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. Every Mahomedan of sound mind, who has attained puberty may enter into the contract of marriage. Taking religious aspect into account Muslim marriage is a devotional act (ibadat). The Prophet is reported to have said that marriage is essential for every physically fit Muslim who could afford it. But there are some prohibitions for marriage between two persons. There are two types of prohibitions in case of Muslim marriages, which make the marriages irregular or void: a) absolute prohibition and b) relative prohibition.
Absolute Prohibitions:
It is generally considered that a marriage is void if the prohibition regarding it is absolute. There is no possible method to change the status of marriage from void to valid if the prohibition is absolute and if someone marries against such prohibitions then that marriage is to be considered unlawful. Thus, marriages prohibited on the ground of consanguinity, affinity, or fosterage are under absolute prohibition and are void.
Consanguinity or Ourabat (Relation by blood):
Consanguinity means a relationship by descent due to having a common ancestor. Consanguinity is the sharing of a blood relationship with another person. An example of consanguinity is the relationship that exists between a brother and sister. When it comes to the law, the term consanguinity is often used when defining the boundaries of marriage and sexual relations, which are of course prohibited between blood relatives.
A Muslim is prohibited to marry
- His own ascendants or descendants;
- His father’s or mother’s descendants; and
- The sisters or brothers of any ascendant.
No man or woman, as the case may be, shall on the ground of consanguinity, marry-
- his mother or father;
- his grandmother or upwards, whether on the side of his father or his mother, and his or her ascendants, how-high-so ever;
- his daughter or her son and his granddaughter or her grandson and his or her descendants, how-low-so ever;
- his sister or brother of the same parents, his sister or her brother of the same father, and his sister or her brother of the same mother;
- the daughter of his brother or sister, or the son of her brother or sister and the descendants, how-Iow-so ever, of the brother or sister;
- his aunt or her uncle on his father’s side and her or his ascendant ;
- his aunt or her uncle on his mother’s side and her or his ascendants.
Affinity or Mushaarat (Relation by marriage):
Two people are related by affinity if they are married to each other, or if one person is related by consanguinity to the other person’s spouse.
It is unlawful for a Muslim to marry
- Ascendants or descendants of his wife; and
- The wife of any ascendant or descendant.
No man or woman, as the case may be, shall, on the ground of affinity, marry –
- his mother-in-law or father-in-law and the ascendants of his wife, how-high-so ever;
- his stepmother or her stepfather, being his father’s wife or her mother’s husband;
- his step-grandmother, being the wife of his grandfather or the husband of her grandmother, whether on the side of the father or the mother;
- his daughter-in-law or son-in-law;
- his stepdaughter how -low-so ever whose mother has had sexual intercourse with him;
- her stepson how-Iow-so ever.
Fosterage or Riza (Relation to Milk):
A child is called the “foster-child” of the woman, who not being the child’s mother, has nursed the child whilst it was under two years of age. The woman is called the “foster-mother”. Muslim law prohibits marriage within certain limits of fosterage. A man may not, for instance, marry his foster-mother, or his foster-sister.
No man or woman, as the case may be, shall, on the ground of fosterage, marry any woman or any man connected with him or her through some act of suckling where, if it had been instead an act of procreation, the woman or man would have been within the prohibited degrees of consanguinity or affinity.
Sunni law has some exceptions regarding the absolute prohibition of fosterage, but Shia law and jurists deny such exceptions and consider the fosterage the same as consanguinity and consider the prohibitions to be absolute, all such marriages are rendered void.
Relative Prohibitions:
These prohibitions are those which render a marriage irregular or invalid. These are considered to be temporary bars, once these bars are lifted the marriage becomes valid. All relative prohibitions make a marriage void under Shia law while they render them invalid in case of Sunni law. Below are some relative prohibitions which can render marriages invalid or void.
Unlawful Conjunction:
This bars a man from marrying two different women at the same time if they are closely related to each other through consanguinity, affinity, or fosterage so that they could not have lawfully intermarried with each other if they had been of different sexes. A Shia male can marry his wife’s aunt but to marry her niece, there has to be the consent of his wife.
It may be because of two things:
- Number, or
- Relationship between co-wives.
Number:
A Muslim man can marry up to four wives, if he wants to marry another woman, he has to take divorce from one of her four wives. Hence, marriage with five or more women is unlawful under Islamic laws. Such marriages are invalid or irregular. Under both, Shia and Sunni laws, polygamy is valid up to four wives. A Muslim woman can marry only one husband, if she marries with a second husband, she may be punished under Section 494, Indian Penal Code.
Relationship between co-wives:
A man is forbidden to have two wives at the same time, so related with each other by consanguinity, affinity or fosterage, that they could not have lawfully intermarried with each other if they had been of different sexes. From, the above it comes out clearly, for instance, the unlawful to marry two sisters at the same time, or to marry the sister of the wife during the wife’s lifetime.
A Muslim is prohibited to have two wives at a time if these two wives are related to each other (by consanguinity, affinity or fosterage) in such a manner that if they had been of different sexes, they could not have inter-married. Marriage with two such wives is an unlawful conjunction. For example a man is prohibited to marry the sister of his wife because, if one of them is presumed to be a male, they would become brother and sister and could not inter-marry. Similarly, a Muslim cannot marry the aunt (Booa or Mansi i.e, Khala) or the niece of his wife. However a man can lawfully marry his wife’s sister after the death or divorce of his wife. A marriage against the rule of unlawful conjunctions is irregular.
Under Shia law, marriage with wife’s aunt (Booa or Mansi i.e Khala) is not unlawful conjunction. Therefore one can marry with his wife’s aunt. But he cannot marry with wife’s niece without consent of his wife; with wife’s consent, marriage with wife’s niece is permitted.
In the leading case of Azizunnissa v. Karimunnissa the Calcutta High Court held that such unions were void. However, the High Courts of Bombay, Madras and Lahore, and the Chief Court of Oudh declared them to be merely irregular.
In Fatima Bi Ammal v. A.A. Mahomed, (1971) MLJ 451 case, the Court held that a Muslim male cannot have at the same time two wives who are related with each other by consanguinity, fosterage and affinity as two sisters or niece and her aunt, but man may marry other sister or other relation after death or divorce.
In Moonse Byzloor Raheem V.Shamsoonnissa Begum, II MIS S51 case, the Court observed that A Mohammedan husband has the legal right to take second wife even while the first marriage subsists, but if he does so and then seeks the assistance of the court of law to compel the first wife to live with him against her wishes, she is entitled to raise the question whether the court, as a court of equity ought to compel her to, to submit to co-habitation with which his second marriage took place are relevant and material in deciding whether his conduct in taking a second wife was in itself an act of cruelty to first.
In Dr Abdur Rahim Undre v. Smt Padma Abdur Rahim Undre AIR 1982 Bom 341 P.354 case the Court observed that it is not correct to say that a Mohammedan husband has a vested right to marry more than one wife viz. to have four wives at a time. It cannot also be said that anybody has got a vested right in the matter of divorce. To say the least dissolution of marriage is not a part and parcel of the contract of marriage. Nobody has got any vested right in the matter of dissolution of marriage. So far as the polygamy is concerned, the provision of Mohammedan law is only permissive or optional in nature and not obligatory.
In Mr.Zubaida Begum V. Sardar Shah, AIR 1943 Lah 310 case, the Court held that now, after passing of the dissolution of Muslim marriage Act, 1939, a Mohammedan wife can file a suit for divorce against the husband on the ground that her husband having more than one wife is not treating her equality.
In Habibur Rahman V. Aitaf Ali, (1921) 23 BOMLR 636 case, the Court held that a married Mohammedan female cannot marry a second husband during the life lime of her husband. A marriage prohibited on this ground is altogether void and the children are illegitimate.
Iddat:
A widow, a divorced woman or a woman who is pregnant by illicit intercourse are prohibited from remarrying or marrying during the period of iddat. The object of Iddat is to ascertain whether the woman is pregnant or not and to ascertain the paternity of the child. The period of Iddat in case of
- the marriage dissolved by death is 4 months and 10 days or, if the woman is pregnant, till delivery, whichever is longer; and
- the marriage is consummated and dissolved by divorce, it is three courses, or till delivery in case of pregnancy.
For example, H has four wives, A, B, C and D. He divorces A after consummation of the marriage with her. It is not permissible to A to marry another husband, nor to H to marry another wife, during A’s Iddat. H also cannot marry A’s sister, during A’s Iddat. A marriage contracted during the Iddat is not void, but irregular.
Divorce:
After the husband has pronounced three talaqs against his wife, their marriage is irrevocably dissolved, and they are prohibited from re-marrying each other unless and until
- woman is lawfully married to a second husband,
- her marriage with her second husband is actually consummated,
- it has been lawfully dissolved, and
- the woman observes Iddat.
Difference of Religion:
Males and females of Shia and Sunni can marry among each other, however when it comes to religion, a Muslim woman marrying a non-Muslim man is generally considered to be void, but a Muslim man marrying a non-Muslim woman is considered to be invalid or irregular. Under Hanafi law, a man may marry a Muslim woman or a Kitabiyya, but a Muslim woman cannot any-one except a Muslim. A Muslim, therefore, cannot marry an idolater or fire-worshipper, and a Muslim woman cannot even marry a Kitabiyya. Among the Shias, however, no one can marry a non-Muslim in the Nikah form, but the male contract a Muta marriage with a Kitabiyya (including a fire-worshipper).
Under Sunni law, males can validly marry non-Muslims of Christianity and Judaism (not Hinduism) but cannot marry a fire worshipper. However, marriage with fire-worshippers will be considered irregular and not void. A Shia male and female cannot marry any person of other religions and all such marriages are considered to be void.
In Ihsan v Panna Lai, AIR 1928.19 at p.21 case, the Court held that as to a marriage between a Mohammedan male and non-Mohammedan female is concerned such a marriage will only be irregular and not void. The offspring will not be illegitimate.
Supervening illegality:
If one of the parties to a marriage becomes a fireworshipper, or an idolater, or the husband becomes a Christian, then the marriage becomes invalid by what is known as subservient prohibition.
Pilgrimage:
Under the Ithna Ashari and Shafii law, a man who has gone to perform Haj (pilgrimage) and has entered the sacred enclave of Kaba after putting on the pilgrim’s dress (ahram), may not enter into a contract of marriage. A marriage prohibited on the ground of pilgrimage is permanently void according to the shia law, but under the Hanafi law it is valid. According to the Shafiis, Malikis and Hanbalis, such marriage is irregular.
Absence of proper witnesses:
It is essential amongst the Sunnis that at least two male witnesses or one male or two female witnesses must be present to testify that the contract was properly entered into between the parties. The witnesses must be of sound mind, adult and Muslim. In Shia Law, a marriage contracted by the spouses themselves or their guardians in private are held valid. Presence of witnesses is not necessary.
Equality of Spouses (Doctrine of Kafa):
There is yet another prohibition, not so important in the context of modern-day society, yet relevant for the Indian society. It is the doctrine of Kafa (equality of spouses). According to Hedaya, marriage must be contracted among equals “because cohabitation, society and friendship cannot be completely enjoyed excepting by persons who are each other’s equal as a woman of high rank and family would abhor society and cohabitation with a mean man; it is requisite, therefore, that regard be had to equality with respect to the husband, that is, the husband should be the equal of the wife”. The Hanafis accordingly hold that equality between the two parties is a necessary condition in marriage, and that an ill-assorted union is liable to be set aside by a decree of the judge. According to Radd-ul-Mukhtar, the test of equality applies to the husband and not to the wife, for a husband can raise her to his own rank, however high. The doctrine of Kafa is unknown to Shia Law
Under the Hanafi law, there are six requisites to equality :
- Nasb (family or descent);
- Islam;
- Profession;
- Freedom (free or slave);
- Honesty
- Means.
- (According to Fatawa-e-Hamidia: Potency)
The marriage among unequal remains intact until annulled by the order of the Court, because a court alone has the power of cancelling marriages on the ground of inequality.
Unreasonable delay by the guardian in instituting court proceedings will not ordinarily deprive him of his right. But if the woman has already borne a child to her husband, then guardian has no right to have the marriage cancelled, because, according to Radd-ul-Mukhtar, “it would damage the interests of the child”. The power of objecting absolutely belongs to the agnates (usubah) of the woman and not to the uterine relations.
The doctrine of Kafa is unknown to Shia law. It is because conditions of quality, according to their doctrines, have reference only to Islam of the husband and his ability to support the wife. Thus, if a Shia woman marries a non-Muslim, her relations may file an application in a court of law for its annulment.
Marriage with a Pregnant Woman:
According to Ameer Ali it is unlawful to marry a woman who is already pregnant by her former husband.
Marriage with a Sick Man:
According to Ameer Ali a marriage with a sick man suffering from vulnerable disease which is likely to be fatal is invalid. If however, he recovers and the marriage is consummated, it is valid.
Conclusion: