CONCEPT OR MARRIAGE AND DIVORCE UNDER
MUSLIM LAW
(Extracts from Principles of Mahomedan
Law)
A.- MARRIAGE
250. Definition of
marriage.- Marriage (nikha) is defined to be a contract which has for its
object the procreation and the legalizing of children.
251. Capacity for
marriage.- (1) Every Mahomedan of sound mind, who has attained puberty,
may enter into a contract of marriage.
(2) Lumatics and minors who have not
attained puberty may be validly contracted in marriage by their respective
guardians (ss.270-275).
(3) A marriage of a
Mahomedan who is of sound mind and has attained puberty, is void, if it is
brought about without his consent.
Explanation.- Puberty is
presumed, in the absence of evidence, on completion of the age of fifteen
years.
252. Essential of a
marriage.- It is essential to the validity of a marriage that there should be a
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 male or one male and two female witnesses, who must be sane and
adult Mahomedans. The proposal and acceptance must both be expressed at one
meeting; a proposal made at one meeting and an acceptance made at another
meeting do not constitute a valid marriage. Neither writing nor any religious
ceremony is essential.
253. Valid, irregular
and void marriage.- A marriage may be valid (sahih), or irregular (fasid), or
void from the beginning (batil).
254. Absence of
witnesses.- A marriage contracted without witnesses as required by section 252
is irregular, but not void.
255. Number of
wives.- A Mahomedan may have as many as four wives at the same time but not
more. If he marries a fifth when he has already four, the marriage is not void,
but merely irregular.
256. Plurality of
husbands.- It is not lawful for a Mahomedan 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.
257. Marriage with a
woman undergoing iddat.- (1) A marriage with a woman before completion of her
iddat is irregular, not void. The Lahore High Court at one time treated such
marriages as void; but in a later decision held that such a marriage irregular
and the children legitimate.
(2) Iddat.- “Iddat”
may be described as the period during which it is incumbent upon a woman, whose
marriage has been dissolved by divorce or death to remain in seclusion, and to
abstain from marrying another husband. The abstinence is imposed to ascertain
whether she is pregnant by the husband, so as to avoid confusion of the
parentage. When the marriage is dissolved by divorce, the duration of the
iddat, if the woman is subject to menstruation, is three courses; if she is not
so subject, it is three lunar months. If the woman is pregnant at the time, the
period terminates upon delivery. When the dissolved by death, the duration of
the iddat if four months and ten days. If the woman is pregnant at the time,
the iddat lasts for four months and ten days or until delivery, whichever
period is longer.
If the marriage is
dissolved by death, when wife is bound to observe the iddat whether the
marriage was consummated or not. If the marriage was dissolved by divorce, she
is bound to observe the iddat only of the marriage was consummated; if there
was not consummation, there is not iddat, and she is free to marry immediately.
The iddat of divorce
commences from the date of the divorce and that of death from the date of
death. If information of divorce or of death does not reach the wife until
after the expiration of the period of iddat, she is not bound to observe any
iddat [Baillie, 357].
258. Marriage between
a Sunni and Shia.- A Sunni male may contract a valid marriage with a Shia
female, and a Shia male amy contract a valid marriage with a Dunni female.
259. Difference of
religion.- (1) A Mahomedan male may contract a valid marriage not only with a
Mohomedan woman, but also with a Kitabia, that is, a Jewess or a Christian, but
not with an idolatress or a fire-worshipper. A marriage, however, with a
idolatress or a fire-worshipper, is not void, but merely irregular.
(2) A Mahomedan woman
cannot contract a valid marriage except with a Mahomedan. She cannot a valid
marriage even with a Kitabi, that is, a Christian or a Jew. A marriage however,
with a non-Muslim, whether he is a Kitabi, that is, A Christian or Jew, or a
non-Kitabi, that is, an idolator or a fire-worshipper, is irregular, not void.
260. Prohibition on
the ground of consanguinity.- A man is prohibited from marrying (1) his mother
or his grandmother how high soever; (2) his daughter or granddaughter how low
soever; (3) his sister whether full, consanguine or uterine; (4) his niece or
great niece how low soever; and (5) his aunt or great aunt how high soever,
whether paternal or maternal. A marriage with a woman prohibited by reason of
consanguinity is void.
261.Prohibition on
the ground of affinity.- A man is prohibited from marrying (1) his wife’s
mother or his grandmother how high soever; (2) his wife’s daughter or
granddaughter how low soever; (3) the wife of his father or paternal
grandfather how high soever; (4) the wife of his son, or his sons’ son or
daughter’s son how low soever. A marriage with a woman prohibited by reason of
affinity is void.
262. Prohibition on
the ground of fosterage.- Whoever is prohibited by consanguinity or affinity is
prohibited by reason of fosterage except certain faster 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 reasons of fosterage is void.
263. Unlawful
conjunction.- A man may not 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 intermarried, as for instance,
two sisters, or aunt and niece. The bar of unlawful conjunction renders a
marriage irregular, not void.
264. Distinction
between void and irregular marriages.- (1) A marriage which is not valid may be
be either void or irregular.
(2) 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 (s.260), or affinity (s.261), of fosterage (s.262), is void, the
prohibition against marriage with such a woman being perpetual and absolute.
(3) 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 arises from an accidental circumstance, such as the absence of
witnesses. Thus the following marriages are irregular, namely-
(a) a marriage
contracted without witnesses (s.254);
(b) a marriage with a
fifth wife by a person having four wives (s.255);
(c) a marriage with a
woman undergoing iddat (s.257);
(d) a marriage
prohibited by reason of difference of religion (s.259);
(e) a marriage with a
woman so related to the wqife that if one of them had been a male, they could
not have lawfully intermarried (s.263).
The reason why the
aforesaid marriages are irregular, and not void, is that in cl. (a) the
irregularity arises from an accidental circumstances; in cl. (b) the objection
may be removed by the man divorcing one of his four wives; in cl. (c) the
impediment ceases on the expiration of the period of iddat; in cl. (d) the
objection may be removed the wife becoming a convert to the Mussalman,
Christian or Jewish religion, or the husband adopting the Moslem faith; and in
cl. (e) the objection may be removed by the man divorcing the wife who
constitutes the obstacle; thus if a man who has already married one sister
marries another, he may divorce the first, and make the second lawful to
himself.
265. Effects of valid
(sahih) marriage.- A valid marriage confers upon the wife the right of dower,
maintenance and residence in her husband’s house, imposes on her the obligation
to be faithful and obedient to him, to admit him to sexual intercourse, and to
observe the iddat. It creates between the parties prohibited degrees of relation
and reciprocal rights of inheritance.
266. Effects of a
void (batil) marriage.- A void marriage is no marriage at all. It does not
create any civil rights or obligations between the parties. The offspring of a
void marriage are illegitimate.
267. Effects of an
irregular (fasid) marriage.- (1) An irregular marriage may be terminated by
either party, either before or after consummation, by words showing an
intention to separate, as where either party says to the other : I have
relinquished you”. An irregular marriage has no legal effect before
consummation.
(2) If consummation
has taken place-
(i) the wife is
entitled to dower, proper or specified whichever is less (ss. 286, 289);
(ii) she is bound to
observe the iddat, but the duration of the iddat both on the divorce and death
is three courses [Sec.S.257(2)];
(iii) the issue of
the marriage is legitimate. But an irregular marriage, though consummated, does
not create mutual rights of inheritance between husband and wife (Baillie, 694,
701). The Cheif Court of Oudh has held that it does create such rights, but the
decision, it is submitted, is not correct.
268. Presumption of
marriage.- Marriage will be presumed, in the absence of direct proof, from-
(a) prolonged and continual cohabitation as husband and wife;
or,
(b) the fact of the acknowledgement by the man of the paternity
of the child born to the woman, provided all the conditions of a valid
acknowledgement mentioned in section 344 below are fulfilled; or,
(c) The fact of the acknowledgement by the man of the woman as
his wife.
The
presumption does not apply if the conduct of the parties was inconsistent with
the relation of husband and wife, nor does it apply if the woman was admittedly
a prostitute before she was brought to the man’s house. The mere fact, however,
that the woman did not live behind the purda, as the admitted wives of the man
did, is not sufficient to rebut the presumption.
269.
Muta Marriage.- (1) The Siha law recognizes two kinds of marriage, namely, (1)
permanent, and (2) muta or temporary.
(2)
A Shia of the male sex may contract a muta marriage with a woman professing the
Manomedan, Christian or Jewish religion, or even with a woman who is a fire
worshipper, but not with a woman following any other religion. But a Shia woman
may not contract a muta marriage with a non-Moslem.
(3)
It is essential to the validity of a muta marriage that (1) the period of
cohabitation should be fixed, and this may be a day, a month, a year or a term
of years, and that (2) some dower should be specified. When the term is fixed,
but the dower is not specified, the contract is void. But if the dower is
specified, and the term is not fixed, the contract, though void as a muta, may
operate as a “permanent” marriage.
(4)
The following are the incidents of a muta marriage:-
(a)
a muta marriage does not create mutual rights of inheritance between the man
and the woman, but children conceived while it exists are legitimate and
capable of inheriting from both parents;
(b)
where the cohabitation of a man and a woman commences in a muta marriage, but
there is no evidence as to the term for which the marriage was contracted and
the cohabitation contunues, the proper inference would, in default of evidence
to the contrary, be that the muta continued during the whole period of
cohabitation, and that children conceived during that period were legitimate
and capable of inheriting from their father;
(c)
even if there is evidence of the term for which the muta marriage was fixed and
cohabitation continues after the expiry of that term, the inference is that the
term was extended for the whole period of the cohabitation and that the
children conceived during the extended term are legitimate;
(d)
a muta marriage is dissolved ipso 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”
(hiba-i-muddat) to the wife, even before the expiration of the fixed term;
(e)
if a muta marriage is not consummated, the woman is entitled to half the dower.
If the marriage is consummated, she is entitled to full dower, evewn though the
husband may put an end to the contract by giving away the enexpired portion of
the term. If the woman leaves her husband before the expiryof the term, the
husband is entitled to deduct a proportionate part of the dower’
(f)
a woman married in the muita form is not entitled to maintenanc under the Shia
law. But it has been held that she is entitled to maintenance as a wife under
the provisions of section 488 of the Criminal Procedure Cose.
270.
Marriage of minors.- A boy or a girl who has not attained puberty (in this Part
called a minor), is not competent to enter into a contract of marriage, but he
or she may be contracted in marriage by his or her guardian.
271.
Guardianship in marriage (jabar).- The right to contract a minor in marriage
belongs successively to the (1)father, (2)paternal grandfather how high
soever, and (3) brother and other male relations on the father’s side in the
order of inheritance enumerated in the table of Residuaries. In default of
paternal relations, the right devolves upon the mother, maternal uncle or aunt
and other maternal relation within the prohibited degrees. In default of
maternal kindered, it devolves upon the ruling authority.
272.
Marriage brought about by father or grandfather.- When a minor has been
contracted in marriage by the father or father’s the contract of marriage is
valid and binding, and it cannot be annulled by the minor on attaining puberty.
But where a father or father’s father as acted fraudulently or negligently, as
where the minor is married to a lunatic, or the contract is to the manifest
disadvantage of the minor, the contract is voidable at the option of the minor
on attaining puberty.
273.
Repudation under the Dissolution of Muslim Marriages Act, 1939.- By the
Dissolution of Muslim Marriages Act, 1939, all restriction on the option of
puberty in the case of a minor girl whose marriage has ebbn arranged by a
father or grandfather has been abolished, and under section 2 (vii) of the Act
a wife is entitled to the dissolution of her marriage if she proves the
following facts, namely, (1) the marriage has not been consummated, (2)
the marriage took place before the attained the age of 15 years, and (3)
she has repudiated the marriage before attaining the age of 18 years repudiated
the marriage before attaining the age of 18 years. The High Court of Lahore has
decided that a decree of court is not necessary to invalidate the marriage
which has been repudiated by the wife, but the High Court Madhya Pradesh has
held that a decree of the court is necessary.
274.
Marriage brought about by other guardian Options of puberty.- When a marriage
is contracted for a minor by any guardian other than the father or father’s
father, the minor has the option to repudiate the marriage on attaining
puberty. This technically called the “option of puberty” (khyar-ul-bulugh).
The right of repudiating the marriage is lost, in the case of a female, if
after attaining puberty and after being informed of the marriage and of her
right to repudiate it, she does not repudiate without unreasonable delay. The
Dissolution of Muslim Marriages Act, 1939, however, gives her the right to
repudiate the marriage before attaining the age of eighteen years, provided
that the marriage has not been consummated. But in the case of a mael, the
right continues until he has ratified the marriage either expressly or
impliedly as by payment of dower or by cohabitation.
275.
Effect of repudiation.- The mere exercise of the option of repudiation does not
operate as a dissolution of the marriage. The repudiation must be confirmed by
the court. Until then the marriage subsists, and if either party to the
marriage dies, the other will inherit from him or from her, as the case may be.
276.
Marriage of lunatics.- The provisions of section 270 to 275, relating to the
marriage of minors, apply to the marriage of lunatics, with this differences
that the options is to be exercised when the lunatic recovers his or her
reasons.
B.
MAINTENANCE OF WIVES
277.
Husband’s duty to maintain his wife.- The husband is bound to maintain his wife
(unless she is too young for matrimonial intercourse), so long as she is
faithful to him and obeys his reasonable orders. But he is not bound to
maintain a wife who refuses herself to him, oris otherwise disobedient, unless
the refusal or disobedience is justified by non payment of prompt (s.290)
dower, or the leaves the husband’s house on account of his cruelty.
278.
Order for maintenance.- If the husband neglects or refuses to maintain his wife
without any lawful cause, the wife may sue him for maintenance, but she is not
entitled to a decree for past maintenance, unless the claim is based on a
specific agreement. Or, she may apply for an order of maintenance under the
provisions of the Code of Criminal Procedure, 1908, section 488, in which case
the court may order the husband to make a monthly allowance in the whole for
her maintenance not exceeding five hundred rupees.
279.
Maintenance on divorce.- (1) After divorce, the wife is entitled to maintenance
during the period of iddat (s.257). If the divorce is not communicated to her
until after the expiry of that period, she is entitled to maintenance until she
is informed of the divorce.
(2)
A widow is not entitled to maintenance during the period of iddat consequent
upon her husband’s death.
280.
Agreement for future maintenance.- An antenuptial agreement between a Mahomedan
and his prospective wife, entered into with the object of securing the wife
against ill-treatment, is not void as being against public policy. Similarly,
an agreement between a Mahomedan and his first wife, made after his marriage
with a second wife, providing for a certain maintenance for her if she should
not in future get on with the second wife, is not void on the ground of public
policy. Similarly, an agreement by a Mahomedan with his second wife that he
would allow her to live in her parents’ house and pay her maintenance is not
against public policy. See section 281 (3) and 321. It has been held in
Bombay that an agreement for future separation between husband and wife is void
as being against public policy under the Indian Contract Act, 1872, section 23.
An agreement, therefore, which provides for a certain maintenance to be given
to the wife in the event of a future separation between them, is also void. If
the marriage is dissolved by divorce, the wife is entitled to maintenance for
the period mentioned in section 279, and not for life, unless the agreement
provides that it is for life.
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