Explain valid, irregular, and void marriage under Muslim Law and state the distinction between them.

Question: Explain valid, irregular, and void marriage under Muslim Law and state the distinction between them. [BJS 2000]

Find the question and answer of Muslim Law only on Legal Bites. [Explain valid, irregular, and void marriage under Muslim Law and state the distinction between them.]

Answer

1. Sahih Nikah (Valid Marriage)

The term sahih is an Urdu term for the word 'correct' or 'valid'. When all the essential conditions of a Muslim marriage are duly fulfilled, it is called a sahih nikah or valid marriage.

It means if two Muslim persons (one being the man and the other a woman) enter into an agreement by way of offer and acceptance and the groom has paid the Mehr for the marriage to the bride, it is a valid marriage.

There are certain social and legal implications of a valid marriage which can be enlisted hereunder as follows:

1. The spouses become legally married owing to which they can legally consummate their marriage.

2. Due to the marriage, the parties acquire the rights of inheritance over the properties which can be inherited.

3. Although, Muslim law does not allow maintenance to be filed in case of a divorce because it is believed that the dower paid at the time of marriage is sufficient for her well-being. Nevertheless, the Supreme Court has made it clear that after a valid marriage, the wife has to right to alimony and maintenance for her and the children.

4. The right to maintenance is an independent right beside the right to receive the promised dower.

5. The spouses have to be loyal and faithful to each other. However, a Muslim man is allowed to commit polygamy, so it is only the wife who needs to be loyal to the man after the marriage.

6. The Quran allows a man to reprimand or chastise his wife by reasonable means if the wife is disobedient or disloyal towards him.

7. The kids, if any, who are born due to the consummation of a sahih marriage are considered to be legitimate children.

8. In case of the wife being a widow or being divorced by her husband, she is obliged under Muslim law to perform the ritual of Iddat under which the wife cannot remarry any other person before a period of 90 days from the date of death of the husband expires. This is to ensure that the woman was not pregnant at the time of the husband's death.

2. Batil Nikah (Void Marriage)

According to the Indian Contract Act, of 1872, an agreement that is not legally enforceable is a void agreement. Similarly, an agreement between a prospective bride and a groom which does not meet all the essential conditions of a Muslim marriage is a void agreement and any marriage that takes place in furtherance of a void agreement is called a void marriage or Batil nikah.

In Munshi v. Mst. Alam Bibi, AIR 1932 Lah. 280, the court observed that when there is a permanent or perpetual prohibition from marriage due to non-adherence of a condition, it is void marriage.

When one or more of the prerequisites to a valid marriage mentioned above are not fulfilled by the spouses before marriage, the marriage is void and not binding. The following are certain situations in which a Muslim marriage is void.

• When a marriage takes place between persons who are absolutely incapable.
• When a person marries the wife of another man when the marriage of the lady was subsisting.
• Marrying more than four wives. In such a case, the fifth marriage and so on become void.
• Marriage with a Non-Muslim

The above-mentioned list is mere examples and not an exhaustive list of void marriages. The essential social and legal implications of void marriage are:

1. The marriage is void-ab-initio, i.e. void from the very first day of the marriage even if the marriage is consummated.

2. A void marriage does entitle the parties to any legal right or bestow any legal duties upon them.

3. If the marriage turns out to be void, the right to receive maintenance after divorce is lost.

4. The kids, if any, born from the consummation of a void marriage are considered illegitimate and have not right of succession or inheritance.

5. The spouses do not require obtaining a decree of divorce in case of void marriages. They can simply part without any legal formalities.

3. Fasid Nikah (Irregular Marriage)

In Ata Mohammed. v. Saiqul Bibi, [1910 8 ALJ 953.], it was observed that when a marriage is temporarily prohibited and not certainly restricted it is merely irregular or fasid and not void. An irregular marriage has several aspects involved and various points of view.

Irregular marriages exist only in the case of Sunni Muslims whereas an irregular marriage, under Shia law, is void marriage. When a marriage is conducted by violating certain or partial conditions of a valid marriage, it is called an irregular marriage. The best instance of an irregular marriage is the marriage between a Muslim and a Christian or a Jew.

In general, an irregular marriage is voidable marriage and not void-ab-initio. If the irregularity can be removed from an irregular marriage, the marriage becomes valid when it is removed. So, if a Muslim man of the Sunni sect marries a Jewish woman but gets her converted to Islam, the marriage is valid. The social and legal implications of an irregular marriage depend upon the question of whether the marriage was consummated or not. These implications are:

1. Unless the marriage is consummated, the wife has no right to receive a dower from the husband in the case, he divorces her.

2. The wife is not bound to follow the rule of iddat, i.e. prohibition from remarriage within 3 months of divorce if the marriage is not consummated.

3. The wife has no right to claim maintenance from the husband during the iddat period of three months.

4. If the irregular marriage is consummated and results in the birth of children, the children will be considered legitimate and shall have all rights of inheritance of properties.

According to Shia Law, marriage may be either valid or void. Those marriages which are irregular under Sunni law are void under Shia Law. However, under Shia Law marriage contracted without witnesses is valid, it is not void.

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