Muslim Marriage under Muslim law in India is governed by Muslim personal laws, which are derived from Islamic religious principles and customs. These laws are distinct from the laws governing marriages of individuals from other religious communities in India. The Muslim personal laws are not codified under a single statute but are applied through various sources, including the Quran, Hadith (sayings of Prophet Muhammad), and customary practices.
Marriage under Muslim law applies to both Shia and Sunni sects, as they share common foundational principles and concepts in Islamic jurisprudence.
However, there are some differences in certain practices and interpretations between the two sects.
general aspects of marriage under Muslim law
Let’s explore general aspects of marriage under Muslim law
Essential Elements
Both Shia and Sunni marriages require the essential elements of consent (ijab and qubool), witnesses, and the presence of the parties involved during the contract.
Age of Marriage
The legal age of marriage for Muslims in India, as mentioned in the previous response, applies to both Shia and Sunni sects. The age of puberty is considered the minimum age for marriage, but legal age requirements must be met.
Mehr (Dower)
The concept of Mehr, the dowry or gift given by the groom to the bride, is common in both Shia and Sunni Muslim marriages. The amount and terms of Mehr are agreed upon by the parties.
Witnesses
Two Muslim witnesses, often close family members or friends, must be present during the marriage ceremony to validate the contract.
Polygamy
Polygamy is allowed in both Sunni and Shia Muslim laws, with the condition that the husband treats all his wives equally and obtains permission from existing wives before marrying another woman.
Divorce
Divorce procedures are similar in both Shia and Sunni Muslim law. The husband may pronounce divorce, and the waiting period (iddah) after divorce is observed, during which the wife cannot remarry. There are different types of divorce, including talaq (initiated by the husband), khula (initiated by the wife), and mutual consent divorce.
Maintenance
The concept of maintenance (alimony) after divorce, during the waiting period (iddah), and in some circumstances beyond that, is applicable to both Shia and Sunni Muslim law.
Landmark judgments
Sabra v. State of Kerala (2020)
In this case, the Supreme Court of India upheld the validity of the Muslim Women (Protection of Rights on Marriage) Act, 2019. The Act criminalized the practice of instant triple talaq and made it a punishable offense. The court ruled that the practice of instant triple talaq was manifestly arbitrary and violated the fundamental rights of Muslim women.
Shayara Bano v. Union of India (2017)
In this case, a five-judge constitution bench of the Supreme Court of India declared the practice of instant triple talaq (talaq-e-bid’ah) as unconstitutional and violative of Article 14 (right to equality) of the Indian Constitution. The court held that the practice of instant triple talaq was manifestly arbitrary and allowed the government to enact suitable legislation on the matter.
Maulana Abdul Kadir v. Salima (2011)
This case dealt with the issue of child custody after divorce. The Supreme Court held that the paramount consideration for granting child custody should be the welfare and best interest of the child, regardless of the parent’s religion. The court emphasized that the religious identity of the parents should not be the sole determinant in deciding custody matters.
Danial Latifi v. Union of India (2001)
In this case, the Supreme Court of India upheld the constitutional validity of Section 2 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. The Act provided for the payment of maintenance (Mehr) to a divorced Muslim woman only during the period of iddat (waiting period) after divorce. The court ruled that the Act did not violate the constitutional rights of Muslim women and was a reasonable classification based on intelligible differentia.
Ahmedabad Women Action Group v. u.o.i (1997)
This case addressed the issue of the minimum age of marriage for girls. The Supreme Court directed the government to take steps to increase the age of marriage for girls from 15 to 18 years, in order to prevent child marriage and protect the rights of young girls.
Noor Saba Khatoon v. Mohd. Quasim (1997)
This case focused on the validity of a marriage solemnized without the presence of two Muslim witnesses. The Supreme Court ruled that the absence of two witnesses does not render the marriage void or illegal under Muslim law.
Shah Bano Case (1985)
The Shah Bano case is one of the most significant and controversial judgments related to Muslim personal laws. In this case, the Supreme Court of India ruled that a Muslim woman, Shah Bano, was entitled to maintenance (alimony) from her husband after divorce under Section 125 of the Criminal Procedure Code. The judgment was met with opposition from some conservative Muslim groups, leading to the government’s enactment of The Muslim Women (Protection of Rights on Divorce) Act in 1986, which sought to override the Apex court’s verdict and limit the maintenance period.
Conclusion
It’s important to note that while the foundational principles and essential elements of marriage are consistent between Shia and Sunni Muslim law, there can be variations in specific practices, cultural customs, and interpretations of religious texts among different Muslim communities worldwide.
Each community may have its distinct customs and traditions surrounding marriage, but the core principles of Islamic marriage remain similar. Legal variations may also exist in different countries that follow Islamic principles in their legal systems.
