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Every Muslim of sound mind who has attained puberty, may enter into a contract of marriage. Puberty means the age at which a person becomes adult (capable of performing sexual intercourse and procreation of children). A person is presumed to have attained the age of puberty on the completion of 15 years. So the boy and girl who has attained puberty can validly contract a marriage .A marriage under Muslim law is perfectly valid if the parties have attained puberty and satisfied all other conditions specified by the law.
According to the child marriage restraint act 1929, a marriage of male below 21years of age and female below 18 years of age is child marriage. The act prohibits such marriage. The Act prescribes that for a valid marriage the minimum age for male is 21 and female is 18. The parties who are violating the provisions of Child Marriage Restraint Act are liable to be punished. Thus if two Muslims marry before attaining the age prescribed under the child marriage restraint Act they are liable to be punished. However the marriage between two Muslims who have attained puberty is valid though they have violated the provisions of Child Marriage Restraint Act.
2. Proposal and Acceptance
Under the Muslim law for the validity of a marriage there must be a proposal and acceptance at the same meeting. The proposal and acceptance must both be expressed at one meeting; a proposal made at one meeting and acceptance made at another meeting does not make a valid Muslim marriage. Neither writing nor any religious ceremony is essential.
Under the Sunni law, the proposal and acceptance must be made in the presence of two male Muslims who are of sound mind and have attained puberty or one male and two female witnesses who are sane, adult and Muslim. Absence of witnesses does not render marriage void but make it void able.
Under the Shia law witnesses are not necessary at the time of marriage.
The proposal and acceptance need not be made in writing. Where the offer and acceptance are reduced into
writing,the document is called ‘Nikah nama or Kabin-nama.
The proposal made by or on behalf of one of the parties to the marriage, and an acceptance of the proposal by or on behalf of female witnesses, who must be sane and adult Muslim.
3. Free consent
Free consent of the parties is absolutely necessary for a valid marriage .If there is no free consent a Muslim marriage is void. Under the Muslim Law, a marriage of a Mohammedan who is of sound mind and has attained puberty is void; if it is brought about without his consent The marriage of a girl who has attained puberty and is of sound mind would be void if her consent is not obtained. When the consent to the marriage has been obtained by force or fraud, the marriage will be invalid, unless it is ratified. When a marriage was consummated against the will of the women, the marriage is void. The person who has been defrauded can repudiate the marriage.
Lunatics and minors who has not attained puberty may be validly contracted by their respective guardians. A minor is incompetent to give valid consent. The right to contract a minor in marriage belongs successively to the following persons:
i) Father
ii) Paternal Grand Father (h.h.s-How high soever)
iii) Brother and other male relations on the fathers side
iv) Mother
v) The maternal uncle or aunt and other maternal relations.
Under the Shia law only the father and the paternal grand father are recognized as guardian for contracting marriage of a minor.
If a minor, whether male or female, be contracted in marriage by a remoter guardian, while a nearer guardian is present and available and such nearer guardian does not give consent to the marriage, the marriage is void. But if the parties ratify it after attaining puberty, it will be valid.However if the nearer guardian be absent at such a distance as precludes him from acting, the marriage contracted by the remoter is also lawful.
Khair-ul-Balgh (Option of Puberty)
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When a minor has been contracted in marriage by the father or father’s father,the contract of marriage is valid and binding and it cannot be annulled by the minor on attaining puberty. But if a marriage is contracted for a minor by any guardian other than the father or father’s father, the minor has the right to repudiate such marriage on majority. This right is called Khair-ul-Balgh which means Option of Puberty.
When a minor wife’s right of repudiation should be exercised within a reasonable time after attaining puberty and failing which would result in the loss of such right. The right is lost if she after having attained puberty permits the marriage to be consummated .If the consummation was without her consent the right of repudiation will not be lost.
The dissolution of Muslim marriage act 1939 has considerably modified the law of option of puberty. Prior to the Act the marriage is contracted for a minor girl by the father or grand father, the minor has no right to repudiate such marriage on majority. But according to sec2(7) of the act if the marriage is contracted for a minor girl by the father or grand father can also obtain a decree for divorce from the court if the following conditions are satisfied.
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The marriage took place before the age of fifteen years
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She repudiated the marriage before attaining the age of eighteen
years:
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The marriage has not been consummated
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A) Absolute Prohibition
1) Prohibited degrees of relationship
Under the Muslim law marriage between persons who come within the blood relationship, or certain other relationship is prohibited. The prohibited relationships are the following:
(a) Consanguinity : Consanguinity means blood relationship and a prohibits a man from marrying the following females
1. His mother or grandmother (however high so ever)
2. His daughter or granddaughter (how low so ever)
3. His sister whether full blood half blood or uterine blood
4. His niece or great niece (how low so ever)
5. His aunt (father’s sister or mother’s sister)or great aunt (how high so ever)
A marriage with a woman who comes within the relationship of consanguity is absolutely void.Children born out of that wed-lock are illegitimate.
(b) Affinity : A man is prohibited from marrying certain female relatives due to nearness of relationship. A man is prohibited from marrying
1. His wife's mother grandmother (however high so ever)
2. His wife's daughter or granddaughter (how low so ever)
3. His father's wife or paternal grandfather's wife (how high so ever)
4. Wife of one's own son or son's son or daughter's son (how low so ever)
A marriage with a woman comes within the relationship by affinity is void.
(c) Fosterage: It means the milk relationship. When a child is breast-fed/suckled by a woman other than its own mother, she becomes the foster mother of the child. A man is prohibited from marrying certain persons having foster relationship. According to Shia jurists fosterage includes the same limits of relationship prohibitive to marriage as consanguinity. A man may not marry the following females:
1.His foster-mother or grand mother (however high so ever)
2.His foster-sister (daughter of foster mother)
However Sunnis do not follow the same. Under the Sunni law, there are certain exceptions to the general rule of prohibition on the ground of fosterage and a valid marriage may be contracted with:
1.Sister's foster mother, or
2.Foster'-sister’s mother, or
3.Foster-son’s sister, or
4.Foster-brother's sister.
The Shia jurists refuse to recognize the exception permitted by the Sunnis. The above mentioned prohibitions on account of 'consanguinity', 'affinity' or 'Fosterage' are absolute and the marriages contracted in contravention of these rules are void.
2) Polyandry
Polyandry means marrying more than one husband. Polyandry is a form of polygamy in which a woman is having more than one husband at the same time. Under Muslim law Polyandry is prohibited and a married woman cannot marry second time so long as the first marriage subsists and the husband is alive.If a woman violated this prohibition and contracted a second marriage ,the marriage is void and the woman is liable to be punished for bigamy under section 494 of the Indian Penal Code.
B) Relative prohibition
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Under Muslim Law, there are certain prohibitions, which are not absolute but only relative, and marriage in violation of such relative prohibitions will only be irregular and not void and at the moment when the irregularity is removed the prohibition ends and the marriage becomes valid. The following are the relative prohibitions.
1) Unlawful conjunction
A man is prohibited from marrying two wives at the same time if they are related to each other by consanguinity, affinity or fosterage, which they could not have lawfully intermarried with each other if they had been of different sexes. Thus a Muslim cannot marry his wife’s sister while the wife is alive. But he can make the marriage valid by marrying his wife’s sister after the death or divorce of his first wife. Marriage with two such wives is an Unlawful conjunction. Under sunni law a marriage in violation of the rule of unlawful conjunction is not void but only irregular. However under Shia law, a marriage in violation of the rule of unlawful conjunction is void. Under the Shia Law, a Muslim may marry his wife's aunt, but he cannot marry his wife's niece without her permission
2) Marrying a fifth wife (Polygamy)
Muslim law permits polygamy (Marrying more than one wife ) with a restriction of maximum four wives. So a Musalman can have four wives at the same time. If he marries a fifth wife when he has already four, the marriage is not void, but merely irregular. But the fifth marriage can be made valid after the death or divorce of any one of the four wives of his earlier marriages. Under the shia law marriage with the fifth wife is void.
In India no Muslim marrying under or getting his marriage registered under The Special Marriage Act, 1954,can marry a second wife during the lifetime of his spouse.
3) Absence of proper witnesses
A marriage must be contracted within the presence of proper and competent witnesses. Under the Sunni law at least two male or one male and two female witnesses must be present to testify that the contract was properly entered into between the parties. The witnesses must be of sound mind, adult and Muslim. A marriage without witnesses is irregular.
Under the Shia law the presence of witnesses is not necessary. The marriage is contracted by the spouses themselves or their guardians in private are held valid. The absence of witnesses does not render the marriage void but only invalid.
4) Differences of religion (Marriage with non-muslim)
The law with regard to marriage with a non-Muslim is different under Sunni law and Shia law. Under Sunni law a male can marry a Muslim female or a Kitabia (a person who believes in a revealed religion possessing a Divine Book viz Christianity and Judaism). A Sunni muslim male can validly marry a jews or christian female. But he cannot marry an idolatress or a fire-worshiper. A marriage, with an idolatress or a fire worshiper is merely irregular and not void.
A Muslim woman cannot marry a Kitabia /non-Muslim man. A marriage of a Muslim female with a non-Muslim male, whether he is a Christian, or a Jew or an idolator or a Fire-Worshiper is not void but irregular. According to Mulla, a marriage between a Muslim woman and Non-Muslim male is irregular. But according to Fyzee, such a marriage is totally void.
Under Shia Law a marriage with a non-muslim is void. Both the spouses are required to be Muslims. The marriage of Sunni male with a Shia female is void. A marriage of a Muslim female with a non-Muslim male, whether he be a Christian, or a Jew or an idolator or a Fire-Worshiper is void under Shia Law.
In India a marriage between a Muslim and a non-Muslim can only take place under The Special Marriage Act, 1954.If a muslim male marries and registers under the Special Marriage Act, 1954, he cannot marry a second wife during the subsistence of the first marriage.
A marriage of a Muslim female with a non-Muslim male, whether he be a Christian, or a Jew or an idolator or a Fire-Worshiper is void under Shia Law.
5) Marriage during IDDAT
Under Muslim law, a woman who is undergoing iddat is prohibited from marrying during that period. Iddat is the period during which it is incumbent upon a woman, whose marriage has been dissolved by divorce or death of her husband to remain in seculasion, and to abstain from marrying another husband. The purpose behind that is to ascertain whether she is pregnant by earlier husband , so as to avoid confusion of the parentage of the child.
The period of Iddat is prescribed as under:
1.In case termination marriage by divorce- three lunar months or three menstrual courses
2.In case of widow- 4 months and 10 days
3.In case the woman is pregnant - till the delivery
Under Sunni Law a marriage with a woman undergoing Iddat is irregular and not void. Under Shia law a marriage with a woman who is undergoing Iddat is void.
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