 ANSWERS OF THE QUESTIONS DATED 17/04/2020

 ENROLLMENT NO.: GU17R0389 (SYED RENOBA)

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

Q.NO.1: What are distinctions between Shia and Sunni law of marriages?

1) SUNNI LAW: A marriage contracted in the absence of witnesses is irregular.

SHIA LAW: The presence of witnesses is not necessary.

2) SUNNI LAW: A male can validly marry a ‘kitabia’ (i.e. a Jewess or Christian), while the
marriage with an idolatress or fire-worshipper is irregular. A female cannot marry a non-
Muslim, whether kitabia or non-kitabia.

SHIA LAW: No Muslim, whether male or female, can marry a non-Muslim.

3) SUNNI LAW: Marriage with the wife’s aunt or wife’s niece is irregular.
SHIA LAW: A male can marry his wife’s aunt; he can even marry his wife’s niece, but
only with the wife’s permission.

4) SUNNI LAW: A marriage may be valid, void or irregular.

SHIA LAW: A marriage may be valid or void. Irregular marriages, under the Sunni law,
are void or valid under the Shia law.

5) SUNNI LAW: A marriage cannot be restricted in its duration.

SHIA LAW: A male can contract a temporary marriage, called muta marriage.

6) SUNNI LAW: Regarding guardianship in marriage, the list of guardians include father,
parental grandfather, mother, brother, etc., and the Government.
SHIA LAW: The only guardians recognized are the father, and parental grandfather, how
high soever.
 7) SUNNI LAW: The Hanafis hold that equality between the two parties is a necessary
condition in marriage; a runaway marriage called kifa’a (viz. a girl marrying a servant) is
liable to be set aside.
SHIA LAW: There is no such necessary condition in a marriage.

Q.NO.2: What is “Mutta Marriage”?

The word “muta” literally means “enjoyment, or use”. It is a ‘marriage for pleasure’ for a fixed
period of time, also known as temporary marriage. The institution of muta, which was fairly
common in Arabia before and at the time of the prophet, is now not recognized by any school of
Muslim law in Indian, except the Ithna Ashari School or Shia school.  In practice, however, the
institution of muta marriage is almost obsolete in India.

ESSENTIALS OF ‘MUTA’ MARRIAGE

1. A Shia male may contract a muta with a kitabia woman (professing the Mohammedan,
Christian or Jewish religion) or even with a fire- worship-per, but not with a woman
following any other religion. A Shia woman, however, cannot contract a muta with a
non–Muslim. Relations prohibited by affinity are also unlawful in such marriage.
2. A Shia male can contract any number of muta marriages; all the requisite formalities of
marriage i.e. offer and acceptance, have to be observed in muta marriage.
3. It is essential to the validity of ‘muta’ marriage that—
1. The period of cohabitation should be fixed, (which may be a day, a month, a year
or years)
2. Some dower should be specified (otherwise marriage will be invalid).

If the period is not specified, though dower is specified, the contract, though void as muta may
operate as a “permanent “marriage.
LEGAL INCIDENTS OF THE ‘MUTA’ MARRIAGE

1. It does not create mutual rights of inheritance between the spouses, but children
conceived of the relationship are legitimate, and can inherit from both parents.
2. Wife is not entitled to maintenance under Shia law (unless specified). However, she is
entitled to maintenance as a wife under the provisions of Sec.125 of CrPC.
3. Dower is necessary condition of muta. Where the marriage is consummated, the wife
is entitled to the whole amount, even if the husband ends the contract before the term
expires. If the marriage is not consummated, the wife is entitled to half the dower. 
4. On the expiry of the term of marriage, if the marriage has been consummated, the wife
is required to undergo Iddat of three courses.
5. Husband has the right to refuse procreation i.e. ‘izl’.
6. A muta marriage is dissolved ipso facto on the expiry of the term, unless extended.

[No husband (and wife) have right of divorce recognized in muta, but he can terminate the union
earlier by ‘making a gift of term’ (hiba-i-muddat). The wife’s consent is not required for such
termination. In that case wife is entitled to full dower. The wife has a right to leave the husband
before the expiry of the term of the ‘muta’ marriage; if she does so the husband has a right to
deduct the proportionate part of the dower for the unexpired period].

7. Where there is evidence of the term for which muta marriage was fixed and
cohabitation continues after that term, ‘muta’ marriage stands extended for the whole
period of cohabitation and the children conceived during the extended period are
legitimate.
Q.NO.3: What are the different types of marriages in Islam? Under this head you have to
write about Valid (Sahih), Void (Batil) and Fasid (Voidable) marriages.

A Muslim marriage may be-- Valid (Sahi i.e. true), Void (Batil i.e. bad in its foundation) or
Irregular/ Invalid (Fasid i.e. good in its foundation but unlawful in its attributes).

The Shia law does not recognize distinction between irregular and void marriages (marriage is
either void or valid). Marriages that are irregular under Sunni law are void or valid under Shia
law.

1. VALID (SAHI) MARRIAGE:

A marriage performed between the parties having full capacity to marry with all the necessary
formalities is a valid marriage.

The consequences of valid marriage are:

i. Parties acquire the status of husband and wife and sexual intercourse between them
becomes legal. However, the status of woman does not change and she is subject to her
own pre-marital school of law.
ii. Status of legitimacy on the children conferred.
iii. Wife acquires the right of maintenance, dower and residence.
iv. Mutual rights of inheritance conferred on the parties (however, not a right or power on
each other’s property).
v. Wife becomes bound to allow conjugal union, obey the commands of her husband.
vi. On dissolution of marriage, by divorce or death, the wife has obligation to perform Iddat.
vii. Prohibited degrees of relation created between the parties.
viii. Other rights and obligations as agreed upon the marriage contract.
 2. VOID (BATIL) MARRIAGE:

A marriage which is performed in violation of perpetual impediments, under the Sunni law, and
of all impediments under the Shia law, is a void marriage. This marriage is unlawful in itself.
Thus, a marriage with a woman performed in violation of the rules of consanguinity, affinity or
fosterage is void.

A void marriage is no marriage at all and no legal consequences flow from it; there is neither
dower nor Iddat; the children are illegitimate. Such marriage cannot be validated.

No legal action is necessary to declare such a marriage as void. But, if such a marriage has been
consummated, the wife becomes entitled to customary dower only.

3. IRREGULAR (FASID) MARRIAGE:

An irregular marriage is one which is not unlawful in itself, but unlawful “foe something else”,
as where the prohibition is temporary or relative or remedial, or when the irregularity arises from
an accidental circumstances, such as absence of witnesses.

An irregular marriage is not a valid marriage; nor is it a void marriage. Further it can be made a
fully valid marriage by remedying the prohibition. Thus, a person can marry fifth wife by
divorcing the four wives; the bar of Iddat ceases on expiration of Iddat period; a person can
marry his wife’s sister by divorcing his wife.

When a Sunni male marries an idolatress, the marriage is irregular, but on his wife’s conversion
to kitabia (i.e. a Jewess or Christian), the marriage becomes valid.

Either party may terminate an irregular marriage by saying “I have relinquished you” or by
divorce or by Court’s intervention, either before or after consummation. Such a marriage has no
legal effect before consummation. If the consummation has taken place, then the wife is entitled
to dower and she is bound to observe the Iddat of three courses in case of the husband’s death or
divorce. The children then become legitimate and have rights of inheritance. But an irregular
marriage though consummated does not create mutual rights of inheritance between husband and
wife.