Marriage is marriage and there cannot be a Hindu marriage or a Parsi marriage or a Christian marriage or a Muslim marriage. It is universally the same. Nevertheless, Concept of marriage differs and that marks out the difference.
For example, concept of marriage under Christian Law is that it is a Life Long tie whereas under Hindu Law it is a tie for Seven Lives. Therefore, originally, no provision for dissolution of marriage was made and came to be introduced as reform in these two systems of law. On the other hand, Muslim Law treats the marriage as Contract. It is a contract in its nature although not in the sense we understand the term ‘contract’ in commercial world. It is characterized as contract because all Ingredients of Contract like (1) Offer (Ijab) (2) Acceptance (Qubul) (3) Witnesses (4) Consideration (Mahar) (5) Capacity to contract (6) Provision for breach etc. are present.
Marriage takes effect (i) by operation of law and (ii) on the contract being completed between the parties. Further, it is Contract, Pure and Simple: Pure means free from conditions or restrictions and simple means not evidenced by seal, writing or record. The legal incidents of marriage in Islam are extremely simple and can be performed without any ceremony. The following will clearly indicate the reason why it is a Contract.
(a) Marriage cannot be contracted without consent and without witnesses.
(b) There is a provision for breach. While under orthodox Hindu Law or English Law, marriage is a sacrament and as such there is no provision for breach. Under Islam, it being Contract (of marriage) it can be dissolved by divorce. There are various forms for divorce under Muslim Law they are fully discussed ion the following chapter of this book.
According to orthodox Christian Law, marriages are made in heavens and solemnized on earth. But Islam does not profess it and marriage can be according to individual requirements, inasmuch as:
(a) Right to give divorce by husband can be taken away from him.
(b) Mahar can be fixed in accordance with individual capacity.
(c) Minor can enter into a contract – but he/she is given option to repudiate marriage on attaining majority.
(d) Sufficient number of witnesses is necessary.
(e) Other terms can be stipulated.
(f) Consideration is necessary: Mahar is taken as consideration for consenting for marriage by wife. Thus Mahar (Dower) is absolutely necessary to much so that if Mahar is not paid, wife has a right to refuse her company.
(g) Sound mind is essential condition, as is the case of any ordinary civil contract, for a valid Muslim Marriage.
As is the case of ordinary civil contract that it (contract) must not suffer from any disability or prohibition, Muslim Marriage too requires that it (Muslim Marriage) must suffer from any one of the seven prohibitions.
According to Hindu Law, Marriage is ‘sanskar’ whereas according to Islam, it is Ibadat. According to both, the institution of marriage is ordained by God for protection of society against un-chastity. However, there is popular misconception that no religious significance or social solemnity is attached to Muslim marriage and that it is merely a civil contract. Undoubtedly, Islam does not regard marriage as ‘sanskar’ or ‘sacrament’ however; the Prophet of Islam did describe Nikah (marriage) as his Sunnat.
The requirements of Law must be distinguished from the ceremonies of marriage which can be performed by individuals. Kazi/Quazis are mere keepers of marriage register and they have no role to play according to strict requirements of law. It is a mistake to suppose that Kazi/Quazi joins the couple in marriage.
In its social aspect, three important factors must be remembered: (1) Islamic law definitely gives the woman a high social status after marriage. (2) Restrictions are placed upon the unlimited Polygamy (Polygyny) of Pre-Islamic times, and instead of limitless number of wives, a controlled Polygamy (Polygyny) is allowed. (3) The Prophet, both, by example and percept, encouraged the status of marriage. He positively enjoined marriage to all those who could afford it. He asked people to see their brides before marrying them and taught that nobility of character is the best reason for marrying a woman.