MUSLIMS THEORY OF MARRIAGE

Nikah (marriage) according to the Muslims is a civil contract and no religious ceremony is necessary to bring about this relationship. What is necessary is the agreement between the parties arising out of proposal and its acceptance. Contractual capacity for purposes of marriage is governed not by the Indian Majority Act, 1875 but by Muslims law itself, which confers contractual capacity on attainment of puberty. It is presumed that on completion of 15 years of age, a person attains puberty. If a person is of sound mind and has attained puberty his/her marriage cannot be performed without his/her) consent.

Dower (Mehar) :

The contractual character of the Muslims marriage is also emphasized by the presence of Dower as an essential incident of a marriage. Dower is defined as the sum of money or property which wife receives from the husband in consideration of the marriage. It is not strictly speaking "consideration" in the sense of a "quid pro quo" contemplated by the Indian Contract Act. In fact it can be fixed even after the marriage. Dower agreed to as part of the marriage is called as "specified dower." Even if the marriage contract provides that no dower is to be paid, 'proper' dower would still be payable. Talak: A marriage under the Muslims law can be unilaterally put an end to by the husband by pronounving talak (divorce). He can delegate this power to a third person or even to his wife so that she can by the exercise of this delegated power put an end to the marriage. The husband and the wife may by mutual agreement also put an end to the marriage.

Essentials of a valid Muslims marriage:

The following conditions should be satisfied for a valid (Sahih) marriage.

Capacity to marry:

• The parties should have attained the age of puberty or the marriage contract should be entered into by the guardian in marriage on behalf of the party concerned.
• The parties should be of sound mind. Otherwise the guardian in marriage should act on behalf of the person of unsound mind in arranging the marriage contract. Form of Marriage: There should be a proposal and its acceptance at one meeting. According to Shias witnesses are necessary but according to Sunnis at least two male witnesses or one male and two female witnesses are necessary. The witnesses have to be sane and adults and the absence of witnesses can only render the marriage as irregular and not void.

Prohibited Relationships: The parties should not be within the prohibited degrees of relationship and the presence of any such forbidden relationship is an impediment to marriage.

On ground of blood relationship i.e. consanguinity, the following relationships are not suitable for marriage and make the marriage void:

• Mother and son.
• Grandmother and Grandson.
• Brother and Sister.
• Uncle and niece.
• Nephew and aunt.

Fasid (irregular) Marriages: The marriage will be considered irregular with the following disqualifications from the bridegroom's side.

• He already has 4 wives which is the maximum number of wives a Muslims can have at a time.
• He already has a wife who is related to the bride as sister or aunt or niece. Two women thus related should not be wives of a Muslims at a time. A shia can marry his wife's aunt but cannot marry his wife's niece.

Following disqualifications apply to the bride's side for a marriage to be irregular.

She is undergoing iddat. A widow has to remain in seclusion for 4 months and 10 days from the death of her husband. If she is pregnant at the time of her husband's death then iddat lasts till delivery. A divorced woman whose marriage has been consummated should observe seclusion for three lunar months and if she is subject to menstruation, the period is three menstrual courses.

Effect of Difference of Religion:

A sunni Muslim may validly marry even a non-Muslims Kitabia (e.g. Christian woman or jew and a Shia Muslim may do so provided the marriage is mutta (temporary) marriage. A Muslim male cannot validly marry a non-Kitabia (e.g. an idolatress such as a Hindu woman). Among Shias such a marriage is void whereas the Sunnis take a more lenient view and regard it as irregular marriage. The woman may at any time embrace Islam and cure this irregularity.