1

School of Law and Governance,

Central University of South Bihar

Project Assignment Submission
On
“nature of Muslim marriage sacrament or civil contract.”

“Muslim law”

Under the Supervision of: Mr. Mani Pratap

((Assistant Professor, School of Law & Governance Central University of South

Bihar))

Submitted By:-AVINASH RANJAN

B.A.LL.B. (Hons.) 5th Semester
Enrollment Number-CUSB1913125121.
SECTION-A

[Date] 1
2

PREFACE

As a part of the B.A. LL.B. Curriculum, I have prepared this project on the topic. This project
has helped me to under “nature of Muslim marriage sacrament or civil contract.” in which I
have learned a component of Muslim law as a contract and some basic ingredients of Muslim
marriage.

In this project report I have included various concepts about this topic and have tried to
represent them in fine manner. Doing this Project report helped me to enhance my knowledge
regarding the topic and its implications of it in my field of study. This project contains
detailed information about this topic and also includes many relevant facts related to it. I have
tried to represent them in a proper manner and hope that my work is satisfactory.

[Date] 2
3

ACKNOWLEDGMENT

I am highly elated to work on the topic “nature of Muslim marriage sacrament or civil
contract”. I take this opportunity to express my gratitude to the people who have been
instrumental in successful completion of the project.

I am thankful to my teacher who guided me in every step. I would like to enlighten my readers
with my efforts. I have tried my best to bring luminosity to this project.

I am thankful to my friends, colleagues and seniors for providing me continuous guidance. I

am thankful to librarian who provided me required books and necessary materials. I could
not complete the project without their assistance.

[Date] 3
4

INRODUCTION

Marriage under Mohammedan law is a legal contract or civil contract between the bride and
bridegroom and it is part of Islamic marriage. For the marriage of Muslims, the word ‘Nikah’
is used which means ‘contract’. Nikah is an Arabic term. The meaning of nikah is the
physical relationship between man and woman. The ‘Quran’ specially refers to marriage as
“Mithaqun Ghalithun” which means ‘a strong agreement’. This contract results marital rights
and obligations between man and woman. Marriage under Mohammandan law is different
from other religious marriage. This is not a religious ceremony performed by bride and
bridegroom, but a contract which creates marital obligations between man and woman.

The Arabic term ‘nikah’ is used to describe marriage is transliterated into “the Union of
Sexes” and under this Arabic term, marriage became a civil contract in Muslim Law, as
intended by the Prophet Mohammed. It has since become one of the most sacrosanct social
institutions known to Man, while providing equal importance and according equal rights to
both sexes.

Chastity is forbidden and, in fact, looked down upon in Muslim communities. Marriage is a
contract for the purposes of the legislation of intercourse, procreation of children and the
regulation of social life in the interests of society by creating both rights and duties for the
parties partaking in this social contract and also between the parties and the children born out
of the aforesaid union. It can be entered into by parties who have reached puberty (majority
for the purposes of marriage) or by guardians of the persons concerned. Even lunatics can be
entered into marriage by their guardians.

Unlike civil contracts, however, a contract of nikah cannot be time-limited, not cancelled if
procreation is not possible (due to various reasons). It is, however, a very devotional act from
the perspective of the Muslim religion- an entwinement of two souls to achieve the spiritual
ends of continuing the line of the male.

[Date] 4
5

Nature of Muslim Marriage

Nature and Concept of Marriage: There are divergence of opinion with regard to the nature of
Muslim marriage. According to some jurists Muslim marriage is purely a civil contract while
others say that it is a religions sacrament in nature. In Islam marriage is also a social and
religious institution. A Muslim marriage has the three following aspects–

Legal Aspect:-

🎭: As marriage requires proposal (Ijab) from one party and acceptance (Qubul) from the
other so is the contract1. 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.

1
Abdul Kadir v. Salima,1886

[Date] 5
6

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.
Mammad2, 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.

Justice Mitter in Subrunnisa's case3 : Marriage under Muslim Law is a civil contract and is
like a contract of sale. Sale is a transfer of property.

Social Aspect:

Nikah is a social institution by which a definite and dignified status has been conferred upon
the women in the society, some points regarding social aspect–

In civil contracts, general rule is that there is no liability to pay consideration if it has
not been specified in the contract on the other hand in Muslim marriage even if the
amount of dower has not been specified, the law requires that something (proper
dower) must be paid by the husband to the wife as a mark of respect towards her.
Unlike civil contract, it cannot be made contingent on future event.
Unlike civil contract, it cannot be for a limited time (muta marriage is an exception).
Unlike civil contract, a Muslim male cannot marry with more than four wives at a
time.
Unlike civil contract, a marriage cannot take place between certain close relatives.
Ex.- with real sister.

2
(1990) (1) KLT 172.
3
AIR 1934 Cal. HC.

[Date] 6
7

Unlike civil contract, a marriage cannot take place in certain circumstances Ex.- A Shia
Muslim is not allowed to marry during a religions journey (Haj)

Religious Aspect :

Quran, which is a collection of the words of God, directs every Muslim to marry a suitable
woman of his liking. It is, therefore, a religions duty of every Muslim to marriage according
to the rules of Islam. Any person who does not marry without any reasonable excuse,
disobeys the words of God. According to Islam marriage is a Sunnat muwakkidah. This
means that it is an act of such a nature that if a person does it, he gets religious benefits; if he
does not do it, then he commits a sin. Taking religious aspect into account Muslim marriage
is an ibadat (devotional act) "He who marries completes half of his religion it now rests with
him to complete the other half by leading a virtuous life in constant fear of God." There is
no monkery in Islam.

According to Prophet : I keep fast and break it. I pray and I sleep and I am married, so
whoever inclines to any other way than my Sunnah, he is not of me.

In Anis Begam vs Mohd. Istafa4 : C.J. Sulaiman has pointed out that apart from being a
contract, a Muslim marriage is also a religious sacrament.

According to M.C.J. Jung:- "Marriage is an institution of Ibadat clothed in the legal form of
contract regulating sexual intercourse; but its continuance is dependent upon the
maintenance of conjugal affection." In the ultimate analysis it can be said that the marriage
in Islam is neither purely a civil contract nor as a sacrament

4
(1933) 55 All 743, 756.

[Date] 7
8

Whether the Muslim marriage is a sacrament like the Hindu marriage

It is quiet relevant to know whether the Muslim marriage is a sacrament like the Hindu
marriage, for this let us get acquainted with some of the definitions of Muslim marriage.
Some of the philosophers have following opinion about the marriage –

a) Hedaya - Marriage is a legal process by which the several process and procreation and
legitimation of children between man and women is perfectly lawful and valid.

b) Bailies Digest - A Nikah in Arabic means Union of the series and carries a civil contract
for the purposes of legalizing sexual intercourse and legitimate procreation of children.

c) Ameer Ali - Marriage is an organization for the protection of the society. This is made to
protect the society from foulness and unchestity.

d) Abdur Rahim :- The Mahomedan priests regard the institution of marriage as par taking
both the nature of Ibadat or devotional arts and Muamlat or dealing 1 among men.

e) Mahmood J. :- Marriage according to the Mahomedan law is not a sacrament but a civil
contract.

(f) Under Section 2 of Muslim Women (Protection of Rights on Divorce) Act, 1986 Marriage
or Nikah among Muslims is a ‘Solemn Pact’ or

‘Mithaq-e-ghalid’ between a man & a woman ,soliciting each others life companionship,
which in law takes the form of a contract or aqd.

Muslim marriage can also be differentiated from a civil contract on the basis of following
points:-

(a) It cannot be done on the basis of future happenings unlike the contingent contracts.

(b) Unlike the civil contract it cannot be done for a fixed period of time. (Muta Marriage
being an exception.)

[Date] 8
9

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.

***
This is my humble submission of the topic “nature of Muslim marriage sacrament or civil
contract.” designated to me. I thank one and all.

[Date] 9
10

BIBLIOGRAPHY:

BOOK:-
1) Mulla, D.F., Principles of, Lexis N Mahomedan law lexis Butterworth, Wadhwa Nagpur,
2010

2) Muslim and the Constitution, A.M.Bhattacharjee, Eastern Book House, Calcutta

3) Marriage and Succession in Muslim Law, S.A.Kader, Eastern Book House, Calcutta
Outlines of Muslim Laws, A.A.A.Fyzee, Oxford

4) Mohammedan Law, Syed Amir Ali, Hind, Delhi

5) The Death of Marriage Law, D.J.M.Derret, Vikas, New Delhi

6) Muslim Law, Khaled Rashid, Eastern Book Concern, Lucknow

REFERENCE:-

1) www.Live Law.in.
2) Academike (articles on legal issues).
3) www.Lawctopus.in.
5) www.Indian Kanoon.org website.
6) Essential Judicial Rulings for Police Officers (Published by Maharashtra Police
Academy, Nasik).
7) www.manupatra.in
8) www.heinonline.in
9) www.jstor.in

[Date] 10