Q-Define “Nikah” and discuss its nature under Muslim Law.

A- Definition of Marriage
Marriage (nikah) is defined to be a contract which has for its object the procreation and the
legalizing of children.
Contract: Marriage according to the Mahomedan law is not a sacrament but a civil contract. All
rights and obligations it creates arise immediately and, are not dependent on any condition
precedent such as the payment of dower by husband to a wife.
Ashabah says: “ Marriage is a contract underlying a permanent relationship based on mutual
consent on the part of a man and woman.”
In Shoharat Singh v. Jafri Begum, the Privy Council said that nikah (marriage) under the
Muslim law is a religious ceremony.
The sanctity attached to the institution of marriage in the Islamic system has neither been
comprehended nor sufficiently appreciated by outsiders. Marriage is recognized in Islam as the
basis of society. It is a contract but also a sacred covenant. Marriage as an institution leads to
the uplift of man and is a means for the continuance of the human race. The main aim of the
institution of marriage is to protect society from foulness and unchastity. It has also been said
that marriage is so holy a sacrament, that in this world it is an act of ibadat or worship, for it
preserves mankind free from pollution.
Thus, marriage according to Muslim Law is a contract for the purposes of legislation of
intercourse, procreation of children and regulation of social life in the interest of society by
creating:
the rights and duties between the parties themselves, and
between each of them and the children born from the union.
Capacity of Marriage
Every Mahomedan of sound mind, who has attained puberty may enter into the contract of
marriage.
Their respective guardians may validly contract lunatics and minors who have not attained
puberty in marriage. (Sec 270-275)
A marriage of a Mahomedan, who is of sound mind and has attained puberty, is void if it is
brought about without his consent.
Nature of Muslim Marriage
There is divergence of opinion with regard to the nature of Muslim marriage. Some jurists are
of the opinion that Muslim marriage is purely a civil contract while others say it is a religious
sacrament in nature.
Marriage under Muslim law has similar characteristics as a contract. For instance:
As marriage requires proposal (Ijab) from one party and acceptance (Qubul) from the other so
is the contract. Moreover, there can be no marriage without free consent and such consent
shouldn’t be obtained by means of fraud, coercion or undue influence.
Just as in case of contract, entered into by a guardian, on attaining majority, so can a marriage
contract in Muslim law, be set aside by a minor on attaining the age of puberty.
The parties to a Muslim marriage may enter into any ante-nuptial or post-nuptial agreement
which is enforceable by law provided it is reasonable and not opposed to the policy of Islam. As
is the case with a contract.
The terms of a marriage contract may also be altered within legal limits to suit individual cases.
Although discouraged both by the Holy Quran and Hadith, yet like any other contract, there is
also provision for the breach of marriage contract.
Justice Mahmood observed:
“ Marriage among Muhammedans is not a sacrament, but pureply a civil contract; and though it
is solemnized generally with the recitation of certain verses from the Quran, yet the
Muhammedan law doesn’t positively prescribe any service peculiar to the occasion.”
He described that Muslim marriage was dependent upon declaration or proposal of the one and
the consent or the acceptance of the other of the contracting parties.
From the above observation, Justice Mahmood couldn’t be held to have taken the view that
marriage is nothing but purely a civil contract. As per him the dower in the Muslim marriage
shouldn’t be confused with consideration in the context of civil contract.
In a lucid and erudite judgment Pareed Pillay, J. of the Kerala High Court, in Adam v.
Mammad[vii], has set out the salient feature of Islamic law of marriage. In the case before
him, he held that where the girl’s father had given his consent, and the daughter had withheld
hers, no valid marriage had taken place. Here the judge cited J. Mahmood’s classic dicta
in Abdul Qadir’s case, and upheld that for the validity of a marriage, consent is a must.
In Yusuf v. Sowramma[viii], there is a popular misconception by J. V.R. Krishna Iyer that no
religious significance or social solemnity attach to Muslim marriage and it is merely a civil
contract. The learned judge doesn’t put forward any definite argument and hasn’t gone through
the principles of Shariah it is said.
Though sacramental nature of marriage is considered as an orthodox view it is also supported
by the Judiciary. Anis Begum v. Mohammad Istafa,[ix] is a leading case on the point where C.J
Sir Shah Sulaiman has tried to put a more balanced view of the Muslim marriage by holding it
both a civil contract and a religious sacrament.
Taking religious aspect into account Muslim marriage us a devotional act (ibadat). The Prophet
is reported to have said that marriage is essential for every physically fit Muslim who could
afford it.
Muslim marriage is not merely a contract because:
unlike a civil contract, it cannot be made contingent on future event; and
unlike civil contracts, it cannot be for a limited time (muta marriage is an exception).
Unlike a civil contract, the analogy, of lien cannot be applied to a marriage contract. Secondly,
the contract of sale of goods may be canceled by unpaid seller. He may resell the goods by
rescinding such contract, whereas, in a contract of marriage, the wife is not entitled to divorce
her husband or to remain with a third person if a part of his dower remains unpaid.
As per Dr.Jung:
“Marriage though essentially a contract is also a devotional act, its objects are rights of
enjoyment and procreation of children and regulation of social life in the interest of society.”[x]
CONCLUSION
On the basis of Juristic opinion, we can easily conclude, that marriage is simply a civil contract
under Muslim Law. It fulfills all the conditions of a contract-proposal and acceptance, free
consent and consideration.
But from the religious angle, Muslim marriage is a devotional act. Marriage is not devoid of all
religious and spiritual values. Along with its secular aspect, it also partakes the elements of a
sacred union of two souls means for spiritual ends.
In the Quran and Hadith, spouses are strictly enjoined to love and honor each other.
Enjoyment and showering love and affection by each one has been called a noble act. Marriage
under Islam is sacrament keeping the view of Quranic injunction and traditions.
In the ultimate analysis, it can be said that the marriage in Islam is neither purely a civil
contract nor a sacrament. It is devoid of none but the blending of the two.
Define Maintenance. Discuss the provisions regarding maintenance of divorced woman
according to Muslim Women Protection Rights on Divorce-1986. OR What are the arrangements
for maintenance under Muslim Law? Who are entitled for Maintenance? Discuss.
OR Maintenance of Muslim Women.
Introduction:-The Muslim Law, like the English Law treats the property as primarily and
naturally individual. It does not like the Hindu system contemplate as the normal state of
things. The existence of mass of family property kept together thorough several generations as
common fund for the common needs. Under Muslim Law a man is bound maintain his wife
irrespective of his and her means and his minor children if he is not indigent.
Definition of Maintenance: - Maintenance is equivalent to Arabic ‘Nafqah’ which means, “What a
person spends over his family” however in legal sense maintenance signifies and includes three
things: (i) Food (ii) clothing (iii) lodging.
According to Hedaya: “Maintenance as all those things which are necessary to the support of
life such as food, clothes and lodging.”
Provisions regarding maintenance of divorced woman:- In Shah Bano Beguum v/s Mohammad
Ahmed Khan-1985, the five judges bench held that a Muslim husband having sufficient means
must provide maintenance to his divorced wife who is unable to maintain herself. Such a wife is
entitled to the maintenance even if she refuses to live with the Muslim husband. The court also
held that the ability of the husband to maintain his divorced wife till the expiration of the iddat
period extends only in case the wife is able to maintain herself. The following are the rights of
maintenance of divorced wife:-
1. Maintenance during the subsistence of marriage:-The husband is liable to maintain the wife
from the date when the wife attains puberty and as long as she is obedient and faithful to her
husband. The husband is bound to maintain her even though she may have the means to
maintain herself. A Muslim wife who is living separately may claim maintenance against him for
example if the husband treats her cruelty or marries with second wife without her consent or if
he paid prompt dower to her as held in a case of Itwari v/sAshgari-1960.
2. Maintenance of a divorced wife:-Under Muslim Law a divorced wife is entitled to obtain
maintenance from husband up-to her period of Iddat. In a case of Mohammad Ahmad Khan v/s
Shah Bano Begum-1985, although the Muslim law limits the husband’s liability to provide
maintenance for his divorced wife up to the period of Iddat. The court held that if the divorced
wife is unable to maintain herself after the period of Iddat she is entitled to recourse to sec.
125 Cr.P.C.
3. Maintenance of a Widow: - According to Hedaya says, “That a widow shall not have any right
of maintenance after the death of her husband. Under the Shia Law a Widow is not entitled to
any maintenance though she was pregnant at the time of the death of her husband. There are
some authorities in Mohammadans who recognised widow’s right if on the death of her
husband she was pregnant to maintenance until delivery, out of share in estate of her husband
which child borne by her entitled to inherit.
In order to nullify the effect of the Shah Bano’s decision, Parliament passed the Muslim
Women’s Protection of Rights on Divorce Act-1986, the following are the provisions :-
1. A reasonable and fair provision and maintenance to be made and paid to her within
the Iddat period by her former husband.
2. Where she herself maintains the Children born to her before or after her divorce a
reasonable a reasonable and fair provision and maintenance for a period of two years from the
respective dates of birth of such children.
3. An amount equal to the sum of mehr or dower agreed to be paid to her at the time of her
marriage or at any time thereafter according to Muslim Law.
4. All the properties given to her before or at the time of marriage or after the marriage by her
relatives or friends or the husband or any relatives of the husband or his friends.
Discuss the concept of legitimacy under Muslim Law. Mention the conditions of a valid
acknowledgment.
Introduction:- Muslim law insist on the existence of a valid marriage between the begetter and
the bearer of the child at the time of its conception. A person born in lawful wedlock is said to
be the legitimate child of the spouses. The main point in the case of legitimacy of a child is
marriage between its parents. In the case of Habibur Rahman Choudhari v/s Altaf Alii
Choudhary: It was held that the term wife necessarily connotes marriage, but as marriage may
be constituted without any ceremony the existence of a marriage in any particular case may be
an open question. Direct proof may be available but if there be no such proof indirect proof
may be suffice.
Muslim Law does not recognize the institution of adoption which is recognized by
other systems. Under Hindu Law adoption is intimately connected with religion having relation
to the repose of the souls of the departed and the preservation of the house hold divinities.
Amir Ali explained that in fuller terms that adoption similar to what was practised in the ‘Days
of Ignorance’ created no such tie between the adopted and the adopting as resulted from blood
relationship. On the one hand Muslim Law recognizes the institution of ‘iris or acknowledgment
on the other hand it disapproves legitimating.
The doctrine of acknowledgment relates only to cases where either the fact of
marriage itself or the exact time of occurrence with reference to the legitimacy of the
acknowledged child is not proved in the sense of the law as distinguished from disproved. In a
case of Mohammad Khan v/s Ali Khan-1981.
ESSENTIALS OF LEGITIMACY
When there is a direct proof of marriage or there are circumstances from which
marriage may be presumed the question of acknowledgment of legitimacy does not arise
because in such cases the legitimacy is ‘ipso facto’ established or presumed to be
established. If there is no such direct proof of legitimacy indirect proof may suffice and one of
the ways of indirect proof is by acknowledgment of legitimacy by father (not mother) in favour
of a son. In other words the doctrine applies only to cases of uncertainty as to legitimacy and
in such cases acknowledgment has its effect but that effect always proceeds upon the
assumption of a lawful union between the parents of the acknowledgment child.
In the case of a good acknowledgment of legitimacy the marriage between the
parents of the child acknowledged will be held proved and this legitimacy established unless
the marriage is disproved as held in the case of Mohammad sadiq v/s Mohammad Hassan-
1943.
In case the marriage between the parents of the child could not be proved the
acknowledgment shall carry no force in the eyes of law. The acknowledger must acknowledge
the child specifically as held in a case of Haribur Rahman v/s Altaf Ali-1921.
EXPRESS OR IMPLIED ACKNOWLEDGMENT
It is not necessary that an acknowledgment should be express it may also be
implied as was held in the case of Mohammad Amin v/s Valil Ahmad -1952: where a person
habitually and openly treat another as his legitimate child this fact may give rise to a valid
presumption of legitimacy.
The acknowledgment may be of son or of daughter but it must be made the
father. The acknowledgment of the child must not be casual. In a case of Mohabat Ali v/s
Mohammad Ibrahim-1929: The father made the acknowledgment of the child in a casual
manner. He never intended that his acknowledgment should have serious effects. It was held
that the act of the father is not sufficient to confer the status of legitimacy.
Conditions:-1.When a man expressly or impliedly acknowledges another as his lawful child the
paternity of the child will be established in the man provided the following conditions are
fulfilled:-
· Intention to Confer Legitimacy: The acknowledgment must be made in such a way that it
shows that the acknowledger is to accept the other not only as his son but as his legitimate son
as held in Habibur Rahman v/s Altaf Ali-1921.
· Age of the Acknowledger:- The age of the parties must be such that it is possible that they
may be father and son.
· Child of Others: - The child so acknowledged must not be known to be the child of another.
· Person Acknowledged should confirm acknowledgment:- The child, if adult, must confirm,
or acquiesce in acknowledgment. It is very important that the acknowledged child should
verify acknowledgment.
· Legal Marriage possible between Parents of the child acknowledged:- The acknowledger
and the mother of the child must have been lawfully joined in marriage at the time when the
child was begotten. It is essential to show that a lawful marriage is possible between the
acknowledger and child’s mother because the child is not the fruit of an adulterous intercourse.
· Competency of the Acknowledger:- The acknowledger must be competent to make a
contract, that is, he should be adult and sane.
· Offspring of ‘Zina’:- An offspring Zina is one who is born either without marriage, or of a
mother who was the married wife of another, or of a void marriage.
· An acknowledgment once made cannot be revoked:- In a case of Ashrfod Dowlah v/s
Hyder Hussain-1886: It was held that acknowledgment of paternity is a recognition not simply
of son-ship but of legitimacy as a son.
Rules of legitimating:- depends on the assumption of legitimacy and its establishment by
avoidance of the hypothesis of unlawful relationship between the parents. Refer the case of
Nazibunnissa Bibi-1864.
· This rule is based on contractual form of marriage under Muslim Law.
· No ceremony is prescribed for a valid marriage.
· It is also not necessary that the marriage should be published.
· Muslim Law does not recognize western concept of legit
effects of acknowledgmrnt:-Acknowledgment of paternity raises a two-fold presumption. B)
One in the favour of son-claimant. C) The other in favour of the wife claimant i.e. mother of the
acknowledge. D) It produces all the legal effect of natural paternity and vests in the child right
of inheriting from the acknowledger in case of a son. E) The mother of the acknowledged son
gets the status of legal wife and hence the right of inheritance.
What is the object behind making a gift under Muslim Law? Who can make a valid gift? Explain
Is Registration is necessary?
Introduction: - In India it is often assumed that term ‘gift’ is the exact equivalent of ‘hiba’ and
both are understood to connote all transfer of property without consideration. Gift however an
expression of much wider explanation than hiba is. According to Baillie, “The conferring of a
right in something specific without an exchange.”
In Muslim Law, it is treated as a contract consisting of a proposal or offer on the
part of donor to give a thing and the acceptance of it by the donee. The word hiba literally
means the donation of a thing from which the donee may derive a benefit, the transfer must be
immediate and complete. It is also to mention here the most important ingredient of Hiba is
the declaration, “I have given”.
DEFINITION OF GIFT:- Under Muslim Law a person is allowed to lawfully make a gift of his
property to another during his life time or he may transfer it by way of will which take effect
after his death.
In its technical sense, it is defined as, “unconditional transfer of property made immediately
and without any exchange or consideration by one person to another and accepted by or on
behalf of the latter.”
According to Mulla, “Gift is a transfer of property, made immediately and without any exchange
by one person to the other and accepted by or on behalf of the latter.”
A leading case in this regard is of Smt. Hussenabi v/s Husensab Hasan-1989, gist of the case
that offer of gift was made by grandfather to his grand children who were living with him and
on behalf of minor children the acceptance was made by the doner but no express or implied
acceptance of gift was made by the major grandson. The court held that when the three
essentials are not there to complete, it cannot be a complete gift. Gift-deed was valid for the
minor children but the gift in favour of the major sons was set aside.
Object Behind Making a Gift under Muslim Law
The following are the objects for making a gift under Muslim Law:-
1. The conferring of a right in something specific without an exchange:- When
a doner declare to make a gift to anybody, without any consideration of it.
2. Following lawful methods while making of a gift:- Some of the important observations that
the doner adopts lawful methods for making a gift of property in the possession and such a gift
is valid provided the doner either obtains and gives possession.
3. Thickness in relations comes out by making gifts:- For developing strengthens and to
create a co-operation in the society it is necessary that there must be transaction of gifts in
between each other’s which will give strengthen to the society and respect to the doners.
4. To make a person the owner of the substance of a thing:- Under Muslim Law a person
becomes the owner of the substance of a thing without any consideration and to make him the
owner of the profits also.
Is Registration of Gift Necessary
Under Muslim Law writing is not essential to the validity of a gift either of movable or of
immovable property. Sec. 122 to 129 of the Transfer of Property Act, 1882, deals with
gits. As per provisions laid down in Sec. 123 of this act, Gift of immovable property must be
effected by a registered instrument signed by the doner and attested by at least two witnesses,
and that a gift of movable property may be effected either by a registered instrument signed as
aforesaid or by delivery. But these provisions of Sec. 123 do not apply to Muslim gifts; Section
129 of this act also states that nothing in the chapter shall be deemed to affect any rule of
Mohammedan Law.
As per the Registration Act the gift of immovable property worth over Rs.100/- is required
to be by registered instrument. Mohammedan law permits oral gift of immovable property
irrespective of value of the property. Hence the provisions of sec.123 do not apply to gifts
covered by Mohammedan law.
What are the grounds of dissolution of Marriage under Dissolution of Muslim Marriage Act -
1939?
INTRODUCTION: An Act to consolidate and clarify the provisions of Muslim Law relating to
suits for dissolution of marriage by women married under Muslim Law and to remove doubts as
to the effect of the renunciation of Islam by a married woman on her marriage tie. These are
as under:-
i. By stipulation in the marriage contract that she shall have such rights as to effect a
divorce. ii By an option to divorce from the husband. iii By judicial divorce on ground of
impotency false charge of adultery. iv By Lian. v By Khula vi By Mubarat.
Whereas it is expedient to consolidate and clarify the provisions of Muslim Law relating to suits
for dissolution of marriage by women married under Muslim Law and to remove doubts as to
the effect of the renunciation of Islam by a married Muslim woman on her marriage; it is
hereby enacted as follows:
2. Grounds for decree for dissolution of marriage:- A woman married under Muslim Law shall
be entitled to obtain a decree for the dissolution of her marriage on any one or more of the
following grounds provided under Dissolution of marriage Act-VIII of l939:-

(i) that the whereabouts of the husband have not been known for a period of four years;
(ii) that the husband has neglected or has filed to provide for her maintenance for a period of
two years;
(ii-A) that the husband has taken an additional wife in contravention of the provisions of the
Muslim Family Laws Ordinance, 1961; but wife is not entitled to maintenance in the following
situations and it is the reason that she cannot present a litigation of divorce against her
husband on the following grounds :
a) When she lives separately without any reasonable cause. A case of Yusuf Saramma -1971.
b) When she is unchaste to her husband case: Mu. Khadiza v/s Abdula-1942.
(iii) that the husband has been sentenced to imprisonment for a period of seven years or
upwards;
(iv) That the husband has failed to perform, without reasonable cause, his marital obligations
for a period of three years;
(v) That the husband was impotent at the time of the marriage and continues to be so.
(vi) That the husband has been insane for a period of two years or is suffering from leprosy or
venereal disease. Mulla the wife may obtain a decree for the dissolution of her marriage if the
husband has been insane for a period of two years and suffering from leprosy or a verneral
diseases.
(vii) That she, having been given in marriage by her father or other guardian before she
attained the age of sixteen years, repudiated the marriage before attaining the age of eighteen
years: Provided that the marriage has not been consummated.
(viii) That the husband treats her with cruelty, that is to say,
I. habitually assaults her or makes her life miserable by cruelty of conduct even if
such conduct does not amount to physical ill-treatment, or
II. associates with women of evil repute of leads an infamous life, or
III. attempts to force her to lead an immoral life, or
IV. disposes of her property or prevents her exercising her legal rights over it, or
V. obstructs her in the observance of her religious profession or practice, or
VI. if he has more wives than one, does not treat her equitably in accordance with the
injunctions of the Quran. Noorjahan Bibi v/s Kazim Ali-1977: a false charge of adultery by
husband over wife was considered to be cruelty.Begum Zohar v/s Mohammad Isfaq ut Majid-
1955: The use of abusive language by husband and use of defamatory words by husband was
held to be cruelty.
VII. on any other ground which is recognized as valid for the dissolution of marriages
under Muslim Law. They are known as Traditional Grounds: such as : IIa, Zihar, Khula,
Mubarat and Tafweez.
(a) no decree passed on ground (i) shall take effect for a period of six months from the date
of such decree, and if the husband appears either in person or through an authorised agent
within that period and satisfies the Court he is prepared to perform his conjugal duties the
Court shall set aside the said decree; and
(b) before passing a decree on ground (v) the Court shall, on application by the husband,
make an order requiring the husband to satisfy the Court within a period of one year from the
date of such order that he has ceased to be impotent, and if the husband so satisfied the Court
within such period, no decree shall be passed on the said ground.
(c) If husband converts to another religion the marriage is dissolved at the instance, so if
husband changes religion wife has ground for divorce under section 4 of the Act-1939.
3. Notice to be served on heirs of the husband when the husband’s where abouts are not
known. In a suit to which clause (i) of section 2 applies:
(a) the names and addresses of the persons who would have been heirs of the husband under
Muslim Law if he had died on the date of the filing of the plaint shall be stated in the plaint.
(b) notice of the suit shall be served on such persons, and
(c) such persons shall have the right to be heard in the suit:
Provided that paternal-uncle and brother of the husband, if any, shall be cited as party even if
he or they are not heirs.
4. Effect of conversion to another faith:- The renunciation of Islam by a married Muslim
woman or her conversion to a faith other than Islam shall not by itself operate to dissolve her
marriage: Provided that after such renunciation, or conversion, the woman shall be entitled to
obtain a decree for the dissolution of her marriage on any of the grounds mentioned in section
2; Provided further that the provisions of this section shall not apply to a woman converted to
Islam from some other faith who re-embraces her former faith.
5. Right to dower not be affected:- Nothing contained in this Act shall affect any right which a
married woman may have under Muslim law to her dower or any part thereof on the dissolution
of her marriage
6. (Repeal of section 5 of Act, XXVI of 1937)
Rep. by the Repealing and Amending Act, 1942 (XXV of 1942), section 2 and First Sch.
A Muslim marriage is a civil contract. Discuss the nature of the Muslim marriage.
INTRODUCTION: - Marriage i.e. nikah meant different forms of sex relationship between man
and a woman established on certain terms. In ancient age women were treated as chattels and
were not given any right of inheritance and were absolutely dependent. It was Prophet
Mohammad who brought about a complete change in the position of women. The improvement
was vast and striking and their position is now unique as regards their legal status. After
marriage woman does not lose her individuality and she remains a distinct member of the
community. Under the Muslim Law marriage is considered as Civil Contract. The contract of
marriage gives no power to anyone over her person or property beyond what the law defines.
Woman remains the absolute owner of individual rights even after marriage.
DEFINITION OF MARRIAGE (NIKAH):-Marriage (nikah) literally means the union of sexes and in
law this term means, ‘marriage’. Marriage has been defined to be a contract for the purpose of
legalising sexual intercourse and procreation of children.”
In Hedaya, it is defined as, “Nikah in its primitive sense means carnal conjunction.” Some have
said that, “it signifies conjunction generally and finally in the language of law it implies a
particular contract used for the purpose of legalising generation.” The Prophet of Islam is
reported to have said, “That Marriage is my sunna and those who do not follow this way of life
are not my followers.”
Thus marriage according to Muslim Law is a contract for the purpose of legalising sexual
intercourse and the procreation of legitimating of children and the regulation of social life in the
interest of the society.
NATURE OF MUSLIM MARRIAGE:- There are divergence of opinion with regard to the nature of
Muslim marriage. Some jurists are of the opinion that Muslim marriage is purely a civil
contract while others say that it is a religious sacrament in nature. In order to better
appreciate the nature of Muslim marriage it would be proper to consider it in its different
notions.
Muslim marriage by some writers and jurists is treated as a mere civil contract
and not a sacrament. This observation seems to be based on the fact that marriage under
Muslim Law has similar characteristics as a contract. For example:-
i) A marriage requires proposal (Ijab) from one party ad acceptance (Qubul) from
the other so it is the contract. Moreover there can be no marriage without free consent and
such consent should not be obtained by means of coercion, fraud or undue influence.
ii) Similar as in the case of contract, entered into by a guardian on attaining majority
so can a marriage contract in Muslim Law, be set aside by a minor on attaining the age of
puberty.
iii) The parties of the Muslim marriage may enter into any ante-nuptial or post-nuptial
agreement which is enforceable by law, provided that it is reasonable and not opposed to the
policy of Islam. Same is in the case of a Contract.
iv) The terms of a marriage contract may also be altered within legal limits to suit
individual cases.
v) Although discouraged both by the holy Quran and Hadith, yet like any other
contract, there is also provision for the breach of marriage contract.
vi) In the leading case of Abdul Qadir v/s Salima-1886, it emphasise the contractual
aspect and analogy of Muslim Marriage contract with contract of sale.
CONCLUSION:- Thus marriage according to Muslim Law is a contract for the purpose of
legalising sexual intercourse and the procreation of legitimating of children and the regulation
of social life in the interest of the society. However it is further viewed that marriage is not
purely a civil contract but a religious sacrament too. Though sacramental nature of marriage is
considered as an orthodox view but it is also supported by the judiciary in the leading case
of Anis Begum v/s Mohammad Istafa-1933, in the case Sulaiman has tried to put a more
balanced view of the Muslim marriage by holding it both civil contract and a religious
sacrament.