MARRIAGE UNDER MUSLIM LAW – SUMIITED BY RIJUL ARYA

THE ICFAI UNIVERSITY

STUDENT NAME- Rijul Arya

ENROLLMENT ID- 22FLICDDN02047

SECTION- “A”

BATCH AND YEAR- 2022-2027 & 02nd YEAR

SEMESTER- FOURTH

DATE OF SUBMISSION- 15th APRIL, 2024

ASSIGNMENT ON-MARRIAGE UNDER MUSLIM LAW

SUBJECT CODE- LL-262

SUBMITTED BY SUBMITTED TO

RIJUL ARYA Dr. ASHISH Kumar Singhal

Associate Professor

ICFAI LAW SCHOOL

THE ICFAI UNIVERSITY, DEHRADUN

,

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 MARRIAGE UNDER MUSLIM LAW – SUMIITED BY RIJUL ARYA

Introduction
Marriage under Islam is a matrimonial relation and an institution which
legalizes the sexual activities between a male and female for the object of
procreation of kids, promotion of love, mutual support and creation of
families which are considered an essential unit in a society. Just like
Hinduism, Islam is also a strong advocate of marriage. However, the Muslim
conception of marriage differs from the Hindu conception according to which
marriage is not a mere civil contract but a sacrament. According many
philosophers, marriage in Islam is a religious duty. Everyone must marry in
order to fulfil one’s desire of procreation of kids legally.

Muslim law has been derived from various codified and uncodified sources
like- Quran, Ijma, Qiyas, customs, urf, precedents, equity and various
legislations. There are 4 major sunni school of thoughts- hanifa, hamabli,
maliki and shafai. These four schools recognize each other’s validity and they
have interacted in legal debate over the centuries. In India, Hanifa school of
Islamic law is dominant.

The general essentials of a Muslim Niqah are:

 Parties must have capacity to marry.

 Proposal (ijab) and acceptance (qubool).
 Free consent of both the parties.
 A consideration (mehr).
 No legal Impediment.
 Sufficient witnesses (different in shia and sunni).

Classification of Marriage

Valid (sahih)
When all the legal requirements are fulfilled and there are no prohibitions
affecting the parties, then the marriage is correct or ‘sahih’. The prohibitions
can be permanent as well as temporary, in case of permanent prohibitions:
the marriage will be void and if the prohibitions are temporary then the
marriage is irregular.

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Effects of a valid marriage

 The cohabitation between the husband and the wife becomes
lawful.
 The children born out of a valid marriage are legitimate and they
have right to inherit their parent’s properties.
 Mutual rights of inheritance between husband and wife are
established. That is to say, after the death of the husband, the wife
is entitled to inherit the husband’s properties and after the wife’s
death, husband may also inherit her properties.
 Prohibited relationship for purposes of marriage is created between
the husband and wife and each of them is prohibited to marry the
relations of the other within prohibited degrees.
 The wife’s right to claim dower is fully established just after the
completion of marriage.
 The marriage gives to the wife also the right of maintenance from
her husband with immediate effect.
 After the dissolution of the marriage, the widow or the divorced wife
is under an obligation to observe the Iddat, during which she cannot
remarry.

Void (Batil)
The marriage being void ab initio creates no rights or obligations and the
children born out of such marriage are illegitimate. A marriage forbidden by
the rules of blood relationship, affinity or fosterage is void. Similarly, a
marriage with the wife of another or a divorced wife during iddah period is
also void.

Irregular (Fasid)
Due to lack of some formality, or the existence of an impediment which can
be rectified, a marriage becomes irregular, However, this irregularity is not
permanent in nature and can be removed. Thus, the marriage itself is not
unlawful. It can be made valid once the prohibitions are rectified. Marriage in
such circumstances or with following prohibitions are called ‘Fasid’.

1. A marriage contracted without required number of witnesses;

2. A marriage with women during her Iddat period;
3. A marriage with women without the consent of her guardian when
such consent is considered necessary;

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4. A marriage prohibited on account of difference of religion;

5. A marriage with a woman who is pregnant, when the pregnancy was
not caused by adultery or fornication;
6. A marriage with a fifth wife.

Muta or Nikah mut’ah

The term literally means “pleasure marriage”. Muta marriage is a temporary
agreement for a limited time period, upon which both the parties agreed.
There is no prescribed minimum or maximum time limit, it can be for a day, a
month or year(s). The marriage dissolves itself after the expiration of the
decided period, however if no such time limit was expressed or written, the
marriage will be presumed permanent. This type of marriage is seen as
prostitution by the Sunni Muslims and thus, is not approved by Sunnis.

However, it is considered legitimate by the Twelver Shia sect, which is

predominant in Iran and constitutes 90% of India’s Shia population. In Iran,
the word mut’ah is only from time to time utilized and this practice is called
‘sigah’. The rules for sigah are fixed for eg- the contract for temporary
marriage can be attracted for one hour to 99 years; it can’t be for an
indeterminate period. This provision distinguishes mut’a from nikah or lasting
marriage, which has no time limit. However, just like in nikah, in sigah too,
the bride must get some monetary benefit.

No witnesses are required for mut’ah. And just like in any other contract, the
woman being a party can lay down conditions for her sexual union
throughout this time limit, this can also include her daily maintenance. Her
temporary husband must respect these conditions. The marriage
automatically dissolves at the end of the stated period. No matter how short
the duration was, the woman has to practice abstinence lasting up to two
menstrual cycles.

Interesting part is that, the temporary husband and wife can renew the
contract but the husband must regardless of this pay the amount to the
bride. Husband has a unilateral right to revoke the marriage-mark of his
superior position in the relationship. But the woman can refuse to be intimate
with him or even leave him, but in such case, she must return back the
amount she received from him.

India is a country that has partially approved live-in relationships; However, it

will still be quite difficult for the Supreme Court to constitutionally invalidate
this form of marriage. In modern day era, where feminists all across the globe
see this arrangement equivalent to prostitution. There are many advocates of
Nikah mut’ah who believe that being a contract, this arrangement is superior
to the live- in relationships.

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Registeration of Marriage under

Muslim Law
Registration of marriage in Muslims is compulsory and mandatory, as a
Muslim marriage is treated as a civil contract. According to section 3 of
Muslim Marriages Registration Act 1981- “Every marriage contracted
between Muslims after the commencement of this Act, shall be registered as
hereinafter provided, within thirty days from the conclusion of the Nikah
Ceremony”. Nikahnama is a type of legal document in Muslim marriages
which contains the essential conditions/details of the marriage.

According to this act, a Nikahnama contains:

1. Place of marriage (with sufficient particulars to locate the Place.)

a. Full name of the bridegroom

b. Age
c. Address
d. Full name of bridegroom’s father
e. Whether father is alive or dead
f. Civil condition of the bridegroom at the time of marriage whether –
Unmarried Widower Divorced Married, and if so, how many wives
are alive
g. Signature or thumb impression of the bridegroom/Vakil/ Guardian
according as the Nikah was performed in person by the bridegroom
or through his Vakil or Guardian
h. Full name of Nikah-Khan (that is the person conducting the Nikah
Ceremony.)
i. Signature of the Nikah-Khan (i.e person conducting the Nikah
Ceremony with date.)
j. Amount of dower fixed
k. Manner of payment of dower
l. Name of witnesses with parentage, residence and address

Dissolution of Marriage
There are 2 categories of divorce under Muslim law:

 Judicial

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Extra-Judicial
The Extra-judicial mode of Divorce can further be divided into 3 subdivisions:

1. By husband- talaaq, ila, and zihar.

2. By wife- talaaq-i-tafweez, lian
3. By mutual agreement- khula and mubarat
A divorce falls into 2 categories:

Talaaq-i-sunnat
It can further be divided into two categories:

i) Talaaq-i-ahsan
A single pronouncement of divorce is made during the period of tuhr (the
period of purity between two menstrual cycles), followed by abstinence from
sexual intercourse during the period of iddat. Here, the divorce can be
revoked at any time before the completion of iddat, thus preventing hasty
and unreasonable divorces.

ii) Talaaq-i-hasan
A husband is required to pronounce a formula of Talaaq three times, during
three successive tuhrs. It is important that pronouncements are made when
no intercourse takes place during any period of tuhr. The marriage is
dissolved irrevocably, regardless to the period of iddat.

Talaaq-i-Biddat
It is a form of Islamic divorce which is instant in nature. It allows any Muslim
man to legally divorce his wife by stating the word “Talaaq” three times in
oral, written, or more recently, electronic form. This is prevalent among the
Muslims in India, especially among the adherents Hanafi school of Islam. This
is also known as “Triple Talaaq” and has been a subject to debate and
controversy.

In Shayara Bano V. Union of India and Ors. It was submitted that:

“This practice of talaq-e-biddat (unilateral triple-talaq) which practically treats

women like chattel is neither harmonious with modern principles of human
rights and gender equality, nor an integral part of Islamic faith, according to
various noted scholars. Muslim women are subjected to such to such gross
practices which treats them as chattel, thereby violating their fundamental
rights enshrined in Articles 14, 15, 21 and 25 of the Constitution. The practice

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also wreaks havoc to the lives of many divorced women and their children,
especially those belonging to the weaker economic sections of the society.”

There have been many cases in High courts and the supreme court, where
the court invalidated the instant triple talaaq. In Shamim Ara V. State of
U.P, the court observed that:

The correct law of Talaaq as ordained in Holy Quran is that:

1. There must be a reasonable cause for the divorce.

2. The declaration of divorce must be preceded by attempts of
reconciliation between husband and wife by 2 arbitrators. If the
attempts fail, then only the divorce will come into effect.
Supreme court in August 2017 declared Triple Talaaq as “unconstitutional”.
The Modi Government introduced a bill called The Muslim Women (Protection
of Rights on Marriage) Bill, 2017 and presented it in the Parliament which was
passed on 28 December 2017 by the Lok Sabha. The bill makes moment
triple (talaq-e-biddat) in any structure spoken, recorded as a hard copy or by
electronic methods, for example, email, SMS and WhatsApp unlawful and
void, with as long as three years of imprisonment for the husband.

However, one of the principle conflicts against the proposed enactment has
consistently been its acknowledgment of a common offense as a cognisable
and non-bailable offence.

Mohd. Ahmed Khan vs Shah Bano Begum And Ors 1985 SCR (3) 8441

One of the most landmark cases in the history of India, pertaining to Muslim women, was the
Shah Bano Case of 1985. This case introduced an ever standing conflict between what should
and should not come under the adjudication of the Supreme Court of India.

Facts of the case

 Shah Bano Begum, a Muslim woman, was divorced by her husband, Mohd.
Ahmed Khan, by virtue of the Triple Talaq system. The issue that came up, was
that Ms Bano had claimed maintenance under the Code of Criminal Procedure,
rather than as per the personal laws.

1
1985 SCR (3) 844
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 The personal laws of Islam state that a woman may be given maintenance for the
‘iddat’ period, i.e., a period of three menstrual cycles, along with the ‘mehr’, i.e.,
the money promised to the bride, at the time of marriage.

 Beyond these two, there is hardly any legally enforceable way of maintaining the
woman for life. The Indian law, on the other hand, provides for maintenance for
life, barring some exceptions.

Held

 The plaintiff and the defendant being Muslims, were to be governed by the
Muslim Personal Law. However, since the petition was filed under the Code of
Criminal Procedure, the district court, the High Court and the Supreme Court
passed their judgements, favouring Ms Shah Bano.

 However, this judgement was opposed by the AIMPLB, as they claimed that
adjudication of Personal laws was beyond the jurisdiction of the courts.

 The Shah Bano Case had received a lot of varied public stances. Muslim women
vehemently defended the Supreme Court judgement of husbands having to
maintain the wife.

 The then government had passed a legislation, termed as ‘The Muslim Women
(Protection of Rights on Divorce), 1986’, and aimed to overturn the judgement of
the Supreme Court.

 According to this legislation, Muslim women were entitled to a ‘fair and just’
amount of money within the ‘iddat’ period, beyond which, the husband was to
have no liability.

Ahmedabad Women Action Group (AWAG) v. Union of India (AIR (1997) 3 SCC 5732

Facts of the case

Muslim law allows Muslim men to have four marriages, along with the right to divorce,
under the concept of Talaq, whereby, the husband has the authority to divorce by the

2
(AIR (1997) 3 SCC 573
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utterance of the term ‘Talaq‘, without judicial methods, and this may happen without her
consent. The PIL filed in this case addressed both these issues, along with some others.

The PIL addressed five major issues. They were:

 to declare Muslim Personal Law which allows polygamy as void as offending

Articles 14 and 15 of the Constitution.

 to declare Muslim Personal Law which enables a Muslim male to give unilateral
Talaq to his wife without her consent and without resort to judicial process of
courts. as void, offending Articles 13. 14 and 15 of the Constitution.

 to declare that the mere fact that a Muslim husband takes more than one wife is an
act of cruelty within the meaning of Clause VIII.

 of Section 2 of Dissolution of Muslim Marriages Act. 1939.

 to declare that Muslim Women (Protection of Rights on Divorce Act, 1986 is void
as infringing Articles 14 and 15.

 to further declare that the provisions of Sunni and Shia laws of inheritance which
discriminate against females in their share as compared to the share of males of the
same status. void as discriminating against females only on the ground of sex.

Held

In the light of these contentions, the court was of the opinion that India and Indians have been
governed by personal laws, regardless of the time period. It was of the opinion that an
interference by the court would lead to several undesirable outcomes, as the adjudication of
personal laws was beyond the jurisdiction of the courts. The petition was therefore dismissed.

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Danial Latifi and another v. Union of India (2001) 7 SCC 7403

Facts of the case

After the landmark judgement of Shah Bano’s case, there was a chaos in the Muslim personal
law. The parliament passed and enforced The Muslim Women (Protection of Rights on
Divorce) Act, 1986, which provided that under section 3(1)(a), a divorced woman is entitled
to reasonable and fair provisions, and maintenance within the ‘iddat’ period. One of the
council, i.e, Danial Latifi challenged the above act, claiming that it was unconstitutional, and
in violation of Article 14 and 21.

Held

In this case, the petitioner, in his argument said that that the Act is unconstitutional and has
the potential of suffocating the Muslim women, and undermines the secular character, which
is the basic feature of the Constitution. There is no reason to deprive the Muslim women of
the applicability of section 125 of CrPC and present act is in violation of article 14 and 21. To
this, the respondent said that personal laws are a legitimate basis for discrimination and
therefore does not violate article 14 of the Constitution. The Court thereby held that the said
Act was not in violation of Article 14 and 21 of the Indian constitution.

Shamim Ara v. State of U.P. (MANU/SC/0850/2002)4

Facts of the case

 The petitioner was married to the respondent in 1948, in accordance with the
Muslim personal law, and subsequently had four sons.

 The wife filed an application in the court, under Sec. 125 of the CrPC, claiming
that her husband had deserted her and that there was cruelty by the husband.

3
(2001) 7 SCC 740

4
(MANU/SC/0850/2002)
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 The family court denied her maintenance, on the grounds that she had already been
divorced. However, a sum of Rs. 150/- was granted as maintenance for one son,
till he attained majority.

Held

 The petitioner denied having been divorced. One of the major points of conflict,
was that ‘Is a divorce valid if it is not directly communicated to the wife( in this
case the husband said to have dissolved marriage by means of triple Talaq in
presence of neighbours) and the said divorce communicated to the appellant
become effective from the date of filing the written statement by the husband in
the proceeding?’

 To this, the Supreme Court was of the view that the mere plea of a Talaq, would
not validate the same. Ther Quranic procedures of obtaining a Talaq need to be
fulfilled, i.e., Talaq has to be pronounced in the Quranic injunction.

 The following case had several reactions, the most popular one being that the
concept of triple Talaq was both demeaning as well as cruel to Muslim women.
There were several other contentions, however, the idea that triple Talaq was
immoral stuck to the minds of people.

Shayara Bano v. Union of India and others. (The current Triple Talaq case.)

Though this case has not yet received a judgement, it deserves a mention in this article, as it
has challenged the very concept of ‘instantaneous triple Talaq’, though not the concept of
‘triple Talaq’ itself.

The mere approval of the PIL filed by Ms Shayara Bano has led to a ray of hope for millions
of women who have suffered because of this immoral and unfair practice. To begin with, this
petition has been greatly discussed, supported and believed to have given a chance to those
who have suffered for a long time.

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The PIL was initiated by Ms Shayara Bano, a resident of Uttarakhand, who was constantly
abused by her husband and eventually divorced by way of Triple Talaq at one go. Her plight
was heard by the Supreme Court of India and a 5-judge Constitutional Bench heard this case.
The verdict is yet to come.

India is a secular country and its citizens deserve to be happy, content and should always
have the right to equality and justice. The very fact that the Hon’ble Supreme Court of India
has chosen to acknowledge the rights of those who truly deserve it, is commendable and a
positive step towards the injustice that women are subjected to.

India is the home to the second largest Muslim population. If several Islamic countries have
chosen to forgo the concept of Triple Talaq, why shouldn’t a secular country like India, do
the same?

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Conclusion
The notions of Muta marriage can be evidently seen in our country. In India,
temporary marriage is not recognized, although there exists few who
contract Muta marriage but such marriages are not enforceable in court.
Hyderabad is considered to be the epicentre of the practice where marriage
can be instituted for time span as short as one or two days. In a Hyderabad
case it was held that there is no difference between muta for an unspecified
period and a muta for life; a permanent nikah marriage for life can be
contracted by the use of word muta also; specification of the period for which
a muta marriage is contracted alone makes a marriage a temporary marriage
for the period specified.

The practice of Temporary “Muta” marriage is widespread in the modern

times and often arranged by Imams and other Islamic leaders in Europe,
America (Shia parts of Dearborn, Michigan), and in the Middle east. It is
commonly the destitute widows and orphaned girls that are within the
clutches of temporary marriage who are often sold to old men. For the
women, there is no desire or pleasure that drives them into such misery; it is
the extreme means to pay the rent and feed themselves and their children.
As a result, this arrangement has received widespread criticism by various
countries as it impliedly encouraging legalization of prostitution.

The conflicts over the rights of minority women are best dealt with by
creating new representative bodies which have special provisions to ensure
that women are sufficiently represented. In the Shah Bano case, this would
have meant creating a new mechanism to administer Muslim personal law
instead of simply recognizing the Muslim Personal Law Board as the
legitimate representative of the Muslim community. Creating a new
mechanism is more sensitive to the political reality of Muslims in India, which
is that they consist of widely dispersed groups characterized by significant
differences. It would also make some provision to ensure that Muslim women
have some access to the institutions which make the rules which govern their
lives.

References
 Ahmed, Akbar S. Discovering Islam: Making Sense of Muslim History
and Society.
 New York: Routledge & Kegan Paul Inc., 1988. Brass, Paul.
 R. Ethnicity and Nationalism: Theory and Comparison. New Delhi:
Sage Publications, 1991.

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 Language, Religion and Politics in India. London: Cambridge

University Press, 1974.
 The Politics of India since Independence. Cambridge: Cambridge
University Press, 1990.
 Brydon, Lynne and Sylvia Chant. Women in the Third World. London:
Edward Elgar Publishing Ltd, 1989.
 Bumiller, Elisabeth. May You Be the Mother of a Hundred Sons: A
Journey Among the Women of India. New Delhi: Penguin Books India,
1990. Carroll, Lucy.
 “Muslim Family Law in South Asia: Important Decisions Regarding
Maintenance for Wives and Ex-Wives.
 Women and Society in India. Delhi: Ajanta Publications, 1987.
Everett, Jana M. Woman and Social Change in India.
 New York: St. Martin’s Press, 1979. Engineer, Asghar Ali. (ed.)The
Shah Bano Controversy. Hyderabad, India: Orient Longman, 1987

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