Distinguish between void and irregular marriage in Mohammedan law and State when a marriage is void and when it is irregular.

Question: Distinguish between void and irregular marriage in Mohammedan law and State when a marriage is void and when it is irregular. [BJS 1987, DJS 2014]

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Answer

Marriage is termed as void when it has no validity in front of law from its inception whereas irregular marriage is a marriage that is not complete due to some legal formalities and it gets complete as soon as such legal formality is completed.

(i) Batil i.e., bad in its foundation, and one which is a complete void agreement; and

(ii) Fasid i.e., irregular, or one which is good in its foundation, but unlawful in its attributes. In the batil and fasid kinds of marriages, there are no mutual rights of inheritance between husband and wife.

In Mohammedan law, marriages that are not valid may be either irregular (also sometimes referred to as invalid) or void. This distinction is peculiar to Sunni law alone. Under Shia law, marriage is either valid or void. Marriages that are irregular under Sunni law are void according to Shia law.

Differences

The following are the three important points of difference between a void (batil) and an invalid (fasid) marriage:

1. As to Definitions

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. Thus, in a marriage:

(i) Without witnesses, the irregularity arises from accidental circumstances and may be removed by a subsequent acknowledgement, express or implied, before sufficient witnesses.

(ii) Without the guardian’s consent, the objection may be removed if the guardian subsequently ratifies it.

iii) With a fifth wife, the impediment may be removed by the husband divorcing one of his earlier four wives,

(iv) With a woman undergoing iddat, the impediment ceases on the expiration of the period of iddat.

(v) With an idolator or fire-worshipper, the impediment may be removed if the woman is converted to Islam.

(vi) With a woman so related to the wife that if one of them had been a male, they could not have lawfully inter-married, this impediment may be removed by the man divorcing the wife who constitutes the obstacle. Thus, if a man, who has already married one sister, marries another, he can divorce the first, and thus regularise the second marriage.

2. As to their Legal Effect

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.

3. As to Issues of Marriage

The issues of a void (batil) marriage are illegitimate; those of a fasid marriage are legitimate.

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.

Whereas, under Muslim Law, marriage is void when it is performed in violation of consanguinity, Affinity, and Fosterage conditions.

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