State definition, essentials, and nature of Muslim marriage. What is the option for puberty?

Question: State definition, essentials, and nature of Muslim marriage. What is the option for puberty? [UPJS 2000]

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Answer

Marriage or ‘nikah’ under Muslim law bears much resemblance to a civil contract. According to Dr. Jung,

“Marriage though essentially a contract is also a devotional act, its objects are the right of enjoyment, procreation of children, and the regulation of social life in the interest of society.”

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. Justice Mahmood said,

“Marriage among Mohammedans is not a sacrament, but purely a civil contract.”

Islamic Jurist Ameer Ali said-

“Marriage is an institution ordained for the protection of society, and in order that human beings may guard themselves against foulness and unchastity.”

Nikah, in its primitive sense, means carnal conjunction. The essential conditions of a valid Muslim Marriage involve:

1. A clear offer and acceptance must be given in the same meeting
2. A consideration from the husband’s side to the wife’s known as Mehr or mahr,
3. Between parties competent to contract
4. Following Islam as a religion, or even those devoted to similar scriptures in the Sunni sect.

This is subject to certain prohibitions under the law, such as –

1. Bar to marriage during the period of iddat
2. Bar by Consanguinity
3. Bar by Affinity

Once the contracting parties to the marriage, i.e. the girl and boy, have attained puberty, they become competent to be a party to the institution of marriage.

This also means that they are allowed when the girl and the boy are sexually competent to consummate a marriage. Now, since it is based on physical and emotional features, it becomes difficult to ascertain the exact age at which it would be a valid marriage.

Throughout history, the usual age is 9 for a girl and 12 for a boy. With the passage of time, the Privy Council, in the case Muhammad Ibrahim v. Atkia Begum & Anr., 16 Ind Cas 597, has set the maximum age at fifteen years, and this age criterion applies to both the man and the woman. The Privy Council gave two conditions:

• Attainment of the age of 15 years of the woman
• Attainment of puberty, whichever is earlier.

And once puberty is attained, the power of authorization, either by self or to whoever is accepting on their behalf, arises.

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