Marriage amongst Muslims is a contract, but it is also a ‘sacred covenant’ - Fyzee. Comment.
Question: Marriage amongst Muslims is a contract, but it is also a ‘sacred covenant’ – Fyzee. Comment. [HJS 2006] Find the answer only on Legal Bites. [Marriage amongst Muslims is a contract, but it is also a ‘sacred covenant’ – Fyzee. Comment.] Answer Marriage or `Nikah’ under Mohammedan law may be defined as a legal process by which… Read More »
Question: Marriage amongst Muslims is a contract, but it is also a ‘sacred covenant’ – Fyzee. Comment. [HJS 2006]
Find the answer only on Legal Bites. [Marriage amongst Muslims is a contract, but it is also a ‘sacred covenant’ – Fyzee. Comment.]
Answer
Marriage or 'Nikah’ under Mohammedan law may be defined as a legal process by which sexual intercourse, procreation, and legitimation of children between man and woman are perfectly lawful and valid.
According to Dr. Jang–
“Marriage, though essentially a contract is also a devotional act, its object are rights of enjoyments and procreation of children and regulation of social life in the interest of society.”
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 Muslims.
The proposal and acceptance must both be expressed at one meeting; a proposal made at one meeting and an acceptance made at another meeting does not constitute a valid marriage. Neither writing nor any religious ceremony is essential.
According to Mulla, the nature of a Muslim marriage should, apart from many similarities with a civil contract, also be seen in the light of various Sunnah of the Prophet and the right and obligations imposed by the Almighty in the Holy Quran. If seen in that light, the institution of marriage is comprised of both worship (ibadat ) and worldly affairs (Muamalat ).
In this perspective, it is a civil contract in which free consent of both the parties is essential; on the accomplishment of it, however, the relationship of both the contracting parties is not determined as a purely civil contract but is determined in combination with the religious connotation. [Mahmad Usaf Abasbhai Bidiwale v. Harbanu Mansur Atar (1978) Mah. LJ. 26.]
Many Judicial precepts have also supported the sacramental nature of Muslim marriage. In the case of Anis Begum v. Mohammed Istafa(1933), where CJ Sulaiman tried to put a more balanced view of Muslim Marriage by holding it both a civil contract and a religious sacrament. While reviewing Abdul Kadir’s case, he observed:
“It may not be out of place to mention that Maulvi Samiullah collected some authorities showing that marriage is not as a mere civil contract but as a religious sacrament.”
