CONCEPT OF MARRIAGE

A Muslim is someone who follows Islam, a monotheistic Abrahamic religion based on the
teachings of the Prophet Muhammad as outlined in the Quran. In the Muslim law, marriage is
referred as ‘nikah’. The nature of marriage under Muslim law is that of a civil contract, so one
must fulfil all the conditions essential for the validity of contract. The essentials of valid nikah are:
1. Proposal and acceptance- In Muslim law proposal is referred as ‘ijab’ and acceptance is
referred as ‘qubul. For constituting a valid marriage one party must give proposal and other
must accept it. The proposal and acceptance must be done when both the parties to marriage
are present.
2. Competent to Contract- For constituting valid nikah both the parties must be competent
to contract. There are various factor which determine the competency of parties such as the
age of majority, Soundness of mind and both the parties should be muslim. The age of
majority for muslim is considered as the age when they attained the puberty. It is considered
that parties attains the puberty when they reach 15 years of age.
Case- Munshi vs Mt Alam Bibi1- In this case it was held that a girl who has obtained puberty or
is above 15 years of age is competent to enter into a contract of marriage.
3. Mahr- Mahr is a amount of money which is paid by the groom to the bride as a
consideration of marriage. The term Mahr is also referred as dower. The dower is a
unsecured debt against the husband. A muslim wife however can relinquish her right to
dower by Voluntary renunciation or mutual agreement.
According to Mulla, “A dower is either a sum of money or property which the wife is entitled to
receive in consideration of marriage from the husband”
According to Wilson, “ Mahr or dower was a form of consideration for the surrender of a person
by wife.”
There are generally two types of dower or Mahr which are:
(i) Specified Dower/ Mahr-i- Musamma- If the amount of dower is specified in the
contract of marriage , then such a dower is called as specified dower. The amount
mentioned for dower can be specified at the will of parties if they want to do before
or they want to specify it after the marriage. There are two kinds of specified dower:
(a) Prompt Dower- The dower which is payable immediately after marriage is
called as the prompt dower.
(b) Deferred Dower- The amount of dower which is paid on dissolution of
marriage is known as the deferred dower.
(ii) Unspecified Dower/ Mahr-i- Misl- If the amount of dower is not specified under
the contract of marriage, then such a dower is called as unspecified dower. This
kind of dower is also known as Proper dower. There are various factors in

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 determining the unspecified dower such as financial position of father of bride,
personal qualification of wife etc.
Case- Md Tanqeer Usmani vs State of Jharkhand2- In this case the husband paid the Mahr to
the brother of wife but the court held that the dower must be paid to the wife by the husband.
Basis Mahr- i- Misl Mahr- i- Musamma
Definition It is a kind of mahr which is It is a kind of Mahr which is
not defined at the time of defined at the time of marriage
marriage
Known as It is also known as unspecified It is known as specified dower
dower
Agreement After the marriage At the time of marriage
Marriage contract Not written in the marriage Written in the marriage
contract contract.

AMOUNT OF MAHR AS PER DIFFERENT SCHOOLS

1. Sunni: Generally allows the bride and groom (or their families) to decide the
amount, with a focus on moderation and avoiding excessive amounts. In the Hanafi
school, there is some guidance to ensure that the Mehr is not excessive, but no
specific upper limit is set.
2. Shia: Similarly, no strict limit is imposed, but the Mehr should be reasonable and
customary. Mehr al-Misl is used as a benchmark in case the amount is not agreed
upon, and the wife has a clear legal entitlement to receive the Mehr.

CONSEQUENCES OF NON PAYMENT OF DOWER

1. Right to refuse conjugal rights- A women can refuse conjugal rights if the male did not
give the dower to her. It is the right of the women under muslim law to get the dower, so
in case when dower is not given to her, she can chose to not live with his husband.
2. Law suits- Law suits can be filed in the civil courts for the non payment of dower by the
male to the women as it is the right of the women to get the dower.
3. During divorce proceedings- If a divorce occurs before the dower is paid, the husband
remains liable to pay it, particularly if the wife did not waive her right to it.
4. Right to withhold marital property- The wife may have a right to retain certain
possessions, such as household items or jewelry, until the dower is paid. This is sometimes
referred to as a lien on marital property.
Case- Sayed Sabir Hussain v. Farsand Hussain- In this case the court concluded that the dower
paid by the husband to wife is the legal responsibility of the husband.

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Case-Anis Begam v. Mohd. Istafa- In this case it was held that under Muslim law it could not be
treated purely as the sale of the person by the wife in consideration for the payment of dower.

KINDS OF MARRIAGE
1. Sahih Nikah- Sahih nikah is also known as the valid marriage. It is a kind of marriage
which fulfils all the essential requirements of a valid marriage. The major requirements are
offer and acceptance, capacity to marry, free consent of the parties, presence of two adult
witness in case of Sunni Muslims and Mahr.
2. Fasid Nikah- Fasid nikah is also known as voidable marriage. It is a kind of marriage
which is defective but not void. It is the kind of marriage which does not follow all the
essential requirements for a valid nikah.
3. Batil Nikah- Batil nikah is a nikah which is unlawful and has no legal effect under the
Islamic law. Batil nikah is known as void marriage under the muslim law. The example of
batil nikah are marriage within prohibited degrees of relationship, marriage without
consent.
4. Muta Marriage- The term ‘mutah’ basically means pleasure. Muta marriage is basically
a temporary marriage for the pleasure of the parties. This marriage is permissible in India
only amongst the twelvers. This marriage is not recognized by sunni muslims. The essential
points of muta marriage are:
(i) A shia male can contract a valid muta with a muslim woman or a woman professing
christian, jew and a fire worshipper.
(ii) Dower is essential for a muta marriage and if the marriage is consummated women
is entitled to full dower.
(iii) Time period of muta marriage is fixed and can vary from hours to years.
(iv) No divorce in muta marriage as time is fixed.
(v) The wife has to observe period of iddat after this marriage ends.
(vi) The term of muta marriage can be extended with mutual consent.
(vii) If husband wants to end marriage before time he can do so by giving gift to the wife
for the rest of time period.
(viii) If wife wants to end marriage before time she can do so by forfeiting part of her
Mahr.
(ix) Wife is not entitled to inherit the property.
(x) The children born by muta marriage is legitimate and has right of the property.
(xi) If the time period or Mahr is not fixed in muta marriage then it can be considered
as void or invalid marriage.
Case- Syed Amanullah Hussain vs Rajamma 3 - In this case it was held that children begotten of
muta marriage are legitimate and entitled to succeed the property of his father.

GUARDIANSHIP IN MUSLIM MARRIAGE

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Guardianship in muslim marriage is referred as Waliyat- Ul- Nikah. In muslim marriage,
guardianship is the role and responsibilities of a guardian in process of contracting a marriage.
Guardian in muslims is known as Wali. In case of women wali is usually the male relative of the
women follows in a specific order the first in line is typically the father, followed by his father (the
woman's grandfather), and then other male relatives such as brothers, uncles and so on. If no male
guardian is there, the court appoints guardian for the women. In Shias, a women may marry without
the Wali.
Guardianship under different schools:
1. Sunni- In the sunni school the marriage of women may be invalid without the guardian's
approval, especially in the case of a virgin.
2. Sunni- In sunnis the consent of women is paramount and the marriage of a women can be
valid even without the consent of wali.

PROHIBITIONS OF MARRIAGE
Following are the conditions in which the marriage under Muslim law is prohibited:
1. Cosanguinity- Co sanguine relations prohibit the following relations to marry with each
other under the Muslim law:
(i) Lineal ascendant and lineal descedants
(ii) Brothers and sisters
(iii) Aunts and nephews and
(iv) Uncle and nieces.
2. Affinity- This category applies to the relations which are not related to each other by blood
but is introduced in the family through marriage, such as spouses of lineal ascendants and
descedants, such as step mother or step father and son in law, daughter in law, wife`s
mother or daughter.
3. Fosterage- It means the relationship formed by breastfeeding the baby. It occurs when a
lady other than the mother breastfeed`s the child. This category applies to the following
foster relations:
(i) Sister`s foster mother
(ii) Foster`s sister`s mother
(iii) Foster`s son`s sister
(iv) Foster brother`s sister.

OTHER POINTS RELATED TO MUSLIM MARRIAGE

1. Polygamy- Muslim males are permitted to practice limited polygamy. The number of
marriage a muslim male can do is 4.
2. Non Muslim female- A muslim male can marry with a ‘Kitabia’. It refers to a woman who
worships a book for example Christian or jew.

PYQ
Q. What do you understand by the term ijab and qubul(2014) 1 marks
Q. Who is a wali(2014) 1 marks
Q. What do you understand by term sahih, batil and fasil(2014,2019) 1 marks
Q. Define mutah nikah(2016) 1 marks
Q. What is the difference between Fasid marriage and voidable marriage(2017) 1 marks
Q. Explain the definition of muslim marriage as given by Justice VR Krishna Iyyer(2017) 1 marks
Q. Differentiate between Fasid and Batil Marriage(2018) 1 marks
Q. What do you understand by capacity to marry under Muslim law(2022) 1 marks
Q. What is the legitimacy of children born out of mutah nikah(2022) 1 marks
Q. What are the limitations fixed on amount of Mehr in law under different schools(2022) 4 marks
Q. Can a muslim wife relinquish her right to dower(2014) 4 marks
Q. State the legal effects of Mutah Nikah(2016) 4 marks
Q. Explain Meher(2016) 4 marks
Q. Define Mutah Nikah. Which schools of Muslims does recognize it? Explain the result of this
contract if time period or amount Mahr is not set at the time of doing contract(2017) 4 marks
Q. Describe about specified and proper Mahr in muslims(2018) 4 marks
Q. Differentiate between Mahr-I- Musamma and Mahr-I- Misl(2019) 4 marks
Q. Explain the consequences of non payment of dower under muslim law with leading case
law(2022) 4 marks
Q. Discuss the nature and concept of muslim marriage in detail(2014) 8 marks
Q. Define guardian and guardianship. Write the name of different guardians in muslim law.
Explain the guardianship of marriage in muslims(2017) 8 marks
Q. What is the word meaning of nikah? Describe essential elements of nikah and compare the
elements with the elements of contract(2017) 8 marks
Q. What are the prohibitions of marriage under muslim law(2018) 8 marks
Q. Explain the essential elements of sahih nikah with its legal disabilities(2022) 8 marks