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CONCEPT of MARRIAGE UNDER ISLAM CONTENTS Chapter - II Concept of Marriage Under Islam

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CONCEPT of MARRIAGE UNDER ISLAM CONTENTS Chapter - II Concept of Marriage Under Islam Chapter - II CONCEPT OF MARRIAGE UNDER ISLAM CONTENTS Chapter - II Concept of Marriage under Islam Introduction 1. Mairiage A. Meaning and Definitions of the tenn Maixiage (a) Legal aspect (b) Religious aspect (c) Social aspect (d) Ordinaiy contract vis-a-vis Maniage contiact B. Effects of a Valid Marriage C. Mutual Rights and Obligation D. Rights of the Husband and Duties of the Wife E. Rights of the Wife and Duties of the Husband F. Betrothel at the time of birth G. Position under Hindu Law H. Importance of Guardian's consent in the Marriage contract of a Minor I. Selected Hadith J. Positions under various Laws (a) Hanafi Law (b) Maliki Law (c) Hambali Law (d) Shafai Law (e) Shia Law (f) Ismailia Law K. Doctrine of Option of Puberty L. Approach of Hindu Law Conclusion CHAPTER - II CONCEPT OF MARRIAGE UNDER ISLAM Introduction : Marriage is an institution which legalizes the sexual relations between man and woman so as to preserve the human species, the growth of descent, promotion of love and union between the parties and the mutual help to earn livelihood'. It is allowed between two persons of different sex to whose mutual cohabitation there is no natural or legal bar or prohibition. Marriage, whether considered as a sacrament or as a contract, apart from giving rise to certain mutual rights and obligations, confers the status of husband and wife on the parties, and of legitimacy on the children of marriage.^ The most remarkable feature of Muslim jurisprudence is that the Muslims considered marriage a civil contract even at the beginning of the development of their juristic thought but to the extent in which the Hindus and Christians call their marriage as sacrament, a permanent union, the Muslim marriage too may be called an ibadat (devotional act)^ The Muslim conception of marriage differs from the Hindu conception according to which marriage is not a mere civil contract but a sacrament. According to Fitzgerald, marriage is emphatically not a sacrament although a religious duty. There are no sacrament in Islam, not is it a coverture"*. Sachact observed "Marriage (Nikah; Zawi, the husband; zawafa, the wife) is a contract of civil law, and it shows trace of having developed out of the purchase of the birde; the bridegroom concludes the contract with 69 the legal guardian (wali) of the bride, and he undertakes to pay the nupital gift (mahr sadak) or dower not to the wali as was customary in the pre-Islamic period, but to the wife herself.^ Wilson defines Muslim Marriage as "a contract for the purpose of legalizing sexual intercourse and the procreation of children.^ Krishna Iyer, J., concurs with the view by observing" The impression that a Muslim marriage is mere contract and not, therefore sufficiently solemn or sacred, is a another fallacy of the Hindu and western thought.^ 1. MARRIAGE The exclusiveness of the Muslim marriage and divorce rules has made an interesting topic for discussions among legal luminaries and among the social scientists. Some of the characteristics of Muslim marriage are unlike those of the Hindu Marriage. A Muslim marriage or Nikah as it is called in Arabic, has fixed and rigid rules which had been laid down by the Prophet (SAW). Inspite of Prophet's (SAW) preaching of equality, selection of spouse is restricted within one's religious sects, the Sunnis and Shias. At present there is problem among Muslims, parents due to conservative nature not taking consent of the girl while fixing her marriage. Though Quran and hadith provide her to choose her husband according to her own wishes. Where the consent of the girl is lacking and where she has been waived her right and parents forcefully caused greater amount of misery and hardship to the party concerned and this reflects a sordid impression of the Islamic legal system on the society at large. In this chapter such type of problems 70 prompted researcher to undertake the study of relevant Quranic provisions and hadith to know about the true nature of Muslim Marriage. Marriage is the foundation of social life as it is the effective cause of the human family and social relationship. Mutual consent is the foundation stone of the marriage relationship. A. Meaning and Definitions of the term Marriage The etymological meaning of the term Marriage^. According to dictionary of Islam is as: "The celebration of the marriage contract (Urs), Persian (Shadi), marriage is enjoined upon every Muslim, and celibacy is frequently condemned by Mohammed and "Nikah" is defined as : "A word which, in its literal sense signifies conjunctions, but which is in the language of law implies the marriage contract"^. Other definitions : According to Tayyab Ji : "Marriage brings about a relation based on and arising from a permanent contract for intercours,e and procreation of children, between a man and woman, those are after being married, become husband and wife".'® Dr. Jung is of opinion that : "Marriage though essentially a contract is also a devotional act; its object are right of enjoyment and procreation of children and 71 regulation of social life in the interest of society.'' Similary in view of Abdur Rahim: "The Mohammadan jurists regard the institution of marriage as partaking both of the nature of ibadat or devotional act and in Muamalat or dealings among men".'^ Essentials of Marriage : 1. Offer (Ijab) and acceptance (Qubul) 2. Competent parties 3. No legal disability According to Muslim law, it is absolutely necessary that man or someone on his behalf and the woman or someone on her behalf should agree in the marriage at one meeting and the agreement should be witnessed by two adult witnesses. As women is in pardah, it is customary to sent a relation of the woman to her inside the house accompanied by two witnesses. The relation asks the girl within the hearing of the witnesses whether she authorizes him to agree to the marriage on her behalf for the dower money offered by the husband. If she says yes or signifies her assent or expresses consent by some other method, then this matter goes' to Qazi and Qazi reads some portion of the Quran and in his way marriage is completed.'^ The courts in India while discussing the nature of Muslim marriage have highlighted legal and religious aspects also. If we look on aspects of marriage, briefly, marriage under Islam is not only a social need it also covers the other aspects e.g. legal and religious. The Quran and Hadith have been accepted as the basis of religion and law. Islami 72 law lays down the principles of belief, act of worship as basic tenets of Islamic mission, family organization and transactions. Juristically, under Islamic law marriage is purely a contract. For the validity of Muslim marriage under Islamic law depends upon two conditions; firstly, on the capacity of the parties to marry each other and secondly, on the celebration of marriage according to form prescribed in the places where the marriage is celebrated, or which are recognised as legal by the customary law of Mussallmans. (a) Legal Aspect : Juristically speaking marriage is a contract and not a sacrament. The judgement given by justice Mahmood, the first Indian judge of the Allahabad High Court in Abdul Kadir Vs. Salima''', is one of those classic pronouncements which has acquired so great reputation that even its obiter dicta carries the legal sanctity of ratio- decidendi. Two divergent opinions come out of those two decisions regarding this issue. The first one regards a Muslim marriage as purely a civil contract and not a sacrament, while the later one considers the marriage in Muslim law, as not only a civil contract but also as a religious sacrament. To examine the reasonableness of these two observations, vis-a-vis the real nature of marriage among Muslims, we will discuss here the nature of marriage as a whole. (i) The central idea in the family law of the Muslims is the institution of nikah or marriage. It was made possible only, by the strict enforcement by Islam, the institution of marriage in social life 73 that the tribal system was effectively changed into the family system."' The development of the institution of marriage is a matter of historical interest. It seems to have originated in the form of irregular unions and marital conjunctions. Marriage by capture was the ancient form of securing a wife, ultimately it gave way to the elopement with consent sort of a compromise with the real capture. The institution of marriage by purchase gradually grew up, and thus the notion of acquisition of a wife as property, paved the way for marriage by consent, subject to dower. That is why Dr. Jung has observed that several authors of Anglo-Muhammadan Law, apparently under the influence of the modern conception of marriage, or perhaps by reason of singular characteristic of the Muslim Matrimonial law, have defined it simply as a civil contract.^^ As Justice Mahmood in Abdul Qadir's^^ case adopted the opinion of S.C. Sarkar in Tagore Law Lectures (1873) and quoted as follows : "Marriage among Muhammadans is not a sacrament but purely a civil contract, and though 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".'^ Mahmood J., supports his view from the text of Kanz, the Kifayah and Inayah which says that marriage is a contract which has for its object the right of enjoyment or procreation of children. But 74 it was also instituted for the solace of life and is one of the prime or original necessities of man...
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