 ANSWERS OF THE QUESTIONS DATED 15/04/2020

 ENROLLMENT NO.: GU17R0389 (SYED RENOBA)

 SUBJECT: FAMILY-LAW 1
 SEMESTER: 6TH

Q.NO.1: What is the capacity for marriage in Muslims?

Every Muslim of sound mind, who has attained the age of puberty (i.e. major), may enter into a
contract of marriage. In Muslim law, age of majority is understood with reference to attaining the
age of puberty (completion of 15 years). Lunatics (persons of unsound mind) and minors who
have attained puberty may validly married by their guardians. A marriage contracted by minor
himself is a nullity. Thus, under Muslim law, the party to the marriage should have either the
capacity to marriage or the capacity to be married.

The consent of major is necessary for valid marriage, and marriage brought about without his/her
consent is void [Gulam Bibi v Mohammad Shafi]. Further, when consent to marriage has been
obtained by force or fraud, the marriage is invalid unless it is ratified. Where consent to the
marriage has not been obtained, consummation (sexual intercourse) against the will of woman
will not validate the marriage.

Q.NO.2: What are the absolute and relative bars in marriage in Islam?

The Law clearly states that merely because a Muslim has a capacity to marry and the essentials
of marriage are fulfilled does not by itself render a Muslim marriage valid. For a Muslim
marriage to be a valid marriage it is necessary that a legal bar must not have been in existence
when the marriage was solemnized.

Legal bars are of two types:

1. Absolute bars (Void Marriage)

a) Prohibition on the ground of consanguinity: 
 A Muslim male as per the law is prohibited from marrying the following blood relations:
i. Mother, grandmother (how high soever i.e. ascendants of any degree)
ii. Daughter, grand-daughter (how low soever i.e. descendants of any degree)
iii. Sister (full, half or uterine)
iv. Niece (brother’s or sister’s daughter) or grand niece (brother’s or sister’s
daughter’s daughter) (how low soever)
v. Aunt or great aunt (how high soever, whether paternal or maternal) (Father’s
sister, Mother’s sister, etc.)
b) Prohibition on the ground of affinity: 
A Muslim is prohibited from marrying the following persons on account of a marriage,
valid or invalid:
i. Ascendants of his wife (i.e. wife’s mother, grand-mother etc.)
ii. Descendants of his wife (i.e. wife’s daughter or grand-daughter, etc.)
iii. Wife of any ascendant (i.e. father’s wife, grand-father’s wife, etc.)
iv. Wife of any descendant (i.e. son’s wife, son’s son’s wife or daughter’s son’s wife,
etc.) [this rule is applicable to women. Thus, a woman cannot marry her
daughter’s husband, daughter’s daughter’s husband]

c) Prohibition on the ground of fosterage:

Whoever is prohibited by consanguinity or affinity is prohibited by reason of fosterage
(e.g. a Muslim male cannot marry the foster mother, foster sister or foster mother’s
daughter). However, a Muslim is not prohibited from contracting a marriage with sister’s
foster mother, foster sister’s mother, foster son’s sister or foster brother’s sister.
d) Plurality of husband: 
Marrying a woman who has her husband alive and has not been divorced by him is void
(bigamy of wife). Muslim law, however, does not prohibit the marriage of two cousins
whether parallel or cross cousins (e.g. brother’s daughter with sister’s son or daughter’s
daughter with brother’s son) as is prohibited under the Hindu Law.
[However, marriage with a brother’s widow is valid in Muslim law. Further marriage with
pre-deceased wife’s mother is absolutely prohibited in Muslim law on the ground of
affinity].
 2. Relative bar:

Such bars render a marriage either irregular or do not affect its validity at all, the bars being of a
recommendatory or moral nature. Such bars are temporary nature and can be got over. Thus, an
irregular marriage can become a valid marriage at the violation of the process. These bars are:

a) Unlawful conjugation: 
A Muslim man is not allowed to have two or more wives who are related to each other
by consanguinity, affinity, or fosterage that either of them had been a male they could
not have lawfully intermarried. Thus, a person cannot marry two sisters, or aunt and
niece.

A man may not marry his wife’s sister in his wife’s lifetime. But a man can marry his wife’s
sister after the death or divorce of the wife.

b) Marrying the fifth wife: 

A Muslim man can have only 4 wives at a time. He can marry a fifth wife only after
divorcing one of the four.
c) The absence of proper witness: 
A Muslim marriage becomes irregular among Sunnis when there it is solemnized and
there exists an absence of proper witnesses.
d) Marriage without consent:
Forcing a major Muslim to marry without his/her consent renders a marriage irregular.
e) The difference of religion:
A Sunni male can validly marry a kitabia (i.e. a Jewess or a Christian), but not an
idolatress (idol worshipper) or a fire-worshipper. The marriage with idolatress and fire-
worshipper is merely irregular. The word ‘Kitabia’ used above means a person who
believes in a holy book containing revelations.
f) Marriage with a woman undergoing iddat: 
‘Iddat’ also known as ‘idda’ means the period during which it is incumbent upon a
woman, whose marriage has been dissolved either by virtue of divorce or death to
remain in seclusion and to abstain from marrying another husband. The abstinence is
 imposed to ascertain whether she is pregnant by the husband, so as to avoid confusion of
the parentage.
g) Rule of pilgrimage: 
If a person enters the Holy Kaba in a pilgrim-dress, finds another woman there and
marries her, then the marriage is not regarded as a valid marriage.
h) Marriage after divorce: 
A person cannot remarry the woman whom he has already divorced by triple talaq,
unless the woman marries another man, the marriage is consummated with him and then
he divorces her. A marriage in violation of this is invalid.

Violation of an absolute bar renders a Muslim marriage void on the other hand violation of a
relative bar makes a Muslim marriage irregular in Sunni law and void in the Shia law.