Classification of Marriage under Muslim law

Synopsis

1. Introduction
2. Essentials of a valid marriage under Muslim law

III. Classification of marriages under Muslim law

–   Valid marriage (Sahih)

–   Void marriage (Batil)

–    Irregular marriage (Fasid)

3. Muta marriage

 

1. Introduction

Islam, unlike other religions, strongly advocates marriage and treats it as a social necessity. The purpose of Islamic marriage is the creation of families which are considered as a fundamental unit of the society. Islam abhors the idea of celibacy and considers marriage to be the only legitimate way for the establishment of sexual intimacy between a man and a woman.  Muslim law recognizes marriage as a civil contract and does not prescribe any religious ceremonies for the marriage.

This article discusses the essentials of a valid marriage under Muslim law, the classification of marriage under Muslim law based on the validity of the marriage and the concept of Muta marriage recognized by the Shia sect of Muslims.

 

1. Essentials of a valid marriage under Muslim law

Under Muslim law, the essentials of a valid marriage are-

• There should be a valid proposal or “Ijab” for marriage by one party and acceptance or “Qubul” of the proposal by the other party.

 

• The proposal and acceptance must be given at the same meeting.
• The parties must be competent to marry. Every Muslim who is of a sound mind and has attained puberty (15 years of age) is considered as competent to enter into a contract of marriage.

• Under Sunni law, the proposal and acceptance must be made in the presence of two males or one male and two female witnesses who are sane, adult and Muslims. Under Shia law, witnesses are not necessary at the time of marriage.

 

• The consent to marry must have been freely given without duress, coercion, fraud or undue influence.
• There should be no legal impediment to the marriage of the parties.

 

III. Classification of marriages under Muslim law-

 

Muslims are divided into two sects- Shia and Sunni. On the basis of the validity of a marriage, Sunni law classifies a Muslim marriage into the following kinds: (a) Sahih (valid marriage), (b) Batil (void marriage) and (c) Fasid (irregular or invalid marriage). However, Shia law does not recognize irregular marriage and treats marriages to be either void or valid.

 

Valid marriage (Sahih)-

A marriage which fulfils all the prescribed conditions of a valid marriage, which are detailed above, is considered to be valid. A valid marriage gives rise to the following legal implications:

• The parties acquire the status of husband and wife due to which sexual intercourse between them becomes legal.
• Parties acquire mutual rights of inheritance.
• The wife gets the right of maintenance and right to live with her husband.
• The wife also gets the right of receiving Dower or Mahr from her husband. “Dower” is the sum of money or other property which a Muslim wife gets entitled to receive from her husband in consideration of the marriage.
• The wife is under the obligation to be faithful and obedient to her husband and admit herself to sexual intercourse with him at reasonable time and places.
• The marriage establishes prohibition of marriage due to affinity on both sides, for instance, the husband cannot marry the wife’s sister.
• The husband gets the power of reasonable chastisement (punishment) and correction against the wife if she is disobedient or rebellious.
• The husband acquires the right to restrict the wife’s movement for valid reasons.
• The children born out of a Sahih marriage are considered to be legitimate.
• On the dissolution of marriage due to death or divorce, the wife is under obligation to perform Iddat. Iddat is the period during which a Muslim woman is prohibited from marrying again after the dissolution of her first marriage. The object of Iddat is to ascertain pregnancy of the wife so as to avoid confusion of parentage.

 

Void marriage (Batil)-

A marriage performed in violation of prescribed legal conditions is called a Batil or void marriage. It is considered void-ab-initio i.e. void from its inception and does not create any legal rights and obligations on the parties. It is of no legal effect before or after consummation.

The wife is not entitled to claim maintenance but can claim Dower if the marriage has been consummated. The children born out of a void marriage are considered to be illegitimate.

In case of a void marriage, the parties are free to separate from each other at any time without obtaining a divorce and may contract another marriage lawfully. Following are some instances of a void marriage under Shia law:

• marriage in violation of absolute incapacity.
• marriage with the wife of another person where the marriage is still subsisting.
• remarrying one’s own divorced wife if a legal bar exists.
• marriage prohibited by reason of unlawful conjunction.
• marriage with a fifth wife.
• marriage during the pilgrimage.
• marriage with any non-Muslim.
• marriage with a woman undergoing Iddat.

 

Irregular marriage (Fasid)-

A marriage in violation of partial or qualified legal impediments is considered to be an irregular marriage. Marriages which are considered as irregular under Sunni law are void under Shia law. An irregular marriage is not considered to be void from its inception but can be cured by removing the impediments or irregularities, for instance, marriage of a Sunni male with a fire worshiper is irregular which can be made valid by the wife’s conversion to Islam.

 

The implications of an irregular marriage can be discussed from two angles i.e. (a) before consummation and (b) after consummation.

 

• Before consummation – An irregular marriage has no legal effect before consummation. The wife is not entitled to obtain Dower from the husband. The marriage may be terminated by either party before or after consummation without divorce by expressing an intention to do so. In this case, the wife is not bound to observe Iddat, after dissolution of the marriage, considering that the marriage has not been consummated.

 

• After consummation – Consummation of an irregular marriage gives rise to the following consequences:

1. The wife has to observe Iddat on the dissolution of the marriage due to divorce or death of husband.
2. The wife is entitled to get Dower from the husband.
3. The wife is not entitled to get maintenance during period of Iddat.
4. The children of an irregular marriage are considered as legitimate and have the right to inherit property of their parents.
5. An irregular marriage, though consummated, does not create mutual rights of inheritance between husband and wife.

 

While the Shia law does not recognize irregular marriages, some examples of an irregular marriage under Sunni law are as follows:-

• marriage contracted without witnesses.
• marriage with a fifth wife.
• marriage with a woman undergoing Iddat.
• marriage with a non-scriptural woman.
• marriage with the wife’s sister during Iddat of the divorce wife.
• marriage contrary to the rules of unlawful conjunction.

 

 

Muta Marriage-

While marriage under Muslim law is mainly classified based on its validity, the Shia law recognizes another kind of marriage called Muta marriage.

The word Muta means “enjoyment”. Muta marriage is a temporary marriage with a woman for a fixed period for the purpose of pleasure. Muta marriage is void under Sunni law which treats marriage to be a permanent union. The fixed period of a Muta marriage may be a day, month, year or a term of years.

A male Shia Muslim may contract Muta marriage with a Muslim, Christian or Jewish woman or with a woman who is a fire-worshipper but not with a woman following any other religion. However, a Shia woman cannot contract Muta marriage with a non-Muslim.

For a Muta marriage to be considered as valid, there are 2 conditions- (a) the period of cohabitation should be fixed and (b) the Dower should be fixed.