In Abdul Kadir v. Salima (1886) 8 All 149, Justice Mahmood stated, “Marriage among Muslims is not a sacrament but purely a civil contract.” On the other hand, another noted scholar of Muslim Law, Abdul Rahim states that marriage among Muslims is both an Ibadat (devotional act) as well as muamlat (dealing among men). Discuss
Question: In Abdul Kadir v. Salima(1886) 8 All 149, Justice Mahmood stated, “Marriage among Muslims is not a sacrament but purely a civil contract.” On the other hand, another noted scholar of Muslim Law, Abdul Rahim states that marriage among Muslims is both an Ibadat (devotional act) as well as muamlat (dealing among men). In light of these… Read More »
Question: In Abdul Kadir v. Salima(1886) 8 All 149, Justice Mahmood stated, “Marriage among Muslims is not a sacrament but purely a civil contract.” On the other hand, another noted scholar of Muslim Law, Abdul Rahim states that marriage among Muslims is both an Ibadat (devotional act) as well as muamlat (dealing among men). In light of these statements, discuss the exact of Nikah, pointing out its essential features and referring to case law wherever required. [HJS 2013]
Find the answer only on Legal Bites. [In Abdul Kadir v. Salima (1886) 8 All 149, Justice Mahmood stated, “Marriage among Muslims is not a sacrament but purely a civil contract.” On the other hand, another noted scholar of Muslim Law, Abdul Rahim states that marriage among Muslims is both an Ibadat (devotional act) as well as muamlat (dealing among men). In light of these statements, discuss the exact of Nikah, pointing out its essential features and referring to case law wherever required.]
Answer
Marriage has been defined as a social, noble, and sacred contract that has been referred to in the Holy Quran as Mishaqan Ghaliza, a solemn covenant. In Islamic Jurisprudence, it means union. The Arabic word for marriage is Nikah. Nikah in its primitive sense means carnal conjunction.
Ashabah says:
“Marriage is a contract underlying a permanent relationship based on mutual consent on the part of a man and woman”.
Dr. Jang is of opinion that,-
“Marriage though essentially a contract is also a devotional act; its objects are rights of enjoyments and procreation of children and regulation of social life in the interest of society.”
However, the Laws, the jurists, and the Holy Quran summarized Muslim marriage as a legal relationship between male and female with a view to establishing a peaceful society. This relationship is giving the husband rights to the wife and the same to the wife to the husband. It considers the basis of social life and the beginning of family life. Islam considers marriage to be a very sacred act and a step toward a better, purer and happier life as well as it finally connects the couple to the earth and heaven.
Marriage may be constituted without ceremony; there are no specific rites; no officiates; no irksome formalities. Nevertheless, the following conditions are necessary:
- Offer on the part of one party to the marriage provided the “Contracting Parties” would not be within the prohibited degrees to marriage.
- Acceptance by the other party. Both parties must be competent to make the offer and acceptance legally valid. In case of legal incompetency, like minority or unsoundness of mind, the guardians may validly enter into a contract of marriage on behalf of their wards.
- The presence of two witnesses where the parties are Hanafies, no witnesses are required if the parties are Shias.
- The words with which the marriage is contracted must be clear and unambiguous.
- The proposal and acceptance must be expressed in one and the same meeting.
- Dower is also a significant part of a valid marriage.
Consideration under contract law simply means something for something. Hence, it is construed in a Muslim marriage that the woman must receive as a matter of right, a sum of money from the husband’s side called Mehr or dower.
According to the prophet, this dower is a form of honour and respect given to a woman when she agrees to marry a man by way of accepting the dower. The practical purpose is to ensure the financial security of the woman in and after marriage.
The right to the dower of a woman can be exerted before cohabitation. The Allahabad High Court has said in the Nasra Begum v. Rizwan Ali, AIR 1980 All 118 case that a woman’s family can refuse to send her to her matrimonial home if a dower is not given. Once the dower is accepted by the woman, she in return agrees to marry the man. Therefore, the contract is complete.
Thus the essential conditions of a valid marriage may be summarised as follows: ijab(offer), qubul(acceptance), balig (adult age or puberty), rashid(sound mind, not majnum or non-compos mentis) parties-i.e. groom and bride or when minor their guardians, presence of a witness (in Hanafi Law, not Shia Law) and same meeting (that is at one session). Thus the completion of this contract of marriage commences with a proposal and ends with consent.
