Sahih, Batil, Fasid, and Muta Marriage

These are frequently asked questions about Muslim Marriage and kinds of marriage viz: sahih, batil, fasid, and muta marriage.

Type – III Essay Type Question (10/12/16 M)

a) Critically examine validity of marriage under Muslim Law.

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.

Nikah:

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:

Offer on the part of one party to the marriage;
Acceptance by the other party;
Presence of two witnesses where the parties are Hanafis; no witnesses are required if parties are Shia;
The words with which the marriage is contracted must be clear and unambiguous; and
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.

Dower:

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:

to impose an obligation on the husband as a mark of respect of the wife;
to place a check on the capricious use of divorce on the part of husband; and
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-

Specified dower
- Prompt dower
- Deferred dower
Proper or customary dower

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.

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. Muta marriage is not recognized by Sunnis.

Remarriage Between Same Parties in Muslim (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.

Conclusion:

On the basis of Juristic opinion, we can easily conclude, that in Islam, marriage is seen as a civil contract between a man and a woman for the purpose of legitimatizing the intimacy and procreation of children. Unlike other religions, the Mohammedan law does not see marriage a sacrament; but a contract that is entered into by two individuals by signing a document called Nikahnama. The Mahr is a legal right of the bride and an obligation of the groom. It can be a sum of money or property given to the bride by the groom. It can be paid to be at the time of the Nikah or after it. Being a civil contract, the Nikah is not permanent. The couple is not obliged to maintain their relationship onto death but can be broken at any point in time.

b) Explain different kinds of Muslim Marriage under Muslim Law.

Different kinds of Muslim marriage are as follows:.

Sahih Nikah (Valid Marriage):

When all the essential conditions of a Muslim marriage are duly fulfilled, it is called a sahih Nikah or valid marriage.

Essentials of Valid Marriage:

The general essentials of a Muslim Niqah are:

Parties must have capacity to marry;
Attained puberty;
Proposal (ijab) and acceptance (qubool);
Both the proposal and the approval must be made at the same time;
Free consent of both the parties;
A consideration (mahr);
Two male or one male and two female witnesses must be present and hearing during the marriage proposal and approval, and they must be sane and adult Mahomedans. (In Shia Law, this isn’t necessary.

Legal Implications of a Valid Marriage:

The spouses become legally married owing to which they can legally consummate their marriage.
Due to the marriage, the parties acquire the rights of inheritance over the properties which can be inherited.
The right to maintenance is an independent right beside the right to receive the promised dower.
The spouses have to be loyal and faithful to each other. However, a Muslim man is allowed to commit polygamy, so it is only the wife who needs to be loyal to the man after the marriage.
The kids, if any, who are born due to the consummation of a sahih marriage are considered to be legitimate children.

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.

The following are certain situations in which a Muslim marriage is void.

Consanguinity (Quraabat) is void. Muslim cannot marry his mother or grandmother, daughter or granddaughter, sister, niece or great-niece, aunt or great aunt, whether paternal or maternal.
Affinity (Mushaarat) is void. Muslim cannot marry his wife’s mother or grand-mother how highsoever, His wife’s daughter or grand-daughter how lowsoever, wife of his father or paternal grandfather how highsoever, and wife of his son ow wife of his son’s son or wife of daughter’s son’s daughter howlowsoever.
When a marriage takes place between persons who are absolutely incapable, the marriage is void.
When a person marries to the wife of another man when the marriage of the lady was subsisting, the marriage is void.
Marrying more than four wives. In such a case, the fifth marriage and so on becomes void.

Legal Implications of Void Marriage:

The marriage is void-ab-initio, i.e., void from the very first day of the marriage even if the marriage is consummated.
A void marriage does entitle the parties to any legal right or bestow any legal duties upon them.
If the marriage turns out to be void, the right to receive maintenance after divorce is lost.
The kids, if any, born from the consummation of a void marriage are considered illegitimate and have not right of succession or inheritance.
The spouses do not require to obtain a decree of divorce in case of void marriages. They can simply part without any legal formalities.

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. Some examples of irregular marriage are as follows:

A marriage contracted without required number of witnesses;
A marriage with women during her Iddat period

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.

Legal Implications of Irregular Marriage:

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.

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. This marriage is not followed in Sunni Muslims.

Essentials of Muta Marriage:

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

The parties to muta marriage 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.
The Shia male may contract Muta marriage 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.
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.
The consent of both parties must be a free consent.
The formalities of offer and acceptance, which are necessary for a regular marriage, are also essential in the Muta form of Marriage.
Muta marriage 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.
There must not exist any prohibited relationship between the parties.
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 marriage may operate as a “permanent “marriage.

Conclusion:

There are four kinds of marriages in Islam. They are Sahih (Valid), Batil (Void), Fasid (Irregular), and Muta.

c) Explain different kinds of Mahr/Dower:

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

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

Thus, Dower or mahr is important and required ingredient of Muslim Marriage..

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.

Objects of Dower:

to impose an obligation on the husband as a mark of respect of the wife;
to place a check on the capricious use of divorce on the part of husband; and
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

Kinds of Dower:

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

Specified dower
- Prompt dower
- Deferred dower
Proper or customary dower

Specified dower (Mahr-i-Musamma):

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. 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.

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.

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.

Proper 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-

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

Conclusion:

Under “the Muslim Law 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 in respect. The significant object of the dower is to give resources to the wife after the dissolution of her marriage so she may not get hopeless after the death of the husband or end of a marriage by divorce. Dower has additionally been considered as the piece of maintenance while fixing the amount of maintenance under Section 125 of Criminal Procedure Code, 1973.

d) Explain the concept of Iddat.

Period of Iddat:

Case 1: Dissolution of Marriage by Divorce:

If the marriage is dissolved by divorce and the consummation has taken place, the duration of the iddat period is three months. It is felt by the jurists that at least three menstrual cycles are essential to observe whether a woman is pregnant or not and as a menstrual cycle takes place once every month, the duration is three months. And if during this time she becomes pregnant the period owould extend till the delivery of her child.
If a marriage is dissolved and consummation has not taken place, the divorced woman is not required to observe iddat as there is no chance of her being pregnant.
If the divorced woman is pregnant at the time of divorce, her iddat period continues till the delivery of the child.

Case 2: Dissolution of Marriage by the Death of the Husband:

If a marriage is dissolved by the death of the husband, the widowed wife has to observe iddat for a duration of four months and ten days. In this case, it does not matter whether consummation took place or not.
If the woman in this period becomes pregnant, then her iddat period extends till the delivery of her child.

Case 3: Death of husband during iddat (due to divorce)

In the case where a woman is divorced by her husband and is observing divorce, an iddat of three months will be observed. If during this time her husband dies, she has to observe a fresh iddat of four months and ten days from the day of the death of the husband.

Statutory 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 scenarios;

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.

Objects of Iddat:

For the purpose of ascertaining pregnancy or a child’s parentage: Iddat period is practiced amongst Muslims to ascertain the pregnancy of a divorced/widowed woman or child’s parentage at the time of dissolution of marriage of his/her parents.
Opportunity for reconciliation: Iddat is accepted as a period for reconciliation of potential differences amongst husband and wife.
Period of mourning for the deceased husband: it gives ample time to the widowed wife to mourn over the death of her husband, and by this way, she can protect herself from taking haste decision in the time of vulnerability.

Importance of Iddat:

Under Muslim law, a husband is obliged to maintain his wife only till the iddat period if the dissolution of marriage takes place, and, in the case of a widowed wife, the responsibility of maintenance of widow lies on her heirs who will inherit her property.

Implications of Iddat:

The husband is bound to maintain the wife during the period of iddat.
The wife cannot marry another person until completion of her iddat, and if the husband has four wives including the divorced one, he cannot marry a fifth wife until the completion of the divorced wife’s iddat.
The wife in entitled to deferred dower, and if the prompt dower has not been paid, it becomes immediately payable.
In the event of death of either party before the expiration of the iddat period, the other is entitled to inherit from him or her in the capacity of wife or husband, as the case may be, if the divorce has not become irrevocable before the death of the deceased.
If the divorce is pronounced in death-illness, and the husband dies before the completion of wife’s iddat, the wife is entitled to inherit from him, even if the divorce has become irrevocable prior to his death, unless the divorce has been affected without her consent.

Conclusion:

iddat 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. It can be observed that this practice might hold significant value in earlier times because there is a lack of scientific advancement to determine the pregnancy of a woman in the early phase or parentage of a child in case of remarriage. But, with the advancement of science, such things can easily be determined without forcing them to accept subjugation in the name of the religious norm.

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Muslim Law Q & A Set – 03C (Essay Type) (Muslim Marriage)

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Muslim Law Q & A Set – 03C (Essay Type) (Muslim Marriage)

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