Nature of Muslim marriage Under Muslim Law
Definition of marriage or (Nikah)
The Arabic word Nikah (marriage) literally means the union of the sexes and in law there are various sources and texts under Muslim law which defines the Nature of Marriage.
Under section 2 of Muslim Women (Protection Of Rights On Divorce Act 1986)– Marriage or Nikah among Muslim is a “Solemn Pact” or “Mithaq-e-ghalid” between a man and a woman, soliciting each other life companionship which in law takes the form of a contract.
According to, A. A. Fyzee , “It is a contract for the legalization of intercourse and the procreation of children”(A. A. Fyzee is an Indian educator, jurist, author, diplomat, and Islamic scholar who is considered one of leading pioneers of modern Ismaili studies)
Ameer Ali: “Marriage is an institution ordained for the protection of society, and in order that human beings may guard themselves from foulness and unchastity.”
Marriage among Muhammadans is not a sacrament, but purely a civil contract. Through it is solemnised generally with recitation of certain verses from the Koran, yet the Muhammadan Law does not positively prescribe any service peculiar to the occasion.
That it is a civil contract is manifest from the various ways and circumstances in and under which marriages are contracted or presumed to have been contracted.
And though a civil contract, it is not positively prescribed to be reduced to writing, but the validity and operation of the whole are made to depend upon the declaration or proposal of the one, and the acceptance or consent of the other of the contracting parties, or of their natural and legal guardians before competent and sufficient witnesses; as also upon the restrictions imposed, and certain of the conditions required to be abided by according to the peculiarity of the case.
Dower, under the Muhammadan Law, is a sum of money or other property promised by the husband to be paid or delivered to the wife in consideration of the marriage.
Muslim marriage is an ibadat (devotional act). Furthermore, Muslim marriage is not merely a civil contract, because. –
- unlike civil contracts, it cannot be made contingent on a future event; and
- unlike civil contracts, it cannot be for a limited time (Muta marriage is an exception and not a rule).
Though both parties of the marriage are required to be accompanied by their respective parents relations or acquaintances. The verification as to existence of free consent. Particularly from the bride by the Kazi, independently, assumes significance. In view of the fact that the marriage under Muslim Law is more a contract, than a ceremony.
It is the duty of the Kazi to ensure that there does not exist. Any surviving marriage with the bride. And the bridegroom does not have more wives than three at the time of the proposed marriage. Once satisfied about the above conditions, he has no option but to perform the rituals of marriage.
- at law marriage is a civil contract,
- at religion it is not a sacramental performance,
- at social custom marriage is the imbibed with some religious traits.
Formalities of a valid marriag
The following conditions are necessary for a valid marriage:
- Offer on the part of one party to the marriage.
- Acceptance by the other party.
- Presence of two witnesses where the parties are Hanafis; no witnesses requires if parties are Shias.
- The words with which the marriage is contracted, must be clear and unambiguous.
- The proposal and acceptance must both be expresses in one and the same meeting.
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