THEORY OF MARRIAGE
(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.
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.
of a valid Muslims marriage:
following conditions should be satisfied for a valid
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
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
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.
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.
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.
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.
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.