Conditions of Capacity for Marriage
Competency of Parties
Age of Puberty and Majority (Reference to Indian Majority Act and Muslim Law Puberty)
Under Muslim law, the validity of marriage depends on the attainment of puberty, while under Indian statutory law, marriage is tied to the age of majority.
- Muslim Law: Puberty is presumed at the age of 15 years unless proven earlier. A person who has attained puberty is competent to marry.
- Indian Majority Act, 1875: For legal contracts and guardianship purposes, majority is attained at the age of 18 years (21 if under a court-appointed guardian).
Note: As per the Prohibition of Child Marriage Act, 2006, the statutory age of marriage in India is:
- 18 years for girls
- 21 years for boys
Soundness of Mind (Lucid intervals)
Soundness of mind is an essential condition for valid marriage in both Muslim and general Indian law.
- A person of unsound mind is not competent to contract a marriage unless he/she is in a lucid interval.
- The person must be able to give valid consent at the time of the contract.
Indian Contract Act, 1872 principles are applied in determining mental capacity, even in matters of marriage.
Consent and Free Will (Absence of Coercion or Undue Influence)
A valid marriage requires free consent of both parties. Any marriage obtained by force, fraud, or undue influence is voidable.
- Muslim law: Consent of the parties is mandatory for a valid Nikah.
- Marriage under coercion or duress is considered fasid (irregular) and can be annulled.
- In the case of a minor or insane person, consent is given by a legal guardian (wali).
Example 1. A woman is forced by her family to marry without her consent. Is the marriage valid?
Answer:
No. Under Muslim law, such a marriage is voidable. The woman may exercise the right to annul the marriage under the doctrine of ‘option of puberty’ if she was a minor at the time of marriage.
Role of Guardian in Marriage of Minor or Insane Person (Jabr)
If either party is a minor or of unsound mind, the marriage must be contracted by a legal guardian (wali) on their behalf.
Order of Guardians (Wali) under Muslim Law:
| Guardian (Wali) | Order of Preference |
|---|---|
| Father | First |
| Paternal Grandfather | Second |
| Brother or Uncle | Third |
| Mother | Not recognized as Wali under traditional Muslim law |
The concept of Jabr (guardian’s authority) is particularly relevant in cases of child marriages. However, the minor has a right to repudiate the marriage on attaining puberty under the doctrine of ‘Khiyar-ul-Bulugh’ or option of puberty.
Example 2. A 13-year-old girl is married off by her father. On turning 15, she expresses her unwillingness to continue. Is she legally allowed to annul the marriage?
Answer:
Yes. Under Muslim law, she can exercise her right of option of puberty provided the marriage was unconsummated and she repudiates it immediately upon attaining puberty.
Permanent Prohibitions to Marriage
Prohibition by Consanguinity (Blood Relationship)
Ascendants and Descendants
Under Muslim personal law, marriage is permanently prohibited between a person and their ascendants and descendants. This includes:
- Father, grandfather, great-grandfather
- Mother, grandmother, great-grandmother
- Son, grandson, great-grandson
- Daughter, granddaughter, great-granddaughter
This prohibition is based on natural repulsion and the need to preserve family sanctity. Any such marriage is batil (void).
Siblings
Marriage with full, half, or uterine siblings is strictly prohibited under Muslim law:
- Real brother or sister (from both parents)
- Half-brother or half-sister (from either parent)
This prohibition also extends to step-siblings if they share the same parent. Such unions are considered void.
Children of Siblings
Marriage with a niece or nephew (child of one’s brother or sister) is also permanently prohibited. This includes:
- Brother’s son or daughter
- Sister’s son or daughter
This prohibition exists to maintain the hierarchy and reverence in familial relationships.
Aunts and Uncles
A person is permanently debarred from marrying their:
- Father’s sister (paternal aunt)
- Mother’s sister (maternal aunt)
- Brother of father or mother (paternal/maternal uncle)
Marriage with these relatives is void (batil) and illegal under all schools of Muslim law.
Prohibition by Affinity (Marriage Relationship)
Relationship arising from a valid or irregular marriage
Under Islamic law, certain marriage-based relationships (affinity) result in permanent prohibition. These arise not only from a valid marriage but also from an irregular marriage where consummation has occurred.
Affinity rules are stricter than consanguinity in some respects, as even sexual contact can create such prohibition.
Wife's mother, grandmother, daughter, granddaughter
Marriage is prohibited with the following due to affinity:
- Wife’s mother (mother-in-law)
- Wife’s grandmother (maternal or paternal)
- Wife’s daughter (step-daughter), if the marriage was consummated
- Wife’s granddaughter (step-granddaughter)
This applies regardless of whether the wife is living or divorced.
Father's wife, grandfather's wife
These relationships are permanently prohibited as they involve ascendants’ spouses:
- Father’s wife (stepmother)
- Grandfather’s wife (step-grandmother)
Even if the marriage was not consummated, marrying them is not permitted.
Son's wife, grandson's wife
Marriage with the following is permanently prohibited under affinity:
- Son’s wife (daughter-in-law)
- Grandson’s wife (daughter-in-law through son’s son)
Example 1. Can a man marry his deceased son’s widow?
Answer:
No. Under Muslim law, such a marriage is void due to affinity. A man cannot marry his son’s widow or any daughter-in-law.
Prohibition by Fosterage (Riza)
Meaning and extent of prohibition
Fosterage (Riza or Radha’a) refers to a relationship established through breastfeeding. If a child is breastfed by a woman other than the mother under certain conditions, that woman and her blood relatives are considered foster relatives.
Quranic injunction: "Prohibited to you are your foster mothers who nursed you, and your foster sisters" (Surah An-Nisa, Ayat 23).
Foster relationships causing prohibition:
- Foster mother and her daughters (foster sisters)
- Foster mother’s husband (foster father)
- Foster mother’s children (foster siblings)
Such prohibitions are considered equivalent to blood ties in their legal effect under Islamic law.
Conditions for fosterage prohibition to apply
To invoke fosterage-based prohibition, the following conditions must be fulfilled:
- The child must have been breastfed at least five times (in some schools) before the age of 2 years.
- Milk must be directly from the breast or extracted and fed orally.
- There must be valid testimony or proof of the act.
If these conditions are satisfied, the relationship becomes mahram (non-marriageable).
Example 2. A girl is breastfed three times by her aunt. Can she marry the aunt’s son?
Answer:
No, if it is proven that the minimum required breastfeeding (according to the applicable school) was done, she becomes a foster sister to the aunt’s son and cannot marry him.
Temporary Prohibitions to Marriage
Prohibition due to Unlawful Conjunction
Marrying two women simultaneously who are related within prohibited degrees (e.g., two sisters, aunt and niece)
In Muslim law, a man cannot marry two women at the same time if they are related to each other by consanguinity or affinity in such a way that if one were male, marriage with the other would be permanently prohibited.
This includes:
- Two sisters (e.g., Zainab and Amina)
- A woman and her niece (either brother’s or sister’s daughter)
- A woman and her maternal or paternal aunt
Such a marriage is considered irregular (fasid), not void, and becomes valid if the existing relationship ends (e.g., through divorce or death).
Example 1. Can a Muslim man marry his wife’s sister while his wife is still alive and in the marriage?
Answer:
No, such a marriage is prohibited due to unlawful conjunction. However, he may marry the sister after divorcing the wife and completing her iddat.
Prohibition based on Religion
Marriage of a Muslim man with a non-Kitabi woman (Sunni Law)
Under Sunni law, a Muslim man may marry a Kitabiya—a woman who belongs to a revealed religion (i.e., Judaism or Christianity).
However, marriage with a non-Kitabi woman (e.g., polytheist, atheist, agnostic, or follower of unrevealed religion) is not valid and considered irregular.
Marriage of a Muslim man with a non-Muslim woman (Shia Law)
In Shia law, even a temporary marriage (Mutah) with a Kitabiya is discouraged and permanent marriage is not allowed.
The Shia school is stricter than Sunni regarding inter-faith marriages and emphasizes preservation of Islamic faith in family lineage.
Marriage of a Muslim woman with a non-Muslim man (Sunni and Shia Law)
Marriage of a Muslim woman with a non-Muslim man is strictly prohibited and considered void (batil) under both Sunni and Shia law.
This prohibition applies irrespective of the man’s religion—even if he is a Kitabi.
Example 2. A Muslim woman wants to marry a Hindu man. Is the marriage valid?
Answer:
No. Under Muslim law, a Muslim woman cannot marry a non-Muslim man. The marriage would be void ab initio.
Prohibition during Iddat (Waiting Period)
Meaning and purpose of Iddat
Iddat is the mandatory waiting period a woman must observe after the death of her husband or divorce before she can remarry.
The purposes of iddat include:
- Confirming the absence or presence of pregnancy
- Preserving lineage and avoiding confusion of paternity
- Allowing emotional and social transition
Duration of Iddat in different circumstances (Divorce, Death of Husband)
| Situation | Duration of Iddat |
|---|---|
| Divorce (non-pregnant) | Three menstrual cycles |
| Divorce (pregnant) | Until delivery of child |
| Death of husband (non-pregnant) | Four months and ten days |
| Death of husband (pregnant) | Until delivery of child (if longer) |
A marriage during iddat is considered irregular (fasid) and becomes valid only after the iddat ends.
Prohibition due to Pilgrimage (Ihram) or Vows
During Ihram—a sacred state a Muslim enters while performing Hajj or Umrah—a man or woman is prohibited from entering into a marriage contract.
- This prohibition applies only for the duration of the Ihram.
- Marriage contracted during this time is considered irregular.
Also, if a person has taken a religious vow (such as a vow of celibacy or temporary abstinence), marriage is prohibited during the fulfillment of the vow.
Example 3. Can a man performing Hajj marry during his state of Ihram?
Answer:
No. Marriage during the state of Ihram is not allowed and would be considered irregular under Islamic law.
Polygamy (Limit on Number of Wives)
Permissibility up to four wives for men (with conditions)
Muslim personal law permits a man to have up to four wives at the same time, provided he treats them all with equal justice and fairness.
The Quran says (Surah An-Nisa 4:3): "Marry women of your choice, two, three, or four; but if you fear you will not deal justly with them, then only one."
This permission is not a right but a conditional allowance, and unfair treatment can be grounds for judicial intervention or even divorce.
Strict prohibition on polyandry for women
Under all schools of Muslim law, a woman cannot have more than one husband at any time. Polyandry is strictly prohibited and such marriage is considered void (batil).
Example 4. A Muslim man already has four wives. Can he legally marry a fifth?
Answer:
No. Under Muslim law, a man cannot have more than four wives simultaneously. Marriage with a fifth wife is irregular (fasid) and becomes valid only if one of the existing marriages ends through divorce or death.
Consequences of Violating Prohibitions
Marriage within Permanent Prohibitions (Batil/Void)
No legal consequences arise
A marriage contracted in violation of permanent prohibitions under Muslim law is treated as void (batil). This means:
- The marriage is considered as if it never existed.
- There are no marital rights and obligations between the parties.
- No rights of maintenance, inheritance, or cohabitation arise from such a union.
Children are illegitimate
One of the harsh consequences of a void (batil) marriage is that children born from such a union are considered illegitimate, and thus do not acquire rights of inheritance from the father under Islamic law.
Example 1. A man marries his real sister by blood. What is the status of such a marriage and children?
Answer:
The marriage is void (batil) due to consanguinity. The children from such a union are illegitimate and have no legal status under Muslim law.
Marriage within Temporary Prohibitions (Fasid/Irregular - Sunni Law)
Can be regularized by removing the prohibition
Under Sunni law, a marriage that violates temporary prohibitions is classified as irregular (fasid), not void. Such a marriage becomes valid once the prohibiting condition is removed.
For example:
- If the marriage was during iddat, it becomes valid after the iddat ends.
- If the woman was a fifth wife, the marriage becomes valid after divorcing one of the other wives.
Limited legal consequences (e.g., Mahr, Legitimacy of Children)
Though irregular, certain legal consequences still follow:
- Mahr (Dower) is payable if consummation occurred.
- Children are legitimate and can inherit from both parents.
- No right to inheritance between husband and wife.
- No right of maintenance or residence for the wife.
Example 2. A Muslim man marries a woman during her iddat. What are the consequences under Sunni law?
Answer:
The marriage is irregular (fasid) under Sunni law. It can become valid once the iddat ends. If consummation occurred, mahr is due and children are legitimate.
Marriage within Temporary Prohibitions (Batil/Void - Shia Law, except for some)
Generally void, few exceptions lead to irregularity
Shia law is stricter than Sunni law in its treatment of temporary prohibitions. Most marriages that violate temporary restrictions are considered void (batil) and not merely irregular.
Examples of void marriages under Shia law include:
- Marriage during iddat
- Marriage with a fifth wife
- Marriage with a non-Muslim woman (including Kitabi)
Only in rare exceptions—such as certain interpretations of Mutah (temporary marriage)—might such a union be considered irregular rather than void.
Example 3. A Shia man marries a Christian woman. What is the legal status of this marriage?
Answer:
Such a marriage is void under Shia law. It is not recognized as valid unless specific exceptions (such as temporary marriage with conditions) apply, which are still controversial and not widely accepted.