DEPARTMENT OF LAW,

SCHOOL OF LEGAL STUDIES

ASSIGNMENT
Family Law – I (IL-C-304)

Essential Attributes of Valid Marriage

& its Legal Effects in Muslim Law.

Prepared by: Submitted To:

Sujeet Kumar Tahmeena Bhat
BALLB 3rd Semester Guest faculty
Enrolment no. - 2007CUKmr35

Page 1 of 12
 Table of contents

Topic Page no.

1. Introduction 3
2. Essentials of a valid Muslim marriage 3-9
a. Proposal and Acceptance
b. Competency of Parties
i. Major
ii. Soundness of Mind
iii. Muslim
c. Free Consent
d. Dower
e. Free from Legal Disability
i. Absolute Prohibition
 Consanguinity
 Affinity
 Fosterage
ii. Relative Prohibition
 Unlawful Conjunction
 Polygamy
 Absence of Proper Witness
 Difference of religion
 Marriage during Iddat
iii. Miscellaneous Prohibitions
f. Registration
3. Legal Effects of a Valid (Sahih) Marriage under Muslim Law 9-11
4. Conclusion 12
5. Bibliography 13

Page 2 of 12
 1. Introduction

In the landmark case of Abdul Kadir v. Salima And Anr.1, (J) Mahmood observed nature of
Muslim marriage purely as a civil contract rather than a sacrament. According to the
observation of (J) Mahmood I can conclude that the objective of Muslim marriage is to
legalize sexual relationship of male and female and also procreation of child. Thus, a valid
contract is necessary for Muslim marriage. The essentials of Muslim marriage are very much
similar to that of a Civil Contract.
2. Essentials of a valid Muslim Marriage

The essentials of a valid Muslim Marriage (Sahih) are as follows:

a. Proposal and Acceptance

In a Muslim Marriage, proposal is referred to as ‘ijab’ and acceptance of the same as

‘qubul’.2 A proposal should be made by or on behalf of one party and the same should be
accepted by the other party. For a valid Muslim marriage, proposal and acceptance should be
carried out at the same meeting. If a proposal is made at one meeting and the acceptance of
the proposal is done in the second meeting, it is not considered as valid3.

b. Competency of Parties
The parties to the contract must be: -
i. Major
ii. Of Sound Mind
iii. Muslims

i. Major
For the purpose of Muslim marriage, the age when a person reaches puberty is considered as
the age of puberty. According to The Hedaya, the earliest age of Puberty for female is 9 years
and for male, it is 12 years. 4 The Privy Council in the case of Muhammad Ibrahim v. Atkia
Begum & Anr.5 held that under Muslim law, a girl is considered to have attained the age of
puberty if:

 she has attained the age of 15 Years, or

 attaining the state of puberty at an earlier age.

1
(1886) ILR 8 All 149.
2
Diwan P, Muslim Law in Modern India 52 (Allahabad Law Agency, Faridabad, 2018).
3
Rasool Bi v. Jaitoon Bi, 1976 MPLJ 655.
4
Charlse Hamilton, III The Hedaya or Guide 530 (Premier Book House, Lahore, 1963).
5
16 Ind Cas 597.

Page 3 of 12
The same rule is also applicable to a Muslim Boy. 6 Thus, it can also be said that in absence of
any contrary, a Muslim is considered to have attained the age of puberty at 15 years. After
attaining the age of 15, parties can give their own consent and there is no need of consent of
guardians.7
If a person is a minor, i.e, not attained the age of puberty, the consent of the guardian is
required to make the marriage lawful. The persons recognized as guardian under Muslim law
are:

 Father
 Paternal Grandfather
 Brother or any other male member of father’s family
 Mother
 Members of Maternal Relation

The right passes from one guardian to other, in absence of the previous one, in order of
priority. In absence of any of these guardians, marriage may be contracted by Qazi or any
other Government Authority.8

ii. Soundness of Mind

At the time of marriage, both the parties should be of sound mind. 9 Person of unsound mind
has no capacity to enter into a contract and in the eyes of law his consent will be considered
as no consent. Unsoundness is of two types:

 Idiocy: It refers to a complete abnormal state of mind. Person belonging to this

category are incompetent to contract, and
 Lunacy: It refers to a curable mental disease. A lunatic person can enter a contract in
the time interval in which he behaves like sane person.

iii. Muslim

The parties to enter into marriage must be a Muslim irrespective of their sect or sub-sect. A
Marriage is considered to be as inter-sect marriage is both the parties are Muslim belonging
to different sect but the marriage is valid.10
c. Free Consent
For a valid marriage free consent of the parties is a must. If the consent is obtained by means
of coercion, fraud or mistake of fact, it is considered as invalid and the marriage is considered

6
Supra note 4 at 529.
7
Charlse Hamilton, I The Hedaya or Guide 34 (Premier Book House, Lahore, 1963).
8
Id. at 39.
9
Supra note 2 at 56.
10
Syed Gholam v. Setabah Begum, (1866) 6 WR 88; Nasrat v. Hamidan, (1882) 4 All 205; Aziz Bano v.
Muhammad, (1925) 47 All 823.

Page 4 of 12
as void. In the case of Mohiuddin v. Khatijabibi11, the Court held that a marriage is invalid if
it is held without free consent of the parties.
d. Dower
It is referred as mahr. According to Mulla “a sum of money or other property which the wife
is entitled to receive from the husband in consideration of marriage”. Its object is to offer the
bride a sense of financial security within and after the termination of marriage. 12 In the case
of Nasra Begum v. Rizwan Ali 13, The Allahabad High Court held that right to mahr comes
into existence before cohabitation. The Court also concluded that if wife is a minor, her
guardians can refuse to send to her husband until payment of dower, and if wife is in
husband’s custody, then she can also be brought back.
e. Free From Legal Disability
Under Muslim law, marriage is not permitted under certain circumstances. The
restrictions/prohibition can be divided into following parts:
i. Absolute Prohibition
ii. Relative Prohibition
iii. Miscellaneous Prohibition

i. Absolute Prohibition
A Muslim marriage cannot take place if the parties are within the blood relationship or
prohibited degree of relationship of each other and the Marriage turns to be void. 14 The
absolute prohibited degrees of relationship are as follows:

 Consanguinity

It refers to blood relationship in which a man is barred from marrying the following females.
They are as follows:15

 His mother or Grand-mother (how high so ever),

 His daughter or Grand-daughter (how low so ever),
 His sister (irrespective of full blood/ half-blood/ uterine blood),
 His niece or Great-niece (how low so ever), and
 His aunt or great aunt, whether paternal or maternal (how high so ever).
 A marriage with woman prohibited under consanguinity is void. Also, children born
out of that wedlock are considered as illegitimate.

 Affinity

11
41 Bom L.R. 1020.
12
Supra note 4 at vol. I p.no.44.
13
AIR 1980 All 198.
14
Supra note 2 at 61.
15
Supra note 7 at 27.

Page 5 of 12
A marriage with certain close relatives is also prohibited in Muslims due to closeness of
relationship. The prohibited relationship are as follows:16

 His wife’s mother or Grand-mother (how high so ever),

 His wife’s daughter or Grand-daughter (how low so ever),
 His father’s wife or paternal Grand-father’s wife (how high so ever), and
 His son’s wife or son’s son’s wife or daughter’s son’s wife (how low so ever).
 A marriage with woman prohibited under affinity is void.

 Fosterage

It refers to milk relationship. It is a condition when a lady other than the mother of the wife,
breastfed/ suckled the child under the age of two years, the lady turns to be foster-mother of
the child. A man is restricted from marrying the persons who come under foster relationship.
The restrictions are as follows:

 His foster mother or foster grandmother (how high so ever), and

 Daughter of foster mother (Foster sister).

Under the Sunni law has a few exceptions with respect to prohibition on ground of fosterage
and the following Marriage is considered as valid:

 Sister’s foster mother, or

 Foster’s-sister’s mother, or
 Foster-son’s sister, or
 Foster-brother’s sister.

The Shia jurists consider Consanguinity and fosterage at same footing and deny the exception
allowed by Sunnis.

ii. Relative Prohibition

Under Muslim law, certain prohibitions are relative and not absolute. If marriage takes place
in violation of such prohibition, it is only irregular and it can’t be declared as void. The
marriage becomes valid as soon as the irregularities are removed. Relative prohibitions are as
follows:

 Unlawful Conjunction

A Muslim man is prohibited to marry two different women if they are related to each other by
means of consanguinity, affinity or fosterage as if they would have been of opposite sexes
their marriage would have been void (batil). After the termination of marriage/ death of his
wife, marriage can take place with the other. Under Sunni law, Marriage in violation of
unlawful conjunction is irregular fasid and not void but under Shia law, a marriage violating
the rule of unlawful conjunction is void batil.
16
Supra note 7 at 28.

Page 6 of 12
  Polygamy

Muslim laws allow polygamy but it is restricted to a maximum of four wives. A Muslim man
can have four wives at a time, but if he marries the fifth one despite of having four wives, the
marriage turns to be irregular and not void. The fifth marriage can be valid after death/
termination of marriage of one of the four wives. However, the Shia law considers marriage
with the fifth wife as void. In India, a Muslim marriage can’t have a second marriage if his
marriage is registered under The Special Marriage Act, 1954.

 Absence of Proper Witness

Contracting of marriage must be done in the presence of proper and competent witnesses.
Under the Shia law, presence of witness is not essential and marriage without witnesses is
considered as valid. Marriage is contracted by the parties themselves (if major) or by their
guardians itself. Under Sunni law, presence of witness is essential else the marriage would be
irregular. At least two male or one male and two female witnesses should be present, and the
witness should be a major, of sound mind and a Muslim.

 Difference of religion

Under the Sunni law, a Muslim male is allowed to marry a female who shows respect for
same scriptures, such as Christain, Parsi and Jews, but if he marries with an idol/ fire
worshipper, the same is considered as irregular 17. A Muslim woman is not allowed to marry a
non-Muslim man and if it happens, the same is considered as irregular. Under the Shia Law, a
marriage with non-Muslim is considered as void.18

 Marriage during Iddat

It is referred to as a period of waiting after the death of her husband or after termination of
marriage during which she cannot remarry. The purpose of the iddat is to check whether the
woman is pregnant or not to clear doubts of paternity of any child born. A divorced woman
has to observe for a period of three months whereas a widow observes it for four lunar
months and ten days after the death of husband, If the woman is pregnant then if extends up
to her delivery.19 Under Sunni law, marriage during iddat is considered as irregular 20 whereas,
under Shia law, it is considered as void.21

iii. Miscellaneous Prohibitions

 Marriage during pilgrimage is considered as void in Shia law.

17
Alex B. Leeman, "Interfaith Marriage in Islam: An Examination of the Legal Theory Behind the Traditional
and Reformist Positions" 84 Indiana Law Journal 755 (2009).
18
Id. at 756.
19
Supra note 2 at 63.
20
Md. Hayat v. Md. Nawaz, 1935 Lah 622.
21
Supra note 2 at 64.

Page 7 of 12
  Re-marriage between Divorced Couple: A certain procedure needs to be followed in
which a Muslim lady has to perform a valid marriage with another man. Then her
husband needs to voluntarily divorce her. Then the lady needs to perform iddat.
Now she can marry her previous husband.
 If this procedure is not followed the marriage is considered as irregular. Polyandry:
It refers to a condition in which a woman can have more than one husband. It is not
permitted under Muslim law.

f. Registration

Registration of Marriage is not necessary according to Muslim Law. However, few states like
Assam, Punjab, Bengal, Bihar and Orissa have enacted laws for registration of Muslim
Marriage.22 The registration is not an essential part for a Valid Muslim marriage but it acts as
an authentic proof. The Apex Court in the Case of Seema v. Ashwani Kumar23, held that
marriage of Indian citizens irrespective of their religion should be registered in their states
where the marriage has been solemnized. Also, in the case of M. Jainoon v. Amanullah
Khan24, Madras High Court observed that although registration of Marriage is not necessary,
it cannot be said that registration of Marriage is prohibited under Muslim personal Law.
3. Legal Effects of a Valid (Sahih) Marriage under Muslim Law
As soon as the contract of marriage is completed offer and acceptance in accordance with the
provisions of Muslim law, the legal consequences of the marriage take effect. The legal
effects of a valid (Sahih) marriage may be summarised as under:25
a. The cohabitation between the husband and the wife becomes lawful.
b. The children born out of a valid marriage are legitimate and they have right to
inherit their parent’s properties.
c. Mutual rights of inheritance between husband and the wife are established. That is
to say, after the death of the husband, the wife is entitled to inherit the husband’s
properties and after the wife’s death, husband may also inherit her properties.
d. Prohibited relationship for purposes of marriage is created between the husband and
wife and each of them is prohibited to marry the relations of the other within
prohibited degrees.
e. The wife’s right to claim dower is fully established just after the completion of
marriage.
f. The marriage gives to the wife also the right of maintenance from her husband with
immediate effect.
g. After the dissolution of the marriage, the widow or the divorced wife is under an
obligation to observe the Iddat, during which she cannot re-marry.

22
Supra note 2 at 53,54
23
AIR 2006 SC 1158.
24
AIR 2000 Mad 381.
25
Supra note 2 at 50.

Page 8 of 12
 h. Marriage under Muslim law does not change the legal status of the woman. The
English concept of coverture is not recognised in Islam. Her personality is not
merged with that of the husband. Even after the marriage, a wife continues to
belong to the same school of law to which she belonged before her marriage.26
If Shia woman marries a Sunni, she continues to be a Shia and is governed by Shia law after
her marriage.27 The husband and wife have independent right to acquire and dispose of their
properties.28
Marriage Agreements:
If there is any marriage-agreement between the parties, the agreement comes into force on the
completion of the marriage provided such agreement is not illegal. At the time of the
marriage, or on a subsequent date, the husband and wife may enter into an agreement for
regulating their marital relations. Where the parties are not competent, the agreement may be
made on their behalf, by their respective guardians. Such an agreement is binding although
the husband and wife are not parties to it.29
If the agreement contains conditions which are against the principles of Islam or are
unreasonable, the agreement is illegal. An illegal agreement does not affect the validity of the
marriage, but the condition itself is void and inoperative. Such agreements cannot be
enforced because they contain un- Islamic conditions. Following conditions in marriage-
agreements are illegal:

 That the wife is not entitled to claim her dower.

 That wife shall not claim maintenance from her husband.
 That husband and wife shall have no mutual rights of inheritance.
 That husband and wife would be free to live separately in future without any
reasonable cause. On the other hand, if the conditions in a marriage agreement are not
against the principles of Islam, the agreement is legal and is binding upon the parties.
The following conditions have been regarded as legal conditions and the agreements are
binding:

 The condition that husband shall not contract a second marriage during the
continuance of the first.
 That, the husband shall not remove the wife from conjugal domicile without her
consent.
 That, the husband shall not be absent from the conjugal home beyond a specified
period.
 That, a husband and wife shall live in a specified place (matrimonial home).
 That, husband shall pay a fixed maintenance allowance to the wife.

26
Supra note 10.
27
Ibid.
28
Ibid.
29
Amrit Ghosh & Pratyush kar, “Pre-Nuptial Agreements in India: An Analysis of Law and Society” 12 NUJS
Law Review 231 (2019).

Page 9 of 12
  That, a certain portion of the dower shall be paid at once and the remainder on the
dissolution of marriage.
 That, the husband shall maintain the children of the wife by a former husband.
 That, the husband shall not prevent the wife from receiving the visits of her relation
whenever she likes.
A contract between the parties that wife shall generally be at liberty to live with her parents,
has been held illegal by the Bombay High Court. But in Nizamul Haque v. Begum Noorjahan
And Anr.,30 the Calcutta High Court held that husband would live in the wife’s house and
would not compel the wife to live with him or with his other relations, was valid.
In Jammu & Kashmir, there is a well-established custom of Khanadamad under which after
the marriage, the husband lives with the wife’s parents. The High Court of J. &
K„ accordingly, held that an agreement under which the husband was required to live with
the wife’s parents was valid.31

4. Conclusion

30
AIR 1966 Cal 465.
31
Mohd. Khan v. Mst. Shahmali, 1972 J&K 8.

Page 10 of 12
In conclusion, marriage is a religious duty of every Muslim and it is considered to be a moral
safeguard and a social need. Al-Haakim narrated in al-Mustadrak from Anas, in a marfoo’
report: “Whomever Allah blesses with a righteous wife, He has helped him with half of his
religion, so let him fear Allah with regard to the other half.” Unlike Hindu marriages, where
it is a sacrament, marriages in Muslims have the nature of the civil contract. 32 Marriage is
necessary for the legitimization of a child.
When the marriage is completed by following the required norms, it creates various rights
and obligations for both parties.

5. Bibliography

32
Abdul Qadir v. Salima, (1886) 8 All. 149.

Page 11 of 12
1. Diwan P, Muslim Law in Modern India (Allahabad Law Agency, Faridabad, 2018).
2. Charlse Hamilton, The Hedaya or Guide (Premier Book House, Lahore, 1963).
3. Alex B. Leeman, "Interfaith Marriage in Islam: An Examination of the Legal Theory
Behind the Traditional and Reformist Positions" 84 Indiana Law Journal 743 (2009).
4. Amrit Ghosh & Pratyush kar, “Pre-Nuptial Agreements in India: An Analysis of Law and
Society” 12 NUJS Law Review 218 (2019).
5. Syeda Shajia Sharmin & Dr Mohammad Azad, “Laws of Muslim Marriage from the
concept of the Holy Qur’an” 5 International Journal of Engineering and Applied
Sciences 29 (2018).

6. The Muslim Personal Law (Shariat) Application Act, 1937 (Act 26 of 1937).
7. The Dissolution of Muslim Marriage Act, 1939 (Act 8 of 1939).
8. The Muslim Women (Protection of Rights on Divorce) Act, 1986 (Act 25 of 1986).
9. The Muslim Women (Protection of Rights on Divorce) Rules, 1986.
10. The Muslim Women (Protection of Rights on Marriage) Act, 2019 (Act 20 of 2019).

Page 12 of 12