iii)
For the purpose of Muslim marriage, the age when a person reaches puberty is
considered as the age of puberty. According to Hedaya, the age of Puberty for
female is 9 years and for male, it is 12 years. The Privy Council in the case
of Muhammad Ibrahim v. Atkia Begum & Anr
. held that under Muslim law, a girl is
considered to have attained the age of puberty if:
- she has attained the age of 15 Years, or
- attaining the state of puberty at an earlier age.
The same rule is also
applicable to a Muslim Boy. Thus, it can also be said that in absence of any
contrary, a Muslim is considered to have attained the age of puberty at 15
years. After attaining the age of 15, parties can give their own consent and
there is no need of consent of guardians. If a person is a minor, i.e, not
attained the age of puberty, the consent of the guardian is required to make the
The persons recognized as guardian under Muslim law are:
Soundness of Mind:
- Paternal Grandfather,
- Brother or any other male member of father's family,
- Members of Maternal Relation. The right passes from one guardian to other, in
absence of the previous one, in order of priority. In absence of any of these
guardians, marriage may be contracted by Qazi or any other Government
At the time of marriage, both the parties should be of sound mind. Person of
unsound mind has no capacity to enter into a contract and in the eyes of law his
consent will be considered as no consent.
Unsoundness is of two types:
- Idiocy: It refers to a complete abnormal state of mind. Person belonging
to this category are incompetent to contract, and
- Lunacy: It refers to a curable mental disease. A lunatic person can
enter into a contract in the time interval in which he behaves like sane
The parties to enter into marriage must be a Muslim irrespective of their sect
or sub-sect. A Marriage is considered to be as inter-sect marriage is both the
parties are Muslim belonging to different sect but the marriage is valid.
For a valid marriage free consent of the parties is a must. If the consent is
obtained by means of coercion, fraud or mistake of fact, it is considered as
invalid and the marriage is considered as void. In the case of Mohiuddin v.
the Court held that a marriage is invalid if it is held without free
consent of the parties.
It is referred to as 'mahr'. It refers to the amount of money or other property
which a bride groom has to give to bride as a consideration of marriage. Its
object is to offer the bride a sense of financial security within and after the
termination of marriage. In the case of Nasra Begum v. Rizwan Ali, Allahabad
High court held that right to mahr comes into existence before cohabitation. The
Court also concluded that if wife is a minor, her guardians can refuse to send
to her husband until payment of dower, and if she is in husband's custody, then
she can also be brought back.
Free From Legal Disability:
Under Muslim law, marriage is not permitted under certain circumstances. The
restrictions/prohibition can be divided into two parts:
- Absolute Prohibition
- Relative Prohibition
- Miscellaneous Prohibition
A Muslim marriage cannot take place if the parties are within the within blood
relationship or prohibited degree of relationship of each other and the Marriage
turns to be void.
The absolute prohibited degrees of relationship are as follows:
It refers to blood relationship in which a man is barred from marrying the
following females. They are as follows:
- His mother or Grand-mother (how high so ever
- His daughter or Grand-daughter (how low so ever),
- His sister (irrespective of full blood/ half blood/ uterine blood),
- His niece or Great-niece (how low so ever), and
- His aunt or great aunt, whether paternal or maternal (how high so ever).
A marriage with woman prohibited under consanguinity is void. Also, children
born out of that wedlock are considered as illegitimate.
A marriage with certain close relatives is also prohibited in Muslims due to
closeness of relationship.
The prohibited relationship are as follows:
- His wife's mother or Grand-mother (how high so ever),
- His wife's daughter or Grand-daughter (how low so ever),
- His father's wife or paternal Grand-father's wife (how high so ever), and
- His son's wife or son's son's wife or daughter's son's wife (how low so ever).
A marriage with woman prohibited under affinity is void.
It refers to milk relationship. It is a condition when a lady other than the
mother of the wife, breastfed/ suckled the child under the age of two years, the
lady turns to be foster-mother of the child. A man is restricted from marrying
the persons who come under foster relationship. The restrictions are as follows:
Under the Sunni law has a few exceptions with respect to prohibition on ground
of fosterage and the following Marriage is considered as valid:
- His foster mother or foster grandmother (how high so ever), and
- Daughter of foster mother (Foster sister).
- Sister's foster mother, or
- Foster's-sister's mother, or
- Foster-son's sister, or
- Foster-brother's sister.
The Shia jurists consider Consanguinity and fosterage at same footing and deny
the exception allowed by Sunnis.
Under Muslim law, certain prohibitions are relative and not absolute. If
marriage takes place in violation of such prohibition, it is only irregular and
it can't be declared as void. The marriage becomes valid as soon as the
irregularities are removed. Relative prohibitions are as follows:
A Muslim man is prohibited to marry two different women if they are related to
each other by means of consanguinity, affinity or fosterage as if they would
have been of opposite sexes their marriage would have been void (batil). After
the termination of marriage/ death of his wife, marriage can take place with the
other. Under Sunni law, Marriage in violation of unlawful conjunction is
irregular (fasid) and not void but under Shia law, a marriage violating the rule
of unlawful conjunction is void (batil).
Muslim laws allow polygamy but it is restricted to a maximum of four wives. A
Muslim man can have four wives at a time, but if he marries the fifth one
despite of having four wives, the marriage turns to be irregular and not
void. The fifth marriage can be valid after death/ termination of marriage of
one of the four wives. However, the Shia law considers marriage with the fifth
wife as void. In India, a Muslim marriage can't have a second marriage if his
marriage is registered under The Special Marriage Act, 1954.
Absence of Proper Witness
Contracting of marriage must be done in the presence of proper and competent
witnesses. Under the Shia law, presence of witness is not essential and marriage
without witnesses is considered as valid. Marriage is contracted by the parties
themselves (if major) or by their guardians itself. Under Sunni law, presence of
witness is essential else the marriage would be irregular. At least two male or
one male and two female witnesses should be present and the witness should be a
major, of sound mind and a Muslim.
Difference of religion
Under the Sunni law, a Muslim male is allowed to marry a female who shows
respect for same scriptures, such as Christian, Parsi and Jews, but if he
marries with an idol/ fire worshipper, the same is considered as irregular. A
Muslim woman is not allowed to marry a non-Muslim man and if it happens, the
same is considered as irregular. Under the Shia Law, a marriage with non-Muslim
is considered as void. According to Fyzee, such marriage is void, but According
to Mulla, such a marriage is irregular.
ain, Parsi and Jews, but if he marries with an idol/ fire worshipper, the same
is considered as irregular. A Muslim woman is not allowed to marry a non-Muslim
man and if it happens, the same is considered as irregular. Under the Shia Law,
a marriage with non-Muslim is considered as void. According to Fyzee, such
marriage is void, but According to Mullah, such a marriage is irregular.
Marriage during Iddat:
It is referred to as a period of waiting after the death of her husband or after
termination of marriage during which she cannot remarry. The purpose of the
iddat is to check whether the woman is pregnant or not to clear doubts of
paternity of any child born. A divorced woman has to observe for a period of
three months whereas a widow observes it for four lunar months and ten days
after the death of husband. If the woman is pregnant then if extends up to her
delivery. Under Sunni law, marriage during iddat is considered as irregular
whereas, under Shia law, it is considered as void.
- Marriage during pilgrimage is considered as void in Shia law.
- Re-marriage between Divorced Couple: A certain procedure needs to be
followed in which a Muslim lady has to perform a valid marriage with another
man. Then her husband needs to voluntarily divorce her. Then the lady needs
to perform iddat. Now she can marry her previous husband. If this procedure
is not followed the marriage is considered as irregular.
- Polyandry: It refers to a condition in which a woman can have
more than one husband. It is not permitted under Muslim law.
Registration of Marriage is not necessary according to Muslim Law. However, few
states like Assam, Punjab, Bengal, Bihar and Orissa have enacted laws for
registration of Muslim Marriage. The registration is not an essential part for a
Valid Muslim marriage but it acts as an authentic proof. The apex court in
the Case of Seema v. Ashwani Kumar
, held that marriage of Indian citizens
irrespective of their religion should be registered in their states where the
marriage has been solemnized. Also, in the case of M. Jainoon v. Amanullah
, Madras High court observed that although registration of Marriage is
not necessary, it cannot be said that registration of Marriage is prohibited
under Muslim personal Law