Introduction of the Muslim marriage and its nature: – In pre-Islamic Arabia, marriage, or (Nikah), referred to various types of sexual relationships between a male and a female that were formed on specific terms. Women were treated as chattels in pre-Islamic times, with no right of legacy and total reliance.
The Prophet Mohammad was accountable for a major change in women’s positions. He is predominantly patriarchal on a nearly equal basis with men in the exercise of all lawful powers and responsibilities, which stands in contrast to the law of the state among the pre-Islamic Arabs and Muslims.
Marriage in Islam & its nature
Marriage is regarded as a civil nature under Islamic laws. A woman’s identity is not lost when she marries. Her identity is not united with that of her partner, thus she remains a distinctly separate member of the community. Above what the law clearly defines, the marriage contract actually gives no one control over her person or possessions. Also after marriage, a woman has complete sovereignty over her personal rights; she can alienate or transfer her assets in any way she wants even without interference from her partner. She can engage in legally enforceable contracts with her partner and, if required, sue him in court.
General Pre-requisites for a Muslim Nikah
Following are the General Pre-requisites for a Muslim Nikah
- The parties should be legally capable of marriage.
- Acceptance (qubool) and proposal (ijab).
- Both parties’ free consent is required.
- A mehr (cosideratio).
- There is no legislative hindrance.
- Adequate witnesses (different in shia & sunni).
When all of the regulatory obligations have been complied with and there are no legal restrictions affecting the parties, the marriage is considered valid or sahih. The constraints can be both perpetual and temporary; if the prohibitions are permanent, the marriage is null and void; if the prohibitions are temporary, the marriage is irregular.
The Effects of a Valid Marriage
- Cohabitation between the married couple is lawful.
- Children born from a valid marriage are legal and legitimate and have the right to inherit their parents’ assets.
- Mutual inheritance rights between married couples are formed.
- That is, the woman has the right to possess the husband’s property after his death, and the husband has the right to acquire the wife’s properties after her death.
- Between the husband and wife is established a forbidden relationship for the sacrament of procreation, and each of them is prevented from marrying the other’s relations within prohibited degrees.
- Following the conclusion of the marriage, the wife’s entitlement to claim dower is fully established.
- The wife receives immediate maintenance from her husband as a result of their marriage.
- Following the end of the marriage, the widow or divorced woman is mandated to follow the Iddat, during which period she is not allowed to marry.
Because the marriage is void from the beginning, no rights or liabilities are formed, and the children born as a result of the marriage are illegitimate.
A marriage that is barred by blood relationship rules, or affinities, rules null and void. During the iddah period, a marriage with another’s wife or with a divorced woman is called batil.
An absence of formality or the existence of a hindrance that can be resolved can cause a marriage to become fasid. Furthermore, these irregularities are not permanent and irreversible and can be resolved. As a result, marriage is not unlawful in itself. Once the impediments are removed, they can be made valid. Marriage under these circumstances, or with the prohibitions that follow, is known as ‘Fasid’.
- A contracted marriage without the requisite number of witnesses;
- A marriage to a woman while she is in her Iddat period;
- A marriage with a woman without her guardian’s consent when such permission is absolutely required;
- A marriage that is prohibited due to religious differences;
- A marriage with a pregnant lady when the pregnancy is not the result of adultery or fornication;
- A wedding with a fifth wife.
Nikah mut’ah or muta
The phrase simply refers to “joy and pleasure marriage”A muta marriage is a one-time contract between two persons for a specific amount of time.” It can be a day, a month, or a year; there is no fixed defined time period (s). The marriage terminates when the mutually agreed-upon duration expires; however if no such time limit was stated or expressly stated, the marriage is considered to be everlasting. This type of marriage is considered prostitution by Sunni Muslims, and so is not tolerated.
It is considered genuine by the Twelver Shia sect, which is prominent in Iran and represents 90 percent of India’s Shia population. In Iran, the term mut’ah is only used occasionally, and the practice is known as ‘sigah’. For example, the contract for a temporary marriage can be made for one hour to 99 years; it cannot be drawn for an indefinite time. This distinction is made between mut’ah and nikah, or perpetual marriage, which has no time restriction. Furthermore, much like in nikah, the bride must receive a financial advantage in ‘sigah.
For mut’ah, no witnesses are legally required. And, just as in any other agreement, the woman who is a party can specify the terms of her sexual relations for the duration of the contract, which can include her daily maintenance. Her temporary partner must abide by these conditions. When the specified time period expires, the marriage is automatically dissolved. The woman must practise abstinence for at least two menstruation cycles, regardless of how short the period is.
The interesting thing to note is that the temporary married couple can extend their contract, but the husband must still pay the bride the agreed-upon amount. The husband has the unilateral power to rescind the marriage mark as a symbol of his dominance in the relationship. However, the woman has the option of refusing to be physically intimate with him or even leaving him, in that case, she should return the money she acquired from him.
Although India has largely recognized live-in relationships, the Supreme Court will find it extremely difficult to invalidate this form of relationship constitutionally. This practice is now considered prostitution by feminists all over the world. Many proponents of Nikah mut’ah argue that because it is a contract, it is better than live-in relationships.
Marriage Registration in Muslim Law
A marriage registry is necessary for Muslims because a Muslim marriage is regarded as a legally binding civil contract. Sec 3 of the Muslim Marriages Registration Act of 1981 states that “every marriage performed between Muslims after the commencement of this Act and shall be required to register as herein specified, within 30 years from the date of the Nikha Ceremony”. Nikahnama is a form of legal memorandum used in Islamic marriages that contains the fundamental requirements and details of the marriage.
According to this act, a Nikahnama contains
We may clearly conclude, based on legal research, that marriage is nothing more than a civil contract under Islamic laws. It complies with all contract conditions, such as proposal & acceptance, voluntary consent, and proper consideration. Muslim marriage, on the other hand, is a devotional process from a religious perspective.