Nature of Marriage (Nikah)
Nikah as a Civil Contract
Distinction from Sacramental Marriage
Under Muslim law, Nikah is a legally binding civil contract (ʿaqd‑niḥā‘), rather than a sacrament as in some religions. It creates rights and duties enforceable by law, but is not a religious rite necessitating divine grace.
Key Contractual Features:
- It requires offer and acceptance (ijbār-o-qubūl) in presence of two Muslim witnesses.
- The mahr (dower) is a contractual obligation from husband to wife.
- Parties must be competent (sound mind, lawful age, free consent).
- It may include conditions, which if violated, can allow dissolution.
Unlike sacramental marriage, Nikah:
- Can be dissolved by mutual agreement or talaq.
- Is governed by contractual principles (offer, acceptance, consideration).
- Is subject to statutory obligations (e.g., dowry, maintenance) under secular laws.
Illustrative Example:
Example 1. A couple includes a condition that either may seek divorce if one fails to offer proper education. Is this valid?
Answer:
Yes. Conditions are valid in Nikah if they are not unlawful or against public policy. Breach of such a condition can make the marriage voidable.
Objects of Marriage in Islam
Procreation, protection of lineage, companionship
The primary objectives of Nikah, as taught in Islamic law, include:
- Procreation: Legitimate childbearing within marriage ensures lawful lineage (nasab).
- Protection of lineage: Defends against adultery and illegitimacy.
- Companionship and mutual support: Encourages tranquility (sakīnah), love (mawaddah) and mercy (raḥmah) between spouses.
- Social tranquility: Channeling sexual desires within marriage reduces social disorder.
- Fulfillment of religious duty: Considered a commendable act (ṣunnah), providing spiritual and worldly benefits.
Indian Legal Context:
- Nikah is both a religious contract and a civil document, requiring formal registration under state Muslim Marriage Registration Acts.
- Rights arising—like **maintenance**, **inheritance**, **custody**, and **divorce**—are enforceable under secular statutes (e.g., Muslim Women (Protection of Rights on Marriage) Act, 2019).
Illustrative Example:
Example 2. A couple enters Nikah for companionship and mutual support without intending to have children. Is their marriage valid?
Answer:
Yes. While procreation is a primary objective, it is not mandatory. The contract remains valid if entered with sound consent, due consideration, and proper execution.
Essential Elements of a Valid Nikah
Offer and Acceptance (Ijab-o-Qubul)
Conditions for validity of proposal and acceptance
The foundation of a valid Nikah lies in the lawful exchange of offer and acceptance:
- Ijab (Offer) and Qubul (Acceptance) must be made at the same meeting (majlis).
- It must be clear, unambiguous, and immediate.
- Offer and acceptance should not be conditional or time-bound (i.e., not temporary or future-oriented).
- Both parties must understand each other’s statements — the marriage becomes void if there is any fundamental misunderstanding.
Example 1. If the bride gives consent in writing and the groom accepts in front of two witnesses, is it valid?
Answer:
No, unless both offer and acceptance are made orally or through agents at the same time and place, the marriage is not valid. Written consent alone is insufficient.
Competency of Parties
Age of Majority (Puberty)
Under Muslim law, the age of majority is generally considered as attainment of puberty, presumed to be at 15 years. However, under the Indian Majority Act, it is 18 years. A minor’s marriage can be contracted by a guardian, but such a marriage is voidable upon attaining majority (Option of Puberty).
Sound Mind
The parties must be of sound mind at the time of contracting the marriage. A person of unsound mind can contract marriage only during a lucid interval, and through a guardian’s consent if minor and insane.
Absence of Prohibited Degrees of Relationship
Unlawful conjunction
Marriage is invalid if it involves unlawful conjunction — i.e., marrying two women simultaneously who are closely related to each other, such as sisters or aunt and niece.
Fosterage
Under Muslim law, fosterage (milk relationship through breastfeeding) creates similar prohibitions as blood ties. A child breastfed by a woman five or more times within two years of life cannot marry her biological children.
Absence of unlawful previous marriage
A valid marriage cannot take place if the person is already married, unless:
- In case of a Muslim man, polygamy is permitted up to four wives (Sunni law) provided the earlier marriages are lawful and obligations fulfilled.
- For a Muslim woman, marrying while her previous marriage is valid or during the iddat period is strictly prohibited.
Consent of Parties
Free Consent
The consent of both bride and groom must be voluntary. Any marriage performed under coercion, force, fraud, or undue influence is considered void (under Hanafi) or irregular (under Shia law).
Example 2. A girl agrees to marry under family pressure. Is it valid?
Answer:
No, the marriage is voidable. The Supreme Court of India recognises the right of women to choose their life partner freely.
Presence of Witnesses
Sunni vs. Shia requirements
Sunni Law (Hanafi): Marriage must be conducted in the presence of two adult Muslim male witnesses or one male and two female Muslim witnesses.
Shia Law (Imami): Witnesses are not mandatory for the validity of Nikah, but are recommended.
Dower (Mahr)
Necessity of Mahr for validity of marriage
Mahr (Dower) is an essential obligation in Muslim marriage. While its non-specification does not invalidate the marriage, its non-payment can lead to:
- Wife’s right to refuse consummation
- Wife’s right to sue for recovery
- Right to retain husband’s property till payment (Lien)
Mahr may be:
- Prompt (Mu’ajjal): Payable immediately after marriage.
- Deferred (Mu’wajjal): Payable upon death or divorce.
Validity of Marriages
Valid Marriage (Sahih)
Consequences of a valid marriage
A valid (Sahih) marriage is one that complies with all the essential elements under Muslim law — including offer and acceptance, competency, absence of prohibitions, witness (in Sunni law), and payment or promise of Mahr.
Legal consequences of a valid marriage:
- Legitimacy of Children: All children born out of the marriage are legitimate and have full inheritance rights.
- Mutual Rights and Duties: Both spouses acquire mutual obligations such as cohabitation, fidelity, and maintenance.
- Right to Dower (Mahr): Wife has the enforceable right to receive the dower.
- Right to Maintenance: Wife becomes entitled to maintenance during marriage and even during iddat after divorce.
- Inheritance Rights: Both spouses become legal heirs of each other.
- Bar on remarriage during Iddat: After divorce or death, the wife must observe iddat before remarrying.
Example 1. If two adult Muslims marry with free consent, in presence of witnesses and with specified Mahr, is it valid?
Answer:
Yes, such a marriage fulfills all the conditions of a valid (Sahih) marriage under Sunni law.
Void Marriage (Batil)
Consequences of a void marriage
A void (Batil) marriage is unlawful from the beginning and has no legal existence. It occurs when a marriage is performed in violation of permanent prohibitions, such as:
- Marriage with a person within the prohibited degree of consanguinity (e.g., sister, mother, aunt)
- Marriage with a non-Muslim woman (in Shia law)
- Marriage during subsistence of a valid earlier marriage (for women)
Consequences include:
- No conjugal rights: The parties are not considered husband and wife legally.
- No inheritance rights: Neither party inherits from the other.
- No maintenance or dower: Wife is not entitled to Mahr or maintenance.
- Children are illegitimate: Children have no legal claim over father’s inheritance (except under specific statutory protections).
Example 2. A man marries his biological sister unknowingly. Is the marriage valid?
Answer:
No, the marriage is absolutely void under Muslim law due to consanguinity, regardless of ignorance.
Irregular Marriage (Fasid)
Consequences of an irregular marriage
An irregular (Fasid) marriage is not completely void, but suffers from a temporary or curable defect, such as:
- Marriage without proper witnesses (in Sunni law)
- Marriage with a fifth wife (if already married to four)
- Marriage with a woman undergoing iddat
- Marriage with a non-Muslim Kitabi woman without conversion (in Shia law)
Consequences include:
- Children are legitimate: The offspring from such marriage are considered legitimate.
- Dower (Mahr): Wife is entitled to Mahr if consummation took place.
- No mutual inheritance: Spouses do not inherit from each other.
- Can be regularised: Once the defect is removed (e.g., iddat completes, number of wives reduced), the marriage can become valid (Sahih).
Example 3. A Muslim man marries a woman during her iddat. What is the status of the marriage?
Answer:
It is an irregular (Fasid) marriage. The marriage can be regularised after the iddat period ends, and children born from it are legitimate.