All systems of law legalize – sexual relationship between man and woman but prescribe a procedure for the same and there is only one term to denote such a procedure to legalize sex relationship between man and woman. For example, English Law has only one term ‘Marriage’ to denote the procedure of legalization of sex relationship. But the Muslim Law has coined two terms, Nikah and Muta.
If intention of parties is to have permanent arrangement, it is referred to as Nikah and if intention is to have temporary arrangement, it is referred to as Muta. In other words, under Muslim Law, a marriage is either ‘Nikah’ or ‘Muta.’ If the marriage is preceded with the intention that the marriage is for a life-long period or if it is the permanent form of marriage, it is called as ‘Nikah’. But if the marriage is not preceded with the intention of life-long period but for a shorter duration or for a particular duration (duration may be specified or unspecified) it is called as ‘Muta.’
NIKAH- PERMANENT FORM OF MARRIAGE
A marriage may either be (A) Valid (Sahih) or (B) Void (Batil) or (C) Irregular (Fasid). A marriage which conforms in all respect with the law, it is termed as Valid, Sahih or Correct. For a valid marriage, it is necessary that there is no prohibition affecting the parties or it should not be void or even irregular marriage. There are seven prohibitions to mary any person of the opposite sex. Some of them are temporary whereas some of them are permanent or perpetual. If prohibition is perpetual or permanent, marriage is void. A void marriage is an unlawful connection which produces no mutual right and obligations between the parties. Such marriages are considered as totally non-existing in fact as well as in law. If the prohibition is temporary, marriage is irregular.
B. Sahih or valid Marriage
Every Muslim of sound mind who has attained the majority can enter into a contract of marriage. Maority is attained at puberty. Presumption is that earliest period, for a boy is 12 years and for a girl 9 years. However, under Islamic law, the majority age can be taken 15 years, under the provisions of the Indian majority Act, it is 18 years. The marriage of minors can be contracted through Guardians. If a Muslim minor is married during minority, the minor has the right to repudiate such marriage on majority. This is called Khair-ul-Balgh which means Option of Puberty.
(b) Khair-ul-Balgh – Option of Puberty
An option of puberty can be exercised if wife proves that:
1. She was given in marriage by her father or guardian.
2. The marriage took place before she attained the age of 15.
3. She repudiated her marriage before she attained the age of 18 and
4. The marriage has not been consummated. Consummation of marriage before the age of puberty does not deprive the wife of her option.
The right of repudiation is lost:
1. On consummation of marriage. However, if wife is ignorant of her right, mere consummation need not debar her from repudiating her marriage.
2. The right is lost if, on attaining puberty, she does not repudiate the marriage within a reasonable time. By Statue, Dissolution of Muslim Marriage Act, the wife must exercise the option at the time of attaining the age of 18.
The mere exercise of option to repudiate does not serve the marital tie. The repudiation must be confirmed by a Court; until that time, the marriage subsists, and if one of the spouses dies, the other has the right to inherit from him or her. According to Madhya Pradesh High Court, wife can also set up as a valid defence in the suit of husband for restitution and it is not necessary that option can be exercised only in the substantive suit.
For a valid marriage, it is necessary that there is no prohibition affecting the parties. There are seven disabilities or prohibitions to marry any person of the opposite sex. Those are (1) Number (2) Religion (3) relationship (consanguinity of affinity) (4) Fosterage (5) Unlawful conjunction (6) Iddat and (7) Miscellaneous prohibitions.
A Muslim man marries not exceeding four wives at a time. However, a Muslim woman can marry only one Husband and if she marries another husband, she is liable for bigamy under Section 494 of Indian Penal Code. The offspring of such a marriage is illegitimate and cannot be legitimate and cannot be legitimated by any subsequent acknowledgement.
If a man contracts marriage with fifth wife, such a marriage is not void but an irregular one. Marrying more than one wife is “Polygamy (Polygyny)”; marrying more than one husband is “polyandry” and marrying only one wife is “monogamy.” But marrying after the death of wife or after divorce, the further marriage does not fall in the category of Polygamy (Polygyny) or polyandry but it falls under the category of monogamy. The term “Polygamy (Polygyny)”, necessarily means marriage with more than one wife at a time or in the lifetime of the wife or wives. Islam does not permit unlimited Polygamy (Polygyny) but permits only the limited Polygamy (Polygyny), in the sense that a Muslim can marry not more than four wives at a time.
(i) Polygamy (Polygyny) – a Critique
If one is Muslim, the popular belief is that he must have four living wives! Well, fine. But there were many prophets, civilizations and religions before Islam, which have permitted Polygamy (or rather Polygyny) and, it is not the Islam, which has invented, originated or propagated it. Islam only tolerated it. In common parlance, it is called as Polygamy, however, the correct usage would be ‘Polygyny’. The word Polygamy means more than one spouse whereas the word ‘Polygyny’ means more than one wife.
Quranic Verses on Polygamy (Polygyny) reads thus:
And if you fear that you will not able to do justice to orphan girls then marry such other women as seem good to you, two, three, and four. But if you tear that you will not do justice (between them) then (marry) one only.
And no sin upon you if you offer marriage proposal to such women who have completed their terms (of Iddat) after demise of their husband or you conceal (marriage proposal) in yourself. Allah knows that you will remember marriage promise given by you but do not make a promise to them secretly except that you say something reasonable. And do not proceed to tie the marriage know until the prescribed term (Iddat) is fulfilled.
1. Polygyny is made permissible not the polyandry (more than one husband) or polygamy more than one spouse – by wife is impermissible.
2. But equal treatment to all wives is a condition precedent for the subsequent marriage.
3. Marriage with woman who has completed her Iddat Period is permissible.
4. Man should not (even) give marriage promise to woman undergoing Iddat, however, if marriage is contracted with woman undergoing Iddat then prohibited until the Iddat Period is complete.
5. If marriage is contracted during Iddat Period, consummation of marriage is prohibited until completion of Period of Iddat.
From these commandments in Quran, it is clear that monogamy is the general rule and Polygamy (Polygyny) is only an exception.
Some of the reasons for which Polygamy (Polygyny) can be tolerated can be thus:
(i) Polygamy (Polygyny) is only the remedial ordinance for curing certain maladies persisting in couples (for example, if wife is childless or if she suffers from an incurable disease). As a cure to this malady, Islam has permitted another marriage. But second marriage is permitted only upon conditions that (a) earlier wife is not driven out by divorce from her matrimonial home and (b) she is given “equal treatment” when another woman is taken in marriage. Thus, along with right, there are obligations too.
(ii) If man has developed an interest outside the wedlock, and if he wants to marry his new ‘love’ or the new ‘find’, Islam has permitted another marriage, only as a necessary evil. It is because Islam appears to be deadly against (i) maintaining illicit relation and (ii) throwing off a woman from her matrimonial home for no fault on her part. Again the man is strictly advised to give ‘equal treatment’ to all his women taken in marriage.
(iii) Islam could not agree upon giving ignoble status of “keep” and has agreed upon lesser evil of another marriage thereby raising the social status (to that of “wifehood”) of another woman who has agreed to keep relationship with a married man.
(iv) Society is saved from the ‘love child’ and the illegitimate ones.
There are indeed more reasons than the above but no reasons, however lofty, can justify the rampant misuse of the provision of Polygamy (Polygyny). How does one come out of the misuse? It is, indeed, necessary to educate the Muslims first. It is, however, not possible unless Muslim leaders take up the Herculean task upon themselves. The second remedy appears to be the helping hand by Courts. In this connection, it will be said that Courts in appropriate cases must assert its authority and compel litigants to confine their rights within the Quranic Injunctions inasmuch as there cannot be all “rights” and no “obligations” at all.
The “rights” and “obligations” go hand in hand. Therefore, there cannot be only the right of Polygamy (Polygyny) without the obligation of “equal treatment.” But who will secure compliance of this obligation appurtenant to Polygamy (Polygyny)? Therefore, Courts must exercise its authority in such cases. Third remedy is that our legislatures also must assert their authority and codify the law so that rampant misuses and abuse of Polygamy (Polygyny) is immediately arrested.
Difference of Religion:
As regard the difference in religion, under the Hanafi Law, a man can marry any Kitabia Woman but a woman cannot marry anyone except a Muslim. It is necessary to explain the terms Kitabi and Kitabia. A Kitabi is a man believing in a revealed religion possessing a Divine Book. Jews and Christians have a revealed book. A question arose before the Privy Council whether a Buddhist can be regarded as a Kitabi/Kitabia but the Court, on the fact of the case did not decide the issue and kept in open. In plain words, a Muslim cannot marry an idolatress or a fire-worshipper. According to Quranic Injunction a Muslim woman cannot even marry a kitabia man.
The rule as to difference of religion or Apostasy was based on the principle of safety. Infidelity implied hostility to Islamic commonwealth. However, the Mughal Emperors of India frequently intermarried with Rajput, Maratha and several women of other community and the children of such unions were regarded as legitimate and they even succeeded to the imperial throne.
It was preceded on the footing that such a marriage, being on the basis of political safety, was merely an irregular one and hence broad interpretation was given to the Quranic scripts. But now we have the provisions of Special Marriages Act, 1954 under which a Muslim can marry a non-Muslim without changing the religion. As for difference of schools, it may be noted that under Shia Law, whether kitabi/kitabia or not, in the permanent form of marriage. However, a Shia can contract temporary (Muta) form of marriage. But now, as aforesaid, marriages can be contracted under the provisions of the Special Marriages Act, if parties so choose.
Muslims belonging to different schools such as Shiite, Sunni, Hanafi, Shafi, etc. can freely inter-marry and there is any rule as is in the case of different religion. If both spouses belong to different school, even after marriage, each spouse retains his or her own school.
A man is prohibited from marrying (1) his mother, grandmother how-high-so-ever, (2) his daughter or granddaughter- how-low-so-ever (3) his sister whether full, consanguine or uterine (4) his niece or great niece how-low-so-ever, paternal or maternal. A marriage in contravention of this rule is totally void and issues illegitimate.
A man is prohibited from marrying (1) Ascendants or Descendants of his wife and (2) the wife of an ascendant or descendant. A marriage prohibited on this ground is generally declared to be void.
A man may not marry his foster mother or her daughter of foster sister. A marriage forbidden by this rule is void.
5. Unlawful Conjunction
A man is also forbidden to have, at a time two wives who are so related to each other that they could not have inter-married if they would have been of different sexes: say two sisters, aunt and niece. There is nothing to prevent a man from marrying his wife’s sister after the death or divorce of his wife. Prohibition is only during the subsistence of marriage and life time of the wife. The marriage in contravention of this rule, according to earlier view is void. However, Bombay High Court has taken a view that it is merely irregular and hence children are legitimate. It is in fact, now a settled law in India that marriage in disregard of the prohibition is irregular and not void.
When a marriage is dissolved either by death or divorce, in the interest of certainty of paternity, the woman is prohibited from marrying again within a specified time and she is suppose to live a life of seclusion and abstain from sexual intercourse. This period is called as Iddat.
The Quranic Verses on Iddat are as under:
And divorced women shall wait concerning themselves [for] three menstrual periods. And it is not lawful to them to conceal as to what is crated [by] Allah in their wombs, if they believe in Allah and the Last Day. And their husbands have better right to take them back in that period if they intended reconciliation.
And as to your women, who have no hope of menstruation, if you are in doubt, then their prescribed period is three months and for those who have not yet menstruated and the period [for] the pregnant women is when they give birth to children.
Those who of you who die and leave wives they shall wait with regard to themselves for four months and ten days and when they reach their waiting term, then no sin on you in what they do concerning themselves.
O believers, when you marry Muslim women, then divorce them before touching them. In that case, you have no period of waiting which you may count against them, so give benefit to them and leave them in a noble manner.
O Prophet, when you people intend to divorce your women then divorce them at the time of their prescribed periods and count the prescribed period, and fear Allah, your Lord. Turn them out not out of their houses during prescribed period, nor should they themselves go out, unless they become openly guilty of immoral conduct.
Make the women to dwell where you yourselves dwell according to your means, and do not harm them so as to straighten them. And if they are pregnant then give them the maintenance till they give birth to children.
The Muslim Scholar, (incidentally his name is also Muslim) on Hadis (traditions of Prophet of Islam) has stated in his book to affect that:
1. Period of Iddat is three menstrual periods or 3 months.
2. Iddat Period for the Pregnant Women is until the delivery. It means that if delivery is earlier, Iddat ends that and it is not necessary for her to wait for the whole prescribed period of Iddat.
3. Husband has a right to take her back during this time although Divorce has become final conclusive yet, it is permissible to take wife back without intervening marriage.
4. In case, Husband dies, the Period of Iddat is extended for four months and ten days.
5. In case, marriage is not consummated, Iddat is not prescribed.
(i) Valid Retirement – Al-Khalwat-us-Sahi
In certain cases, valid retirement has the same legal effect as consummation of marriage. When the husband and wife are alone together under certain circumstances, which present no legal, moral or physical impediment to marital intercourse, they are said to be in ‘valid retirement’ or al-Khalwat-us-Sahi.
There are four conditions for valid retirement. Those are:
(1) There must be actual privacy; there must not be any, (2) physical (3) moral or (4) legal bar. Valid Retirement is treated to have the same legal effects as that of consummation which are as follows:
1. Mahar becomes incumbent/due and payable.
2. Paternity is established if child is born.
3. Iddat has to be observed.
4. Bar of marriage with wife’s sister comes into operation.
5. Maintenance of wife becomes legal obligation.
6. Bar of marrying fifth wife comes into operation.
7. Miscellaneous Prohibitions
There are four miscellaneous prohibitions which are as follows:
(a) Rule of Equality.
(b) Illicit Relationship – Undue familiarity
(a) Rule of Equality
In order to prevent ‘run away’ marriages, a worldly rule of prudence is accepted under Islamic Law and as a result, a woman is prohibited to marry her servant. The disregard of rule of equality does not render marriage void initio. However, in present day, how far this rule would have its force and applicability need not be explained.
(b) Illicit Relationship or undue familiarity
If a person has illicit relations, he is prohibited from marrying her certain relations.
In Ithna Ashari and Shias, marriage while on pilgrimage is prohibited.
During the Iddat Period, wife is prohibited from contracting any marriage. However, after Iddat, she is free to remarry. But if she desires to remarry with the same husband, there is misconception that she has to undergo an intervening marriage, colloquially, called as HALALA.
C. Fasid or Irregular marriage
The irregular (Fasid) marriage creates a flimsy tie giving very few rights but as regards the issue, they are given full legal status. It was said by the Privy Council in a case dealing with a Chinese conjugal union that “a court may do well to recollect that it is a possible jural conception that a child may be legitimate though its parents were not and could not be legitimately married.”
A Fasid marriage may be terminated by either party at any time; neither divorce nor the intervention of a court is necessary. One of them may say I have relinquished you” and the unholy alliance ends. If there has been consummation, the wife is entitled to dower (Mahar), proper or specified, whichever is lesser and she must observe Iddat for three courses. While between the wife and husband no right of inheritance is created, the issues are entitled to share of inheritance. The following marriages have been considered to be irregular under the Muslim Law:
i. Marriage without witnesses.
ii. Marriage with woman undergoing Iddat.
iii. Marriage prohibited by reason on difference of religion.
iv. Marriage in contravention of rules of unlawful conjunction.
v. Marriage with two sisters during the life time of the other.
vi. Marriage with Fifth wife.
D. Batil or Void Marriages
As aforesaid, there are seven prohibitions to marry any person of the opposite sex. Some of them are temporary whereas some of them are permanent or perpetual. If prohibition is perpetual or permanent, marriage is void. A void marriage is an unlawful connection and no mutual rights of inheritance between the parties arise and also children get any right of inheritance. Children cannot be even “acknowledged” as children are illegitimate.
Such marriages are considered as totally non-existing in fact as well as in law. Marriage being void, no question of separation arises. As a matter of law, either party can remarry without Talaq; however, rule of prudence would require that parties obtain a Decree of Nullity from the competent Court of Law so as to avoid future confusions and disputes. Marriage becomes void (a) on account of relationship – marrying with mother or daughter or foster sister etc. or (b) when man marries the wife of another man, (c) when Marriage contracted without the requisite Consent or (d) when Marriage is repudiated under Khairul Bulgh.
7. MUTA – TEMPORARY FORM OF MARRIAGE
The terminology ‘Muta’ is used when parties (bridegroom and bride) intent to enter into a temporary nature of their marital union – in which case – period of temporary union may be either specified or unspecified. When period is unspecified and during the subsistence of Muta (marriage), if one of the parties (bridegroom or bride) dies then also the character of marital relationship remains unaffected. Muta remains Muta.
It does not get converted into Nikah just because the relationship lasted for life long. On the other hand, when the marriage is for a lifelong period and for one reason marriage breaks down by Talaq or Divorce, the broken marriage will be called as Nikah and it is never transformed into Muta just because the marriage did not last even for a day. The determining factor to ascertain as to whether it is Nikah or Muta is to ascertain the intention of the parties (bridegroom) at the time of entering into a Contract of marital relationship.
If the intention is for a temporary marriage, it is called as Muta but if the intention is for a permanent marriage it is called as Nikah. It may so happen that Nikah may end up immediately after solemnizing the marriage while Muta may continue lifelong! Nevertheless, the criteria and determining factor always remains the intention of the parties’ (bride-bridegroom) at the time of marriage and nothing else.
Indeed, Muta is an exception to the general rule of Nikah. Among Arabs, Nikah – Marriage is a wide term, comprising many different forms of sex relationship but in Islam it is a contract for the legalization of sex relation in and procreation of children. In a leading case Mahmood J. observes: “Marriage among Mohammedans is not a sacrament, but purely a civil contract and though solemnized generally with recitation of certain verses from the Quran, yet the Muslim Law does not positively prescribe any service peculiar to the occasion.”
The word Muta literally means ‘enjoyment’, ‘use.’ In its legal context, it means marriage for pleasure for a fixed period for which a certain reward is paid to the woman. The institution of muta marriage was fairly common before the after Prophet. It seems fairly certain that it was tolerated by the Prophet for sometime but all schools of law except Ishna Ashari agree that the Prophet of Islam finally had declared such marriages unlawful. In Lucknow and other places in India where there is Shia (Ishna Ashari) population, ladies of the better classes do not contract Muta marriages. The custom of Muta was justified as being useful in times of war and travels but it is well to remember that it is forbidden by all schools except by the Ishna Ashari Shias.
There must be a proper contract i.e., Offer and Acceptance are necessary.
A man may contract a Muta with a Muslim, Jew, Christian or a fire worshipping woman but not with the follower of any other religion. But a Shia woman may not contract a Muta with a non-Muslim. Relations prohibited by reason of affinity are also unlawful in Muta. A man may contract any number of women and the prohibition of four wives at a time does not apply to Muta marriages.
The period of existence of marriage must be specified at the time of marriage. It may be one day, one month, one year or a term of years or else for a life time. It was, inter alia, laid down that where specification of period is omitted, intentionally or inadvertently, a permanent marriage (NIKAH) will be presumed because where the period is for life, Nikah marriage will result. With respect, it may be submitted that the view taken in this case does not appear to be correct. The mere omission of a period may result in a valid Muta for life but to equate the Muta with Nikah is a serious step, which inter alia, fails to take into consideration the question of intention.
A Muta stands terminated on the expiry of period and Divorce (Talaq) is not necessary. During the period, the husband has no right of divorce but he may make a ‘gift of the term’ (hiba-i-muddat) and thereby terminate the contract without the wife’s consent.
Mahar is a necessary condition of such a union. Where the marriage is consummated, the wife is entitled to the whole amount and if not consummated, half of the amount of Dower. A short period of Iddat of two courses is prescribed if – marriage is consummated. If there is stipulation of inheritance, in the muta agreement, husband or wife would inherit but not otherwise. The term ‘wife’ is not used for a woman marrying under Muta. She is not entitled for the maintenance under the strict Islamic Law.
8. KABIN NAMA (MARRIAGE DEED)
An agreement between man and woman designed to regulate marital relations is favoured by the law, as being in consonance with the Prophet’s injunctions. Such an agreement may be made either at the time of marriage or thereafter. It is called as Kabin Nama or Marriage Deed. The Courts will enforce it if it is not contrary to the provisions or the Policy of Law. As the husband has a right in general to control the actions of wife, the wife can make safeguarding her right to stay freely wherever she likes and with guarantee of regular payments to her.
In Kabin Nama, wife can ask the husband to give over his right to divorce to someone else and/or not to marry again with any other woman during subsistence of the marriage. In this way she can protect her interest very well.
Wife can also ensure regular payments for her day-to-day expenses. Such expenses are termed as ‘pandan kharchi’ or ‘kharchi-e-pandan’ or ‘Meva khori’ or ‘Guzara.’ In English system, ‘pin money’ is meant for personal expenses of the wife. The ‘pin money’ is described as a fund which wife may be made to spend at the instance of and at the advice of her husband. No such obligation exists with regard to pandan kharchi and the husband has no control over the allowance.
A father agreed at the time of marriage of his minor son (wife also minor) that he would pay the sum of Rs. 500/- per month in perpetuity to his son’s wife. The payments were to be made from the date of ‘reception’ of the wife in her conjugal home. Later, on account of differences, she left the conjugal home and sued for the amount due to her. It was held that she was entitled to recover the whole amount notwithstanding the fact that she was not a party to the agreement.
She was clearly entitled in equity to enforce her claim. Further, since there were no conditions attached to the payments, it was quite immaterial whether she stayed with her husband or not. The only condition which was stipulated was that there was a ‘reception’ and if that was proved, her claim cannot be resisted.
Consequences of Breach
The breach of a valid condition in a marriage agreement does not necessarily give the wife a right to have the marriage dissolved. As a result of breach in the marriage agreement (1) wife may refuse her company and/or the restitution may be refused (2) certain right as to the Dower may arise (3) wife may have the right to divorce herself if such right flows from agreement and (4) in extreme cases marriage itself may be dissolved, ipso facto.