Introduction

Muslim have, from the very beginning, regarded their marriage as a

contract. Muslim marriage has been defined as a civil contract for the purpose of
legalizing sexual intercourse and procreation of children. It is not a sacrament but a
contract, though solemnized generally with the recitation of certain verses from the
Koran. Muslim law does not prescribe any religious service essential for its
solemnization. In words of Shama Charan Sircar: “Marriage among the Muslim is not
a sacrament but purely a civil contract”.

Despite the observation of a modern judge that the impression that a

Muslim marriage is a mere contract and not a solemn union is another fallacy of the
Hindu and western students, in its legal connotations, Muslim marriage are essentially
a contract, though marriage as a social institution is regarded solemn all over the
civilized world, including the Muslims. According to Fyzee, Nikah is an institution
legalized for manifold objects, such as, the preservation of species, the fixing of
descent, restraining men from debauchery, the encouragement of chastity, the
promotion of love and union between the husband and the wife and developing of
mutual help in earning livelihood. That Muslim marriage is essentially a contract is
evident from the nature of marriage and the mode by which it is performed. Thus only
a civil ceremony i.e; an offer made by one party and accepted by another in one and
the same meeting in the presence of two witnesses (not among Shias) is sufficient for
entering into the contract of marriage. Whatever religious ceremonies are appended to
the civil ceremony and merely to give it sanctity; their performance or non-
performance dose not effect legality.

Muslim marriage is a polygamous marriage limited to four wives. A

Muslim male has capacity to keep four wives simultaneously. But if a Sunni male
takes wife more wives, his marriage with the fifth wife or subsequent wives is not
void but merely irregular.

Islam, unlike other religions is a strong advocate of marriage. There is

no place of celibacy in Islam like the Roman Catholic priests & nuns. The Prophet has
said “There is no Celibacy in Islam”. Marriage is a social need because through
marriage, families are established and the families are the fundamental entity of our
society. Furthermore marriage is the only legitimate or halal way to indulge in
intimacy between a man and woman.

Islamic marriage although permits polygamy but it completely prohibits

polyandry. Polygamy though permitted was guarded by several conditions by Prophet
but these conditions are not obeyed by the Muslims in toto.

Marriage Defined:-
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.

(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 dealings
among men.

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

(f) Prophet said:- “When a man marries he has fulfilled half of his religion, so let him
fear Allah regarding the remaining half. ”This very wording of Prophet marks the
importance of marriage, thus it could be well concluded that marriage in Islam is
must.

(g) 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 other‟s life companionship, which in law
takes the form of a contract or aqd.

It‟s a matter of query still existing whether Muslim marriage is only a civil contract or
an Ibadat & Muamlat. While unleashing the various definitions it‟s quite a big
problem to say which one is the most appropriate, in my opinion although the
essentials of a contract is fulfilled yet marriage can never be said to be a contract
because marriage always creates a bondage between the emotions and thinking of two
person.
J Sarsah Sulaiman has said “In Islam , marriage is not only a civil contract but also a
sacrament.”

Marriage Pre Islamic Position:-

Before the birth of Islam there were several traditions in Arab. These
traditions were having several unethical processes like:-
(i) Buying of girl from parents by paying a sum of money.
(ii) Temporary marriages.
(iii) Marriage with two real sisters simultaneously.
(iv) Freeness of giving up and again accepting women.
These unethical traditions of the society needed to be abolished; Islam did it and
brought a drastic change in the concept of marriage.

The Purpose of Marriage:-

The word "zawj" is used in the Quran to mean a pair or a mate. In

general it usage refers to marriage. The general purpose of marriage is that the sexes
can provide company to one another, love to one another, procreate children and live
in peace and tranquility to the commandments of Allah. Marriage serves as a means to
emotional and sexual gratification and as a means of tension reduction. It is also a
form of Ibadah because it is obeying Allah and his messenger - i.e. Marriage is seen as
the only possible way for the sexes to unite. One could choose to live in sin, however
by choosing marriage one is displaying obedience to Allah.

Marriage is "mithaq" - a solemn covenant (agreement). It is not a matter

which can be taken lightly. It should be entered into with total commitment and full
knowledge of what it involves. It is not like buying a new dress where you can
exchange it if you don't like it. Your partner should be your choice for life. One
should be mature enough to understand the demands of marriage so that the union can
be a lasting one.

Capacity for Marriage:-

The general essentials for marriage under Islam are as follows:-
(i) Every Mahomedan of sound mind and having attained puberty can marry. Where
there is no proof or evidence of puberty the age of puberty is fifteen years.
(ii) A minor and insane (lunatic) who have not attained puberty can be validly
contracted in marriage by their respective guardians.
(iii) Consent of party is must. A marriage of a Mahomedan who is of sound mind and
has attained puberty, is void, if there is no consent.

Essentials of Marriage:-
The essentials of a valid marriage are as follows:-
(i) There should be a proposal made by or on behalf of one of the parties to the
marriage, and an acceptance of the proposal by or on behalf of the other party.
(ii) The proposal and acceptance must both be expressed at once meeting.
(iii) The parties must be competent.
(iv) There must be two male or one male & two female witnesses, who must be sane
and adult Mahomedan present & hearing during the marriage proposal and
acceptance. (Not needed in Shia Law)
(v) Neither writing nor any religious ceremony is needed.

Essentials Explored:-
(i) A Muslim marriage requires proposal „Ijab‟ from one party and acceptance „Qubul‟
from the other side. This must be done in one sitting.
(ii) The acceptance must be corresponding to what is being offered.
(iii) The marriage must be effectively immediate. If the Wali says “ I will marry her to
you after two months”, there is no marriage.
(iv) The two parties must be legally competent; i.e. they must be sane and adult.
(v) The women must not be from the forbidden class.
(vi) The consent given must be free consent,. It must not be an outcome of
compulsion, duess, coercion or undue influence.

Is Marriage obligatory?

According to Imams Abu Hanifah, Ahmad ibn Hanbal and Malik ibn
Anas, marriage is recommendatory, however in certain individuals it becomes
wajib/obligatory. Imam Shaafi'i considers it to be nafl or mubah (preferable). The
general opinion is that if a person, male or female fears that if he/she does not marry
they will commit fornication, then marriage becomes "wajib". If a person has strong
sexual urges then it becomes "wajib" for that person to marry. Marriage should not be
put off or delayed especially if one has the means to do so.

A man, however should not marry if he or she does not possess the means to maintain
a wife and future family, or if he has no sex drive or if dislikes children, or if he feels
marriage will seriously affect his religious obligation.

The general principle is that prophet enjoined up in the followers to marry.

He said "when a man marries, he has fulfilled half of his religion , so let him fear
Allah regarding the remaining half." This hadith is narrated by Anas. Islam greatly
encourages marriage because it shields one from and upholds the family unit which
Islam places great importance.

Ceremonies of Marriage :-

Muslim law provides for simple ceremonies of marriage. All that is

necessary for the performance of a Muslim marriage is that there should be a proposal
of marriage made by, or on behalf, of other and in or at the same meeting. If the
proposal is made in one meeting and the acceptance in another, it does not result in
valid contract of marriage. The Sunni law requires that the proposal and acceptance
should be made in the presence and hearing of two adult male witnesses, or one adult
male witness and two adult female witnesses. The Shia law does not require the
presence of witness. For making the proposal or for acceptance, no specific words are
laid down, though it is necessary that whatever words are used, these must clearly and
unequivocally convey the intention to be married. The usual words, though not
prescribed are, “I have married myself to you”. And the other says, “I have consented
myself to you.” The Ithana Ashari law required the use of two Arabic words,
“tazweez” and “nikah”. But even if proper words are not used, consummation of
marriage cures the deficiency. No religious ceremonies are essential. No writing is
required either.

In India, marriage among all sets of Muslims is usually solemnized by

persons conversant with the requirement of law and they are designated as kazis or
mullas. Two persons, formally appointed for the purpose, act on behalf of the
contracting parties, which either number of witnesses. The terms of marriage are
usually embodied in a deed called kabin namah. In the kabin namah are incorporated
such conditions as the amount of dower, mode of its payment, matters relating to
custody of children and all other conditions which the spouses desire to stipulate.
Since Muslim marriage is a contract, Muslim law requires that the consent of parties if
adult, or of their guardians if minors, must be expressed clearly and unequivocally.
Among the Hanafis and Shias, adult and sane person are themselves competent to give
their consents, therefore no consent of walis (guardians) is required. If guardian
consents but the girl withholds her consent no valid marriage takes place. If a party is
not competent to contract, the consent of marriage-guardian is necessary. The Shafiis
and Malikis insist that the consent of marriage must be given by the girl herself, the
wali merely communicates the consent, but it insits that the girl, even if adult, cannot
herself communicate her consent, it must be conveyed through the wali.

In Muslim law, consummation of marriage cures deficiencies of the

formalities. A valid retirement (khalwal-us-sahib) raises a presumption of
consummation of marriage. It is necessary that the place of retirement should be such
where parties can really have privacy. If the place is exposed to public view or has
public access, or if it is an open, unenclosed place, no presumption of consummation
of marriage arises. Under the Shia or Shafii laws, no absolute presumption of
consummation of marriage arises from valid retirement, it is only actual
consummation of marriage which give rise to martial rights and obligations.

Even according to the Hanafi and Maliki law, valid retirements raises a
presumption of marriage for certain purpose, such as for conformation of dower,
establishment of paternity, observations of idda, wife‟s maintenance and lodgement,
unlawfulness of marriage by man with wife‟s sister or fifth woman, and observance of
time in repudiation of marriage. It dose not raise the presumption for making a person
nushan or a daughter unlawful, making a divorced woman lawful to her first husband
or revoking repudiation of inheritance, or impairing virginity.

There is no Union for registration of Muslim marriages, some State statues

provide for the registration of marriage and divorce. Bride‟s father can recover all
marriage expenses from the groom or his father if father after the solemnization of
marriage returns to his place without the bride or bride‟s father‟s refusal to pay
expenses of nautch girl, even when the bride later on repudiates the marriage.