Q. What are the essential requirements of a valid marriage under muslim law?

What are
the conditions for valid , void, irregular marriages?
Ans - In order to be lawful, a Muslim marriage must fulfil the following conditions:
(1) Marital capacity of the bride and the bride groom:
Capacity means the competence of a person to enter into a contract of marriage. Both the parties,
in order to enter into a valid marriage contract must be of sound mind and must have attained
puberty i.e. the age of 15 years. Marriage of minors and lunatics can however be contracted with
the consent of their guardians. But the minor has the option to either repudiate or affirms the
marriage when he attains puberty.

In the case of a female, she can repudiate the marriage before she attains eighteen years of age,
Provided that the marriage has not been consummated. The dissolution of Muslim marriage Act
defines the majority as the age of 15 years. Thus a Muslim male or female who has attained the
age of 15 can enter into marriage.

(2) The proposal and Acceptance:

The proposal of the marriage and its acceptance must be carried out in one and the same meeting
in the presence of two male witnesses or one male and two female witnesses. The proposal and
acceptance may be made by the parties themselves or by their agents on their behalf. The witness
should be from Muslim community and be sound mind. Absence of witness does not render a
marriage void, it only makes it irregular. In fact the shias don’t consider it as a necessary
condition at all.

(3) Fixation of dower or mehar:

Another essential condition of the Muslim marriage relates the fixation of dower or mehar, on
the day of marriage. Dower or mehar refers to a particular sum of money or properly which the
bride is entitled to get from the bride groom in consideration of marriage. Without dower or
mehar a Muslim marriage cannot be called valid.

(4) Preference system:

In mate selection, the first preference is to be given to parallel cousin and cross cousin but no
such preference is being given to cousin marriage these days.

Certain prohibitions:
(1) Marriage with near relatives:
A person is prohibited to marry another who is related to him by consanguinity, affinity or
fosterage (fosterage means a child sucking milk from the breast of a women for a certain period)
Cousangunity (ascendants such as the mother, grandmother, mother in law etc. descendants such
as daughter, granddaughter, among real sister and brothers, granddaughter of the brother,
daughter in law, wife of daughter (the son of the)
(2) Unlawful conjunction:
A Muslim is not also allowed to marry two sisters at a time. After the termination of the first
marriage the second marriage can be performed.

(3) Plurality of marriage:

A woman is not allowed to marry a second person while her former husband is still alive. In
other words, polyandry is strictly forbidden but, on the other hand, a Muslim male is free to have
four wives at a time. If he wants to marry a fifth one has to divorce one of the four.

(4) Marriage during iddat:

The word “Iddat” means waiting period. It refers to the specified period a man is supposed to
wait before seeking remarriage lasts for three months after the dissolution of a former marriage
either by death or by divorce. If the woman is already pregnant, the period of iddat lasts till the
delivery of the baby.

(5) Marriage with idol worshippers:

Marriage with members of other religions especially the idol worshippers and the fire
worshippers are prohibited.

(6) Absence of witness:

Among the Sunni Muslims, the absence or incompetence of the witness renders a marriage
irregular or invalid. Among the Shiah Muslims, however the presence of witness is not
considered to be necessary.

(7) Marriage with follower of other religions:

According to the shia rule of marriage the bride and the bride – groom both must be Muslims in
order to contract a valid Muslims marriage. But the temporary form of Muslim marriage known
as ‘Muta’ can be contracted even with those who have respect for the same scriptures such as the
Jews. Christians and Parsi.

(8) Pilgrimage:
A Muslim man is not allowed to marry while on a pilgrimage.

Classification of marriages under Muslim law-

 Muslims are divided into two sects- Shia and Sunni. On the basis of the validity of a marriage,
Sunni law classifies a Muslim marriage into the following kinds: (a) Sahih (valid marriage), (b)
Batil (void marriage) and (c) Fasid (irregular or invalid marriage). However, Shia law does not
recognize irregular marriage and treats marriages to be either void or valid.

 
 Valid marriage (Sahih)-
A marriage which fulfils all the prescribed conditions of a valid marriage, which are detailed
above, is considered to be valid. A valid marriage gives rise to the following legal implications:

 The parties acquire the status of husband and wife due to which sexual intercourse
between them becomes legal.
 Parties acquire mutual rights of inheritance.
 The wife gets the right of maintenance and right to live with her husband.
 The wife also gets the right of receiving Dower or Mahr from her husband. “Dower” is
the sum of money or other property which a Muslim wife gets entitled to receive from her
husband in consideration of the marriage.
 The wife is under the obligation to be faithful and obedient to her husband and admit
herself to sexual intercourse with him at reasonable time and places.
 The marriage establishes prohibition of marriage due to affinity on both sides, for
instance, the husband cannot marry the wife’s sister.
 The husband gets the power of reasonable chastisement (punishment) and correction
against the wife if she is disobedient or rebellious.
 The husband acquires the right to restrict the wife’s movement for valid reasons.
 The children born out of a Sahih marriage are considered to be legitimate.
 On the dissolution of marriage due to death or divorce, the wife is under obligation to
perform Iddat. Iddat is the period during which a Muslim woman is prohibited from marrying
again after the dissolution of her first marriage. The object of Iddat is to ascertain pregnancy
of the wife so as to avoid confusion of parentage.

Void marriage (Batil)-

A marriage performed in violation of prescribed legal conditions is called a Batil or void
marriage. It is considered void-ab-initio i.e. void from its inception and does not create any legal
rights and obligations on the parties. It is of no legal effect before or after consummation.

The wife is not entitled to claim maintenance but can claim Dower if the marriage has been
consummated. The children born out of a void marriage are considered to be illegitimate.

In case of a void marriage, the parties are free to separate from each other at any time without
obtaining a divorce and may contract another marriage lawfully. Following are some instances of
a void marriage under Shia law:

 marriage in violation of absolute incapacity.

 marriage with the wife of another person where the marriage is still subsisting.
 remarrying one’s own divorced wife if a legal bar exists.
 marriage prohibited by reason of unlawful conjunction.
 marriage with a fifth wife.
 marriage during the pilgrimage.
 marriage with any non-Muslim.
 marriage with a woman undergoing Iddat.

Irregular marriage (Fasid)-

A marriage in violation of partial or qualified legal impediments is considered to be an irregular
marriage. Marriages which are considered as irregular under Sunni law are void under Shia law.
An irregular marriage is not considered to be void from its inception but can be cured by
removing the impediments or irregularities, for instance, marriage of a Sunni male with a fire
worshiper is irregular which can be made valid by the wife’s conversion to Islam.

The implications of an irregular marriage can be discussed from two angles i.e. (a) before
consummation and (b) after consummation.

 Before consummation – An irregular marriage has no legal effect before consummation.

The wife is not entitled to obtain Dower from the husband. The marriage may be terminated
by either party before or after consummation without divorce by expressing an intention to do
so. In this case, the wife is not bound to observe Iddat, after dissolution of the marriage,
considering that the marriage has not been consummated.

 After consummation – Consummation of an irregular marriage gives rise to the following

consequences:

1. The wife has to observe Iddat on the dissolution of the marriage due to divorce or death
of husband.
2. The wife is entitled to get Dower from the husband.
3. The wife is not entitled to get maintenance during period of Iddat.
4. The children of an irregular marriage are considered as legitimate and have the right to
inherit property of their parents.
5. An irregular marriage, though consummated, does not create mutual rights of inheritance
between husband and wife.