Family Law - Module II

Module-V.I.
3:
Concept of Marriage in Different Personal Laws
Part I
Sunni and Shia

1. Ṣaḥīḥ al-Bukhārī
Methods of Classification and Annotation
Imām al-Bukhārī (rahimahullah) imposed conditions which all narrators and testifiers in the hadith
chain must have met before a hadith was included in his book:
1. All narrators in the chain must be just (àdl).
2. All narrators in the chain must possess strong memory and all the Muhadditheen who possess great
knowledge of ahadith must agree upon the narrators' ability to learn and memorize, along with their
reporting techniques.
3. The chain must be complete without any missing narrators.
4. It must be known that consecutive narrators in the chain met each other (this is Imām al-Bukhārī's
extra condition).
Imām an-Nawawi (rahimahullah) relates that all scholars in Islām have agreed that Ṣaḥīḥ al-Bukhārī
has gained the status of being the most authentic book after the Qur'an. Ṣaḥīḥ al-Bukhārī consists of
7,563 ahādith including those ahādith which have been repeated. Without repetitions however, the total
number of hadith is around 2,600.
2. Sahih Muslim
Sahih Muslim
Sahih Muslim is a collection of hadith compiled by Imam Muslim ibn al-Hajjaj al-Naysaburi
(rahimahullah). His collection is considered to be one of the most authentic collections of the Sunnah
of the Prophet ( ,)‫ﷺ‬and along with Sahih al-Bukhari forms the "Sahihain," or the "Two Sahihs." It
contains roughly 7500 hadith (with repetitions) in 57 books.
56 chapters
3. Sunan an-Nasa'i
Sunan an-Nasa'i is a collection of hadith compiled by Imam Ahmad an-Nasa'i (rahimahullah). His
collection is unanimously considered to be one of the six canonical collections of hadith (Kutub as-
Sittah) of the Sunnah of the Prophet ( .)‫ﷺ‬It contains roughly 5700 hadith (with repetitions) in 52 books
51 chapters
4. Sunan Abi Dawud

Sunan Abi Dawud
Sunan Abi Dawud is a collection of hadith compiled by Imam Abu Dawud Sulayman ibn al-Ash'ath
as-Sijistani (rahimahullah). It is widely considered to be among the six canonical collections of hadith
(Kutub as-Sittah) of the Sunnah of the Prophet ( .)‫ﷺ‬It consists of 5274 ahadith in 43 books.
5. Jami` at-Tirmidhi
Jami` at-Tirmidhi is a collection of hadith compiled by Imam Abu Ìsa Muhammad at-Tirmidhi
(rahimahullah). His collection is unanimously considered to be one of the six canonical collections of
hadith (Kutub as-Sittah) of the Sunnah of the Prophet ( .)‫ﷺ‬It contains roughly 4400 hadith (with
repetitions) in 46 books.
5.Sunan Ibn Majah
1 |Dr. Prabhavati Baskey, Asst Prof of Law, GNLU, Family Law – I (2023-2024)
Sunan Ibn Majah is a collection of hadith compiled by Imam Muhammad bin Yazid Ibn Majah al-
Qazvini (rahimahullah). It is widely considered to be the sixth of the six canonical collection of hadith
(Kutub as-Sittah) of the Sunnah of the Prophet ( .)‫ﷺ‬It consists of 4341 ahadith in 37 books.
6. Muwatta Malik
61 chapters
7. Musnad Ahmad
Musnad Ahmad is a collection of hadith compiled by Imam Ahmad ibn Hanbal (d. 241 AH/855 AD -
rahimahullah). It is one of the most famous and important collections of reports of the Sunnah of the
Prophet Muhammad ( .)‫ﷺ‬It is the largest of the main books of hadith containing approximately 28,199
hadith sectioned based on individual Companions.
8. Sunan ad-Darimi
Sunan ad-Darimi is a collection of hadith compiled by Imam Abdullah ibn Abd ar-Rahman ad-Darimi
(d. 255 AH/869 CE - rahimahullah). It is considered to be one of the important collections of reports
of the Sunnah of the Prophet Muhammad ( ,)‫ﷺ‬typically included in the "Nine Books" of hadith
collections. It contains approximately 3,400 hadith sectioned by topic (as in a Sunan). It has
unfortunately not been translated into English yet.
Life of Muhammad Timeline
Module-V.I.3:
Concept Of Marriage In Different Personal Laws
• Concept of Marriage
• Nature of Marriage
• Evolution of the institution of marriage
• Marriage in various personal laws
• Conditions of a valid marriage
• Prohibition arises on account of relationships by blood or affinity
• Ceremonies of marriage
• Void, voidable, irregular marriage
• Registration
• Live-in Relationship
• Same-Sex Marriage
•
Module-V.I.4: Matrimonial Remedies
• Matrimonial Remedies under Muslim law (Talaq, Ila, Zihar, Tafwiz, khula, Mubara)
• Muslim wife’s grounds of divorce, Dissolution of Muslim Marriage Act, 1939,
Vishwa Lochan Madan v. Union of India & Ors1001
Facts:
In a judicial bench comprising of Chandramauli Kr. Prasad, Pinaki Chandra Ghose. The facts revolved
around, Imrana, a 28 years old Muslim woman and a mother of five children was allegedly raped by
her father-inlaw. In the question arose about her marital status and those of her children born in the
wedlock with rapists’ son (the husband).
A Fatwa was passed in this behalf by the Dar-ul-Uloom which. As per the fatwa, if one raped his son’s
wife and it is proved through witnesses, or the rapist himself confesses it, Haram Musaharat will be
proved. It means that the wife of the son will become unlawful forever to him i.e., the son. The woman
with whom father has had a sexual intercourse legally or illegally in both ways, the son can’t keep
physical relationship with her any more
The Holy Quran says
The Holy Quran says: Marry not the woman whom your father copulated”. The Fatwa has dissolved
the marriage and passed a decree for perpetual injunction restraining the husband and wife living
together, though none of them ever approached the Dar-ul-Uloom (Dar-ul-Qaza and Nizam-e-Qaza
are interchangeable terms).
Fatwa
Another Fatwa of which our attention is drawn rules that no police report can be filed against the
father-in-law of Asoobi, who had allegedly raped her. According to the Fatwa, father-in-law could have
been blamed only if there had either been a witness to the case or the victim’s husband had endorsed
Asoobis allegation.) The petitioner has sought a declaration that the fatwas declared by the All-India
Muslim Personal Law Board and other similar organizations for establishment of Muslim Judicial
System and setting up of Dar-ul-Qazas (Muslim Courts) and Shariat Court in India should be declared
illegal, illegitimate and unconstitutional. They sought a declaration that the Indian Constitutional
system, should be declared void ab-initio.)
Law:
Fatwas issued by the Dar-ul-Qaza, Customary law.
Issue: what is the legal validity of the fatwas issued by the Dar-ul-Qaza? Do they have the same standing
a that of the law of the land?
Judgement: While ruling in the favor of the petitioner stated that the adjudication by a legal authority
sanctioned by law is enforceable and binding and meant to be obeyed unless upset by an authority
provided by law itself. The power to adjudicate must flow from a validly made law. Person deriving
benefit from the adjudication must have the right to enforce it and the person required to make
provision in terms of adjudication has to comply that and, on its failure, consequences as provided in
law is to ensue. These are the fundamentals of any legal judicial system.
Ratio:
The decisions of Dar-ul-Qaza or the Fatwa do not have the power to adjudicate and leave alone to
enforce it, nor do they have any sanction so far law as they are not made by competent legislature.
Hence, the opinion or the Fatwa issued by Dar-ul-Qaza or for that matter anybody is not adjudication
of dispute by an authority under a judicial system sanctioned by law. Analysis of the case: The decision
is an important one as it ruled on the role of the All-India Muslim Personal Law Board and other similar
organizations is for establishment of Muslim Judicial System and setting up of Dar-ulQazas (Muslim
Courts) and Shariat Court in India. They are merely recommendatory and not mandatory.
Qu`ran – Sura 33.37 Verse

Al-Ahzab
Juz 22 / Hizb 43 - Page 423
And ˹remember, O Prophet,˺ when you said to the one1 for whom Allah has done a favour and you
˹too˺ have done a favour,2 “Keep your wife and fear Allah,” while concealing within yourself what
Allah was going to reveal. And ˹so˺ you were considering the people, whereas Allah was more worthy
of your consideration. So when Zaid totally lost interest in ˹keeping˺ his wife, We gave her to you in
marriage, so that there would be no blame on the believers for marrying the ex-wives of their adopted
sons after their divorce. And Allah’s command is totally binding.
Footnote - 1
This refers to Zaid ibn Ḥârithah, the Prophet’s adopted
son before adoption was made unlawful. His wife, Zainab
bint Jaḥsh was from a prestigious family. Because Zaid and Zainab came from two different social
classes, the marriage was not successful. Eventually, Zaid insisted on divorcing his wife, despite several
appeals
from the Prophet (‫)ﷺ‬. Since one’s adopted son was no longer considered to be one’s own son,
the Prophet (‫ )ﷺ‬was later allowed to marry Zainab.
What does Muslim mean?

The word Muslim means, the one who submits. A believer is a person who believes in the truthfulness
of the faith. The two words are closely linked together. They are two sides of the same coin. True belief
leads to submission; hence submission is the epitome of accepting the faith.
Devotion is the voluntary obedience that comes with submission and belief. True devotion, emanates
from an inner feeling not from an external influence
Muslim Personal Law is broadly understood as Shariah

“Muslim Personal Law is broadly understood as Shariah.
The word Shariah literally means "a way to the watering place, or a path apparently to seek felicity and
salvation, Shari'ah Law: An introduction: Mohammad Hashim Kamali: In Chapter XLV Verse 18
Quran says: "Thus we put you on the right way of religion. So, follow it and follow not the whimsical
desire of those who have no knowledge". Shariah primarily and predominantly relates to ethical values
essential for both worlds. Quran by itself did not promote straight forward code of law.
Many legal rules become part of Shariah from the life and sayings of the last Prophet. (This is called
Hadith).
“After the demise of the Prophet, Islamic scholars and jurists developed Rules through legal reasoning
(Ijtihad) and using legal verdict (Fatwa). This is how principles of Islamic jurisprudence called 'Fiqh'
developed.
Fiqh is the corpus of legal principles deducted from the Holy Quran for implementing Shariah for
more reading on Fiqh, refer outlines of Mohammedan Law by Asaf A.A. Fyzee. The Holy Quran is
neither a legal document nor a code of law. Most of the ideas in Holy Quran are interpreted through
sayings and the life of the Prophet. This gave rise for the formation of different schools of
jurisprudence. There are many scholars of jurisprudence.
“
The four prominent schools of thought of Sunni Muslim are Hanafi, Maliki, Shafei and Hanbali.
They developed jurisprudence not to create a separate denomination, but based on knowledge or
enquiry they made. These scholars themselves declared that if any of their statement contradicts the
Book of Allah, and life of Allah“
FOUR SCHOOLS OF ISLAM

1. Introduction:
Qur’an is the most authentic and supreme guideline for human being that is of Almighty Allah and
communicated to the Prophet Muhammad (s.). Besides, there are few ways of law making process in
Islam. There are two sects of Islam and these are Sunnis and Shias.
They have different schools among themselves. These schools, in other words, madhabs interpret
thesources of Islam and are the ways of law making. They vary from each other in decision making but
the faith and religion remain the same among the followers of these madhabs
Madhab:
Madhabs are comprehensive methodologies used to interpret the Islamic source texts and to extract
fiqh rulings.
The Sunni follow any of the four major jurisprudence schools (Madhabs) founded by ninth to
eleventh-century scholars Imams ibn Hanbal, Abu Hanifa, Malek, and el Shafei
a. Hanafi School:
a. Hanafi School:
The Hanafi school is the maddhab with the largest number of followers among Sunni
Muslims. The founder of this school of Islam is Imam Abu hanifa. The main features of
this school are3:
i. Unless the authority is beyond any doubt, it relies less on tradition,
ii. Relied more on Qiyas,
iii. Scope of Ijma
iv. When special circumstances arise, evolve the doctrine of Istihsan.
A very simple example: Alcohol is prohibited because it is intoxicating. Therefore,
anything that intoxicates like heroin, cocaine, and so on must be banned This school is
dominant in specific geographic locations, for instance, Turkey, the Balkans, Central
Asia, Indian subcontinent, China and Egypt. Its followers cover more than one third of
the world 's Muslims
b. Maliki School:
Imam Malik found the Maliki School, the Jurisprudence of which relies on the Qur'an
and hadiths as primary sources. The main components of this school are as followed6:
i. In contrast to other Islamic schools, Maliki school also considers the
consensus of the people of Medina to be a valid source of Islamic law,
ii. This school accepts tradition which were authentic even if that carried
the authority of only one narrator,
iii. In the absence of explicit text, recourse of Qiyas,
iv. It fouses on al-masalih al-mursalah (public interest).
It is prominent in North and West Africa, Sudan, Bahrain, Kuwait, Morocco and
Tunisia
c. Shafi'i School:
The Shafi’i school was funded by its eponym, Muhammad ibn Uthman ibn Shafi’i. When
a question arises for which the Quran has no answer, Shafi'i states that we can use a
parallel ratio legis to give us a ruling.8 An explanation may be that the intoxicating effects
of alcohol is the ratio legis of the alcohol prohibition. Heroin is not mentioned in the
Quran but is also intoxicated thus heroin is prohibited.9
Occasionally, however, the ratio legis might not be obvious, and in this situation, Shafi'i
suggested seeking a similar case in the Quran and Sunna and then applying the current case judgment
to the new case.
He claimed that without the basis in the quran and
Sunnah, no ruling can be considered worthy.11 This school is dominant in specific
geographic locations, for example, Kurdistan, Indonesia, Malaysia, Egypt, East Africa,
Yemen, Somalia and southern parts of India
d. Hanbali School:
The founder of this school was Ahmad Ibn Hanbal. He was the student of Imam Shafi’i.
It is the smallest among the four major madhab of Sunni. Imam hanbal restricted Qiyas
and Ijma within narrow limits.12 Hanbali school is the strict traditionalist school of
jurisprudence in Sunni Islam. The foundation of this school is on five main sources and
these are13:
i. The Qur’an,
ii. The Sunnah,
iii. The Ijma which are consistant with Quran and Sunnah,
iv. Zaif and Mursal traditions; for instance, any tradition that has lacking in
name of transmitter of weak chain of transmission,
v. Qiyas.
This school of thought is basically prominent in Saudi Arabia.
What does Muslim mean?
The word Muslim means, the one who submits. A believer is a person who believes in the truthfulness
of the faith. The two words are closely linked together. They are two sides of the same coin. True belief
leads to submission; hence submission is the epitome of accepting the faith.
Devotion is the voluntary obedience that comes with submission and belief. True devotion, emanates
from an inner feeling not from an external influence
Sunni and Shia
------------------------------------------------------------------------------------------------------------------------------
Module -III.3.2.
Concept of Marriage and Conditions of a valid Marriage
Application of the Law
▪ Concept of marriage
▪ Religion as the basis of Marriage
▪ Conditions of valid marriage
▪ Witnesses to the marriage
▪ Age and capacity
▪ Time and Place of Marriage
▪ Dower and dowry
▪ Consortium / Cohabitation
▪ Registration of Divorce
▪ Illegitimate Children
Application of the Law
Concept of marriage
• Concept of marriage
Concept of marriage In India, according to traditional Hindu law, marriage is a sacrament and not a
civil act. Contact. It is a "Sanskara" or purification ceremony for every Hindu. Hindu religious books
commanded Marriage as a duty because a single man cannot perform some of the most important
religious rites. Because of this, marriage in India is a sacred fulfillment of religious duties.
The union is sacred and indissoluble in life and goes on even after the death of the husband. Since
marriage was celebrated primarily for dharma and not for pleasure, it was considered a sacrament
among Hindus.464
Concept of marriage
There are several reasons for considering Hindu marriage sacred
(i) dharma was the ultimate goal of Wedding ;
(ii) the performance of the religious ceremony included certain rites such as Havan, Kanyadan,
Panigrahana, etc., which, based on the sacred formula, were considered sacred,
(iii) the rites came before Agni (most Holy God) by reciting mantras from the Vedas (the most sacred
scriptures) by a Brahmin (the most holy person) Country),
(iv) the association was considered indissoluble and irrevocable and the husband and wife were not
related only until death, but also after death,
(v) believed that a man had administered several sacraments in the course of his life
• The Special Marriage Act

The Special Marriage Act was originally enacted in 1872. The Act provided for a type of marriage
between persons who did not practice the religion of Christianity, Jewish, Hindu, Buddhist, Sikh or
Jain religion. The Act provided for a civil marriage which shall be conducted before the Registrar of
Marriage, between two persons neither of whom would be practicing any of the above stated religions.
The Act emphasized on monogamy and insisted that neither of the parties, to the marriage should have
husband or wife living.
The minimum age for marriage which was fixed for a male to be 18 years and for a female to be 14
years. It was subsequently changed to 18 years for the female and 21 years for the male. All restrictions
on marriage were removed except for the condition of having related.
• Christian law
Under the Christian law it is a contract. According to Lord Penzance, “I conceive that marriage as
understood in Christendom may for this purpose be defined as a voluntary union for life and of one
man with one woman to the exclusion of all others”. (Hyde v. Hyde, 1866 1PD). The Indian Divorce
Act of 1869. The property of persons marrying under the Act was to devolve according to the Indian
Succession Act of 1865.
• Christian marriage
Under the law for Christian marriage in India, it is to regarded as a contract and is usually solemnize by
a Minister of Religion who is licensed under the Christian Marriage Act 1872. It can also be solemnized
by the marriage registers. However, under the “Special Marriage Act 1954” marriage is very much a
civil contract. The lack of requirement of age and the lack of consent would render the marriage to be
void. The Act also lays down a civil ceremony for the marriage.
• Parsi law
Under the Parsi law, marriage is regarded also as a contract. It is through the religious ceremony of
“Ashirwad”, that its validity is confirmed. “Aashirwad” literally means blessings, it is essential for the
parties to observe their marital obligations. Marriage is solemnized by a Parsi priest. It is solemnized in
the presence of two witnesses. Even, among the Indians Jews, marriage is also regarded as a contract.
The written contract theory is called as katube between the parties. Also, a religious ceremony is also
prescribed.
• Portuguese Civil Code
Article 1056, The Portuguese Civil Code
The Portuguese Civil Code has a similar connotation. Concept of marriage as a civil contract and its
purpose . Marriage is a perpetual contract made between two persons of different sex. The purpose is
for the legitimately so as to constituting a family
Portuguese Civil Code
• SECTION I GENERAL PROVISIONS Article 1056 –

Concept of marriage as a civil contract and its purpose –
Marriage is a perpetual contract made between two persons of different sex with the purpose of
legitimately constituting a family. The concept of marriage is mentioned in Art.1 of the said decree,
Law of Civil Marriage). Civil marriage is presumed to be perpetual under the Law of Divorce being
Decree of 03/11/1910.
However, Catholic or Canonical Marriage is perpetual under Decree No.30615 of 25/07/1940.
Article 1057 - Secular nature of marriage - Marriage shall be solemnised before the official of Civil
Registration Services under the conditions and in the manner established in Civil Law.
This article survives despite Art.72 of Decree No.1 of 25/12/1910 (Law of Civil Marriage).
It is now modified by Art.1 of Decree No.30615 of 25/07/1940, which recognizes the catholic or
canonical marriage also.
• Nikah
• Concept of marriage
Under the muslim law, according to Hedaya, marriage is a contract with the purpose of legalizing sexual
intercourse and the procreation of children, and the regulation of the social life which is in the broader
interest of the society.
In Nizamuddin v. Hussaini (1919) 63 212
, the court went to the extent of holding that a Mohammadean marriage is not a sacrament but the
Civil contract and a suit for restitution of conjugal rights to this speaking a suit for the enforcement of
certain applications arising out of that contract period.
Concept of marriage
Under the muslim law, according to Hedaya, marriage is a contract with the purpose of legalizing sexual
intercourse and the procreation of children, and the regulation of the social life which is in the broader
interest of the society.
Abdul Kadir vs Salima (1886) ILR 8 All 149, here the Privy Council ruled in a case of restitution of
conjugal rights where Mahamood J. observed that “the nature of Muslim is but of a purely civil contract
and though it is solemnized generally with other sites on the recital of several verses from the Quran
the Mohammedan law, it does not positively prescribe any special particular for the occasion of
marriage.
Concept of marriage
Though founded theoretically on the principle of equality of spouses. “Muslim jurists subscribe to the
notion that among the two partners the husband on account of his physical and intellectual superiority
has a more dominant role and the is wife subordinate to him so much so that she practically enjoys no
marital freedom.”
Justice Mitter has described a Muslim marriage as: under Muslim law, marriage is a civil contract and
just like a contract of sale. Sale is a transfer of property for a price.
Poonam Saxena, ‘Matrimonial Laws and Gender Justice,
Vol 45 July - December 2003, JILI
Principles of Mahomedan Law, Updated 20th Edition, Mulla Marriage

according to the Mahomedan law is not a sacrament but a civil contract. All the rights and obligations
it creates arise immediately and, are not dependent on any condition precedent such as the payment of
dower by husband to a wife. it is a civil contract in which free consent of both the parties is essential;
on the accomplishment of it, however, the relationship of both the contracting parties is not determined
as a pure civil contract, but is determined in combination with the religious connotation .( Mahmad
Usaf Abasbhai Bidiwale v. Harbanu Mansur Atar . (1978) Mah. LJ. )
Status of women in Islam
• Status of women in Islam

“34. Men are the protectors and maintainers of women, as God has given some of them an advantage
over others, and because they spend out of their wealth. The good women are obedient, guarding what
God would have them guard.
As for those from whom you fear disloyalty, admonish them, and abandon them in their beds, then
strike them. But if they obey you, do not transgress against them. God is Sublime, Great.”
Thers is a similarity where the women are given an inferior position and men are made in control.
Polygamy
The Holy Quran, chapter 4, verse 4:3, (sūrat l-nisāa) (The Women), And if you fear that you will not
deal justly with the orphan girls, then marry those that please you of [other] women, two or three or
four. But if you fear that you will not be just, then [marry only] one or those your right hand possesses.
That is more suitable that you may not incline [to injustice].
available at < https://corpus.quran.com/translation.jsp?chapter=65&verse=1>
Polygamy…
508 Notice the conditional clause about orphans, introducing the rules about marriage. This reminds
us of the immediate. occasion of the promulgation of this verse.
It was after Uhud, when the Muslim community was left with many orphans and widows and some
captives of war. Their treatment was to be governed by principles of the greatest humanity and equity.
The occasion is past, but the principles remain. Marry the orphans if you are quite sure that you will in
that way protect their interests and their property, with perfect justice to them and to your own
dependants if you have any. If not, make other arrangements for the orphans.
The unrestricted number of wives of the "Times of Ignorance" was now strictly limited to a maximum
of four, provided you could treat them with equality (C/ 33:4 and 33:51). (R).
The Battle of Uhud
was a major engagement between early Muslims and the Quraysh during the Muslim-Quraysh War.
The battle was fought in a valley north of Mount Uhud near Medina on Saturday, 23 March 625 AD
(7 Shawwal, 3 AH).[10][11]
After suffering defeat at the Battle of Badr and having their caravans endlessly attacked and plundered
by Muhammad's side, the Quraysh finally saw the necessity to take strong measures. Their chief, Abu
Sufyan, then set out for Medina with 3,000 troops to confront Muhammad.[12]
The early phase of the fighting saw the Muslims gaining the initiative. The Quraysh vanguard began
faltering and retreated, leaving their camps vulnerable. However when Muslim victory seemed near,
the Muslim rear guard who were tasked to defend a hill to protect against a possible encirclement,
abandoned their positions to collect spoils of war left by the fleeing enemy. This turn of events was
exploited by the Quraysh general Khalid ibn al-Walid who launched a daring cavalry strike in the
undefended rear and encircled the Muslims, thus turning the tide of battle.
The battle was seen as a significant setback for the Muslims and a minor victory for the Quraysh as
they would return with an even larger force in the Battle of the Trench.
https://en.wikipedia.org/wiki/Battle_of_Uhud
• Polygamy
A Mahomedan may have as many as four wives at the same time but not more. If he marries a fifth
wife when he has already four, the marriage is not void, but merely irregular. It is not lawful for a
Mahomedan woman to have more than one husband at the same time.
The Holy Quaran instructs men to treat their wives equitably. However, a marriage with a woman, who
has her husband alive and who has not been divorced by him, is void. A Mahomedan woman marrying
again in the lifetime of her husband is liable to be punished under S. 494 of the Indian Penal Code. The
off-spring of such marriage is illegitimate and cannot be legitimated by acknowledgment
Marriage of Prophet Mohammed
The Prophet Muhammad (peace be upon him) married his wives at various ages throughout his life.
Here are some key details about his marriages:
1. Khadijah bint Khuwaylid (may Allah be pleased with her):
2. Sawda bint Zam'a (may Allah be pleased with her):
3. Aisha bint Abi Bakr (may Allah be pleased with her):
4. 4. Hafsa bint Umar (may Allah be pleased with her): 5. Zaynab bint Khuzayma
(may Allah be pleased with her): Zaynab was a widow when she married the Prophet.
This marriage took place after the death of Khadijah.
5. Umm Salama (Hind bint Abi Umayya, may Allah be pleased with her):
6. 7.Zaynab bint Jahsh (may Allah be pleased with her):
26 The Book of Marriage

(29) Chapter: A Man Marrying Off His Young Daughter
It was narrated from 'Aishah that the Messenger of Allah married her when she was six years old, and
consummated the marriage with her when she was nine.
Reference :
Sahih (Darussalam)
Sunan an-Nasa'i 3255
Book 26, Hadith 60
Sunan Ibn Majah » The Chapters on Marriage
13) Chapter: Marriage of minor girls arranged by their fathers
It was narrated that:
Abdullah said: “The Prophet married Aishah when she was seven years old, and consummated the
marriage with her when she was nine, and he passed away when she was eighteen.”
Marriage of Prophet Mohammed
8. Juwayriyah bint al-Harith (may Allah be pleased with her): Juwayriyah was a captive from a
war, and the Prophet married her, which led to the release of numerous prisoners.
9.Umm Habiba (Ramlah bint Abi Sufyan, may Allah be pleased with her): Umm Habiba was
initially married to a man who converted to Christianity. After his conversion, she was separated from
him, and the Prophet married her.
10. Safiyya bint Huyayy (may Allah be pleased with her): Safiyya was also a captive from a war,
and the Prophet married her, which helped to establish peaceful relations with her tribe.
B. Religion as the basis of Marriage
Under Hindu law it is a religious practice whereas under the Muslim law there are no religious
connotations attached to the concept of marriage. It is in fact the Civil contract under the special
Marriage Act as well marriage is viewed as a civil contract with reference to the custom. The Hindu
Marriage Act describes Kanyadaan as an essential part of marriage as well as Saptapadi.
MUSLIM LAW..…
From the very beginning, Muslims have considered their marriage as a contract. A Muslim marriage is
defined as a civil contract. The objective of marriage is for the legalization of sexual intercourse, and
the procreation of children. Marriage is not considered as a sacrament, although it is usually solemnized
with the recitation of verses from the Holy Koran. But it has to be emphasized, that Islam does not
prescribe any religious service, ceremonies or rituals as an essential precondition for the solemnization
of Muslim marriage
Parsi Marriage
Under the Parsi marriage the Ashirwad ceremony is considered an essential part of marriage. There are
no religious connotations attached to marriage and Christianity neither are there any religious
connotations attached to marriage under the Portuguese Civil Code.
It may be concluded to say a that only under the Hindu and the Parsi law are ceremonies and religious
connotations attached where as they completed detached when it comes to Muslim, Christian and laws
under the Portuguese Civil Code is concerned.
Conditions of valid marriage

Under section 2 of the act the term, Hindu includes Buddhist, Jain or Sikh by religion.
Hence the term Hindu is comprehensive to include this Sikh community. S. 25 explanation, Hindu
shall include a Jain. In this context a reference can be made to a Public Interest Litigation filed in 2010,
which seeks to amend the constitution and declare that the Sikh community should be outside the
purview of the Hindu Marriage Act 1955. The Supreme Court bench headed by Chief Justice K.G.
Balakrishnan turn down the petition, holding that it is not possible for them to entertain the subject
and the appropriate authority and referred it to be a policy matter.
s. 2. Application of Act
Explanation.—The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case
may be:—
(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by
religion;
(b) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or Sikh by
religion and who is brought up as a member of the tribe, community, group or family to which such
parent belongs or belonged; and
(c) any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion.
(2) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to
the members of any Scheduled tribe within the meaning of clause (25) of article 366 of the Constitution
unless the Central Government, by notification in the Official Gazette, otherwise directs.
Sikh…
Under section 2 of the act the term, Hindu includes Buddhist, Jain or Sikh by religion. Hence the term
Hindu is comprehensive to include this Sikh community. S. 25 explanation, Hindu shall include a Jain.
In this context a reference can be made to a Public Interest Litigation filed in 2010, which seeks to
amend the constitution and declare that the Sikh community should be outside the purview of the
Hindu Marriage Act 1955. The Supreme Court bench headed by Chief Justice K.G. Balakrishnan turn
down the petition, holding that it is not possible for them to entertain the subject and the appropriate
authority and referred it to be a policy matter.
S.5. Conditions for a Hindu marriage

(i) neither party has a spouse living at the time of the marriage;
[(ii) at the time of the marriage, neither party—
(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
(b) though capable of giving valid consent, has been suffering from mental disorder of such
(c) a kind or to such an extent as to be unfit for marriage and the procreation of children; or
S.5. Conditions for a Hindu marriage

(d) (c) has been subject to recurrent attacks of insanity 1 (e) ***;]
(f) (iii) the bridegroom has completed the age of 2
(g) [twenty-one years] and the bride, the age
(h) of 3 (i) [eighteen years] at the time of the marriage;
(j) (iv) the parties are not within the degrees of prohibited relationship unless the custom or usage
(k) governing each of them permits of a marriage between the two;
(l) (v) the parties are not sapindas of each other, unless the custom or usage governing each of them
(m) permits of a marriage between the two
7. Ceremonies for a Hindu marriage

.—(1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of
either party thereto. (2) Where such rites and ceremonies include the Saptapadi (that is, the taking of
seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes
complete and binding when the seventh step is taken.
Saptapadi….
1. You promise to provide each other with the good things of life: food, physical and emotional
nourishment and wealth. So, all your basic needs are fulfilled.
2. You promise to look after each other, praying for each other’s physical and mental health and
strength. So, there is someone to take care of you at all times.
3. In this vow, you promise to foster affection and liking towards each other. So you feel cherished and
loved, enabling you to become a better person.
4. You vow to be lifelong companions. So, in good and bad times, you are not alone.
5. You pray to grow together: in thought and in action. To find a common path amidst differing
outlooks.
6. You vow to look after your children, family and society, ensuring their prosperity together. So, with
your union, everyone benefits.
7. Finally, you promise to adopt a noble bent of mind, leading a sacred and spiritual life in union. You
both agree to walk the philosophical and spiritual path in life.
Section 7 of the HMA
Under Section 7 of the HMA, certain Hindu rites are made essential for the solemnization of the
customary marriage subsection to include Saptapadi i.e., the taking of seven steps by the groom and
bride jointly before the holy fire after which the marriage is said to have become obsolete and binding
when the seventh step is taken. Over the period of time section 7 has been sufficiently diluted by the
several Supreme Court judgements. As per Hindu law has moved away from this binding law under
section 7 and now it is no longer necessary to prove the performance of the ceremony of Saptapadi or
any other ceremony
Marriage in Mulim law
Capacity for marriage
The Muslim law allows every Mahomedan of sound mind, who has attained puberty, may enter into a
contract of marriage. The law does not prescribe a different age for marriage for boy or girl, unlike the
other personal laws.
A Mahomedan girl is said to have attained the age of puberty of who has completed 15 years. She is
competent to marry without the consent of her parents. In certain cases, the age is as low as 9 years.
Lunatics and minors may also contract marriage with the consent of their guardians.
A marriage of a Mahomedan who is of sound mind and has attained puberty, is void, if it is brought
about without his consent. Since Marriage under the Muslim Law is a civil contract. Hence it should
attract all the incidents of contract as any other stipulated in the Contract Act
Puberty
Puberty is presumed to be attained at the age of 15 years. According to, Hedaya, 529; Baillie, 4 note
that the provisions of the Indian Majority Act, 1875,275 do not apply to matters relating to marriage,
dower, and divorce. A Muslim wife who has attained puberty and is under 18 years of age may file a
suit for divorce without the nomination of a next friend.2

(29) Chapter: A Man Marrying Off His Young Daughter
It was narrated from 'Aishah that the Messenger of Allah married her when she was six years old, and
consummated the marriage with her when she was nine.
Reference :
Sahih (Darussalam)
Sunan an-Nasa'i 3255
Book 26, Hadith 60
(31)
Chapter: Asking A Virgin For Permission With Regard To Marriage
It was narrated from Ibn 'Abbas that the Prophet said:

"The guardian has no right (to force) the previously married woman (into a marriage). And an orphan
girl should be consulted, and her silence is her approval.
Difference of religion
A Mahomedan male may contract a valid marriage not only with a Mahomedan woman, but also with
a Kitabal, that is, a Jewess or a Christian, but not with an idolatress or a fire worshipper.
A marriage, however, with an idolatress or a fire-worshipper, is not void, but merely irregular.287 Under
Muslim Law, marriage between a Muslim male and a Christian female is not void or illegal.
The prohibition is only against a Muslim woman marrying a non-Muslim
Dower
11 The Book on Marriage
14) Chapter: What Has Been Related About: There Is No Marriage Except With A Wali
Aishah narrated that:
The Messenger of Allah said: "Whichever woman married without the permission of her Wali her
marriage is invalid, her marriage is invalid, her marriage is invalid. If he entered into her, then the Mahr
is for her in lieu of what he enjoyed from her. (p) If they disagree, then the Sultan is the Wali for one
who has no Wali."
• Dower
Mt. Anis Begam And Ors. vs Malik Muhammad Istafa Wali Khan on 25 April,
1933
Equivalent citations: AIR 1933 All 634
JUDGMENT Sulaiman, C.J.
17. The observation at p. 160 shows that the contention for the wife was that the right of co-habitation
does not accrue to the husband at all until he has paid the prompt dower. The observation at p.169 has
already been quoted. At p.170 it was stated:
It is one thing to say that such a defence may be set up under a certain condition ; it is a totally different
thing to say that until the dower was paid no cause of action could accrue to the plaintiff. The payment
of dower not being a condition precedent to the vesting of the right of cohabitation, a suit for restution
of conjugal rights whether by the husband or by the wife, would be maintainable upon refusal by the
other to cohabit with him or her; and in the case of a suit by the husband, the defence of payment of
dower could, at its best, operate in modification of the decree for restitution of conjugal rights by
rendering the enforcement of it conditional upon payment of so much of the dower as may be regarded
to be prompt.
18. Similarly at p.71, the conclusion was:
So that pushing the analogy of the law of sale to its fullest extent, the right of a Mahomedan wife to
her dower is at best a lien upon his right to claim cohabitation, and I am unaware of any rule of
Mahomedan law which would rendor such lien capable of being pleaded so as to defeat altogether the
suit for restitution of conjugal rights.
44 The Book of Financial Transactions
(96) Chapter: If A Man Sells An Item And A Third Party Has More Right To It
It was narrated from Sammurah that the Messenger of Allah said:
"If a woman is married off by two guardians, then the first marriage is the one that counts, and if a
man sells something to two men, it belongs to the first one."
67 Wedlock, Marriage (Nikaah)
Narrated Sahl bin Sa`d:
The Prophet ( )‫ﷺ‬said to a man, "Marry, even with (a Mahr equal to) an iron ring."
Divorce
68 Divorce
(4) Chapter: To divorce one's wife thrice (at a time)
Narrated Àisha:
A man divorced his wife thrice (by expressing his decision to divorce her thrice), then she married
another man who also divorced her. The Prophet ( )‫ﷺ‬was asked if she could legally marry the first
husband (or not). The Prophet ( )‫ﷺ‬replied, "No, she cannot marry the first husband unless the second
husband consummates his marriage with her, just as the first husband had done.
• Muta Marriage
The Shia law recognizes two kinds of marriage, namely permanent, and muta or temporary.
A Shia of the male sex may contract a muta marriage with a woman professing the Mahomedan,
Christian or Jewish religion, or even with a woman who is a fire-worshipper, but not with a woman
following any other religion.
But a Shia woman may not contract a muta marriage with a non-Moslem. It is essential to the validity
of a muta marriage that the period of cohabitation should be fixed, and this may be a day, a month, a
year or a term of years and that some dower should be specified. When the term and the dower have
been fixed, the contract is valid.
If the term is fixed, but the dower is not specified, the contract is void. But if the dower is specified,
and the term is not fixed, the contract, though void as a muta, may operate as a "permanent"
marriage.290
• Maintenance Of Women
The husband has an obligation to support his wife (unless she is too young to be in a conjugal
relationship) as long as she is loyal to him and obeys his reasonable instructions.
But he is under no obligation to support a woman who rejects him or otherwise disobeys him, unless
the refusal or disobedience is justified by non-payment of the immediate dowry or she leaves the man's
house because of his cruelty.
The simple decree on the reparation of marriage law does not automatically prevent the woman from
claiming
• Divorce By Husband
The contract of marriage under the Mahomedan law may be dissolved in any one of the following ways:
(1) by the husband at his will, without the intervention of a Court;
(2) by mutual consent of the husband and wife, without the intervention of a Court;
(3) by a judicial decree at the suit of the husband or wife.
The wife cannot divorce herself from her husband without his consent, except under a contract
whether made before or after marriage, but she may, in some cases, obtain a divorce by judicial decree.
When the divorce proceeds from the husband, it is called talak (308-315); when it is affected by mutual
consent, it is called khula or mubara’at according to the terms of the contract between the parties
Divorce By Husband
Divorce by talak Any Mahomedan of sound mind, who has attained puberty, may divorce his wife
whenever he desires without assigning any cause.
The Muslim wife, does not have the reciprocal right.
Contingent Divorce A divorce may be pronounced so as to take effect on the happening of a future
event
• Different modes of talak

A talak may be affected in any of the following ways: — Talak ahsan. Talak hasan.
Talak-ul-bidaat or talak-i-badai. When talak becomes irrevocable
(1) A talak in the ahsan mode becomes irrevocable and complete on the expiration of the period of
iddat
(2) a talak in the hasan mode becomes irrevocable and complete on the third pronouncement,
irrespective of the iddat.
(3) A talak in the badai mode becomes irrevocable immediately it is pronounced, irrespective of the
iddat. As the talak becomes irrevocable at once, it is called talak-i-bain, that is, irrevocable talak.
Talak by tafweez (delegation of power
Talak by tafweez (delegation of power) The husband may in person repudiate his wife, or he may
delegate the power of repudiating her to a third party, or even to the wife306; such a delegation of
power is called tafweez.
307 Ila Divorce by Ila is a species of constructive divorce which is affected by abstinence from sexual
intercourse for the period of not less than four months pursuant to a vow. According to Shafei law,
the fulfilment of such a vow does not per se operate as a divorce, but gives the wife the right to demand
a judicial divorce.3
Zihar
Zihar is a form of inchoate divorce. If the husband compares his wife to his mother or any other female
within prohibited degrees the wife has a right to refuse herself to him until he has performed
penance.309 Judicial divorce at suit of wife.
Muslim Marriage Dissolution Act, VIII of 1939, provides the following grounds for divorce: the
husband's place of residence is unknown for four years
(2) the husband's failure to care for his wife for a period of 2 years
(3) the husband's imprisonment for the duration of 7 years
Zihar
inappropriate violation of marital duties
(5) importance of the husband
(6) mental illness of the husband
(7) refusal of marriage by the wife
(8) cruelty of the husband and
(9) any other reason recognized by Muslim law Article 4 of the law deals with the effects of a married
Muslim woman's apostasy from Islam. It is argued that the reasons are independent, and if one of them
is proven, a resolution to dissolve the marriage can be made.3
Polygamy
The Holy Quran, chapter 4, verse 4:3, (sūrat l-nisāa) (The Women), And if you fear that you will not
deal justly with the orphan girls, then marry those that please you of [other] women, two or three or
four. But if you fear that you will not be just, then [marry only] one or those your right hand possesses.
That is more suitable that you may not incline [to injustice].
• Polygamy…
Notice the conditional clause about orphans, introducing the rules about marriage. This reminds us of
the immediate. occasion of the promulgation of this verse.
It was after Uhud, when the Muslim community was left with many orphans and widows and some
captives of war. Their treatment was to be governed by principles of the greatest humanity and equity.
The occasion is past, but the principles remain. Marry the orphans if you are quite sure that you will in
that way protect their interests and their property, with perfect justice to them and to your own
dependants if you have any. If not, make other arrangements for the orphans.
The unrestricted number of wives of the "Times of Ignorance" was now strictly limited to a maximum
of four, provided you could treat them with equality (C/ 33:4 and 33:51). (R).
The Battle of Uhud

The battle of Uhud was a major engagement between early Muslims and the Quraysh during
the Muslim-Quraysh War. The battle was fought in a valley north of Mount Uhud near Medina on
Saturday, 23 March 625 AD (7 Shawwal, 3 AH).
After suffering defeat at the Battle of Badr and having their caravans endlessly attacked and plundered
by Muhammad's side, the Quraysh finally saw the necessity to take strong measures. Their chief, Abu
Sufyan, then set out for Medina with 3,000 troops to confront Muhammad.
The early phase of the fighting saw the Muslims gaining the initiative. The Quraysh vanguard began
faltering and retreated, leaving their camps vulnerable. However when Muslim victory seemed near,
the Muslim rear guard who were tasked to defend a hill to protect against a possible encirclement,
abandoned their positions to collect spoils of war left by the fleeing enemy.
This turn of events was exploited by the Quraysh general Khalid ibn al-Walid who launched a daring
cavalry strike in the undefended rear and encircled the Muslims, thus turning the tide of battle.
The battle was seen as a significant setback for the Muslims and a minor victory for the Quraysh as
they would return with an even larger force in the Battle of the Trench.
https://en.wikipedia.org/wiki/Battle_of_Uhud
B. Religion as the basis of Marriage

Under Hindu law it is a religious practice whereas under the Muslim law there are no religious
connotations attached to the concept of marriage. It is in fact the Civil contract under the special
Marriage Act as well marriage is viewed as a civil contract with reference to the custom. The Hindu
Marriage Act describes Kanyadaan as an essential part of marriage as well as Saptapadi.
MUSLIM LAW..…
From the very beginning, Muslims have considered their marriage as a contract. A Muslim marriage is
defined as a civil contract. The objective of marriage is for the legalization of sexual intercourse, and
the procreation of children. Marriage is not considered as a sacrament, although it is usually solemnized
with the recitation of verses from the Holy Koran. But it has to be emphasized, that Islam does not
prescribe any religious service, ceremonies or rituals as an essential precondition for the solemnization
of Muslim marriage
Parsi Marriage
Under the Parsi marriage the Ashirwad ceremony is considered an essential part of marriage. There are
no religious connotations attached to marriage and Christianity neither are there any religious
connotations attached to marriage under the Portuguese Civil Code.
It may be concluded to say a that only under the Hindu and the Parsi law are ceremonies and religious
connotations attached where as they completed detached when it comes to Muslim, Christian and laws
under the Portuguese Civil Code is concerned.
Conditions of valid marriage

Under section 2 of the act the term, Hindu includes Buddhist, Jain or Sikh by religion.
Hence the term Hindu is comprehensive to include this Sikh community. S. 25 explanation, Hindu
shall include a Jain. In this context a reference can be made to a Public Interest Litigation filed in 2010,
which seeks to amend the constitution and declare that the Sikh community should be outside the
purview of the Hindu Marriage Act 1955. The Supreme Court bench headed by Chief Justice K.G.
Balakrishnan turn down the petition, holding that it is not possible for them to entertain the subject
and the appropriate authority and referred it to be a policy matter.
Explanation.—The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case
may be:—
(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by
religion;
(b) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or Sikh by
religion and who is brought up as a member of the tribe, community, group or family to which such
parent belongs or belonged; and
(c) any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion.
(2) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to
the members of any Scheduled tribe within the meaning of clause (25) of article 366 of the Constitution
unless the Central Government, by notification in the Official Gazette, otherwise directs.
Sikh…
Under section 2 of the act the term, Hindu includes Buddhist, Jain or Sikh by religion. Hence the term
Hindu is comprehensive to include this Sikh community. S. 25 explanation, Hindu shall include a Jain.
In this context a reference can be made to a Public Interest Litigation filed in 2010, which seeks to
amend the constitution and declare that the Sikh community should be outside the purview of the
Hindu Marriage Act 1955.
The Supreme Court bench headed by Chief Justice K.G. Balakrishnan turn down the petition, holding
that it is not possible for them to entertain the subject and the appropriate authority and referred it to
be a policy matter.
• Witnesses to the marriage

Witnesses are necessary in case of solemnization of marriage sunder the Muslim, Christian and Parsi
marriage. However, the Hindu marriage does not prescribe ethe presence of witness. This is a cause of
impediment as, in certain situations when the parties may try to solemnize a marriage, they may not
have witness it, and yet it may be valid. An evidentiary value of something as important as marriage is
very important
Hindu law
Under the Hindu law, something like a Gandarva Vivah is performed where the couple may perform
a marriage in some temple but with no witnessed, if for some reason the couples go in different paths,
it becomes very difficult for the women to claim maintenance as the husband may deny solemnizing
any marriage, then the wife will have no proof that the marriage was performed and is easily denied
any rights along with the marriage. Under the HMA, the presence of witness to be an essential part of
the marriage.
• Muslim law
Under the Muslim law, it interesting makes a provision that the marriage which involves proposal and
acceptance of the offer of marriage must perform at one meeting and in the presence of two males or
one male and female witnesses who must be sane and adult Mohammedi’s. Hence, the 201 Muslim
personal law expects that the person to be appointed as witness have the qualification of being a Muslim
male adult.
• Parsi Marriage Act
With reference to the “Parsi Marriage Act” it also specifies that the presence of Parsi witnesses is
important besides the priest hence they also emphasized that the witness have to be Parsi by religion
and that by any other person or non-Parsi will be an impediment similarly. We have provisions.
Christian Marriage Act
Under the Christian Marriage Act as well, which makes provision for appointment of two credible
witnesses however it does not specify whether what should be the age or the religion of the witnesses
Under the Portuguese law also the law does not specifically in ensure that witnesses need to be
present and the witnesses need to have the qualification of same religion or a certain gender different
from each other. It should be mandatory to have witnesses in the marriage.
Age and capacity
Generally, in all matrimonial laws, all persons are qualified for marriage unless the law has disqualified
any of them for that purpose. Minor, eunuch idiots, deaf and dumb, lunatics and impotent474 person
suffering from incurable disease, person whose elder brother is still unmarried, are all described to be
incompetent to marry.
Child Marriage: No Indian community regards child married as void. In other words, child married
child marriage is perfectly valid. Earlier the age of marriage was 21 years for the male and for the female
the age was 18 years. Any person marrying below the specified age could led to penal consequences,
under the “Child Marriage Restraint Act of 1929”. This is now newly formed into the prohibition of
Child Marriage Act 2000
• Age and capacity

The Hindu Marriage Act 155, Parsi Marriage and Divorce Act 1936, “The Special Marriage Act 1954”
and The Prohibition of Child Marriage Act 2006 on it a precious the minimum age of marriage for girls
is it is that of 18 years and for boys is 21 years.
It is only under the Special Marriage Act 1954, that a child marriage is void. Under Hindu law also a
child marriage is valid
Hindu law
Hindu law also a child marriage is valid.
Muslim law
The Muslim law allows that a person who was not attained the age of puberty does not have the
capacity to marry without the consent of his guardian. Hence, marriage Muslim are considered as
puberty as a question of fact and in the absence of witness to the contrary it is presumed that the person
who has completed 15 years of age has attained puberty period.
Under the Muslim law, marriage of a minor is not void if a minor as married by Gradian other than the
father of the grandfather the minor can depart at the marriage on attaining majority.
The Shafi and the magic school Lays down that even a major girl cannot marry without the consent of
a father period in India.
A major Muslim girl belonging to any school has the right to marry at her own choice without the
consent of the guardian. If a major girl is married without her consent, or the consent of her father,
the marriage is void.
The Child Marriage Restraint Act

The Child Marriage Restraint Act applies to all community and provost and marriage but that does not
affect the validity of the child marriage which is governed by the personal law of the parties to the
marriage this act is a Penal legislation and provides a punishment for the violation of the provisions of
the act.
It has to be proved that there is an overlap of the Child Marriage Restraint Act and the personal law.
The personal law definitely has an upper hand over the Child Marriage Restraint Act.
The Child Marriage Restraint Act
The Child Marriage Restraint Act the offences are cognizable and non-cognizable for the purpose of
Investigation only in the court of the metropolitan magistrate or Judicial Magistrate of a First class are
competent to take cognizance of the offence.
But no cognizance of offence can be taken after the expiry of one year from the date on which the
offence is alleged to have been committed.
In fact research shows that this limitation on the age and from the solemnization of marriage many a
times dominates the penal legislation in theory and practice both
Under the Muslim law

If a boy or a girl are immature, they do not have their own choice. Their nikâh is not valid without a
wali. If a boy (or girl) performs his nikâh on his own or someone else performs it, it will be dependent
on the permission of the wali. If the wali grants permission, the nikâh will be valid. If not, it will not be
valid. The wali has full rights over such a boy or girl. He can get them married to whoever he wishes
and refuse whoever he wishes.
Immature girls and immature boys cannot reject such a nikâh at that time. This is irrespective of
whether the girl is a virgin or had been married previously and had also been sent to her (first) husband's
home - the same rule will apply
Under the Muslim law
If the father or grand-father perform the nikâh of an immature girl or boy, they do not have the right
to reject or repudiate this nikâh even after they become mature. This is irrespective of whether the
marriage was executed with a person who is of the same social standing or with a person of a lower
class, and irrespective of whether the nikâh was performed with mahrul mithl or whether it was far less
than the mahrul mithl. In all cases the nikâh will be valid and they cannot reject or repudiate this nikâh.
The father is normally the Wali (Guardian) to the girl. However, the same may be delegated to the,
brother, uncle or any other wali.
They can in turn sough who can sought the permission of a virgin girl. She has to give her permission
verbally; silence does not count. However, if the father sent these persons (wali) to seek her permission,
her silence will be considered to be a form of consent.

Under the Portuguese Civil Code has additional impediments to marriage. Marriage is forbidden of
minors below 21 years of age and majors who are prohibited from managing their person or property,
until they obtain the consent of their parents or their legal representatives
Independent thoughts v. Union of India
Writ Petition (Civil) No. 382 Of 2013 (Air 2006 Sc 2522)
on the issue weather sexual intercourse between a man and his wife, being a girl between 15 and 18
years of age is valid? Almost every Law in India recognized that a girl below 18 years of age and it is
for this reason that the law or penalized sexual intercourse with a girl who is below 18 years of age
period, unfortunately with reference to Section 375 exception to if a girl between 15 and 18 years of
age is married her husband has a nonconsensual sexual intercourse with his wife it cannot be penalized
under the law. It is an indeed
Independent thoughts v. Union of India
Writ Petition (Civil) No. 382 Of 2013 (Air 2006 Sc 2522)
a paradox because she is married to him and for no other reason. This cause the right of the girl child
to bodily integrity to been delineated with reference to that of her husband and Husband has been
instituted taken away and nonconsensual sexual intercourse with her husband is not an offence under
Indian Penal. The court ruled, Sexual intercourse with a girl who is below 18 years of age, regardless of
whether she is married or not is arbitrary. The exception in the Indian Penal Code creates an
unnecessary and artificial distinction between unmarried girl marriages.
PART I: LAW OF MARRIAGE

Chapter 1: Definition of ‘Muslim’
Section 1 A ‘Muslim’ is one who has faith in Allah’s existence, His unity and all His characteristics; and
who believes in His Messengers, all His revealed Books and the Day of Judgment; and who is, further,
convinced of the Prophet Hazrat Muhammad ‫صلى هللا عليه وسلم‬being the Last Prophet so that after him
can come no other prophet of any kind; and who has faith in all the essentials of religion, i.e., in all
those things whose communication by the Prophet Muhammad ‫صلى هللا عليه وسلم‬is essentially and
undoubtedly known, and who affirms all those things by the word of mouth.
Chapter 2: General Principles of Marriage
DEFINITION OF MARRIAGE Section 2 Marriage is an agreement between a man and a woman,
based on the Shari'at principles, as a result of which mutual sexual relation becomes legitimate, paternity
of offspring is legally established and mutual rights and obligations become enforceable.
OBJECTS AND PURPOSES OF MARRIAGE Section 3 The purposes of marriage are perpetuation
of human race and attainment of chastity, continence, mutual love, affection and peace.
STATUS OF MARRIAGE
Section 4 Marriage is compliance with injunctions of God’s Book and His Prophet’s ‫صلى هللا عليه وسلم‬
Sunnat; further it is the source of perpetuation of human race and attainment of chastity due to which
human beings are protected against committing what is absolutely prohibited by religion. In the eyes
of the Shari’ at, therefore, marriage is not just a civil contract; it is also worship.
RULES OF MARRIAGE
Section 5 Different situations arising from the capacity to discharge the obligations resulting
from marriage and the apprehension of indulging or not indulging in illegal sex make different
also the rules of marriage, details of which follow:
(a) If a man is capable of providing for the woman’s maintenance and other rights and is sure that if he
does not marry he may indulge in illegal sex, it is farz (obligatory) for him to get married.
(b) If a man is capable of providing for the woman’s maintenance and other rights and is not sure but
has a strong apprehension that if he does not marry he might indulge in illegal sex, it will be wajib
(essential) for him to get married.
(c) In normal circumstances marriage is a Sunnat-e-Mu'akkadah (Prophet’s ‫صلى هللا عليه وسلم‬Tradition
which must be adhered to).
Explanation:
“Normal circumstances” mean that the man is capable of cohabitation and capacity to provide for
maintenance and marital rights, but if he does not marry there is no risk of his indulging in promiscuity,
and no risk that in the case of getting married he might forsake faraez (obligatory precepts of Islam)
and Sunnat-e-Mu'akkadah (Prophet’s ‫صلى هللا عليه وسلم‬Traditions which must be adhered to).
(d) Getting married is haram (absolutely prohibited) for a man who does not have the capacity to
provide for dower, maintenance and marital rights, or is sure due to his temperament that he will be
guilty of cruelty and excesses towards the would-be wife.
(e) If a person is not sure but has apprehension of meting out cruelty to the would-be wife, getting
married is makruh-e-tahrimi (essentially avoidable). Note: Rules of Shari'at for marriage are the same
for women as for men, except that for women there is no condition of capacity to provide dower and
maintenance.
PROPOSAL FOR MARRIAGE

Section 6 It is lawful for a man to propose to a woman marrying whom is for the time being lawful for
him. But if there is a permanent or temporary bar to marriage between a man and a woman, it is not
lawful for him to propose to her
Explanation: Since sister, paternal aunt and sister’s daughter, etc. are permanently prohibited in
marriage it is not lawful to propose to them. Similarly, it is not lawful to propose to a woman who is
married to another man, or who is undergoing 'iddat of revocable or irrevocable divorce or of death.
However, to a woman undergoing 'iddat of death such words may be said which do not constitute an
express proposal but indicate a proposal.
Section 7 One should not propose to a woman to whom another man has already proposed and whose,
or whose guardian’s, response thereto has become known. But if subsequent to some one else’s
proposal one proposes to and marries her, the marriage will be lawful.
Section 8 It is lawful for a man to see the woman he wants to marry.
Section 9 It is lawful for a woman to propose to a man marrying whom is for the time being lawful for
her.
Section 10 It is lawful for the woman, too, to see the man who has proposed to her. Explanation: It
is, however, better that the proposal is given by the woman’s guardians and not by the woman herself,
so that it is not regarded as immodesty.
Section 11 It is haram (absolutely prohibited) for the parties to a proposal to be together in privacy.
Section 12 When a marriage is fixed, in the Shari'at it is a “promise to marry” in which there is no legal
obligation. If after the marriage is fixed either party backs out, he or she cannot be compelled to marry.
Section 13 To put on a ring by way of engagement, pay a sum in cash, put on clothes, or give some
other gift, is a sign of consent for marriage; but due to such an action one cannot be compelled for
marriage

Section 14 After a marriage is fixed, if the boy or the girl gets married to some other person, the
marriage will be valid, and it will not be correct to demand dissolution of that marriage.
Section 15 If before the marriage the dower or part thereof has been paid in the form of cash or goods,
and then for some reasons the marriage could not take place, the boy will have a right to reclaim the
said cash or goods; and if the said cash or goods cannot be returned, it is lawful to take its substitute.
Section 16 If the presents given on engagement are available and the proposal fails, it is lawful to take
back those presents.
Chapter 3: Essentials of Marriage
Section 17 A proposal, and its acceptance, are essentials of marriage; no marriage can come into
existence without both of these.
DEFINITION OF PROPOSAL AND ACCEPTANCE

Section 18 The words in which a proposal is made by either party to the marriage, directly or through
a guardian or representative, is called ijab (proposal); and the words in which the proposal is accepted
by the other side is called qubul (acceptance).
KINDS OF MARRIAGE
Section 19 There are two kinds of marriage: valid marriages and invalid marriages.
Section 20 A valid marriage is one in which are found all the essentials and conditions of marriage
CONDITIONS FOR VALIDITY Of MARRIAGE
Section 21 Among the conditions of marriage some are essential for the validity of offer and acceptance,
some relate to those uttering the words of offer and acceptance, and some relate to the woman
Section 22
Conditions relating to offer and acceptance are as follows:
(a) Same Occasion: It is essential that the proposal and acceptance are made on the same occasion; if
after the proposal and before the acceptance the occasion changes, or the other party so acts that it
shows his or her lack of interest or indifference, the proposal will become defunct and its acceptance
will not be tenable. If the proposal is made through a messenger, orally or in writing, its acceptance will
be tenable on the same occasion when the message is conveyed or read out, provided that two witnesses
are present in that sitting.
(
Section 22
Conditions relating to offer and acceptance are as follows:
(b) It is essential for proposal and acceptance to correspond, i.e., the person to whom and the dower
on which marriage has been mentioned in the proposal: the acceptance should be given for marriage
to the same person and on the same dower. However, where the proposal is from the man’s side and
while accepting it from the woman’s side the amount of dower is reduced, or the proposal is from the
woman’s side and while accepting it from the man’s side the amount of dower is increased, in such
situations the proposal and acceptance will be regarded as mutually corresponding and the marriage
will come into existence. But if it is the other way round, i.e., if the woman has increased the dower
mentioned by the man or the man has reduced it, no marriage will come into existence.
(c) If the acceptance is made before the proposal is complete, the acceptance will not be tenable
Explanation: For instance if some one says “My daughter to you in marriage I gave”, and before the
word “gave” is pronounced the other party says “I accept”, the acceptance will not be tenable. (d) It is
essential to use such words for proposal and acceptance which signify establishment of marriage with
immediate effect. If the proposal or acceptance are related to a future time, or made dependent on a
future contingency, there will be no marriage
SOME ESSENTIAL RULES RELATING TO OFFER AND ACCEPTANCE

Section 23 For proposal and acceptance it is necessary to utter such words which seem to signify
immediate establishment of relationship between the parties, whether those words affirm this meaning
literally or by implication or usage and whether the language is Arabic or non-Arabic — as nikah
(marriage), zawaj (matrimony), biyah (marriage), hiba (gift), baksh dena (giving away), malik bana dena
(make master), etc. On the contrary, if words like ariyat (lease) or ijara (rent) are used, there will be no
marriage.
Section 24 To establish a marriage it is also necessary that no such words are mentioned in the proposal
and acceptance which signify that the marriage is for a fixed period.
Section 25 As regards those dumb persons who know how to write, their proposal or acceptance in
writing will be valid.
SOME ESSENTIAL RULES RELATING TO OFFER AND ACCEPTANCE

Section 26 As regards dumb persons who do not know how to write, for their proposal and acceptance
their customary gestures will be valid. Section 27 To establish a marriage it is necessary that in the
words of the proposal and acceptance the parties are so mentioned that both become known and
certain for each other and for the witnesses. If the parties or either of them is present on the occasion
of marriage, pointing to them will be enough for ascertainment.
Section 28 For the validity of a marriage it is necessary that two men or a man and two women be
present at the time of proposal and acceptance.
Section 29 It is necessary for the witnesses to a marriage
:
(a) to be Muslim; (b) to be of sound mind;
(c) to be adult; and (d) for both the witnesses to hear and understand together the proposal and the
acceptance — if the witnesses are deaf and cannot hear the proposal and acceptance, no marriage will
be established;
(e) for the groom and bride being known and certain for the witnesses
Section 30
The parents and offspring of the groom and the bride can also be witnesses to the marriage, but it is
better to have others as witnesses.
Explanation: If ascendants or descendants act as witnesses, the marriage will be established but their
evidence will not be admissible to prove the marriage in a court and, therefore, it is better to have
others as witnesses.
Section 31 It is necessary for those making a proposal, or giving the acceptance, to listen to the words
of the acceptance, or the proposal, and fully know that these words are for the establishment of a
marriage
STIPULATIONS IN MARRIAGE
Section 32 If in a marriage a condition has been stipulated which is repugnant to the objects of marriage,
or which is haram (absolutely prohibited) by the Shari'at, the condition will be void and the marriage
will be valid.
Explanation: For instance, to stipulate a condition that the parties shall not be each other’s heir, or
that the wife will participate in public functions without a veil, will be void.
Sure An-Nisa 4:22
Do not marry former wives of your fathers—except what was done previously. It was indeed a
shameful, despicable, and evil practice.
Comment
marrying the wife of the father is prohibited

allah said,
ِ‫سآء‬ ِ َ‫َوالَ تَن ِك ُحواْ َما َن َك َح َءا َبا ُؤ ُك ْم ِمن‬
َ ‫الن‬
(and marry not women whom your fathers married,) allah prohibits marrying the women whom the
father married, in honor and respect to the fathers, not allowing their children to have sexual relations
with their wives after they die. a woman becomes ineligible for the son of her husband as soon as the
marriage contract is conducted, and there is a consensus on this ruling. ibn jarir recorded that ibn àbbas
said, "during the time of jahiliyyah, the people used to prohibit what allah prohibits (concerning
marriage), except marrying the stepmother and taking two sisters as rival wives. allah sent down,
ِ‫سآء‬ ِ َ‫َوالَ تَن ِك ُحواْ َما َن َك َح َءا َبا ُؤ ُك ْم ِمن‬
َ ‫الن‬
(and marry not women whom your fathers married,) and,
ٍّ َ‫َوأَن تَجْ َمعُواْ َبيْن‬
‫اال ْختَي ِْن‬
(and two sisters in wedlock at the same time) 4:23." similar was reported from àta' and qatadah.
therefore, the practice that the ayah mentions is prohibited for this ummah, being disgraced as an awful
sin, r
ً‫س ِبيل‬ َ ‫شةً َو َم ْقتا ً َو‬
َ ‫سآ َء‬ َ ِ‫إِ َّنهُ كَانَ فَـح‬
(indeed it was shameful and maqtan, and an evil way.) allah said in other ayat,
Sure An-Nisa 4:223
˹Also˺ forbidden to you for marriage are your mothers, your daughters, your sisters, your paternal and
maternal aunts, your brother’s daughters, your sister’s daughters, your foster-mothers, your foster-
sisters, your mothers-in-law, your stepdaughters under your guardianship if you have consummated
marriage with their mothers—but if you have not, then you can marry them—nor the wives of your
own sons, nor two sisters together at the same time—except what was done previously. Surely Allah is
All-Forgiving, Most Merciful.
Degrees of Women Never Eligible for One to Marry
This honorable Ayah is the Ayah that establishes the degrees of women relatives who are never eligible
for one to marry, because of blood relations, relations established by suckling or marriage. Ibn Abi
Hatim recorded that Ibn Àbbas said, "(Allah said) I have prohibited for you seven types of relatives
by blood and seven by marriage." Ibn Àbbas then recited the Ayah,
‫علَ ْي ُك ْم أ ُ َّم َهـت ُ ُك ْم َو َبنَـت ُ ُك ْم َوأَخ ََوت ُ ُك ْم‬
َ ْ‫ُح ِر َمت‬
(Forbidden to you (for marriage) are: your mothers, your daughters, your sisters...) At-Tabari recorded
that Ibn Àbbas said, "Seven degrees of blood relation and seven degrees of marriage relation are
prohibited (for marriage)." He then recited the Ayah,
‫ت‬ ِ ‫اال ْخ‬ ٍّ ُ‫ع َّمـت ُ ُك ْم َوخَـلَـت ُ ُك ْم َو َبنَاتُ االٌّخِ َو َبنَات‬ َ ‫علَ ْي ُك ْم أ ُ َّم َهـت ُ ُك ْم َو َبنَـت ُ ُك ْم َوأَخ ََوت ُ ُك ْم َو‬
َ ْ‫ُح ِر َمت‬
(Forbidden to you (for marriage) are: your mothers, your daughters, your sisters, your father's sisters,
your mother's sisters, your brother's daughters, your sister's daughters) and these are the types
prohibited by blood relation." Allah's statement,
‫ع ِة‬ َ ‫ضا‬َ ‫الر‬ َّ َ‫ض ْع َن ُك ْم َوأَخ ََوت ُ ُكم ِمن‬ َ ‫َوأ ُ َّم َهـت ُ ُك ُم ْاللَّتِى أ َ ْر‬
PROHIBITED DEGREES IN MARRIAGE

Section 33 The woman a man is getting married to must not be prohibited for him either perpetually
or temporarily.
Section 34 There are two different situations of a marriage being absolutely prohibited:
(a) to be absolutely prohibited for ever — which is called “perpetual prohibition”; and
(b) prohibition for the time being, limited to specific circumstances or specific time — which is called
“temporary prohibition”.
PROHIBITED DEGREES IN MARRIAGE

Section 35 There are three reasons for perpetual prohibition:
(i) consanguinity; (hurmat –e-nasab)
(ii) affinity; and (hurmat –e-musahar)
iii) fosterage (hurmat –e-razaàt)
A man is prohibited from marrying
(1) his mother or his grandmother how high so ever;
(2) his daughter or grand-daughter how low so ever;
(3) his sister whether full, consanguine or uterine;
(4) his niece or great niece how low so ever; and
(5) his aunt or great aunt how high so ever, whether paternal or maternal. A marriage with a woman
prohibited by reason of consanguinity is void.
Hedaya , 27.; Baillie, 24. As to void marriage, (see 264 and 266 below)
Prohibition on ground of affinity
A man is prohibited from marrying
(1) his wife's mother or grandmother how high so ever;
(2) his wife's daughter or grand-daughter how low so ever;
(3) the wife of his father or paternal grandfather how high so ever; and
(4) the wife of his son, of his son's son or daughter's son how low so ever. A marriage with a woman
prohibited by reason of affinity is void. In case
(2), marriage with the wife's daughter or grand daughter is prohibited only if the marriage with the wife
was consummated.
Hedaya , 28; Baillie, 24-29, 154. As to void marriage, (see 264 and 266 below).
• PROHIBITION DUE TO CONSANGUINITY (hurmat –e-nasab)
Section 36 Marriage to the following women is absolutely prohibited due to consanguinity:
(a) mother and maternal and paternal grandmothers how high soever;
(b) daughter, son’s daughter and daughter’s daughter how low soever;
(c) sister — whether full, consanguine or uterine;
d) paternal and maternal aunt — whether full, consanguine or uterine;
(e) daughters of brothers — full, consanguine or uterine, and their descendants how low soever;
(f) daughters of sisters — full, consanguine or uterine, and their descendants how low soever
PROHIBITION DUE TO CONSANGUINITY (hurmat –e-nasab)
Section 36 Marriage to the following women is absolutely prohibited due to consanguinity:
(a) mother and maternal and paternal grandmothers how high soever;
(b) daughter, son’s daughter and daughter’s daughter how low soever;
(c) sister — whether full, consanguine or uterine;
d) paternal and maternal aunt — whether full, consanguine or uterine;
(e) daughters of brothers — full, consanguine or uterine, and their descendants how low soever;
(f) daughters of sisters — full, consanguine or uterine, and their descendants how low soever
• PROHIBITION DUE TO AFFINITY ((hurmat –e-musahar)

)
Section 37 Affinity signifies those relations which are created by marriage.
Section 38 Marriage to the following women is absolutely prohibited due to affinity:
(a) one’s wife’s mother, maternal and paternal grandmothers and all other ascendants;
(b) wives and former wives of one’s son, son’s son, daughter’s son, and all other descendants;
(c) women married to one’s father, paternal and maternal grandfathers, and all other ascendants;
(d) children and grandchildren, how low soever, of one’s wives with whom one has consummated the
marriage
Section 39 In those situations where a valid marriage creates the bar of affinity the said bar will not be
created if there was an irregular marriage. However, if the irregular marriage was followed by
consummation or symbolic consummation, it will create the bar of affinity.
• iii. PROHIBITION DUE TO FOSTERAGE

Section 41 If a boy or girl below the age of two and a half years is suckled by a woman, it will establish
bar of fosterage
Section 42 A marriage is prohibited due to fosterage as well with all those relations with whom it is
prohibited due to consanguinity.
Section 43 The woman suckling will be the foster-mother of the child suckled and her husband causing
that milk into her will be the child’s foster-father.
Ascendants and descendants of the suckling woman, and of her husband, whether by that woman or
by another wife, will be absolutely prohibited for the child suckled and its descendants.
Section 44 For the woman suckling and her ascendants and descendants, as also for her husband and
his ascendants and descendants, the suckled child’s spouse and descendants, shall be within prohibited
degrees
Section 45 Fosterage creates bar to marriage on the following conditions:
(a) The suckling woman must be at least nine years of age; suckling by a girl below this age is to be
disregarded for this purpose.
(b) Milk must have been suckled in its original condition; if it is frozen or cooked with some food item,
it will not create the bar.
(c) If the woman’s milk is mixed with animal milk or with some medicine or water, the bar will be
created only if it is dominant in the mixture.
(d) The bar will be created only if milk is either directly suckled or taken out and dropped into the
child’s mouth or nose, not if it is inserted into the stomach by any other means.
(e) If two women’s milk is mixed and fed, the bar will be created in respect of both women.
(f) It is necessary that milk should reach the child’s stomach; child’s action short of it will not create
the bar.
• Kinds of marriage and its effect

• Introduction
“Nikah, in its primitive sense, means a carnal conjunction. Some have said that it signifies conjunction
generally. In the language of law, it implies a particular contract used for the purpose of legalizing
generation.” - Hedaya (12th-century legal manual, considered as one of the most influential
compendium).
• Muslim marriage has been considered a contract that legalizes the procreation of children.
• Justice Mahmood in Abdul Kadir v. Salima (1886), defines it as a purely civil
contract and rejects its nature as a sacramental institution. However, despite having
similarities with a civil contract, Muslim marriage is not absolutely one.
Classification of Marriage
• Muslims are divided into two sects all over the world based on their belief and tradition, viz Sunni
Muslims and Shia Muslims.
• Muslim marriages are a social contract and legally binding upon parties hence it is classified
accordingly. The classification of marriages under Muslim laws is:
• Sahih Nikah (Valid Marriage)
• Batil Nikah (Void Marriage)
• Fasid Nikah (Irregular Marriage)
• Muta Marriage (Temporary Marriage)
1. Sahih Nikah (Valid Marriage

• A marriage that is neither void nor invalid is valid. In other words, a marriage that conforms in all
respects to the legal requirements is a valid marriage.
• A marriage to be valid must satisfy the following requirements:
• There must have been a proposal by one party and its acceptance by the other.
• The consent of parties should be free consent.
• Proposal and acceptance must have taken place at one meeting and before two male
witnesses, one male and two female witnesses under Sunni Sect. They must be major and
of sound mind. Under Shia Sect witnesses are not necessary.
• The parties must have the capacity to contract marriage i.e., they should be:
• Of sound mind,
• Major,
• Capable of giving free consent, if they are minor or lunatic, it should be done
through their guardians.
• There should be no impediment to marriage whether absolute or relative on the ground
of consanguinity, affinity, fosterage and polyandry or temporary, viz relative, prohibitive
or directory
Effect of a Valid Marriage
• A valid marriage has social and legal implications some of which are as follows:
• Marriage provides husband and wife with rights of inheritance.
• The wife gets the right of maintenance and alimony for her and the children under Section
125 of Criminal Procedure Code, 1973 after the decision of the Supreme Court
in Mohd. Ahmad Khan v. Shah Bano Begum (1985).
• The ritual of Iddat has to be performed by the divorced wife after the dissolution of
marriage or when she becomes a widow. During this period, she cannot remarry.
• Batil Nikah (Void Marriage)

• A void marriage is a marriage that does not fulfil the necessary conditions of a valid
marriage. In batil marriage no legal rights and obligations are followed. Following kinds of
marriages are considered void:
• A marriage falling under prohibited degrees of relationship, i.e., marriage between
the parties having blood relations.
• Marriage prohibited by the reason of affinity (E.g., Sister, aunt, niece etc.).
• Marriage with foster mother or foster sister. The exception in case of fosterage is
observed by Sunnis, where marriage is valid with sister’s foster mother, or foster sister’s
mother, foster son’s sister, or foster-brother’s sister.
• Marrying a woman who is undergoing Iddat is also void under Shia law.
• Marriage with someone else’s wife provided her marriage is still subsisting.
Effect of a Void Marriage

• A void marriage is of no legal effect either before or after consummation.
• It does not create any rights or obligations between the parties.
• The wife is not entitled to maintenance.
• One cannot inherit from the other, but the woman is entitled to dower if the void marriage
has been consummated.
• The offspring of a void marriage is illegitimate.
• The parties can separate from each other at any time without divorce and may contract
another marriage lawfully.
Fasid Nikah (Irregular Marriage)
• A marriage contracted by parties suffering from relative prohibition or directory incapacity is
irregular.
• Some grounds which make the marriage irregular (fasid) are:
• Marriages contracted without witnesses (Sunni Muslims),
• Marriage with a fifth wife (Sunni Muslims),
• Marriage with a woman undergoing Iddat,
• Marriage with non-scriptural woman (i.e., idolatress or fire worshipper),
• Marriage contrary to the rules of unlawful conjunction.
Effect of an Irregular Marriage
• Before consummation in a marriage, the wife is not entitled to obtain a dower from her
husband if he divorces her.
• There is no legal obligation on the wife, she is not bound to follow the rules of Iddat.
• The wife has no right to claim maintenance from the husband during the Iddat period.
• After consummation of marriage a child born out of irregular marriage is considered legitimate and
has all right of inheritance of property.
INVALID MARRIAGE
Section 48 An invalid marriage is one which is lacking in the constituents and conditions of marriage,
or in any of these constituents and conditions.
Section 49 Invalid marriages are of two kinds, viz.:
(i) void marriages, and
(ii) irregular marriages.
INVALID MARRIAGE
Section 50 A void marriage is one which according to the Shari'at does not come into existence at all.
Section 51 An irregular marriage is one which is neither valid nor void. Before consummation such a
marriage is governed by the rules of void marriages; and after consummation it gives rise to the effects
and rules of marriage. In both these situations separation is necessary either by mutual renunciation or
by the order of the qazi.
Section 52 The following marriages are void:
(a) a marriage in which proposal and acceptance have some such flaw due to which these are not valid
as per the prescribed conditions.
(b) a marriage in which those uttering the words of proposal and acceptance lack in the necessary
capacity;
(c) a marriage to a woman who is prohibited to the man due to consanguinity, fosterage or affinity, or
who is married to or is observing 'iddat for another man, or is the triply divorced wife of the man
marrying while there has been no intervening marriage, or marriage to whom during the subsistence of
that to the present wife is prohibited, or is neither Muslim nor kitabiyah;
(d) a marriage either party to which is an apostate; or in which the man is non-Muslim while the woman
is Muslim.
Section 53 All invalid marriages other than void marriages will be regarded as irregular.
Section 54 In an irregular marriage, before consummation none of the legal rules of marriage becomes
applicable.
Section 55 In an irregular marriage, after consummation the following legal rules will become
applicable:
(1) Proper or specified dower, whichever Is less, shall be obligatory; and if no dower had been fixed at
the time of marriage proper dower will be due.
(2) Paternity of children shall be established as per the conditions stated in the Chapter on Legitimacy
(see Part II, Section 109).
(3) 'Iddat will be obligatory after mutual renunciation or separation.
KINDS OF VALID MARRIAGE

Section 56 A valid marriage may be of either suspended or immediate effect.
Section 57 A valid marriage may be either binding or non-binding.
Section 58 A valid marriage fulfilling the following conditions will be of immediate effect; otherwise it
will be of suspended effect:
KINDS OF VALID MARRIAGE
(a) If the man and the woman directly exchange the proposal and acceptance, or name their
representatives for it, both of them, or the representatives, as the case may be, must be major and of
sound mind. If discerning minor boys or girls themselves make the proposal or give the acceptance,
the marriage will depend on the guardian’s consent; and if an insane person does so there will be no
marriage.
(b) If a remoter guardian contracts into marriage a minor or insane boy or girl, it will depend on the
nearer guardian’s consent.
(c) If a representative in marriage exceeds the powers given by the person whom he represents, the
marriage will depend on the said person’s consent.
BINDING AND NON-BINDING MARRIAGES
Section 59 A binding marriage is one in which guardians of either party have no option of termination;
and if there is such an option it is non-binding.
Section 60 On the following conditions a valid marriage becomes binding:
(a) Marriage of a minor boy or girl should have been contracted by the father or paternal grandfather,
and of an insane person by the father, paternal grandfather or son.
Explanation: If a minor boy or girl has been contracted into marriage by a guardian other than father
and paternal grandfather the marriage, even if it is among equals and with a proper dower, will not be
binding and the boy or girl will be entitled to option of puberty.
If an insane person has been contracted into marriage by a person other than father, paternal
grandfather and son, this marriage too will not be binding and on recovery the person will have an
option between remaining in marriage or repudiating it. In both cases termination will be effective only
after the intervention of the qazi.
(b) If an adult and sane woman marries an equal with a proper dower the marriage, even if without her
agnatic guardian’s consent, will be obligatory.
Explanation: If an adult and sane woman without her agnatic guardian’s consent marries an equal on
less than the proper dower, the guardian will be entitled to demand from the husband completion of
the proper dower, and if the husband does not agree to it on the guardian’s demand the qazi shall
terminate the marriage. And if she has married a non-equal, the guardian can get the marriage
terminated by the qazi. [See for details Part II, Section 70].
(c) If there has been no misrepresentation in respect of kufu' (parity of parties to marriage), the marriage
shall be binding.
Explanation: If the husband had misrepresented himself to be an equal to the woman, both the woman
and the qazi will be entitled to have the marriage terminated
MARRIAGE OF NON-MUSLIMS
Section 62 A marriage between a man and a woman solemnized before their conversion to Islam will
remain intact after conversion if it fulfils all the conditions and terms for the validity of marriage as
prescribed by the Shari’at.
Section 63 If the existing marriage between two non-Muslims is lacking in some of the conditions
which according to the Islamic Shari’at are necessary, two situations are possible:
(a) the missing conditions may relate to the solemnization of marriage, e.g., presence of witnesses; or
(b) the missing conditions may relate to both the solemnization and continuation of marriage, e.g.
absence of prohibited degrees of relationship since this is necessary equally for both the solemnization
and continuation of marriage.
Section 64 In the first situation aforesaid if the parties embrace Islam together, their marriage will
continue and no fresh marriage will be required.
Section 65 In the second situation aforesaid, i.e., where the conditions missing are necessary for the
retention and continuation of marriage, if both parties together embrace Islam, or either of them does
so, the marriage will not remain intact.
For instance, where a non-Muslim has married his sister’s daughter, if he embraces Islam or both
parties embrace Islam, the marriage will not continue to exist and separation will be necessary
Section 66 If in the first situation aforesaid only the wife embraces Islam, where this is possible Islam
shall be offered thrice to the husband, and if he accepts it the marriage will continue. If the husband
rejects Islam or keeps quiet, where this is possible the qazi may separate them, and thereupon the
woman may after observing 'iddat marry a Muslim. If it is not possible to offer Islam or to seek
separation by the qazi, the woman’s marriage will get terminated after she has had three menstrual
courses, or after three months if she does not menstruate, or on the delivery of child if she be pregnant;
and then she can remarry after observing 'iddat
Section 67
Section 67 If in the first situation aforesaid only the husband embraces Islam and the wife is a kitabiyah,
the marriage will remain intact.
If she is a non-kitabiyah, where it is possible to offer Islam to her this will be done thrice; and if she
accepts it or becomes a kitabiyah, the marriage will continue; otherwise the parties will be separated.
If offering Islam or effecting separation is not possible, the marriage will be automatically terminated
after three menstrual courses, or three months, or upon delivery in case of pregnancy, as aforesaid.
Apostacy
Section 68 If a Muslim woman becomes an apostate her apostasy will not terminate the marriage.
Section 69 If a Muslim woman’s husband becomes an apostate the marriage will get immediately
terminated.
Marriage n digital platform
Nikah by phone, video conference and internet Though the marriage under Muslim Law is generally
presumed as a civil contract but as many a time, the matter of marriage (nikah ) is more complex than
a sale deed as the former involves an aspect of ibadat and requires two witnesses.
The direct proposal of marriage and pronouncement of acceptance on internet, video conferencing
and telephone is not very reliable.
However, nikah will be valid in case an attorney is appointed for nikah proceedings on these electronic
media and the two parties make proposal and pronounce consent before their witnesses on behalf of
the attorney.
In such an arrangement the witnesses should have been familiar with the person appointed as attorney
or his name, with his father's name and residential address which is mentioned at the time of proposal
and acceptance.
An online nikah refers to the process of getting married through online platforms or services, typically
facilitated by an Islamic organization or a certified marriage officiant. This means that the entire process
of getting married can be done through digital means.
Time and Place of marriage
None of the personal laws mandate any particular ceremony, for the performance of the marriage.
Since apart from the Hindu law, these marriages do not have religious dominion. The Hindu marriage
prescribes the “Saptapadi”. The circles around the ‘holy fire’. The marriage is complete on the seventh
step. In Parsi marriage the ‘Ashirwad’ ceremony is performed”
Section 10, Portuguese Civil Code, 1867
Portuguese Civil Code, 1867 makes provisions for the time and place of marriage. Under the Act,
marriage under this Act shall be solemnized between the hours of six in the morning and seven in the
evening.
Section 11, Portuguese Civil Code, 1867 488
The Place for solemnizing marriages demarcated to be a church where worship is generally held
according to the forms of the Church of England], unless there is no 1[such] church within five miles
distance by the shortest road from such place, or unless he has received a special license, authorizing
him to do so under the hand and seal of the Anglican Bishop of the Diocese or his Commissary.
Section 11, Portuguese Civil Code, 1867
There shall be a fee for special license as the said Bishop
Christian Marriage
S.10 Indian Christian Marriage Act, 1872
There is, also no specific provision from time and place of marriage. This is not good when it comes
to keeping a check on the solemnization of marriage. However, under the Indian Christian Marriage
Act, 1872 the time for solemnizing marriage.
Every marriage under this Act shall be solemnized between the hours of six in the morning and seven
in the evening
Dower – concept
Section 130 Dower can be any such mal (money or property of any kind) taking the benefit of which
is permissible in the Shari'at, which is known and certain, and which the man has the capacity to give
— e.g., gold and silver or coins made out of these, or their substitute currency (coins, notes), things
that can be weighed or measured, animals, land or other trading goods, and similarly the benefit derived
from something against which mal can be acquired, e.g., usufructuary rights on land, house or transport.
1. Beena Marriage
(Sadiqa/Sadaq)
2. Baal Marriage
Dower
Amount of Dower
Volume 7, Book 62, Number 2
Narrated 'Ursa:
that he asked 'Aisha about the Statement of Allah: 'If you fear that you shall not be able to deal justly
with the orphan girls, then marry (other) women of your choice, two or three or four; but if you fear
that you shall not be able to deal justly (with them), then only one, or (the captives) that your right
hands possess. That will be nearer to prevent you from doing injustice.' (4.3) 'Aisha said, "O my
nephew! (This Verse has been revealed in connection with) an orphan girl under the guardianship of
her guardian who is attracted by her wealth and beauty and intends to marry her with a Mahr less than
what other women of her standard deserve. So they (such guardians) have been forbidden to marry
them unless they do justice to them and give them their full Mahr, and they are ordered to marry other
women instead of them."
Volume 7, Book 62, Number 47:
Narrated Ibn 'Umar :
Allah's Apostle forbade Ash-Shighar, which means that somebody marries his daughter to somebody
else, and the latter marries his daughter to the former without paying Mahr.
Narrated Anas:
Abdur Rahman bin 'Auf married a woman and gave her gold equal to the weight of a date stone (as
Mahr). When the Prophet noticed the signs of cheerfulness of the marriage (on his face) and asked him
about it, he said, "I have married a woman and gave (her) gold equal to a date stone in weight (as
Mahr)."
Narrated Anas bin Malik:
'Abdur-Rahman bin 'Auf came to Allah's Apostle and he had marks of Sufra (yellow perfume). Allah's
Apostle asked him (about those marks). 'AbdurRahman bin Auf told him that he had married a woman
from the Ansar. The Prophet asked, "How much Mahr did you pay her?" He said, "I paid gold equal
to the weight of a date stone." Allah's Apostle said to him, "Give a wedding banquet, even if with one
sheep."
Dower and dowry
(Mahmad Usaf Abasbhai Bidiwale v. Harbanu Mansur Atar .
(1978) Mah. LJ. )
Marriage according to the Mahomedan law is not a sacrament but a civil contract. All the rights and
obligations it creates arise immediately and, are not dependent on any condition precedent such as the
payment of dower by husband to a wife. It is a civil contract in which free consent of both the parties
is essential; on the accomplishment of it, however, the relationship of both the contracting parties is
not determined as a pure civil contract, but is determined in combination with the religious
connotation.
S. 3 (1) (c) & (d) The Muslim Women (Protection of Rights on Divorce) Act, 1986 Act No. 25 Of 1986
Specific provisions are made under the Muslim Women (Protection of Rights on Divorce) Act, 1986
Act No. 25 Of 1986.
(c) the Mahr is an amount equal to the sum of Mahr or dower agreed to be paid to her at the time of
her marriage or at any time thereafter according to Muslim law; and
(d) it will also include all the properties given to her before or at the time of marriage or after her
marriage by her relatives or friends or the husband or any relatives of the husband or his friends
S. 3(2) The Muslim Women (Protection of Rights on Divorce) Act, 1986 Act No. 25 Of 1986
A Mahr (dower) may be an amount or any other properties of Muslim woman to be given to her at the
time of divorce. A divorced woman is entitled to a reasonable and fair provision and maintenance to
be made and paid to her within the period of iddat period by her former husband ;
(b) a reasonable and fair provision needs to be made within a period of two years from the respective dates
of birth of such children. In case a reasonable and fair provision and maintenance or the amount of
mahr or dower due has not been made or paid or the properties have not been delivered to a divorced
woman on her divorce she can make an application to a Magistrate for an order for payment of such
provision and maintenance, mahr or dower or the delivery of properties
Mahr
Mahr or Dower under Islamic Law is essentially the sum of money or property which a wife is entitled
to get from her husband on marriage. The object behind providing Mahr is to enable independence of
the wife and also acts as an indirect check on the husband’s unhampered right of divorce.
that the Allahabad HC in 1886 defined it as
“a sum of money or other property promised by the husband to be paid or delivered to the wife in consideration of the
marriage and even where no dower is expressly fixed, the law confers the right of dower upon wife as necessary effect of
marriage”
S. 3 (1) (a) The Muslim Women (Protection of Rights on Divorce) Act, 1986 Act No. 25 Of 1986
A Mahr (dower) may be an amount or any other properties of Muslim woman to be given to her at the
time of divorce. A divorced woman is entitled to a reasonable and fair provision and maintenance to
be made and paid to her within the period of iddat period by her former husband;
(b) a reasonable and fair provision needs to be made within a period of two years from the respective
dates of birth of such children.
In case a reasonable and fair provision and maintenance or the amount of mahr or dower due has not
been made or paid or the properties have not been delivered to a divorced woman on her divorce she
can make an application to a Magistrate for an order for payment of such provision and maintenance,
mahr or dower or the delivery of properties
Sahi Bhukhari , Volume 7, Book 62, Number 24
Narrated Sahl bin Sad As-Sa'idi:
A woman came to Allah's Apostle and said, "O Allah's Apostle! I have come to give you myself in
marriage (without Mahr)." Allah's Apostle looked at her. He looked at her carefully and fixed his glance
on her and then lowered his head. When the lady saw that he did not say anything, she sat down. A
man from his companions got up and said, "O Allah's Apostle! If you are not in need of her, then
marry her to me." The Prophet said, "Have you got anything to offer?" The man said, "No, by Allah,
O Allah's Apostle!" The Prophet said (to him), "Go to your family and see if you have something."
The man went and returned, saying, "No, by Allah, I have not found anything." Allah's Apostle said,
"(Go again) and look for something, even if it is an iron ring." He went again and returned, saying,
"No, by Allah, O Allah's Apostle! I could not find even an iron ring, but this is my Izar (waist sheet)."
He had no rida. He added, "I give half of it to her." Allah's Apostle said, "What will she do with your
Izar? If you wear it, she will be naked, and if she wears it, you will be naked." So that man sat down for
a long while and then got up (to depart). When Allah's Apostle saw him going, he ordered that he be
called back. When he came, the Prophet said, "How much of the Quran do you know?" He said, "I
know such Sura and such Sura," counting them. The Prophet said, "Do you know them by heart?" He
replied, "Yes." The Prophet said, "Go, I marry her to you for that much of the Quran which you have."
What are the Types of Mahr as per law?

According to Islamic Law, Dower or Mehr is divided on two basis; by operation of law which is usually
(a) Unspecified dower (mahrul misal) and on the basis fixed by parties and is commonly known as
(b) Specified Dower(mahr-i-musamma) which is of two types
(c) Deferred (Muwajjal) and Prompt (Muajjal)
A. Unspecified dower (mahrul misal)
As the name suggests this is the type of dower which is not specified and is also known as a proper
dower and in this case the obligation to pay it is a legal responsibility on the part of the husband and is
not dependent upon any contract between the parties.
There is no specification or amount of mehr decided in this scenario and so the Court decides the
amount based on the dower settled upon the other female members in the family. This process takes
into account certain factors which are:-
• Personal qualifications of the wife
• Age of the wife
• The social position of the wife’s father’s family
• Dower gave to her female paternal relations
• The economic and social position of the husband
B. Specified dower (Mahrul-Musamma
Under this kind of Mehr, the amount is specified beforehand via an agreement between both the
parties. Even if the Mahr is excessive it needs to be paid because it has been agreed to by both the
parties beforehand. Sometimes the Mahr fixed by the father on behalf of his minor son is binding on
the minor son on his majority.
But under Hanafi Law, a discipline of Islamic Law, the father is not personally liable for the Mahr but
in Ithna Ashari Law, which is another school of thought, the father is also held liable.
SPECIFIED DOWER
C. Prompt (Muajjal) and deferred (Muvajjal) Mahr
These types of Dower are segregation of Specified dower on the basis of the time of payment.
The prompt dower or Muajjal is payable instantly after the marriage and it needs to be paid on demand
unless a delay is specified. It may be fulfilled any time after the marriage has been consummated and
does not get deferred by such consummation. The period of limitation or the time till which the wife
can make a demand for payment of mahr is three years from the date of dissolution of the marriage.
The deferred dower or Muvajjal is the dower which becomes payable either at the happening of a
specified event or on the dissolution of the marriage which can happen upon divorce or death of either
of the parties. In a case where no specified proportion of both these dowers has been fixed by
agreement at the time of the marriage, there are two approaches to be taken.
• POMPT DOWER
• INCREASE OR DECREASE OF DOWER
• ENFORCEMENT
Effects of Marriage- DOWER
Section 127 Dower is the mal (money or property of any kind) which is an obligation of the man
towards the woman as a result of the marriage or its consummation.
Section 128 Dower is a financial right arising from the marriage contract which is an obligation in all
circumstances, even if at the time of marriage it was agreed upon that there will be no dower.
Section 129 The minimum amount of dower is ten dirhams, the weight of which is 30.618 gm. silver.
Therefore the minimum dower in every age and every country will be the amount which can buy 30.618
gm. silver.
There is no maximum of dower.
Section 132
Dower is of two kinds:
(i) specified dower, and
(ii) proper dower.
Section 133 Specified dower is the dower fixed at the time of marriage, or to which the parties have
agreed after the marriage, or which the qazi has fixed after the marriage.
Section 134 If the specified dower is increased by the husband after the marriage and he divorces her
before khilwat-e- sahihah (presumptive consummation of marriage), half of only the originally specified
dower shall be payable without regard to the increase
Section 135 If the parties are being separated after khiltoat-e-sahihah (presumptive consummation of
marriage) and the dower was fixed at the time of marriage, the whole of this dower shall be payable;
but if the separation is taking place before khilwat-e-sahihah, half of the dower fixed at the time of
marriage shall be payable.
Section 136 If the parties have fixed the dower by mutual consent after the marriage, or it has been
fixed by the qazi, and separation is taking place after khilwat-e-sahihah, in both situations the whole of
dower shall be payable; but if separation takes place before khilwat-e saliihah, only mata‘ (compensatory
payment) and not dower shall be payable.
• Consortium / Cohabitation
Under the Muslim law, if a person had sexual intercourse with a woman, after mistaking assuming her
to be his wife. He will have to give her Mahrul mithl, and this intercourse with her will not be regarded
as adultery (zinâ) nor be considered as a sin. In addition to it, if the woman falls pregnant, the child will
be considered to be legitimate.
It is however mandated that, the moment the man realizes that this is not his wife, he should
immediately separate himself from her and henceforward he it will not be permissible continue with
the intercourse. It is also wâjib (appropriate) on this woman to observe the iddat. It is not permissible
for her to stay with her husband or to engage in sexual intercourse with him
Dower
11 The Book on Marriage
14) Chapter: What Has Been Related About: There Is No Marriage Except With A Wali
Aishah narrated that:
The Messenger of Allah said: "Whichever woman married without the permission of her Wali her
marriage is invalid, her marriage is invalid, her marriage is invalid. If he entered into her, then the Mahr
is for her in lieu of what he enjoyed from her. (p) If they disagree, then the Sultan is the Wali for one
who has no Wali."
• Dower
Mt. Anis Begam And Ors. vs Malik Muhammad Istafa Wali Khan on
25 April, 1933
Equivalent citations: AIR 1933 All 634
JUDGMENT Sulaiman, C.J.
17. The observation at p. 160 shows that the contention for the wife was that the right of co-habitation
does not accrue to the husband at all until he has paid the prompt dower. The observation at p.169 has
already been quoted. At p.170 it was stated:
It is one thing to say that such a defence may be set up under a certain condition ; it is a totally different
thing to say that until the dower was paid no cause of action could accrue to the plaintiff. The payment
of dower not being a condition precedent to the vesting of the right of cohabitation, a suit for restution
of conjugal rights whether by the husband or by the wife, would be maintainable upon refusal by the
other to cohabit with him or her; and in the case of a suit by the husband, the defence of payment of
dower could, at its best, operate in modification of the decree for restitution of conjugal rights by
rendering the enforcement of it conditional upon payment of so much of the dower as may be regarded
to be prompt.
18. Similarly at p.71, the conclusion was:
So that pushing the analogy of the law of sale to its fullest extent, the right of a Mahomedan wife to
her dower is at best a lien upon his right to claim cohabitation, and I am unaware of any rule of
Mahomedan law which would rendor such lien capable of being pleaded so as to defeat altogether the
suit for restitution of conjugal rights.
Allahabad High Court

Abdul Kadir vs Salima And Anr. on 21 January, 1886
Equivalent citations: (1886)ILR 8ALL149
"marriage among Muhammadans is not a sacrament, but purely a civil contract; and though it is
solemnised generally with recitation of certain verses from the Kuran, yet the Muhammadan law does
not positively prescribe any service peculiar to the occasion. That it is a civil contract is manifest from
the various ways and circumstances in and under which marriages are contracted or presumed to have
been contracted. And though a civil contract, it is not positively prescribed to be reduced to writing,
but the validity and operation of the whole are made to depend upon the declaration or proposal of
the one, and the acceptance or consent of the other, of the contracting parties, or of their natural and
legal guardians before competent and sufficient witnesses; as also upon the restrictions imposed, and
certain of the conditions required to be abided by according to the peculiarity of the case" (p. 291).
Dower, under the Muhammadan law, is a sum of money or other property promised by the husband
to be paid or delivered to the wife in consideration of the marriage, and even where no dower is
expressly fixed or mentioned at the marriage ceremony, the law confers the right of dower upon the
wife as a necessary effect of marriage. To use the language of the Hedaya, "the payment of dower is
enjoined by the law merely as a token of respect for its object (the woman), wherefore the mention of
it is not absolutely essential to the validity of a marriage; and, for the same reason, a marriage is also
valid, although the man were to engage in the contract on the special condition that there should be no
dower."--(Hamilton's Hedaya by Grady, p. 44). Even after the marriage the amount of dower may be
increased by the husband during coverture (Baillie's Digest, p. 111)
14. Another passage to be found in the Durrul Mukhtar has also been cited by the learned pleader for
the respondent, and I translate it here before considering the exact effect of these authorities upon the
present case:
15. It is the wife's right to prevent the husband from connubial intercourse, and that which is implied
therein and from journeying with her, even though after connubial intercourse and retirement to which
she has consented, because all connubial intercourse has been contracted with her, and the rendering
of some does not imperatively require the rendering of the rest. This right is for the purpose of
obtaining what has been stated as prompt dower, whether wholly or partly.' (1)
44 The Book of Financial Transactions
(96) Chapter: If A Man Sells An Item And A Third Party Has More Right To It
It was narrated from Sammurah that the Messenger of Allah said:
"If a woman is married off by two guardians, then the first marriage is the one that counts, and if a
man sells something to two men, it belongs to the first one."
Registration of marriage
India has different personal laws dealing with civil and matrimonial rights and as such it does not have
a uniform law regarding registration of marriages. However, some of the personal laws do provide for
registration of marriage.
The Special Marriage Act, 1956 provides for compulsory registration of marriages whereby irrespective
of religion, marriages have to be compulsorily registered.
The Indian Christian Marriage Act, 1936 requires the registration of marriage that is done in the Church.
The Parsees Marriage and Divorce Act, 1936 too provides for the registration of marriages.
As far as Mohammedans are concerned the marriage is a contract and is usually reduced into a
'Nikhanaama’ (Marriage Contract Deed). This ‘nikahnama’ since it is a contract.
The Hindu Marriage Act, 1955
The Hindu Marriage Act, 1955 also provides for registration of marriage but the same is not
compulsory.
In Goa, the Portuguese Civil Code, provide for compulsory registration of marriage. It also has a
provision for penalising the Civil Registrar if any marriage is registered in contravention of the
provisions of the civil code, thus making the concerned officers even more responsible. Although there
is no central legislation, but some of the State Governments have enacted laws for registration of
marriages, such as, Andhra Pradesh, Maharashtra, Karnataka and Himachal Pradesh. Uttar Pradesh. In
its Population Policy, 2002 has adopted the policy of compulsory registration of marriages and has
involved the Panchayats to enforce the same.
In Seema vs Ashwini Kumar (2005 AIR SCW 2009), the Supreme Court has suggested that the
Government can issue executive instructions to various States and Union Territories to authorize
officials specifically to keep record of marriages till a suitable legislation is passed.
Under the Hindu Marriage Act, 1955, the Hindu Marriage Act, 1955 makes registration optional and
specifically states that validity of any marriage is not affected by failure to register it496.
There is no provision for compulsory registration of a marriage.
Section 8 of The Bombay High Court specifically held that any provision in the rules invalidating a
marriage because of omission to enter the same in the marriage register would be repugnant to sub-s.
(5) of Section 8 of the Hindu Marriage Act, 19554
in Seema v. Ashwani Kumar
In a recent judgment by the Supreme Court, the court has issued directions that the marriages of all
persons who are citizens of India belonging to various religions, should be made compulsorily
registrable in their respective states where the marriage is solemnized. If the marriage is registered, the
dispute concerning solemnisation of marriage is avoided; it protects the women’s rights relating to
marriage to a greater extent; it has great evidentiary value in the matters of custody of children, rights
of children, and the age of parties to the marriage.
Special Marriage Act, 1954
The Supreme Court has directed the states and Central Government to take actual steps in this
direction.
While the Special Marriage Act, 1954, provides for registration of marriages, S. 16 thereof, which refers
to procedure for registration does not require publication of the factum of marriage in a newspaper for
the purpose of registration.
Under S.15 of this Act parties are required to have completed the age of 21 at the time of registration
of the marriage.
The Registrar cannot refuse to register a marriage on the ground that the marriage of the parties was
solemnized when one of the parties was below the age of 21. If the parties are 21, the Registrar has to
register it.
Registration of Divorce
The Hindu Marriage Act 1955 recognizes and protects divorces that are under Customary law (Article
29), but does not provide for registration of such out of court divorces
Registration of Divorce
Muslim marriage and divorce registration laws in force in the west Bengal, Bihar, Jharkhand, Orissa,
Assam and Meghalaya - mentioned above - provide for voluntary registration of consensual divorces
with Muslims Marriage registrars appointed by state governments under these laws. The following
forms of divorce can thus be registered in all states: (i) Talaq (divorce by husband).
(ii) khula (divorce at the request of the wife) and (iii) Mubara'at (divorce by mutual consent). These
laws write separate forms for registering each of these divorce categories. Orissa Mohammedan
Marriage and Divorce Registration Act 1949 also sees the registration of talaq-tafwiz (wife's divorce in
relation to corresponding agreement in the marriage contract). He prescribes special forms for the
registration of these divorces. 30th The registration of all divorces under all these laws must be made
on a. take place voluntary basis; and not registering a divorce does not violate his law Validity
Others…
According to the Parsi marriage and divorce law of 1936, divorce can only be obtained by calling in a
court. The law requires that courts apply a divorce, nullity or Resolution to send a copy of each of these
decrees for registration at marriage Chancellor under his jurisdiction (Article 10).
There is no such provision for registering divorces under any of the following laws:
(i) Indian Christian Marriage Act 1872,
(ii) Special Marriage Act 1954 and
(iii) Hindu Marriage Act 1955.501
This is essentially needed, in case of unregistered Divorced under the Muslim Law. This will be quite
useful in checking the practice of Nikah Halal. Through Shameena Begun, the Supreme Court has
invalidated it. but is can be checked through a Registration
Illegitimate Children
The legitimacy of the Child is determined by paternity in most of the legal systems. A legitimate child
is the one whose paternity is established. A child is legitimate if his paternity is known and legal. In turn
paternity is established
by a presumption, or in cases where the presumption fails, by cogent evidence. Pater est quern nuptiae
demonitrant i.e., ‘'he is the father whom the marriage (itself) indicates”
Hindu Law
The position of an illegitimate child including the child born of a void marriage under Hindu law is
concerned, regarding inheritance, it is demarcated by the Succession and marriage laws.
Section 16 of the Hindu Marriage Act, however, makes an attempt to alleviate the rigor of law to which
children born of void marriages were subjected under the prior law. This section deals with the
legitimacy of children of void and, voidable marriages so declared by a decree of nullity under Sections
11 and 12 of the Act.
Thus, the section leads to the effect that unless a decree of nullity is granted in respect of the marriage
under section 11 or section 12 of the Act, any child conceived or begotten cannot be deemed to be the
legitimate child of the parties to the marriage
Muslim law
i. The paternity of a child can only be established by marriage between its parents. The forms of
marriage may be valid (sahih), or irregular (fasid), but it must not be void (batil ).
Marriage may be established by direct proof or an indirect proof, which is based on the presumption
drawn from certain facts. It may be presumed from prolonged cohabitation combined with other
circumstances, or from an acknowledgment of legitimacy in favor of a child.
When the paternity of a child is established, its legitimacy is also established.
In Habibur Rehman Chowdhury v. Altaf Ali Chowdhury506, ‘the Court has said that there is no
process recognized under Muslim law by which a status of legitimacy may be conferred on an
illegitimate child. But it seems that one of the reasons for permitting polygamy and temporary forms
of marriages under Muslim law is that under no circumstances the child born to them shall be
illegitimate.’
• Christian Laws
Under the Christian Laws, the Divorce Act 1869, the children of marriages annulled on the ground of
bigamy contracted in good faith and with full belief of the parties that the former spouse was dead, or
on ground of insanity are entitled to succeed in the same manner as legitimate children, to the estate of
the parent who at the time of the marriage was competent to contract.
Hence, if a father is incompetent to enter into a marriage because of insanity or because his wife was
alive, then the children will succeed only to the mother and not to the father.
This is a very unfair and illogical provision. It does not confer status of legitimacy but only a concession
under certain situations to succeed to the estate of a parent who is competent to contract the marriage
Succession Laws in Case of Civil Marriages

The Special Marriage Act calls for the registration of a marriage in a civil ceremony. The position of
succession in the case of a civil marriage is as follows:
• If both parties to the civil marriage are Hindu, Sikh, Jain or Buddhist, The Indian Succession Act
will cease to be valid. The Hindu Succession Act will govern the parties.
• If only one party is a Hindu, Sikh, Jain or Buddhist and the practices another religion, the Indian
Succession Act is applicable.
• When a Muslim, Christian or Parsi opts for a civil marriage, within or outside his/her community,
the Indian Succession Act is applicable
Union of India – Section
Section 21 in The Special Marriage Act, 1954
21. Succession to property of parties married under Act
.Notwith-standing any restrictions contained in the Indian Succession Act, 1925 (39 of 1925), with
respect to its application to members of certain communities, succession to the property of any person
whose marriage is solemnized under this Act and to the property of the issue of such marriage shall be
regulated by the provisions of the said Act and for the purposes of this section that Act shall have
effect as if Chapter III of Part V (Special Rules for Parsi Intestates) had been omitted therefrom.
Special Marriage Act.-
Under section 21 of the Special Marriage Act (so far as is material), succession to the property of the
parties marrying under the Act and to the property of the issue of such marriage shall be regulated
by the Indian Succession Act, 1925, notwithstanding that under that Act (i.e. under the Succession
Act), there are certain restrictions with respect to its application to members of certain communities.
Special Marriage Act.-

This section, of course, does not alter the general family structure between the person marrying under
the Act and his son1.
It may, incidentally, be noted that when a person is converted, succession to him is governed by the
law applicable in his religion.
it is desirable to exclude from the scope of this section cases where both the parties are Hindus. In
such cases, the law of succession otherwise applicable should continue to apply. We see no reason why
the fact that the parties choose to marry under the Special Marriage Act should make a difference in
such cases i.e. where both are Hindus. We recommend3 that such cases should be excluded from
section 21.
1. Sridharan v. C.I.T., AIR 1970 Mad 292 (294): (1970) 2 ivn4 334.
2. Mittar Sen v. Maqbul Hasan, AIR 1930 PC 251.
Nullity of Marriage: Grounds of Divorce

Family Law - Module II

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Module-V.I.

Sunni and Shia

4. Sunan Abi Dawud

Qu`ran – Sura 33.37 Verse

What does Muslim mean?

Muslim Personal Law is broadly understood as Shariah

FOUR SCHOOLS OF ISLAM

• The Special Marriage Act

• SECTION I GENERAL PROVISIONS Article 1056 –

Principles of Mahomedan Law, Updated 20th Edition, Mulla Marriage

• Status of women in Islam

26 The Book of Marriage

Conditions of valid marriage

S.5. Conditions for a Hindu marriage

S.5. Conditions for a Hindu marriage

7. Ceremonies for a Hindu marriage

26 The Book of Marriage

It was narrated from Ibn 'Abbas that the Prophet said:

• Different modes of talak

The Battle of Uhud

B. Religion as the basis of Marriage

Conditions of valid marriage

• Witnesses to the marriage

• Age and capacity

The Child Marriage Restraint Act

Under the Muslim law

Portuguese Civil Code

PART I: LAW OF MARRIAGE

PROPOSAL FOR MARRIAGE

PROPOSAL FOR MARRIAGE

PROPOSAL FOR MARRIAGE

DEFINITION OF PROPOSAL AND ACCEPTANCE

SOME ESSENTIAL RULES RELATING TO OFFER AND ACCEPTANCE

SOME ESSENTIAL RULES RELATING TO OFFER AND ACCEPTANCE

marrying the wife of the father is prohibited

PROHIBITED DEGREES IN MARRIAGE

PROHIBITED DEGREES IN MARRIAGE

• PROHIBITION DUE TO CONSANGUINITY (hurmat –e-nasab)

• PROHIBITION DUE TO AFFINITY ((hurmat –e-musahar)

• iii. PROHIBITION DUE TO FOSTERAGE

• Kinds of marriage and its effect

1. Sahih Nikah (Valid Marriage

• Batil Nikah (Void Marriage)

Effect of a Void Marriage

KINDS OF VALID MARRIAGE

Narrated Ibn 'Umar :

What are the Types of Mahr as per law?

Allahabad High Court

Succession Laws in Case of Civil Marriages

Section 21 in The Special Marriage Act, 1954

Special Marriage Act.-

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