Akbar an NRI resides in London, offers to marry Waheeda in Delhi by a long-distance call over the phone. Waheeda accepts the offer on phone. Is this a valid marriage under Muslim Law? Discuss.
Question: Akbar an NRI resides in London, offers to marry Waheeda in Delhi by a long-distance call over the phone. Waheeda accepts the offer on phone. Is this a valid marriage under Muslim Law? Discuss. [DJS 1996] Find the answer only on Legal Bites. [Akbar an NRI resides in London, offers to marry Waheeda in Delhi by a… Read More »
Question: Akbar an NRI resides in London, offers to marry Waheeda in Delhi by a long-distance call over the phone. Waheeda accepts the offer on phone. Is this a valid marriage under Muslim Law? Discuss. [DJS 1996]
Find the answer only on Legal Bites. [Akbar an NRI resides in London, offers to marry Waheeda in Delhi by a long-distance call over the phone. Waheeda accepts the offer on phone. Is this a valid marriage under Muslim Law? Discuss.]
Answer
It has been observed by the court in the case Abdul Kadir v. Salima and Anr., (1886) ILR 8 All 149 that a Muslim marriage exists in the form of a civil contract, and therefore the concept of offer and acceptance applies to a Muslim marriage just like a civil contract. An offer is called ijab in Muslim law, and an acceptance is called qubul.
The offer is made by the husband. It can be either made by the man or a person who has been authorized by the man. Now, since a Muslim marriage is a contract, it is allowed to have certain pre-conditions to the marriage, and on the fulfilment of the same, the marriage can be accepted by both parties. It further needs to be asserted that these terms and conditions should be in consonance with legal principles and public policy.
The acceptance needs to be carried out in a way where the man or someone on his behalf and the woman or someone on her behalf needs to give their acceptance to the marriage. This needs to be taken in the presence of at least one male and two female witnesses who should be adult, sane Mohammedans.
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.
In the case at hand, the offer and acceptance have not been made in the presence and hearing of witnesses. Therefore, the marriage cannot be said to be valid. The Shia sect of Muslims does not mandatorily require the norm of witnesses, and it can be done away with. Moreover, if there is no witness to the marriage, it becomes a mere irregularity and not invalidation.
