Marriage chapter 6

According to Rubina Kausarv Abdur Rahman, marriage is a contractual agreement between two parties
that creates both rights and obligations. Pearl and Menski, on the other hand, view marriage as a
cohesive entity that is rooted in the teachings of God and the traditions of the Prophet (PBUH). Muslim
jurists consider nikah to be both a temporal and religious matter simultaneously.

In order for a marriage to be recognized by sharia, it must be embodied by four pillars, as outlined in
Shirine Jurdy. Therefore, it can be inferred that the validation of a marriage requires adherence to the
four pillars, namely offer and acceptance, capacity to enter into a marriage contract, presence of
witnesses, and payment of dower.

Offer and acceptance

As marriage is a legally binding agreement, it follows that, akin to other contractual arrangements, there
must be a mutual exchange of offer and acceptance between the parties involved. The utilization of
specific terminology is not a prerequisite for the establishment of matrimony, as the sole essential
element is the intention to enter into a marital union. Therefore, in the event of a marriage contract,
physical presence of the parties may not be necessary, but rather an offer and acceptance must be
exchanged during the same meeting with immediate effect.

Divergent perspectives exist among various schools of thought regarding the role of witnesses.
According to the Hanafi, Hambali, and Shafi schools, the conclusion of a contract necessitates the
presence of two male witnesses. Conversely, the Maliki and Ithna Ashari schools do not mandate the
presence of two male witnesses, but rather recommend it. Therefore, in such instances, the presence of
two males during the conclusion of a contract is discretionary. The Maliki school of thought mandates
that there must be adequate public announcement of the marriage.

Witnesses

The presence of witnesses is considered a crucial pillar. In order to establish the validity of a marriage
through direct evidence, it is necessary to present two witnesses who can provide testimony in a court
governed by Sharia law. The individuals serving as witnesses for the marriage contract must possess the
qualities of being of legal age, mentally sound, and exhibiting a strong sense of ethical principles.
Additionally, their presence is required during the finalization of the marriage agreement.
Furthermore, in instances where there is a lack of direct evidence, the court may resort to utilizing
indirect evidence. The extended period of cohabitation and familial acceptance of their union may
contribute to the longevity of their marriage. The Pakistan Muslims Family Law Ordinance mandates the
registration of marriage, as do the legislations in Tunisia, Egypt, Kuwait, and Jordan. In these countries,
the marriage certificate is considered the most reliable legal evidence. Currently, marriage videos are
considered admissible evidence in legal proceedings.

Capacity of Marriage

One of the most crucial tenets is that the couple being married (the husband and wife) must be of legal
age to do so. There are several points of view in regard to capacity. Hanafi and Itna Ashari assert that
any rational male or female who has reached puberty has the capacity to get married. The Caliphs, Umar
(R.A.) and Ali (R.A), shared this viewpoint and believed that a woman entering into her own marriage
rendered a marriage worthless.

Males must be at least 12 years old to enter puberty, while females must be at least 9 years old. It is
assumed that both males and females will enter puberty by the age of 15 years old. Furthermore, under
Hanafi law, if the wife does not request proper dower at the time of contract and the guardian's demand
for proper dower is not met, the marriage may be dissolved. From this, it can be seen that the right of a
woman to contract her own marriage is not unqualified.

In circumstances when the husband does not meet the criteria for equality in terms of money, ancestry,
and religiosity, the guardian may seek to dissolve such a marriage provided the lady is not pregnant.

The right of a woman to marry herself, however, is not acknowledged by Maliki, Hanbali, and Shafi
schools and must instead be approved by a guardian. Furthermore, according to Hanbali, the fathers are
given primacy, followed by the grandfather and kinsmen on the father's side. While Hanbali followed by
her father and then the paternal grandpa who, if followed by her kinsmen, according to these schools,
the guardian as the right to name the successor, Maliki the sun of woman is followed by her kinsmen.

But even though the guardian can contract of behalf of the bride, the consent of the bride is seen
mandatory as reported by Ibn Abbas that Prophet (PBUH) said that “A woman who has been previously
married has more right to her person than her guardian and a virgin should also be consulted, and her
silence implies her consent.”
While El Alami and Hinchcliffs contend that if the woman is not virgin, consent might be implied by
silence and tears (as per Hanafi), if the woman is virgin, consent must be spoken. However, according to
Maliki, Hanbali, and Shafu, the guardian can enter into the contract—known as an Ijbar—without the
bride's consent. This instance, however, is seen as going against the Hadith mentioned above, and as a
result, in many nations, the Ijbar contract is regarded as void, as it was in Morocco in 2004.

Following a general explanation of consent to marriage, this essay will discuss how it is applied in
Pakistani marriage law.

Whereas in the instance of Saima Waheed, the court adhered to the Hanafi school of thinking because
the female was allowed to enter into her own marriage, but it did so unwillingly (Jamal, 2006), who
argued that this hesitation was brought on by the opposing viewpoints on the subject. In addition, the
SC determined in 2003 that, as a result of the federal Sharia court ruling, Muslim women are free to
negotiate their own marriages.

But in Shabina's case, the High Court pronounced the union unlawful since Wali (the guardian) had not
given his approval. The Supreme Court of Kashmir ruled that a Muslim woman of sound mind who
reaches puberty is capable of entering into a marriage, hence the absence of a wali would not render
the contract unlawful.

In addition, child marriage is a problem; as there is no minimum age requirement, it would be

considered unconsented when a kid lacks the mental capacity to engage into a marriage. According to
Hanafi, the parties' marriage would be repudiated once they reached puberty, but for females, the
option of consent is only before the marriage is consummated and only if the guardian is someone other
than the father or grandfather, and to end the marriage, she needs a court order. Other schools of
thought do not offer this remedy, but for men, there is the option of talaq.

Even though a youngster can marry under Islam, the marriage would only take effect when the child
reaches puberty, most of the Islamic world forbids it. Islamic nations penalize the guardian but do not
annul the marriage in order to prevent underage marriage. The same applies to Pakistan, where
underage marriage is prohibited.
Dowar

The second pillar that this essay will seek to describe is that of Dowar, which is one of the most
significant and distinctive aspects of Muslim marriage and calls for the husband to give the wife when
the marriage is consummated. Prior to the advent of Islam, the bride's father received the dowar, but
the Quran grants women the right to receive it in surah Al Nisa, which reads, "And give the woman
(upon Marriage) the (bridal) gift graciously."

In addition, this was rejected in the Pakistani case of Fatima Bibi and others since dowar may be
postponed and the amount might change over time. Some people think that dowar should be taken into
account while drafting a marriage contract.

The dowar is compulsory for marriage even if not written in the terms of the contract as Kadir (Pakistan)
the marriage would be valid but it would result into many legal complications so in case of no mention
of Dowar, the woman is given proper dowar which is determine via taking into account the dowar of
woman’s sister/cousin and the personal attribures of woman such as her virginity, age, education and
beauty etc. the of oayment can be decided mutually among the parties, the parties can also decide
partial payment of dowar at the time of contract while the remaining on death or dissolution of
marriage.

Additionally, S.10 of Muslim law in Pakistan presumes that payment would be made on demand if there
is no information concerning the means of payment. In Abdul Kadir v. Salima, the court ruled that after a
marriage has been consummated, a woman cannot reject further consummation by insisting that dowar
be paid. The wife may also refuse to consummate the marriage in cases of non-payment. However, this
was an obiter remark in the case of Raabia Mukhtar v. Ahmad (India), therefore it has to be determined
again.

However, in the instance of Anis Begam, the court followed Hanafi and ruled that the woman could not
decline to fulfill merital obligations after agreeing to do so.

According to Surah Baqarah:237, the wife is entitled to "mut'al al talaq" in the event that the husband
passes away before the marriage is consummated, half of the dowar in the event of a divorce, and full
dowar in the event of no-stipulation.
Additionally, in the case of non-payment the wife can refuse to cohabit according to the Nur-ud-din v.
Masuda case rather than adhering to the previous ruling in Rahim Jam v. Muhammad, which was
previously followed in the sub-continent. However, in Bangladesh their position is unclear as in the case
of Ara Bagum, the husband was a wealthy man thus the wife had the power to withdraw consent.

According to the case of Maina Bibi v. Chaudhry, a wife may decide to file a claim against the husband if
her dowar is not paid within three years of the marriage. Even if the husband passes away, the woman
will still be entitled to dowar from the husband's estate.

It would thus be regarded as the wife's personal right, making it impossible for her to transfer a good
title to a third party. However, because the right is inheritable, a wife's heirs may enforce it. Similarly,
Diwan & Diwan said that "the woman's interest should be a paramount consideration" before a court. In
Pakistan, it was made clear that a widow has no unique right to keep her husband's property in place of
dowar and stands on an equal footing with other creditors.

Therefore, in the instance of Sardar Begham, the widow's claim to dowar was completely recognized,
but it was revoked when the husband gave his wife his property in place of dowar.