How is the concept of marriage under Muslim Law different from that of modern Hindu Law?

Question: How is the concept of marriage under Muslim Law different from that of modern Hindu Law? [HJS 2007]

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Answer

Marriage among Hindus is a sacrament tie between a man and a woman. It is considered the holy union of husband and wife for performing religious, social, and spiritual duties. However, Marriage under Muslim Law is not a sacrament but a civil contract. Marriage or 'Nikah‘ under Mohammedan law may be defined as a 'legal process by which sexual intercourse and procreation and legitimation of children between man and woman are perfectly lawful and valid.

According to Hindu law, marriage is harmonizing the two-individual eternity so that they can pursue Dharma, Arth, and the Kama. On the other hand, according to Muslim law, marriage is the legal contract between two individuals with their consent and their own will.

Juristically speaking, Marriage among Mohammedans, being a civil contract, requires the following essentials:

1. Marriage, like any other contract constituted by an offer and acceptance (ijab-o-qubool) to the other party and Marriage becomes complete only when another party has accepted that offer (Qabool). Such offer and Acceptance must be in one meeting in the presence of witnesses. It is also necessary that parties contracting marriage must be acting under their free will and consent.
2. Parties to the marriage must have the capacity to enter into the contract. In other words, they must be competent to marry. Every Muslim who is of sound mind and who has attained puberty may enter into a contract of marriage. Parties must be able to understand the nature of their act. The marriage of a minor may be solemnized provided with the consent of the guardian.
3. There should be no legal disability to enter into a contract of marriage. Legal disability means the existence of certain circumstances under which marriage is not permitted. These disabilities have been classified into the following three heads:

(a) Absolute incapacity, which arises from (i) consanguinity (ii) affinity, and (iii) Fosterage.

(b) Relative incapacity arises from cases that render the marriage invalid so long as the cause that creates the bar exists, and the moment it is removed, the incapacity ends, and marriage becomes valid. Unlawful conjunction, the fact of marrying fifth marriage, absence of the proper witness, the difference of religion, and marrying with a woman undergoing Iddat are all cases of relative incapacity.

(c) Prohibitory incapacity arises when a Muslim woman has more than one husband and when a Muslim woman marries a non-Muslim.

4. Mehr or dower is settled by the husband upon his wife in consideration of the marriage. He may settle any amount he likes but the same cannot be less than ten dirhams. The wife is entitled to claim prompt dower on demand at the time of marriage. However, deferred dower is payable on dissolution of marriage by divorce or death.
5. Under Mohammedan Law, marriage is not a permanent tie, and any Muslim of sound mind who has attained puberty may divorce his wife whenever he desires without assigning any reason or cause.

Thus it becomes clear that marriage among Mohammedans is purely a civil contract.

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