The research worker has adopted a doctrinal signifier of research to make his undertaking. The undertaking entails the research worker to analyse the construct of matrimony under Muslim jurisprudence. Assorted beginnings both primary and secondary beginnings have been consulted for the same. No portion of this undertaking is plagiarized and the undertaking is the original work of the research worker.
To what extent is sharia a fixed set of norms that apply to all Muslims? Many assume that Islamic law regulations can merely be found either by reading the Quran, or by listening to the sentiment of any Muslim priest.
They besides assume that all Muslims are bound by the same regulations, and that Islamic law regulations can thusbe enforced across national boundary lines to all Muslims every bit, in the MiddleEast, Africa, Asia, and Europe. But is this correct? And if non, what so is the right apprehension of Islamic laws?
“ When people refer to the Islamic law, they are, in fact, mentioning to their Islamic laws in the name of the ageless will of the Almighty God.
“ The assortment of significances of Islamic law has given rise to a flexible, multi-interpretable discourse about Islamic law and jurisprudence which moves swimmingly from one significance of Islamic law to another. ”
Marriage or “ Nikah ” in Islamic jurisprudence is a contract pure and simple necessitating no authorship and no frightened rites. All that is necessary is offer and credence made in the presence and hearing of two male or female informants and entering the factum of matrimony in the “ Nikah ” Register maintained in every mosque signed by the parties and attested by informants.
It is collectible to the married woman on the disintegration of matrimony or decease or divorce. In India, there is no demand to register the Muslim matrimony, as there is no jurisprudence necessitating enrollment.
I am thankful to Dr.Vijender Kumar to give me this valuable chance to make a undertaking on “ The Concept of Marriage under Muslim Law ” .
We have seen, it is the household jurisprudence that has ever represented the really bosom of the Shari’a, for it is this portion of the jurisprudence that is regarded by the Muslims as come ining into the really warp and weft of their faith.
By and large talking, in the jurisprudence of the household entirely that the Shari’a is still applied to some four hundred million Muslims, for it is virtually merely in the Arabian Peninsula, Afghanistan, Northern Nigeria that the Shari’a is applied today, as such, outside the domain of household dealingss and personal position.
It is exactly in respects to the jurisprudence of matrimony and divorce that the conflict is joined today between the forces of conservativism and and advancement in the Muslim universe, and the vicissitudes of that conflict provide, as we have seen, a gage of societal advancement, a mirror of the progress of modernism in Islam, and an illustration of how a nominally changeless jurisprudence can be changed in pattern.
Let us get down so with a drumhead statement of Islamic jurisprudence in these affairs. A Muslim adult female is bound to monogamy, while a Muslim adult male may hold every bit many as four married womans at one time, but no more. In add-on, the Ithna ‘Ashari subdivision of the Shi’a, entirely, allows him to hold any figure impermanent matrimonies, or “ matrimony of enjoyment, ” while all schools allow a adult male to indulge rights of concubinage with his ain female slaves. Any sexual intercourse outside these bounds[ 1 ]constitute zina, or illicit sex dealingss, for which the penalty is decease by lapidating in the instance of an wrongdoer who has of all time consummated a lawful matrimony, and one hundred ciliums in the instance of others. But these punishments can rarely be decently imposed because of the extremely demanding criterion of cogent evidence required, and the rule that such penalties are averted by any circumstance of doubt-besides the fact that Islamic condemnable jurisprudence has today merely a really limited application. In add-on a Muslim hubby may disown his married woman or married womans at any clip and at his one-sided discretion.
So much for a really general sum-up. It is indispensable, nevertheless, foremost to see this against its historical background and so lucubrate it in greater item.
Islam, unlike other faiths is a strong advocator of matrimony. There is no topographic point for celibacy like, for illustration the Roman Catholic priests and nuns. The prophesier ( pbuh ) has said “ there is no celibacy in Islam.
Marriage is a spiritual responsibility and is accordingly a moral precaution every bit good as a societal necessity. Islam does non equal celibacy with high “ taqwa ” / “ Iman ” . The prophesier has besides said, “ Marriage is my tradition who so of all time keeps off there from is non from amongst me ” .
Marriage acts as an mercantile establishment for sexual demands and modulate it so one does non go a slave to his/ her desires.
It is a societal necessity because through matrimony, households are established and the household is the cardinal unit of our society. Furthermore, matrimony is the lone legitimate or halal manner to indulge in familiarity between a adult male and a adult female.
Islam takes a center of the route place to sexual dealingss, it neither condemns it like certain faiths, nor does it let it freely. Islam urges us to command and modulate our desires, whatever they may be so that we remain dignified and non go like animate beings.
In pre-Islamic Arabia, it seems, there were several types of matrimony, runing likely from the patrilineal and including the alleged “ matrimony of impermanent enjoyment. ”
The most respectable signifier, nevertheless, was a patrilinear matrimony in which the groom paid a dowry for, or to, his bride.
This has developed no uncertainty, out of the widespread usage of paying bride-wealth to the folk or the household of the bride for the loss of her generative capacity and as a stabilisation both of the brotherhood and of the relation between two households ; but it would look that even before the the coming of Islam the dowry had come to be regarded in Arabia as decently belonging to the bride herself. In any instance this is a feature of the Islamic jurisprudence of matrimony, nevertheless much it is still disregarded in pattern in some quarters. Muslim legal experts frequently in fact employ the simile of sale, and see the dowry as consideration for matrimonial rights-a consideration that constitutes an indispensable component in every Muslim matrimony. Nor is this dowry repayable on divorce, in Islamic jurisprudence, one time the matrimony has been consummated, even where the married woman is chiefly at mistake, except by her ain voluntary understanding.
Hanafis, on the other manus, see that an grownup adult female may contract herself in matrimony provided she chooses a hubby who is her “ equal ” in regard of household, trade, faith, and so forth ; that merely bush leagues may be given in matrimony without their consent ; and that even bush leagues have an option of disowning such a matrimony when they reach bulk I all instances in which the defender who acted for them was other than male parent or gramps.[ 2 ]The other Sunni schools exclude matrimony by irresistible impulse by any except the male parent or male parent ‘s male parent ( or, in the instance of the Malikis, the male parent or male parent or his executor ) ; but they extend such irresistible impulse, in regard of virgins girls, far beyond bulk.
In add-on, a adult male is prohibited from being married, at one and the same clip, to two adult females who would be debarred, were one of them a male, from get marrieding each other ;[ 3 ]
Islam, unlike other faiths is a strong advocator of matrimony. There is no topographic point of celibacy in Islam like the Roman Catholic priests & A ; nuns. The Prophet has said “ There is no Celibacy in Islam ” .
Marriage acts as an mercantile establishment for sexual demands & A ; regulates it so one does n’t go break one’s back to his/her desires. It is a societal demand because through matrimony, households are established and the households are the cardinal entity of our society. Furthermore matrimony is the lone legitimate or halal manner to indulge in familiarity between a adult male and adult female.
Islamic matrimony although licenses polygamy but it wholly prohibits polyandry. Polygamy though permitted was guarded by several conditions by Prophet but these conditions are non obeyed by the Muslims in toto.
Marriage: -Pre Islamic Position
Before the birth of Islam there were several traditions in Arab. These traditions were holding several unethical procedures like: –
( I ) Buying of miss from parents by paying a amount of money.
( two ) Temporary matrimonies.
( three ) Marriage with two existent sisters at the same time.
( four ) Freeness of giving up and once more accepting adult females.
These unethical traditions of the society needed to be abolished ; Islam did it and brought a drastic alteration in the construct of matrimony.
It is quiet relevant to cognize whether the Muslim matrimony is a sacrament like the Hindu matrimony, for this Lashkar-e-Taiba us acquire acquainted with some of the definitions of Muslim matrimony.
( a ) A Hedaya[ 4 ]: – Marriage is a legal procedure by which the several procedure and reproduction and legitimation of kids between adult male and adult females is absolutely lawful and valid.
( B ) A Bailies Digest[ 5 ]: – A Nikah in Arabic means “ Union of the series ” and carries a civil contract for the intents of legalising sexual intercourse and legitimate reproduction of kids.
( degree Celsius ) A Ameer AliA[ 6 ]: – Marriage is an organisation for the protection of the society. This is made to protect the society from foulness and unchestity.
( vitamin D ) A Abdur Rahim[ 7 ]: – The Mahomedan priests regard the establishment of matrimony as par taking both the nature of “ Ibadat ” or devotional humanistic disciplines and “ Muamlat ” or traffics among work forces.
( vitamin E ) A Mahmood J.[ 8 ]: – Marriage harmonizing to the Mahomedan jurisprudence is non a sacrament but a civil contract.
( degree Fahrenheit ) Under Section 2 of Muslim Women ( Protection of Rights on Divorce ) Act, 1986 Marriage or Nikah among Muslims is a ‘Solemn Pact ‘ or ‘Mithaq-e-ghalid ‘ between a adult male & A ; a adult female beging each others life company, which in jurisprudence takes the signifier of a contract or aqd.
It ‘s a affair of question still bing whether Muslim matrimony is merely a civil contract or an Ibadat & A ; Muamlat. While unleashing the assorted definitions it ‘s rather a large job to state which 1 is the most appropriate, in my sentiment although the necessities of a contract is fulfilled yet matrimony can ne’er be said to be a contract because matrimony ever creates a bondage between the emotions and thought of two individual. .J Sarsah Sulaiman[ 9 ]has said “ In Islam, matrimony is non merely a civil contract but besides a sacrament. ”
Muslim matrimony can besides be differentiated from a civil contract on the footing of following points: –
( a ) It can non be done on the footing of future occurrences unlike the contingent contracts.
( B ) Unlike the civil contract it can non be done for a fixed period of clip. ( Muta Marriage being an exclusion. )
Purpose of Marriage
The word “ Zawj ” is used in the Quran to intend a brace or a mate. The general intent of matrimony is that the sexes can supply company to one another, procreate legitimate kids & A ; unrecorded in peace & A ; repose to the commandments of Allah. Marriage serves as a mean to emotional & amp ; sexual satisfaction and as a mean of tenseness decrease.
Marriage compulsory or non?
Harmonizing to Imams Abu Hanifa, Ahmad ibn Hanbal & A ; Malik ibn Anas, matrimony in Islam is recommendatory, nevertheless in certain persons it becomes Wajib or obligatory. Imam Shafi considers it to Nafl or Mubah ( preferred ) . The general sentiment is that if a individual, male or female frights that if he/she does non get married they will perpetrate fornication, so matrimony becomes “ Wajib ” . However, one should non get married if he does non possess the agencies to keep a married woman and future household or if he has no sex thrust or if dislikes kids, or if he feels matrimony will earnestly impact his spiritual duties.
Prophet said: –
“ When a adult male marries he has fulfilled half of his faith, so allow him fear Allah sing the staying half. ”
This really diction of Prophet marks the importance of matrimony, therefore it could be good concluded that matrimony in Islam is must.
Capacity for Marriage
The general necessities for matrimony under Islam are as follows: –
( I ) Every Mahomedan of sound head and holding attained pubescence can get married. Where there is no cogent evidence or grounds of pubescence the age of pubescence is 15 old ages.
( two ) A minor and insane ( moonstruck ) who have non attained pubescence can be validly contracted in matrimony by their several defenders.
( three ) Consent of party is must. A matrimony of a Mahomedan who is of sound head and has attained pubescence, is null, if there is no consent.
The celebration of a Muslim matrimony requires attachment to certain signifiers and expressions. They are called the necessities of a valid matrimony. If any of these demands is non fulfilled the matrimony becomes either nothingness or irregular, as the instance may be. The necessities are as follows:
Proposal and Acceptance
No legal Disability
There is absolute prohibition of matrimony in instance or relationship of blood kinship which means the relationship of the individual through his/her male parent or female parent on the ascending side, or through his or her ain on the descending side.
Marriage among the individuals related by affinity, Internet Explorer, through the married woman is non permitted. Marriage with surrogate female parent and other related through such surrogate female parent is besides null.
Marrying a 5th married woman
Marrying a adult female undergoing iddat
Absence of proper informants
Woman undertaking a 2nd matrimony during the subsistence of the first matrimony.
The undermentioned matrimonies are besides prohibited:
Marrying pregnant adult females
Marrying ain divorced married woman
Marrying during pilgrim’s journey
Necessities of Marriage
The necessities of a valid matrimony are as follows: –
( I ) There should be a proposal made by or on behalf of one of the parties to the matrimony, and an credence of the proposal by or on behalf of the other party.
( two ) The proposal and credence must both be expressed at one time meeting.
( three ) The parties must be competent.
( four ) There must be two male or one male & A ; two female informants, who must be sane and big Mahomedan nowadays & A ; hearing during the matrimony proposal and credence. ( Not needed in Shia Law )
( V ) Neither composing nor any spiritual ceremonial is needed.
( I ) A Muslim matrimony requires proposal ‘Ijab ‘ from one party and credence ‘Qubul ‘ from the other side. This must be done in one posing.
( two ) The credence must be matching to what is being offered.
( three ) The matrimony must be efficaciously immediate. If the Wali says “ I will get married her to you after two months ” , there is no matrimony.
( four ) The two parties must be lawfully competent ; i.e. they must be sane and grownup.
( V ) The adult females must non be from the out category.
( six ) The consent given must be free consent, . It must non be an result of irresistible impulse, duess, coercion or undue influence.
Kinds of Marriage
Under Muslim by and large two types of matrimony is recognizedA
( I ) Regular Marriage ( necessities discussed earlier )
( two ) Muta matrimony
Muta Marriage: –
Muta matrimony is a impermanent matrimony. Muta matrimony is recognized in Shia merely. Sunni jurisprudence does n’t acknowledge it. ( Baillie, 18 ) . A Shia of the male sex may contract a Muta matrimony with a adult female professing the Mahomedan, Christian or Jewish faith, or even with a adult female who is a fire believer but non with any adult female following any other faith. But a Shia adult female can non contract a Muta matrimony with a non Muslim.
The necessities of Muta matrimony are: –
( 1 ) The period of cohabitation should be fixed.
( 2 ) Dower should be fixed.
( 3 ) If dowry specified, term non specified, it could amount to permanent or regular matrimony.
( 4 ) If term fixed dower non specified, it amounts to invalidate matrimony.
Aspects of Marriage
( I ) Valid or Sahih
( two ) Irregular or Fasid
( three ) Void or Batil
( I ) Valid or Sahih Marriage: -A Under the Muslim jurisprudence, a valid matrimony is that which has been constituted in conformity with the indispensable conditioned prescribed earlier. It confers upon the married woman ; the right of dowry, care and abode, imposes on her duty to be faithful and obedient to her hubby, admit sexual intercourse with him & A ; observe Iddat.
( two ) Irregular or Fasid Marriage: A – Those matrimonies which are result of failures on portion of parties in non fulfilment of requirements but so besides are matrimonies ; to be terminated by one of he party is termed to be Irregular matrimonies. They are outcome of-
( a ) A matrimony without informant ( Not under Shia Law )
( B ) Marriage with 5th married woman.
( degree Celsius ) Marriage with a adult females undergoing Iddat.
( vitamin D ) Marriage with a fire-worshipper.
( vitamin E ) Marriage result of saloon of improper concurrence.
An irregular matrimony has no legal consequence before consummation but when consummated give rise to several rights & A ; duties.
( three ) Void or Batil Marriage: – A matrimony which is improper from it ‘s get downing. It does non make any civil rights or duties between the parties. The progeny of a null matrimony is illicit. They are outcome of-
( a ) Marriage through forced consent.
( B ) Plurality of hubby.
( degree Celsius ) Marriage prohibited on the land of blood kinship.
( vitamin D ) Marriage prohibited on the land of affinity.
( vitamin E ) Marriage prohibited on the land of fostering.
Consequence of Marriage ( Sahih )
The lawful duties which arise after matrimony are as follows-
( I ) Mutual intercourse legalized and the kids so born are legitimate.
( two ) The married woman gets power to acquire ‘Mahr ‘
( three ) The married woman entitles to acquire care.
( four ) The hubby gets right to steer and forbid the married woman ‘s motion ( for valid grounds merely )
( V ) Right of sequence develops.
( six ) Prohibition of matrimony due to affinity.
( seven ) Women edge to finish Iddat period & A ; non to get married during Iddat period ; after divorce or decease of hubby.
The ob ligations and rights set between the two parties during and after the matrimony are to be enforced till legality. On the footing of a matrimony hubby and married woman do non acquire the right on one another ‘s belongings.
1. Battle or Mangni: Does non measure up the hereafter spouses to travel out together, even if the parents consent. Man and adult female become allowable for each other merely after the public presentation of Nikah.
2. Dowry: The unislamic system of demanding and accepting dowery must be avoided at all costs. Shariah does non do any expense officeholder on the bride/bride ‘s parents. Even the matrimony disbursals, it is recommended to be borne by the bridegroom. However, the bride can convey whatever she wants of her free will, and it will ever belong to her.
3. Other Unislamic Customss: Many other unislamic imposts have crept into the matrimony ceremonial of some Muslims. These imposts are either borrowed from non-Muslim civilizations or go on because they are established in past coevalss. One must avoid them if they are against the Shariah, even if some people are displeased. Other imposts like the breakage of coconut etc. besides do non have among the Islamic rites. All actions, imposts etc. , which show discourtesy to Islam or weaken the importance of Islam, have to be avoided.
4. Haraam Acts: Some of the rites in matrimony ceremonials are perfectly Haraam like the playing of music. It is besides Haraam for ladies to travel for assorted assemblages without proper Hijab. Such things invite godly wrath and take away the approvals of this auspicious juncture. In the Islamic Law, matrimony is an Aqd, a contract. The constituents of this contract are as follows:
A. Proposal: In Islam the procedure of proposal by a adult male to a adult female for her manus in matrimony, or for that affair, to her household, is encouraged. Islam considers this natural, and recommends it as an act of reputability and self-respect for adult females.
B. Mahr: And the intending hubby is asked to offer a Mahr to the bride. Holy Quran says, And give adult females their Mahr as a free gift, but if they of themselves be pleased to give up to you a part of it, so eat it with enjoyment and with wholesome consequence. ( Surah Nisa 4:4 )
The undermentioned points are worthy of consideration:
a ) Mahr must be agreed upon by the get marrieding spouses themselves, non by parents.
B ) Mahr is her right, to which her hubby remains indebted.
degree Celsius ) It is a free gift and non her monetary value.
The Mahr may be hard currency, sort or non-material ( like preparation or learning something ) . It can be paid up front or can be in signifier of promise to pay upon demands decided prior to the celebration of matrimony. Moajjal ( immediate ) , Muwajjal and Indat-talab ( on demand ) . However, it is much recommended to pay it before or at the clip of Nikah itself.
C. The Nikah Ceremony: Harmonizing to Shariah, the wife-to-be says, ‘An Kah’tu nafsaka a’lal mah’ril ma’loom ‘ . ( “ I have given away myself in Nikah to you, on the agreed Mahr. “ ) .Immediately, the adult male ( bridegroom ) says, ‘Qabiltun Nikaha ‘ . ( “ I have accepted the Nikah. “ ) .With these dictums, they become hubby and married woman.
If the marrying spouses are non able to declaim the expression in Arabic, one or two individuals or priests are appointed and authorized to officiate. One who represents the bride would foremost seek her expressed consent to officiate on her behalf, and so would the other who acts on behalf of the groom. Naturally, there would be a little fluctuation in the dictums, because the individuals declaiming them are appointees. A individual who represents the bride would originate by stating, “ Ankah’tu muwakkilati muwakkilaka a’lal mah’ril ma’loom. ” ( “ I give off in Nikah the adult female who has therefore appointed and authorized me, to the adult male who has authorized you, on an in agreement Mahr. ” )
The groom ‘s representative would react, “ Qabiltunnikaaha limuwakkili a’lal mah’ril ma’loom. ” ( “ I accept the Nikah on behalf of the 1 who has appointed me, on the agreed Mahr. ” )
It is mustahab to declaim a brief discourse or Khutba before the Nikah expression is enunciated. In this Khutba, Allah is praised for His Wisdom in modulating the lawful procedure of reproduction, and so the traditions from Holy Prophet Muhammad ( s.a.w. ) are besides recited.
D. Time of Marriage Ceremony: Though fundamentally matrimony is allowed at all times, there are some yearss on which matrimony is non recommended ; some of these are based on ahadith and some on cultural, historical reasons.Generally, we can categorise these yearss into three: ( a ) There are some ahadith which say that it is makruh ( non recommended ) to hold a matrimony ceremonial on the yearss when the Moon is in the configuration of Scorpio ( this is known as al-qamar fil aqrab or qamar dar aqrab ) , during the last two or three yearss of the lunar months, and on Wednesdays. ( B ) There are certain yearss of the Islamic calendar, which have become associated with the early events of the Islamic history ; for illustration, the 10th of Muharram is the twenty-four hours of mourning for the slaughter at Karbala or the twenty-four hours of Holy Prophet Muhammad ‘s ( s.a.w. ) decease in Safar, etc. Since such yearss are commemorated by the Muslims as yearss of bereavement, it is socially and, to some extent, sacredly non recommended to hold a matrimony ceremonial on such yearss.
Shia Ithna Ashari ( Twelver Shias ) , particularly in India and Pakistan, seldom perform matrimony ceremonial between the 1st of Muharram and the 8th of Rabi al-Awwal as this period includes the bereavement yearss of Muharram culminating in the martyrdom of Imam Askari ( a.s. ) . The 9th Rabi al-Awwal is celebrated as Eid-e-Zahra..If there is a demand, nevertheless, Nikah, can be performed at any clip.
E. Permission of the Bride-to-be/Father: The miss ‘s consent is necessary and has to be taken by her representative, straight.
In instance of a virgin/spinster the male parent ‘s or the gramps ‘s permission is besides necessary. However if the permission is unreasonably withheld under some conditions or the miss has no father/paternal gramps it is non necessary. However, a adult female who is non a virgin, does non necessitate any permission in instance of remarriage.
Marriage is a spiritual responsibility of every Muslim and it is considered to be a moral precaution and a societal demand. The Prophet has besides said “ Marriage is my tradition whosoever keeps off there from is non from amongst me. ” Holy Quran says: And marry those among you who are individual and those who are fit among your male slaves and your female slaves ; if they are destitute, Allah will do them free from want out of His grace ; and Allah is Ample-giving, Knowing. ( Surah Nur 24:32 ) .The above ayat begins with the words Wa Ankehoo ( And get married… ) The imperative signifier of the word ‘nikah ‘ implies that either it is obligatory or extremely recommended. Harmonizing to bookmans, though matrimony is a extremely recommended act, it becomes obligatory when there is a opportunity of falling into sin.Holy Prophet Muhammad ( s.a.w. ) says, “ No house has been built in Islam more beloved in the sight of Allah than through matrimony. ”
On another juncture Holy Prophet Muhammad ( s.a.w. ) said: “ The best people of my state ( Ummat ) are those who get married and have chosen their married womans, and the worst people of my state are those who have kept off from matrimony and are go throughing their lives as unmarried mans. “ Imam Ali ( a.s. ) exhorts, “ Marry, because matrimony is the tradition of Holy Prophet Muhammad ( s.a.w. ) . ” Holy Prophet Muhammad ( s.a.w. ) besides said, “ Whosoever likes to follow my tradition, so he should cognize that matrimony is from my tradition. ”
Unlike Hindu where the matrimony is a sacrament, matrimonies in Muslims have a nature of civil contract. Marriage is necessary for the legitimization of a kid. When the matrimony is done in conformity to the prescribed norms it creates assorted rights and duties on both the parties.