‘Marriage among Mohammedans is not a sacrament, but purely a civil contract.’ Discuss this statement...........Muslim marriage.
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Question: ‘Marriage among Mohammedans is not a sacrament, but purely a civil contract.’ Discuss this statement with reference to the contractual nature of a Muslim marriage. [HJS 1986] Find the question and answer of Muslim Law only on Legal Bites. [‘Marriage among Mohammedans is not a sacrament, but purely a civil contract.’ Discuss this statement with reference to the contractual nature of a Muslim marriage.]AnswerMarriage (nikah) is defined as a contract aimed at procreation and...
Question: ‘Marriage among Mohammedans is not a sacrament, but purely a civil contract.’ Discuss this statement with reference to the contractual nature of a Muslim marriage. [HJS 1986]
Find the question and answer of Muslim Law only on Legal Bites. [‘Marriage among Mohammedans is not a sacrament, but purely a civil contract.’ Discuss this statement with reference to the contractual nature of a Muslim marriage.]
Answer
Marriage (nikah) is defined as a contract aimed at procreation and the legal recognition of children. Marriage in Islam, or Nikah, is not a sacrament (as in Hinduism), but a civil contract between a man and woman to live as husband and wife. All the rights and obligations it creates arise immediately and, are not dependent on any condition precedent such as the payment of a dower by the husband to a wife.
The Rajasthan High Court has made a very sound observation in the instant case of Hasina Bano v. Alam Noor, A.I.R. 2007 Raj, that unlike a Hindu Marriage, which is a sacrament, according to the Islamic Law, a marriage ("Nikah") is a permanent and unconditional civil contract (which comes into immediate effect) made between two persons of opposite sexes with a view to mutual enjoyment and procreation and legalizing of children. One of the essential features of a valid marriage is the payment of "mehr" (dower). Although it is an obligation upon the husband, the wife is well within her rights to relinquish the said dower.
Since the concept of contract is the basis of marriage, the principles of a valid contract would apply to the relinquishment. Thus, the relinquishment should be made voluntarily. It should not be made by duress, fraud, misrepresentation, under influence or mistake. It should be made with free consent.
Pakistan Supreme Court in Khurshid Bibi v. Mohd Amin, [P.L.D. 1967, S.C. 97], Justice S.A. Rahman who wrote the judgment said:
"among Muslims, marriage is not a sacrament, but is in the nature of civil contract. Such a contract undoubtedly, has spiritual and moral overtones and undertones but legally, in essence, it remains a contract between the parties."
This judgment does not say that marriage is purely, a civil contract, or for that matter, a civil contract. It is merely regarded to be like a civil contract.
Mayank Shekhar
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