The Concept Of Marriage In Islam And Marriage Registration Law In Bangladesh

The method of reproduction happen amongst males and females, is through marriage
named as nikaah in Arabic. Islam forbids pre-marital relationship and urges Muslim to
marry. Allah says in the Holy Qur'an "Marry the unmarried among you….”. 1 Muhammad
(PBH) the messenger of Allah had said many hadith regarding marriage which is found in
Bukhari and Muslim. Allah (SWT) remark one of the core objective following marriage by
stating “And among His signs is this, that He created for mates from among yourselves that
you might live with them, and He has put love and mercy between your hearts…. 2 However,
marriage in Islam is a contract between male and female and. There are many
jurisprudential views regarding marriage which entails many rules and guidelines about
marriage. Moreover, every Muslim state has its own laws and guideline about marriage. This
essay will illustrate the main pillars of marriage according to classic jurisprudential views and
also consider one Muslim's state current legislation.

Imams Abu Hanifah, Ahmed ibn Hanbal and Malik Ibn Anas have stated that marriage is
recommendatory, but sometimes it becomes mandatory (wajib) for a specific individual.
According to Imam Shaafi’i marriage is to be (desirable) nafl. However, most Islamic
schooler opines that marriage becomes "wajib” for male and female when there is a fear of
fornication.3

Marriage is a formal contract between two male and female and turned into husband wife.
Therefore, the marriage contract is the most important contract that a maximum number of
people implement throughout the whole life. On the other hands’ marriage is the process to
establish a family and family is the core component of a society. The only legal way to
intimate between male and female in marriage. Therefore, the marriage contract has
prodigious importance hence, Islam intrudes a number of parameters that must be
performed.4

The marriage contract is not like regular daily basis contract such as buying goods from a
shop and exchange it any time. This is a solemn contract and this contract cannot be taken
frivolously. So, there are some main pillars of marriage to be valid. These include eligible
bride and groom, offer and acceptance, witnesses, dower (mahr) and publicity (walimah).

The first requirement for marriage is that the bride and groom must be eligible. Every school
concur that mental soundness and adulthood (bulugh) are vital characteristics for both the
parties to the agreement, except if the agreement is finished up by the guardian of any of
them.5 Every school except Hanafi believe that without the free consent of the groom and
bride contract will not be valid. But in Hanafi's view consent is not a matter to conclude a
marriage contract. An Imamiyyah scholar Al-Shaykh Murtada, al-Ansari, in the book al-
1
An-Noor; 24:32
2
Sura Ar-Room
3
Sherif Mohammed, Concept of marriage in Islam, http://www.jannah.org/sisters/marr.html
4
Bilal Abu Aisha, The marriage Contract: the basic Elements.
https://www.missionislam.com/family/marriagecontract.htm visited on 08 May 2019
5
Allamah Muhammad Jawad Maghniyyah, Marriage according to the Five Schools of Islamic Law, Volume 5 of
8, Islamic Culture and Relations Organisation.

1
Hada'iq wa al-riyad writes” That which is commonly held by the Imamiyyah scholars of the
latter period is that, when a person coerced consent freely, later on, the contract is valid."
Again, famous Islamic Scholar Al-Sayyid Abu al-Ha'san al-'Isfahani has stated that "Free
consent of both the bride and groom is an essential condition for a substantial contract. If
any of them is forced, then the agreement will be invalid. However, if the forced party
consent later then the contract will be valid."6

Furthermore, the bride's permission is also an important thing for a valid marriage contract.
A marriage contract will be invalid without the consent of the bride. Mohammed (PBH) said,
“A deflowered unmarried woman (i.e. widow or divorcee) may not be married without her
instructions, and a virgin may not be married without her permission, and her silence
indicates her consent.”7

Moreover, the groom is required to be a virgin Muslim and she must reach the puberty age. 8
The groom must not have any prohibited connection with the bride. The prohibited
relations are stated in Qur’an such as same blood, paternal and maternal aunts, sister,
daughter and grand daughters. But in “Islam a Muslim groom can marry up to four women,
but he has to deal with them fairly.”9

All the Islamic scholar have agreed that offer and acceptance (Al-Ijaab wa al-qubool) is one
of the main pillars of marriage. In Hanafi's view offer and acceptance is the only pillar of the
Muslim marriage contract. Other scholars believe that offer and acceptance are not enough
for a valid marriage contract. 10 However, offer and acceptance must take place at the same
time and it should be immediate. The acceptance must exactly correspond with the offer.
Once offer and acceptance take place neither bride nor groom dismisses the contract since
it is binding upon them.

The witness is another main pillar of a valid marriage contract. Marriage should take place in
the presence of at least two reliable Muslim male witnesses. The Prophet Mohammed (PBH)
said: "A marriage is not valid without a wali and two trustworthy witnesses.”11 Additionally,
the legal schools have agreed that wali is authorized to a marriage contract on behalf of the
bride and groom. However, Shafi’I and Hanbali disagreed with this concept and have argued
wali’s power is limited in case of a minor maiden. 12 Only father and grandfather is
competent to become a witness for the marriage contract in the favour of minor maiden
according to Shafi’I and Imamiyyah school. The Imamiyyah, Hanbali and Hanafi school have
agreed that insane’s marriage contract would not be valid without the consent of his/her

6
ibid
7
Bukhari & Muslim
8
Asaf A. A. Fyazee, Outlines of Muhammadan Law, (7 th edition, Oxford University Press, 1993, reprinted-
2001), 94
9
Qur’an 4:3-4
10
Allamah Muhammad Jawad Maghniyyah, Marriage according to the Five Schools of Islamic Law, Volume 5 of
8, Islamic Culture and Relations Organisation.
11
Ahmad, Ibn Hibbaan, and others – Authentic according to al-Albaani
12
Al-Mughni, vol. 6, Chapter on marriage, see also Allamah Muhammad Jawad Maghniyyah, Marriage
according to the Five Schools of Islamic Law, Volume 5 of 8, Islamic Culture and Relations Organisation.

2
legal guardian. However, in Maliki and Hanbali's view, it would be a valid contract even if a
guardian has not consented.13

Dower (mahr) is an important and main pillar of the Islamic marriage contract. Qur’an and
Sunnah recognized this right to wife, and it is her’s exclusive right. So, dower is a mandatory
part of marriage. Allah (SWT) stipulated in the Holy Qur'an "All others are lawful, provided
you seek (them in marriage) with Mahr (bridal-money given by the husband to his wife at
the time of marriage) from your property, desiring chastity, not committing illegal sexual
intercourse, so with those of whom you have enjoyed sexual relations, give them
their Mahr as prescribed”14

Dower (Mahr) is two types, al-musamma and mahr al-mithl. All school have agreed that
there is no upper limit but disagreement about the lower limit of dower. According to the
Shafi’I, Hanbali, and the Imamiyya school, anything which has pecuniary value is valid as
dower (mahr). The Hanafi school described dower (mahr) should be a minimum of ten
dirhams again Maliki school have said the minimum amount of dower is three dirhams. 15
However, dower should be certain in the case of jewellery, cattle, land, and other valuable
things and specified the value of these particular things. Furthermore, dower (mahr) must
be halal i.e. legal in Shari’ah law.16

Furthermore, dower can be paid in different ways. All Islamic school agreed dower can be
paid fully during marriage contract, partly or deferred payment. The Hanbali and
Immamiyya schools mentioned that if the time period when dower (mahr) will be paid is not
described, then dower (mahr) shall be payable instantly. But Hanafi school took a lenient
view regarding the payment period of payment. As Hanafi's view, a local tradition for
payment shall be seen. Additionally, the Hanafi school have stated the dower (mahr) shall
be immediately payable if there is no certain time period. In Hanbalis views dower (mahr)
there is no time limit, but the bride can defer until divorce or death. 17

According to famous Islamic Scholar Shaykh Muhammad ibn ‘Uthaymeen, the deferred
dower (mahr) is allowed and there is no wrong with this. If the bride he pays partially and
defers rest of amount, there is no wrong with this. When the bride specified a specific time
limit to pay the due it is also allowed in shari’ah law. But Dower (mahr) shall be payable
during the bride's lifetime.18

Another pillar of a valid marriage contract is a declaration. Marriage is not a secret process
so sufficient publicity is required in this regard. It is not permissible to make an attempt to
hide marriage according to the view of Maliki school. Other schools have said marriage is

13
Al-Mughni, vol. 6, Chapter on marriage, see also Allamah Muhammad Jawad Maghniyyah, Marriage
according to the Five Schools of Islamic Law, Volume 5 of 8, Islamic Culture and Relations Organisation.
Al-Tadhkirah, Vol. 2; al-Mughni, Vol-2, Chapter on hijr,
14
Sura An-Nisa’a, 4:24
15
Allamah Muhammad Jawad Maghniyyah, Marriage according to the Five Schools of Islamic Law, Volume 5 of
8, Islamic Culture and Relations Organisation.
16
ibid
17
ibid
18
Majmoo’ Fatwaawa Wa Rasaa’il Ibn Uthaymeen

3
still valid but disliked such types of marriage. The majority scholar comes into conclusion
publicity of marriage is less binding (mustahabb). 19

Furthermore, world-famous Islamic scholar Shaykh al-Islam Ibn Taymiyah has said just
because of lack sufficient publicity doubt have created whether marriage contract is valid
even if there were witnesses. Prophet Mohammed (PBH) ordered marriage be published
and said: "proclaim the wedding" since secret marriage can lead to a bad consequence. 20
Therefore, it can be said that a Muslim marriage contract is simply a solemn agreement. 21
Despite the Islamic marriage rules, some states adopt their own rules on marriage. South
Asian Islamic scholars pointed out the process of how the local customs and tradition mixed
with the Shari’ah law and create a new concept of marriage. 22

According to the question it is required to discuss the modern legislation of a major Muslim
country. Since Bangladesh is a Muslim majority country hence this essay will further
illustrate the modern legislation on marriage in the context of Bangladesh.

The current law for Muslim women in Bangladesh was not derived from Shari’ah law. The
legal system of Bangladesh had been adopted it throughout the years. The Muslim Family
Law Ordinance-1961 has brought revolutionary changes in the Muslim law in Bangladesh.
Moreover, judicial decisions have demonstrated some major development. 23 There are
many people from different religions and culture live in Bangladesh since they live here
peacefully. About 89.5% of people are Muslim in Bangladesh. Therefore, the Muslim society
of Bangladesh abides by the Muslim Marriage and Divorces (Registration) Act-1974. 24

In Muslim Law, Marriage is an eternal contract based on the consent of both of the male
and female. However, in Shari’ah law marriage is a contract which has a legal form. Not only
offer and acceptance, presence of at least two witnesses, dower, publicity is the main
component of a valid marriage under the Islamic law but also these components are the
prerequisite requirement of a valid marriage contract under the Contract Act-1872. 25

It is imperative to follow the customary laws since is it important for all religions as a
member of the community. According to Islamic law Muslim marriage registry is not
obligatory but the Muslim Marriage and Divorces (Registration Act)-1974 is it mandatory for
all citizens in the society. Therefore, Muslim Marriage and Divorces (Registration Act)-1974
entails that marriage and divorce registration is binding for a valid marriage contract.
Section 326 deals with marriage registration and section 6 deals with divorce registration of
19
Abdur Rahman, Shari’ah: The Islamic Law, (First published in London, 1984).
20
Allamah Muhammad Jawad Maghniyyah, Marriage according to the Five Schools of Islamic Law, Volume 5 of
8, Islamic Culture and Relations Organisation.
21
David Pearl, Muslim Family law, (3rdedition, Sweet & Maxwell, 1998) 149
22
ibid
23
Kamrul Hasan, In Search for Equity: Marriage Related Laws for Muslim Women in Bangladesh, Journal of
International Women’s Studies, Volume 5, issue 1, Article 6. https://vc.bridgew.edu visited on 15 May 2019.
24
Md. Nannu Mian, Shaikh Rajib Hossain, Modernizing Marriage Registration Law in Bangladesh, Published in
July 2013, Volume 3, Issue 7, ISSN 2249-5894
25
ibid
26
Muslim Marriage and Divorces (Registration Act)-1974 “Notwithstanding anything contained in any law, the
custom of usage, every marriage solemnises under the Muslim law shall be registered in accordance with the
provisions of this Act.”

4
this Act. According to Islamic law Muslim marriage registry is not obligatory but the Muslim
Marriage and Divorces (Registration Act)-1974 dictates that “all Muslim marriage shall be
registered with the nikah (marriage) registrars who will maintain separate registers of
marriages and divorces.”27 Therefore, Muslim marriage has been regarded as a civil contract,
so it is imperative to register the marriage contract with proper authority. Additionally, in
shari’ah marriage registration is not an important thing. So unregistered marriage is not
invalid in the context of Bangladesh since Bangladesh follow the Shari’ah law regarding
Muslim family law.28

Following the case Chan Mia 29 A Muslim marriage is a civil contract, the Supreme Court
(High Court Division) of Bangladesh concluded that “it could be contracted by a declaration
made by one contracting party being followed by a corresponding acceptance from the
other.” In Salima’s case, Justice Mahmood spotted "Marriage, accordance to the
Mohamaddan law, is not a sacrament, but a civil contract, all rights and obligations it
creates arise immediately and simultaneously and not dependent upon any condition
precedent to payment of dower by the husband to the wife.”30

It is also noted that the right of dower (mahr) cannot be denied in Muslim law. Wife is
eligible to claim her dower (mahr) even after the demise of her husband. Hence there is no
time period for claiming the dower (mahr). Article 116 of the Limitation Act-1908 stated that
the wife can sue for breach of registered contract within six years. 31

However, there is an ongoing issue what should be the minimum age of girls to be married.
But in Shari’ah law there is no certain age limit but bright must reach puberty. In
Bangladesh, the current age for getting marriage for girls is 18 and for boys 21 years. 32 The
Child Marriage Restraint Act-1929 stated the least marriageable age for a girl is 18 but Child
Marriage Restraint Act proposed to allow the age 16 to 18 on the exceptional situation but
must have a guardian of Court's permission. State Minister for Women and Children Affairs
Meher Afroze Chumki had told that “the clause will be there in the rules. It would clearly
state under what circumstances the clause could apply”33

This research has considered not only the main pillars of a valid Muslim marriage with
references to classical jurisprudential views but also the modern legislation of Bangladesh
regarding the law of marriage. Marriage is an important life event for all Muslim and Islam
emphasized on it. Allah (SWT) declares in the Holy Qur’an” And Among His signs is this that
He created for you mates from among yourselves, that you may dwell in tranquillity with
them, and He put love and mercy between your hearts. Undoubtedly in these are signs for

27
Section 8 of Muslim Marriage and Divorces (Registration Act)-1974
28
Article 27 of Bangladesh Constitution.
29
6 BLT, HCD, p.92
30
Md. Nannu Mian, Shaikh Rajib Hossain, Modernizing Marriage Registration Law in Bangladesh, Published in
July 2013, Volume 3, Issue 7, ISSN 2249-5894
31
Article 116 of The Limitation Act-1908
32
The Child Marriage Restraint Act-1929
33
18 years as per law, 16 years in rules, https://www.thedailystar.net/backpage/18-years-law-16-years-rules-
573910 visited on 15 May 2019.

5
those who reflect.”34 The messenger of Allah Prophet Muhammad (PBH) put emphasized on
marriage and said, "When a man marries, he has fulfilled half of his religion, so let him, dear
of Allah regarding the remain, half."35 All Islamic schools have interpreted the Shari’ah law
and accepted by the Muslims since these rules were derived from Qur’an and Sunnah.

However, Bangladesh is governed by their respective religious law. In some context,

Bangladesh legal system also complies with the Shari’ah law. Marriage registration is not
required in Shari’ah law, but it is an important phenomenon nowadays. Bangladesh legal
system has adopted the marriage registration to protect husband and wife's rights.

34
The Holy Qur’an 30:21
35
Bukhari and Muslim Sharif.

6
 Bibliography

Primary Sources
 An-Noor; 24:32
 Sura Ar-Room
 Qur’an 4:3-4
 Sura An-Nisa’a, 4:24
 The Holy Qur’an 30:21
 Bukhari & Muslim

Cases
 Chan Mia 6 BLT, HCD, p.92
 Salima Case

Legislations
 The Muslim Marriage and Divorces (Registration Act)-1974
 The Bangladesh Constitution.
 The Limitation Act-1908
 The Child Marriage Restraint Act-1929
 The Contract Act-1872
 The Muslim Family Law Ordinance-1961

Books
 Asaf A. A. Fyazee, Outlines of Muhammadan Law, (7 th edition, Oxford University
Press, 1993, reprinted- 2001)
 Abdur Rahman, Shari’ah: The Islamic Law, (First published in London, 1984).
 David Pearl, Muslim Family law, (3rdedition, Sweet & Maxwell, 1998) 149

Articles
 Sherif Mohammed, Concept of marriage in Islam,
 Bilal Abu Aisha, The marriage Contract: the basic Elements.
 Allamah Muhammad Jawad Maghniyyah, Marriage according to the Five Schools of
Islamic Law, Volume 5 of 8, Islamic Culture and Relations Organisation.
 Ahmad, Ibn Hibbaan, and others – Authentic according to al-Albaani
 Al-Mughni, vol. 6, Chapter on marriage, see also Allamah Muhammad Jawad
Maghniyyah, Marriage according to the Five Schools of Islamic Law, Volume 5 of 8,
Islamic Culture and Relations Organisation.
 Al-Tadhkirah, Vol. 2; al-Mughni, Vol-2, Chapter on hijr,
 Majmoo’ Fatwaawa Wa Rasaa’il Ibn Uthaymeen
 Kamrul Hasan, In Search for Equity: Marriage Related Laws for Muslim Women in
Bangladesh, Journal of International Women’s Studies, Volume 5, issue 1, Article 6.
 Md. Nannu Mian, Shaikh Rajib Hossain, Modernizing Marriage Registration Law in
Bangladesh, Published in July 2013, Volume 3, Issue 7, ISSN 2249-5894

7
Website
 http://www.jannah.org/sisters/marr.html
 https://www.missionislam.com/family/marriagecontract.htm
 https://vc.bridgew.edu
 https://www.thedailystar.net/backpage/18-years-law-16-years-rules-573910