Essentials and kinds of probation of a valid Marriage
1. Definition of Marriage
Marriage can be defined as “a civil contract between two persons of opposite sex which has for
its object the procreation and the legalizing of children”. Marriage, according to Islamic Law, is
not a sacrament.
2. Capacity for Marriage
i. Every Muslim of sound mind, who has attained puberty, may enter into a contract of marriage.
ii. Lunatics and minors who have not attained puberty may be validly contracted in marriage by
their respective guardians.
iii. The marriage of a Muslim, who is of sound mind and has attained puberty, is void, if it is
brought about without his consent.
3. Essentials of a valid Marriage
It is essential to the validity of a marriage that there should be 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 the
other, in the presence and hearing of two make or one make and two female witnesses, who
must be sane and adult Muslims. The proposal and acceptance must both be expressed at one
meeting. A proposal made at one meeting and an acceptance made at another meeting does
not constitute a valid marriage. Neither writing nor any religious ceremony is essential.
A Muslim male may have as many as four wives at the same time, but no more. If he marries a
fifth wife when he has already four, the marriage is not void, but merely irregular.
It is not lawful for a Muslim woman to have more than one husband at the same time. A
marriage with a woman, who has her husband alive and who has not been divorced by him, is
void.
4. Essentials of Male
A Muslim male may contract a valid marriage not only with a Muslim woman, but also with
a Kitabi, that is a Christian or a Jew. But a marriage with a non-Kitabi is irregular, not valid.
5. Essentials of female
A Muslim woman cannot contract a valid marriage except with a Muslim.
Shia Law: Under Shia Law witnesses are not necessary at the time of marriage. They are
required at the time of the dissolution of marriage.
6. Different Kinds of probation to a valid Marriage
slamic Law prohibits the following three kinds of marriages and the infringement of the rule will
make a marriage void and the offspring of such a union shall be turned as illegitimate.
Prohibition on the ground of consanguinity
A man is prohibited from marrying…
a. His mother or his grandmother how high soever;
b. His daughter or grand-daughter howlowsoever;
c. His sister whether full, consanguine or uterine;
d. His niece or great-niece howlowsoever;
e. His aunt or great-aunt howhighsoever, whether paternal or maternal.
A marriage with a woman prohibited by reasons of consanguinity is void.
Prohibition on the ground of affinity
A man is prohibited from marrying:
a. His wife’s mother or grand-mother howhighsoever;
b. His wife’s daughter or grand-daughter howlosoever;
c. The wife of his father or paternal grand-father howhighsoever;
d. The wife of his son, or his son’s son or daughter’s son howlowsoever.
A marriage with a woman prohibited by reason of affinity is void.
Prohibition on the ground of fosterage
Whoever is prohibited by consanguinity or affinity is prohibited by reason of fosterage except
foster relations, such as sister’s foster-mother, or foster-sister’s mother, or foster-son’s sister, or
foster-brother’s sister, with any of whom a valid marriage may be contracted.
A marriage prohibited by reason of fosterage is void.
Moreover, a man cannot have at the same time two wives who are so related to each other by
consanguinity, affinity or fosterage that if either of them had been a male, they could not have
lawfully inter-married.
The bar of unlawful conjunction renders a marriage irregular, not void.
Void (batil), Irregular (Fasid) and Muta Marriage
A marriage which is not valid may be either void or irregular
Void Marriage
A void marriage is one which is unlawful in itself, the prohibition against the marriage being
perpetual and absolute. Thus a marriage with a woman prohibited by reason of consanguinity,
affinity or fosterage, is void, the prohibition against a marriage with such a woman being
perpetual and absolute.
Effective of a void marriage
A void marriage is not marriage at all. It does create any civil rights or obligations between the
parties. The offspring of a valid marriage are illegitimate.
Irregular Marriage
An irregular marriage is one which is not unlawful in itself, but unlawful ‘for something else’, as
where the prohibition is temporary or relative, or when the irregularity arisen from an
accidental circumstances, such as the absence of witnesses. Thus the following marriages are
irregular, namely:-
a. a marriage contracted without witnesses;
b. a marriage with a fifth wife by a person having four wives;
c. a marriage with a woman undergoing iddat;
d. a marriage prohibited by reason of difference of religion;
e. a marriage with a woman so related to the wife that if one of them had, been a male, they
could not have lawfully intermarried.
Effects of an irregular marriage
An irregular marriage can be terminated by either party, either before or after consummation.
An irregular marriage has no legal effect before consummation. If consummation has taken
place;
1. The wife is entitled to dower, proper or specified whichever is less;
2. She is bound to observe Iddat;
3. The issue of the marriage is legitimate
4. An irregular marriage, though consummated, does not create mutual rights of inheritance
between husband and wife.
Shia Law
The Shia law does not recognize the distinction between irregular and void marriage. According
to that law, marriage is either valid or void. Marriages that are irregular under the Sunni Law are
void under the Shia Law.
Muta Marriage
The Shia Law recognizes two kinds to marriage namely (i) permanent, and (ii) muta or
temporary
Sunni Law about Muta Marriage
The Sunni law does not recognize muta marriage with a woman professing the Islamic, Christian
or Jewish religion, or even with a woman who is free-worshipper, but not with a woman
following another religion. But a Shia woman may not contract a muta marriage with a non-
Muslim.
Essential of the validity
It is essential to the validity of muta marriage that (i) the period of co-habitation should be
fixed, and this may be a day, a month, a year or a term of years, and that (ii) some dower should
be specified.
A muta marriage is dissolved ipos facto by the expiry of the term. No right of divorce is
recognized in the case of a muta marriage, but the husband may at his will put an end to the
contract of marriage by ‘making a gift of the term’ to the wife even before the expiration of the
fixed term.
Effect of Muta marriage
a. A muta marriage does not create mutual rights of inheritance between the parties, but
children conceived during its existence are legitimate and capable of inheriting from both
parents.
b. If a muta marriage is not consummated, the woman is entitled to half the dower. But in case
the marriage is consummated, she is entitled to full dower.
c. The woman in muta marriage is not entitled to maintenance.
Legal ingredient
Muta is a temporary union, and recognized among the Shias and never among Sunnis. Divorce is
not recognized in Muta. There is no minimum time for duration of Muta marriage, and no limit
as the number of muta wives. The husband is not bound to provide residence to wife.
