MARRIAGE
Introduction:
Marriage is a civil contract between a man and a woman who is lawfully eligible to be his wife with the objective of joint life and breeding.
I.) Requirements of a Valid Muslim Marriage:
1.) Offer & Acceptance:
Marriage in Islamic law is a contract that is concluded by an offer made by one party and an acceptance given by the other. No particular form of words is required so long as the intention to conclude of marriage is clear.
2.) Presence of Witnesses:
Hanafi, Shafi and Hanbali schools require 2 adult male witnesses or one male plus two females. However, in Maliki and Ithna Ashari’s law the presence of witnesses is recommended but not mandatory, provided that in Maliki law sufficient publicity is given to the marriage.
3.) Capacity of the Parties:
According to Sunni schools, marriage guardian shall be agnates. In the absence of agnates, guardianship shall be vested in relatives according to proximity, otherwise it will be vested in the Head of the State. In the Ithna Ashari, the guardian is indispensable in order for the marriage of minors and majors of defective or no legal capacity to be valid. Guardianship in marriage falls under two categories:
• Guardianship “With” the right of compulsion, which is exercised over a person of no or limited legal capacity wherein the guardian may conclude a marriage contract which is valid and takes effect without the consent or acceptance of the ward;
• Guardianship “Without” the right of compulsion, which is exercised when the woman possess the full legal capacity but delegates the conclusion of her marriage to a guardian.
Islamic law also requires the parties to a marriage contract to have the capacity to enter into the contract. According to Hanafi and Ithna Ashari's any sane adult, whether male or female, has the capacity to conclude his or her own contract of marriage. According to traditional Islamic law, majority is attained at the onset of physical puberty. There is an irrebuttable presumption of law that no female below the age of nine and no male below the age of 12 has attained majority and an equally irrebuttable presumption that by the age of 15, majority has been reached by both sexes.
The right of a female to contract her own marriage is, however, not absolute according to Hanafi doctrine. Her guardian may seek dissolution of the marriage if she marries a man who is not her equal according to the law. Equality is determined with regard to piety, lineage, wealth and occupation. However, the right of the guardian to dissolve the marriage lapses if the woman becomes pregnant.
In Maliki, Shafi and Hanbali law a virgin woman may never conclude her own marriage contract. In Maliki law the hierarchy of marriage guardians follows strictly the order of succession. Accordingly, the son of the woman ranks before her father. In Hanbali law the guardian having first priority is the father, followed as in Maliki law by the paternal grandfather and the other agnatic kinsman. The woman only becomes capable of contracting herself in marriage when she ceases to be a virgin by reason of a consummated marriage or an illicit sexual relationship.
II.) Child Marriage:
In traditional law no minimum age is laid down for marriage. However, in Hanafi law, a girl who is contracted in marriage during her infancy may on attaining puberty repudiate the marriage. This
“option of puberty” is found neither in the Quran nor in the Sunna, but is based on juristic opinions in the various schools. A woman retains this right until she becomes aware of the marriage and assents to it. However, the woman does not possess this option if the guardian who contracted her marriage was her father or paternal grandfather.
The other Sunni schools recognise this option of “Khiyar” in the area of jest and duress. A person who was induced into performing the marriage, for instance through threat, can rescind the contract by this option.
According to Hanafi law, guardian has no power when the child reaches the age of puberty. In
“Saima Waheed’s case”, a major woman married a man of her own choice. His father filed a suit to secure his daughter’s custody.
It was held, in accordance with the Hanafi law, that a marriage, of a major girl, without the guardian’s consent is not invalid.
The same decision was reached in the Indian case of
“Abdul Ahad v. Shah Begum”. Here, a wife claimed to have repudiated her marriage. The girl’s Wali was her uncle who happened to be the groom’s father.
The court held that this is a settled principle of law in Islamic law that once the girl becomes major, she has the absolute right to contract the marriage and this right cannot be exercised by any one else including the father of the girl.
In the Indian subcontinent, Child Marriage Restraint Act 1929 is used to restrain child marriages. This Act is still in operation in all three countries, with a variety of different amendments. In India, the Child Marriage Restraint (Amendment) Act 1978 sets the minimum ages to 18 and 21 years for females and males respectively. In Pakistan, the 1929 Act was amended by S.12(1)(a) MFLO 1961 and the minimum ages are now 16 years old for the woman and 18 years old for the man. In Bangladesh, the minimum ages stipulated have been 18 years old for the woman and 21 years old for the man since the Child Marriage Restraint (Amendment) Ordinance 1984.
In the Pakistani case of
“Allah Diwaya v. Kammon Mai”, a young woman alleged that she had been subjected to sexual intercourse and fraudulently married before she reached puberty. It was held that a marriage entered into while the girl had not even attained puberty was no marriage in eyes of law therefore it was void. It was also said in this case that if the girl has not attained the age of 15 years then her consent to the consummation of marriage will not amount to consent in eyes of law.
In S.2(7) DMMA 1939, stated that a woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on the ground that she, having been given in marriage by her father or other guardian before she attained the age of 15 years repudiates the marriage before attaining the age of 18 years. In Pakistan, the age was increased to the age of 16 years by
S.13(b) MFLO 1961.
According to 1939 Act, it is mandatory for the exercise of the option of puberty to obtain a court’s decree from court. However, according to Pakistani authorities, court decree is not necessary. It was said in
“Muni v. Habib Khan”, that repudiation puts an end to the marriage without the aid of court and when matter comes into court then it recognises the termination of marriage rather than to dissolve marriage.
Certain codes of personal status in Arab world have also been enacted against child marriages. In Tunisia, no marriage can be contracted between a man under 20 and a woman under 17, unless a special court’s permission is taken. The marriage of persons under the legal age is subject to the guardian’s consent.
In Moroccan law, the legal capacity for marriage is attained at the age of 18 for boys and 15 for girls. Marriages of persons under this age are allowed with the guardian's consent with the right of appeal to the court.
In Jordan, the age is fixed at 16 for boys and 15 for girls to posses the legal capacity for marriage.
In Syria, puberty is set as a precondition to marriage by setting the respective age at 18 for boys and 17 for the girls. However, a boy aged 15 years or a girl aged 13 years, claiming to have reached majority, may apply for marriage to the judge who will grant the permission after being satisfied of the truthfulness of their claim.
An innovation in Syrian, Jordanian and Moroccan Codes is the age gap between the perspective spouses. In Syria, if the spouses are disproportionate in age the judge may withhold permission for them to marry. In Jordan, if the woman is under 18 and the future husband is 20 years older than him, then the marriage will not be valid unless the judge makes sure of her free consent and choice. In Morocco, the matter of disproportionate ages is left to the discretion of the wife alone.
III.) Classification of Marriages:
There are three types of marriages in Sunni schools. Firstly, there is “Sahih” marriage which is fully valid and effective. Under such a marriage, sexual intercourse is lawful and the woman is entitled to both dower and maintenance.
Secondly, there is a “Batil” (void) marriage. Under such a marriage, no rights or obligations exist between the parties. Parties would be guilty of zina, save where the parties were unaware of the fact that the marriage was void. If a marriage is affected by a permanent impediment, then the marriage is declared void. The permanent impediments arise:
• Under the bar arising from relationship of blood, a man may not marry any ascendant or descendant, any descendant of his father or mother, or the immediate child of any ascendant, nor may a woman marry any corresponding male.
• Under the bar of fosterage, two persons who were suckled by the same foster-mother are permanently barred from marrying each other.
• The bar of affinity arises from marriage, so a man may not marry the former wife of any ascendant or descendant, or any ascendant or descendant of a former wife with whom he actually had consummated his marriage.
• Under the bar of polyandry, i.e. when a woman contracts a second marriage during the subsistence of her first marriage.
Thirdly, there is a “Fasid” (irregular) marriage, which is middle way out. This is also no marriage, but can be regularised in certain conditions. Under such a marriage, no zina is committed and a dower is payable. An irregular marriage arises from temporary impediments, which occur when:
• There is an absence of witnesses.
• A woman who is already married.
• A woman who is still observing the idda period.
• A woman whom he has triply repudiated, unless she has married another man and that marriage has been terminated.
• A man may not marry at the same time two sisters or a mother and her daughter.
• A man who already has four wives may not validly marry a fifth.
• A Muslim man may contract marriage with a non-Muslim woman provided she is a khitabiyah. A Muslim woman, on the other hand, may only validly contract marriage with a Muslim man.
• According to the non-Hanafi schools of Sunni law, a marriage concluded by a woman herself without a guardian is also invalid as is a marriage concluded by a person performing haj.
• According to Maliki law, a person who is in a state of death sickness is prohibited from marriage.
IV.) The Effects of Impediments to Marriage:
The presence of an impediment to marriage may render the marriage either void or irregular. The impediments that have the potential to render a marriage void are those that are permanent and those where the impediment, although of a temporary nature, is one that the parties themselves have no power to remove – such as if the woman is married to another man. Where any other impediment exists, the marriage is not void but irregular. If the marriage is irregular certain effects flow from it:
• The parties may not be found guilty of zina.
• Any children born out of the union will be held to be legitimate.
• When the parties separate, and separate they must, the woman must observe an idda period.
A marriage, which may be held to be potentially void, will be regarded as irregular if the parties have acted in good faith, i.e. they were unaware of the existence of the impediment. This is the only instance where Islamic law recognises ignorance of the law as a defence.
V.) Incidents of a Muslim Marriage:
Marriage has its own specific incidents and effects. The law defines the rights and duties of husband and wife, some of which are mutual and some of which are peculiar to one or the other of the parties:
• Mutual Rights – Legitimacy of children, inheritance, sexual intercourse.
• Rights of the Wife (Maintenance).
• Rights of the Husband (Polygamy).