Distinguish between ‘Batil’ and ‘Fasid’ marriage. In which category will you place the following:– i) Marriage with a woman undergoing Iddat.....v) Marriage in contravention of the rule of Kufr.

Question: Distinguish between ‘Batil’; and ‘Fasid’ marriage. In which category will you place the following:– [BJS 1977]
• Marriage with a woman undergoing Iddat.
• Simultaneous marriage with two consanguine sisters.
• Marriage with a fifth wife during a lifetime of four wives.
• Marriage with a Christian woman.
• Marriage in contravention of the rule of Kufr.

Find the question and answer of Muslim Law only on Legal Bites. [Find the question and answer of Muslim Law only on Legal Bites. [Distinguish between ‘Batil’; and ‘Fasid’ marriage. In which category will you place the following:– Marriage with a woman undergoing Iddat; Simultaneous marriage with two consanguine sisters; Marriage with a fifth wife during a lifetime of four wives; Marriage with a Christian woman; Marriage in contravention of the rule of Kufr.]

Answer

A batil marriage is illegal and does not create civil rights and obligations between the parties. In such cases, there is neither dower, nor iddat, nor the legitimacy of the children. Thus, a marriage that is prohibited on the ground of consanguinity, affinity, or fosterage is void, the prohibition against such a marriage being unconditional and absolute. Similarly, a marriage with a woman who is the lawful wife of another is void.

An irregular (fasid) marriage, on the other hand, is good in its foundation but unlawful in its attributes because of the lack of some formality or the existence of some impediment. The lack of formality may subsequently be made up, or the impediment may subsequently be removed. In other words, such a marriage is not unlawful in itself.

In the case of Ata Mohammed. v. Saiqul Bibi, (7 Ind Cas 820), it was seen that Fasid Nikah could be turned into Sahih Nikah. The social and legal implications and obligations are decided on the very fact of whether the marriage was consummated or not.

The effect of a batil marriage is that it creates no civil rights or obligations between the parties, but after consummation, the wife becomes entitled to customary dower only.

A fasid marriage has no legal effect before consummation. Even after consummation, the husband and wife have no mutual inheritance rights, but the issues of such a marriage are legitimate. If consummation has taken place, the wife is

(i) entitled to dower, proper or specified, whichever is less; and

(ii) bound to observe iddat.

Hence, Marriage in such circumstances or with the following prohibitions is called ‘Fasid’.

1. A marriage contracted without the required number of witnesses;
   
2. Marriage with women during her Iddat period;
3. A marriage with a woman without the consent of her guardian when such consent is considered necessary
4. A marriage is prohibited on account of differences in religion;
5. A marriage with a woman who is pregnant, when the pregnancy was not caused by adultery or fornication;
6. A marriage with a fifth wife.

The examples of batil marriages are:

1. Practice of polyandry

2. Marriage of Muslim woman with a kitabiya

3. Marriage with some consanguineous kin (for example, mother, mother’s mother, sister, sister’s daughter, mother’s sister, father’s sister, daughter’s daughter) or with affinal kin (for example, wife’s mother, wife’s daughter, son’s wife).

4. Marriage of a person with two such women at a time who are related with each other in such a way that had any of these two women been a man, marriage between them would not have been possible. This simply means that a man cannot marry his sister-in-law (wife’s sister) during his wife’s lifetime.

The difference between fasid and batil marriages is that by removing the impediment or irregularities from fasid marriages, they can be converted into sahih marriages, whereas batil marriages cannot be so converted.

Batil marriage does not create any rights or obligations between the two parties. The children in such marriages are also considered illegitimate. It is only the valid or sahi marriage that confers upon the wife the right of dower, maintenance, and residence in the husband’s house.

Therefore, following are the answers to the aforesaid questions:

• Marriage with a woman undergoing Iddat is a Fasid Marriage
  
• Simultaneous marriage with two consanguine sisters is a Batil Marriage
• Marriage with a fifth wife during a lifetime of four wives is a Fasid Marriage
• Marriage with a Christian woman is a Fasid Marriage.
• Kufr, linguistically means covering or concealing. As per Shariah, Kufr disbelieves in Allah and His Messenger, whether the disbelief is associated with denial or not, rather with doubts, suspicion, aversion, jealousy, arrogance, or following some whims that deter him from adhering to the Message. Marriage in contravention of the rule of Kufr is Fasid Marriage.

Law Library: Notes and Study Material for LLB, LLM, Judiciary, and Entrance Exams