These are frequently asked 2 Marks questions on valid Muslim marriage, iddat, dower (mahr), and kinds of marriage (Nikah).

Type – II Write Short Notes on the Following (3/4/5 M)

a) Essential Conditions of Valid Muslim Marriage/ Muslim Marriage:

In Islam, the marriage between a bride and groom is a legal contract but not sacrament is known as Nikah. It is a matrimonial relation and an institution which legalizes the sexual activities between a male and female for the object of procreation of kids, promotion of love, mutual support and creation of families which are considered an essential unit in a society.

The proposal consisting of amount of dower (ijab) is made by the bridegroom.  The bride sits behind the pardah with relatives gathered for the nikah. There must be kazi and Two male or one male and two female witnesses. Witnesses convey proposal of the bridegroom to the bride or to guardians in case of minor bride. On hearing proposal, the bride or guardian of minor bride convey their acceptance (Qabbool).

A Muslim marriage may be constituted without any ceremonial; there are no special rites, no officiants, no irksome formalities. Nevertheless, following conditions are necessary:

1. Offer on the part of one party to the marriage;
2. Acceptance by the other party;
3. Presence of two witnesses where the parties are Hanafis; no witnesses are required if parties are Shia;
4. The words with which the marriage is contracted must be clear and unambiguous; and
5. The proposal and acceptance must both be expressed in one and the same meeting.

The offer and acceptance may be made by the parties, or by the agents, if both are competent. In case of legal incompetency, like minority or unsoundness of mind, the guardians may validly enter into a contract of marriage on behalf of their wards. This type of guardianship in a marriage is called jabr. In Islam minor marriage is permitted with option of dissolution of marriage at puberty.

b) Mahr or Dower

Mahr or dower is a sum that becomes payable by the husband to the wife on marriage, either by agreement between the parties or by operation of law. Dower or Mahr is considered as an important essential to perform marriage (nikah) in Islam. It is regarded as a consideration to the wife in marriage. Without it, the marriage is deemed incomplete. It is in the form of a gift given by a husband to the wife.

Dower is an essential incident and fundamental feature of marriage with the result that even if no dower is fixed the wife is entitled to some dower from the husband. The marriage is valid even though no mention of dower made by the contracting party. The amount fixed for Mahr is usually a mutually agreed between the parties and if the parties are competent to marry, they may fix their own Mahr at the time of contracting their marriage contract. At any event it is enforceable in law. The objects of dower are as follows:

1. to impose an obligation on the husband as a mark of respect of the wife;
2. to place a check on the capricious use of divorce on the part of husband; and
3. to provide for her subsistence after the dissolution of her marriage, so that she may not become helpless after the death of the husband or termination of marriage by divorce

According to Muslim law, the dower may be classified into the following categories-

1. Specified dower
   • Prompt dower
   • Deferred dower
2. Proper or customary dower

c) Kinds of dower:

Mahr or dower is a sum that becomes payable by the husband to the wife on marriage, either by agreement between the parties or by operation of law. Dower or Mahr is considered as an important essential to perform marriage (nikah) in Islam. It is regarded as a consideration to the wife in marriage. Without it, the marriage is deemed incomplete. It is in the form of a gift given by a husband to the wife.

According to Muslim law, the dower may be classified into the following categories-

1. Specified dower
   • Prompt dower
   • Deferred dower
2. Proper or customary dower

Specified Dower: If the amount of Dower is decided at the time of marriage, it is known as specified Dower. It may be settled even before or after the ceremony of marriage. 

• Prompt Dower: Prompt dower is payable immediately on the marriage taking place and it must be paid on demand, unless delay is stipulated for agreed. It can be realized any time before or after the marriage.
• Deferred Dower: The dower which is payable on dissolution of marriage by death or divorce is known as deferred dower either by divorce or by the death of the husband.

Proper or Customary Dower:

Dower is an integral part of Muslim marriage even when dower is not stipulated in the marriage contract, the wife is entitled to what is known as a proper or customary dower, mahr-i- misl or mahrul-mithul. In case the amount of dower is not fixed at the time or before the marriage then the dower of the wife is decided by the court relying on the various factors that are according to local customs, position of husbands, position of wife’s father, reference to dower of female paternal relations, personal qualifications that dower is known as unspecified dower. 

d) Proper Dower:

Mahr or dower is a sum that becomes payable by the husband to the wife on marriage, either by agreement between the parties or by operation of law. Dower or Mahr is considered as an important essential to perform marriage (nikah) in Islam. It is regarded as a consideration to the wife in marriage. Without it, the marriage is deemed incomplete. It is in the form of a gift given by a husband to the wife.

According to Muslim law, the dower may be classified into the following categories-

1. Specified dower
   • Prompt dower
   • Deferred dower
2. Proper or customary dower

Dower is an integral part of Muslim marriage even when dower is not stipulated in the marriage contract, the wife is entitled to what is known as a proper or customary dower, mahr-i- misl or mahrul-mithul. In case the amount of dower is not fixed at the time or before the marriage then the dower of the wife is decided by the court relying on the various factors that are according to local customs, position of husbands, position of wife’s father, reference to dower of female paternal relations, personal qualifications that dower is known as unspecified dower. The wife is entitled to proper dower even when at the time of marriage, she had agreed to receive no dower.

The basis for determining customary Dower is-

1. The personal qualification of the wife. Everything is considered from her beauty to intelligence.
2. The social status of the wife’s father and family background is considered.
3. The amount of Dower given to her family females is considered.
4. The economic and social status of the husband is also taken into consideration.
5. The other factors, such as present circumstances and family situations at the time of determining Dower.

e) Deferred Dower:

Mahr or dower is a sum that becomes payable by the husband to the wife on marriage, either by agreement between the parties or by operation of law. Dower or Mahr is considered as an important essential to perform marriage (nikah) in Islam. It is regarded as a consideration to the wife in marriage. Without it, the marriage is deemed incomplete. It is in the form of a gift given by a husband to the wife.

According to Muslim law, the dower may be classified into the following categories-

1. Specified dower
   • Prompt dower
   • Deferred dower
2. Proper or customary dower

The dower which is payable on dissolution of marriage by death or divorce is known as deferred dower either by divorce or by the death of the husband.

The following points must be noted regarding deferred dower:

• Deferred dower is payable on dissolution of marriage by death or divorce. But if there is any agreement as to the payment of deferred dower earlier than the dissolution of marriage such an agreement would be valid and binding. The wife is not entitled to demand payment of deferred dower (unless otherwise stipulated) but the husband can treat it as prompt and pay or transfer the property in lieu of it. Such a transfer will not be void as a fraudulent preference unless actual insolvency is involved.
• The widow may relinquish her dower at the time of her husband’s funeral by the recital of a formula. Such a relinquishment must be a voluntary act of the widow.
• The interest of the wife in the deferred dower is a vested and not a contingent one. It is not liable to be displaced by the happening of any event, not even on her own death and as such her heirs can claim the money if she dies.

f) Prompt Dower:

Mahr or dower is a sum that becomes payable by the husband to the wife on marriage, either by agreement between the parties or by operation of law. Dower or Mahr is considered as an important essential to perform marriage (nikah) in Islam. It is regarded as a consideration to the wife in marriage. Without it, the marriage is deemed incomplete. It is in the form of a gift given by a husband to the wife.

According to Muslim law, the dower may be classified into the following categories-

1. Specified dower
   • Prompt dower
   • Deferred dower
2. Proper or customary dower

Prompt dower is payable immediately on the marriage taking place and it must be paid on demand, unless delay is stipulated for agreed. It can be realized any time before or after the marriage. The wife may refuse herself to her husband, until the Prompt Dower is paid. If the wife is minor, her guardian may refuse to allow her to be sent to the husband’s house till the payment of Prompt Dower. In such circumstances, the husband is bound to maintain the wife, although she is residing apart from him.

Prompt dower does not become deferred after consummation of marriage, and a wife has absolute right to sue for recovery of prompt dower even after consummation. After consummation, she cannot resist the conjugal rights of the husband if the prompt dower has not been paid by him. Instead of refusing the decree the suit for restitution of conjugal rights to which the husband is entitled, if marriage is consummated, the Court may pass a decree conditional on payment of dower.

g) Kinds of Marriages Under Muslim Law:

The Nikah ceremony is one part of several steps of a marriage arrangement considered ideal by Islamic tradition. Nikah among Muslim is a “Solemn Pact” (mithaq-e-ghalid) between a man and a woman, soliciting each other’s life companionship, which in law takes the form of a contract (aqd). Different types of Nikah are as follows:

• Sahih Nikah (Valid Marriage): The term sahih is an Urdu term for the word ‘correct’ or ‘valid’. When all the essential conditions of a Muslim marriage are duly fulfilled, it is called a sahih Nikah or valid marriage.
• Batil Nikah (Void Marriage): If agreement between a prospective bride and a groom which does not meet all the essential conditions of a Muslim marriage is a void agreement and any marriage that takes place in furtherance of a void agreement is called a void marriage or Batil nikah.
• Fasid Nikah (Irregular Marriage): When a marriage is conducted by violating certain or partial conditions of a valid marriage, it is called an irregular marriage. These marriage stands between valid marriage and void marriage. The best instance of an irregular marriage is the marriage between a Muslim and a Christian or a Jew. Irregular marriages exist only in case of Sunni Muslims whereas an irregular marriage, under Shia law, is void marriage.
• Muta Marriage: Muta marriage is a temporary marriage for a fixed period of time and in return of the payment of a fixed amount of dower at the time of divorce. A Shia male may contract Muta with a Muslim, Christian, Jewish or Parsi (fireworshipper) woman, but not with a woman following any other religion. 

h) Muta Marriage:

Muta marriage is a temporary marriage for a fixed period of time and in return of the payment of a fixed amount of dower at the time of divorce. A Shia male may contract Muta with a Muslim, Christian, Jewish or Parsi (fire worshipper) woman, but not with a woman following any other religion. A woman may not contract a Muta with a non-Muslim. The amount of dower must be specified in the contract of Muta otherwise the agreement is void. The time period and the dower must be informed and accepted by the bride as well. This marriage is not followed in Sunni Muslims which consider marriage to be a permanent union and not a temporary affair. The number of wives that can be taken into Muta marriage is unlimited. The ceiling of four wives does not apply here.

Essential condition for a valid Muta-marriage may be as under:-

1. The parties must have attained the age of puberty (fifteen years) and must also possess a sound mind. Guardians cannot contract Muta of any minor. Minor’s muta is void even if it has been contracted by a marriage guardian.
2. The Shia male may contract Muta with any Muslim, Kitabia or a fire worshipping woman, but he has not right to contract muta with the woman of any other religion. Muta with a Hindu woman is void.
3. There is no restriction as to the number of Muta wives. One may contract a muta form of marriage with as many wives as he likes.
4. The consent of both parties must be a free consent.
5. The formalities of offer and acceptance, which are necessary for a regular marriage, are also essential in the Muta form of Marriage.
6. Muta may be contracted lawfully without the witnesses. The muta marriage may be contracted either by the use of the word ‘Muta’ or any of other word signifying temporary marriage.
7. There must not exist any prohibited relationship between the parties.
8. The period for which the Muta is being contracted, must be clearly specified. It may be for a day, for a week or for certain years.

When the term and the dower are fixed, the contract is valid. If, however, the term is fixed but the dower is not specified, the contract is void. Further, if the dower is specified and the term is not fixed, the contract, though void as Muta may operate as a “permanent “marriage.

i) Irregular Marriages:

When a marriage is conducted by violating certain or partial conditions of a valid marriage, it is called an irregular marriage. These marriage stands between valid marriage and void marriage. The best instance of an irregular marriage is the marriage between a Muslim and a Christian or a Jew. Irregular marriages exist only in case of Sunni Muslims whereas an irregular marriage, under Shia law, is void marriage. Some examples of irregular marriage are as follows:

1. A marriage contracted without required number of witnesses;
2. A marriage with women during her Iddat period;
3. A marriage with women without the consent of her guardian when such consent is considered necessary;
4. A marriage prohibited on account of difference of 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.
7. A marriage by unauthorized person.

In general, an irregular marriage is voidable marriage and not void-ab-initio. If the irregularity can be removed from an irregular marriage, the marriage becomes valid when it is removed. So, if a Muslim man of Sunni sect marries a Jewish woman but gets her converted to Islam, the marriage is valid. The social and legal implications of an irregular marriage depend upon the question of whether the marriage was consummated or not. Legal Implications of Irregular Marriage are as follows:

• Unless the marriage is consummated, the wife has no right to receive dower from the husband in the case, he divorces her.
• The wife is not bound to follow the rule of iddat, i.e., prohibition from remarriage within 3 months of divorce if the marriage is not consummated.
• The wife has no right to claim maintenance from the husband during the iddat period of three months.
• If the irregular marriage is consummated and results in the birth of children, the children will be considered legitimate and shall have all rights of inheritance of properties.
• The parties to such marriage could not possess the right of mutual inheritance.
• The marriage may be dissolved by any one of the parties.

j) Iddat:

When a marriage is dissolved by death or by divorce, the woman is prohibited from marrying within a specified time. It is a period of continence imposed on the woman. Iddah or Iddat is an Arabic term which means period of waiting and is observed by Muslim women. It is a period of chastity which a Muslim woman is bound to observe after the dissolution of her marriage due to the death of her husband or by divorce before she can lawfully marry again. The concept is very significant in Islamic Law.  It is one of the customary practices under the Quran which has been recognized through legislative enactment as well. The period begins from the date of actual divorce or death of the husband and not from the date on which the information reaches the wife.

Objects of Iddat:

• For the purpose of ascertaining pregnancy or a child’s parentage.
• Opportunity for reconciliation. 
• Period of mourning for the deceased husband. 

Legal Provisions:

Under Section 2(b) of The Muslim Women Act, 1986, “iddat” is mandatory under which divorced/widowed wives have to observe certain restrictions. Section 2(b) of the Act prescribes iddat period to be followed in three different scenario:

• If the divorced woman is subject to menstruation, then she is required to abstain from remarriage for three menstrual cycles starting from the date at which dissolution of marriage took place.
• In case if the divorced woman is not going through the menstruation period, then she is supposed to observe iddat for three lunar months. And,
• If she is pregnant during the dissolution of marriage, the period of iddat extends till the time she delivers the child or till the termination of pregnancy whichever comes earlier.

k) Option of Puberty Under Muslim Law:

According to Mahomedan law a marriage is a civil contract. The proposal consisting of amount of dower (ijab) is made by the bridegroom.  The bride sits behind the pardah with relatives gathered for the nikah. There must be kazi and Two male or one male and two female witnesses. Witnesses convey proposal of the bridegroom to the bride or to guardians in case of minor bride. On hearing proposal, the bride or guardian of minor bride convey their acceptance (Qabbool). In Islam minor marriage is permitted with option of dissolution of marriage at puberty.

A minor cannot legally enter into a marriage contract nor is the contract of marriage entered into by a guardian on his or her behalf, always binding on the minor. The minor on attaining puberty may ratify or revoke such a contract if he or she chooses. This right is called Khayar-ul-Bulugh (the option of puberty).

The Dissolution of Muslim Marriages Act, 1939 has removed all restrictions on the exercise of the option of puberty in the case of a minor girl whose marriage has been arranged by her father or grandfather. According to Section 2 (vii) of the Act, the wife can claim dissolution of her marriage if she is able to prove one of the following facts:

• The marriage hasn’t been consummated. 
• The marriage occurred before the woman attained 15 years.
• That the repudiation of the marriage had been done by her before attaining 18 years.

The right to exercise the option of puberty is contingent upon the facts and circumstances of each and every case. In the modern legal scenario, the Court decree in rendering such marriage invalid is necessary.

l) Remarriage Between the Same Couple Under Muslim Law:

In Talaq-e-biddat, pronouncement of Talaq was done by saying Talaq three times in a row. Nowadays, it is known as “Triple Talaq”. It is irrevocable. The only way to reconcile the marriage is through the practice of nikah halala, 

After the expiry of the period of iddat, divorcing parties are at liberty to remarry. They themselves can remarry. But in Talaq-e-biddat, pronouncement of Talaq was done by saying Talaq three times in a row. Nowadays, it is known as “Triple Talaq”. The only way to reconcile the marriage is through the practice of nikah halala, which requires the woman to get remarried, consummate the second marriage, get divorced, observe the three-month Iddat period and return to her husband. 

In Rashid Ahmed v. Anisa Khatoon, (1932) 34 Bom L.R. 375 case, where a husband gave triple talaq to his wife under compulsion of his father. After Talaq the wife and the husband lived together and five children were born to them. The man acknowledged the children as his children. After the death of the man, the collateral heirs raised the dispute that the children of deceased are illegitimate and were not entitled to get share in the property. The children prayed to the Court to presume the marriage of their parents trough their conduct and thus they were legitimate children and also asked to acknowledge their legitimacy. The privy council held that the pronounce talaq by the deceased was valid. Thus, the children could not be treated as legitimate. It held that the divorce by the husband created a bar in this case. The bar can only be removed by providing that their mother had after the divorce married another man and the latter had died or divorced her after actual consummation of the marriage and married the former husband. As these conditions are not proved, remarriage between them cannot be presumed, and the children could not be held to be legitimate, and their claim must fail.

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