Muslim Marriage Law in India: Formalities, Polygamy, Divorce, Remarriage

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Muslim marriage law differs vastly from marriage laws of other religions. This article will explain all about marriages laws that a Muslim in India need to know about. 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. From the religious perspective, Muslim marriage is also a devotional act, i.e., ibadat. The Prophet is reported to have said that marriage is obligatory (wajib) for every physically fit Muslim, that marriage is equal to jehad (holy war) and that he who marries completes half his religion, while the other half is completed by leading a virtuous life. Other schools of thought prescribe that the man must also have the means to earn a lawful livelihood, to pay Mahr and to support wife and children. Marriage also partakes the nature of muamlat or worldly affairs and transactions among human beings.Marriage in Islam is a Sunnat, i.e., part of the practices, teachings, specific words, habits, customs and way of life, in dealing with family, friends and government, preached and practiced by the Prophet himself. Singlehood, monasticism and celibacy are forbidden under Islam.

Muslim Marriage Law: Formalities of a Valid Marriage

According to the Muslim marriage law there are no prescribed ceremonies or formalities or special rites and rituals to solemnise a Nikah. Certain legal and reasonable conditions, which are not opposed to the spirit of Islam, may be appended to the contract at the time of marriage. But, the following requirements are compulsory: i. The pillars of the marriage are Ejab-o-Kubool, i.e., offer or proposal on the part of one party to the marriage and acceptance by the other party. ii. This free and mutual consent must be expressed in one and the same meeting in clear unambiguous words. iii. Presence of 2 witnesses is required if the parties are Hanafis; no witnesses are needed if the parties are Shias. iv. Both the bride and groom must have attained puberty (not necessarily the legal age of majority). v. Both the parties, i.e., the bride and groom or, when minor, their guardians, must be of sound mind. vi. The marriage should not be one forbidden by the rules of blood relationship, affinity or fosterage, differences in rank/social status or religion of the parties, prescription of iddat in case of remarriage of a woman, etc., depending upon the sect to which the parties belong.

Muslim Marriage Law: Non-essential Customs

The Nikah is read by a Kazi who recites the marriage sermon (extracts from the Quran and Hadis), there may be exchange of gifts, prayers are offered by the guests for the health and happiness of the couple, and additional Maulvis from both sides may be present. But these customary practices among Indian Muslims may differ among different sects and are not essential legal requirements. Registration of marriage is not compulsory, though this may cause difficulties later with regard to proving the marriage.

Muslim Marriage Law: Legal effects of a valid marriage

As a result of a valid marriage, sexual intercourse between the couple becomes legal. The children born of the union are legitimate. As per the Muslim Marriage Law, the husband is bound to provide for the maintenance of the wife by way of food, clothing, lodging, and all such things as may be needed to support life so long as the wife is not a minor incapable of consummation, is faithful, lives with him and obeys his reasonable orders, even if the wife has the means to support herself and the husband does not. The husband also has a duty to provide for the children begotten of such marriage. Any terms and conditions stipulated in the marriage contract must be observed. The wife is entitled to Dower or Mahr, a sum of money or other property from the husband as a mark of respect for the wife, the amount of which may be settled before or after marriage, and payable either on demand or on the dissolution of marriage by death or divorce (although different schools and sects have different rules regarding conditions of payment for the same and how or when the wife forfeits her right to the same). They can inherit property from each other. However, neither the husband nor the wife acquires any right over each other’s property simply by reason of the marriage.

Muslim Marriage Law: Divorce

As per the Muslim marriage law divorce is permitted under Islam and can be initiated by either parties. The Quran forbids a man from seeking pretexts for divorcing his wife if she is obedient and faithful to him. The Prophet curtailed the unbridled power of divorce by the husband and provided the same right to the wife to be exercised on reasonable grounds. The same has been provided for in The Dissolution of Muslim Marriages Act, 1939. Divorce was permitted by the Prophet but not encouraged. The marriage can also be dissolved by mutual consent. The grounds and rules of divorce vary for different sects. A minor married by his or her lawful guardian, other than the father or father’s father, can repudiate the marriage upon attaining puberty. After divorce, cohabitation between the couple becomes illegal and once the divorce is final, they cannot inherit property from each other. The amount of Mahr remaining, if any, becomes payable. The wife is entitled to maintenance during the period of iddat. Remarriage between the couple is possible only if the divorced wife observes iddat, remarries and the second marriage is consummated and voluntarily dissolved by the second husband and the wife observes iddat again.

Muslim Marriage Law: Remarriage

According to the Muslim Marriage Law, widows and divorcees have the freedom to marry again. In the event of death of husband or divorce, the woman must first observe a period of iddat, or a period of waiting, before she can remarry, irrespective of her age. If the marriage was dissolved by divorce and had been consummated, then the period of waiting is of 3 courses of her menstrual cycle or, if pregnant, till the delivery of the child. If the first marriage ended due to the death of the husband, then, irrespective of whether the marriage was consummated or not, the period of waiting is of 4 months and 10 days or, if pregnant, till the delivery of the child, whichever period is longer.

Muslim Marriage Law: Polygamy in Islam

In Islam, monogamy is the general rule while polygamy is only an exception. The Prophet did not favour polygamy except in exceptional circumstances. According to the Muslim Marriage Law, a man can have up to 4 wives, but a woman can only have one husband at a time. In India, the female population is low and polygamy adds to the economic burden of supporting multiple wives and children. Polygamy under Islam has not been abolished in India but it is also not widely practiced and is often provided against by a special clause in the marriage contract by those who find it morally offensive. The groom as well as the bride-to-be may stipulate monogamy as a condition in the Nikahnama and, once signed, it requires the parties to not enter into any formal or informal marriage contract with another person. It is advisable that the bride and groom personally read this form carefully and consider and deliberate upon it well in advance before signing it as this document lists the rights and obligations of both parties, their personal details and expectations, amount of Mahr and how it can be changed, restrictions on either parties, consequences in case of disagreements or divorce, etc.

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Priya holds a masters in accounting and is well-versed with compliance and legal issues a small business may face.

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