Understanding Nikah and Muta Marriage Under Muslim Family Law

INTRODUCTION

Muslim marriage, or “nikah,” is a significant social and legal institution within Islamic jurisprudence, reflecting both cultural traditions and religious principles. It is characterized by a contractual agreement between partners, emphasizing mutual consent, rights, and responsibilities. The framework of Muslim marriage encompasses various elements, including dowry (mahr), legal obligations, and the roles of family members. Diverse interpretations across different cultures and sects contribute to a rich tapestry of practices.

NIKAH (MARRIAGE)

No formality nor any religious ceremony is required for a marriage. Since marriage in Islam is a contract, the parties must fulfill the usual conditions necessary to constitute a valid contract. Thus, the essential requirements for a valid Muslim marriage are capacity, contract marriage, proposal and acceptance, and absence of any impediment to the marriage.

Conditions for Valid Marriage or Nikah

• Capacity for Marriage

Every Muslim who is of sound mind and who has attained puberty has the capacity to marry. Marriage of such a person without his/her consent is void. Persons who are not of sound mind or have not attained puberty can be contracted in nikah by their guardians.

Further, a Muslim woman cannot marry any man who is not a Muslim. As to a Muslim man marrying a non-Muslim woman, while a Sunni Mohammedan may marry a non-Mohammedan if she is a Kitabia, a Shia Mohammedan cannot marry even a Kitabia. If the parties have become Muslim by conversion before the marriage, then there is no bar.

• Proposal and Acceptance

There should be a proposal (ijab) and an acceptance (qubul) of the proposal. The proposal and acceptance have to be made either by or on behalf of the parties. The parties must do this in the presence and hearing of two male or one male and two female witnesses who must be sane and adult Mohammedans. Simply vague allegations that there were two witnesses of the nikah, without giving their names, and whose statements were vague and incomplete, are no proof of a valid nikah. The petitioner’s petition for restitution of conjugal rights against the defendant alleged wife was consequently dismissed.[i] It is significant to note that the proposal and acceptance must both be expressed at one meeting; a proposal at one meeting and its acceptance at another does not constitute a valid marriage.

• Impediments to a Valid Marriage

The following are the prohibitions or impediments to a valid Muslim marriage:

• A married woman cannot contract another marriage while her husband is alive and the marriage is subsisting. Such a marriage is void.
• The bar of consanguinity renders a marriage void.
  1. Ascendants, i.e. mother or grandmother, however high;
  2. Descendants, i.e. daughter or grand-daughter, however highsoever;
  3. His sister, whether full, consanguine or uterine;
  4. His niece or great-niece, however low;
  5. His aunt or great-aunt, however high, whether paternal or maternal

Such a marriage, if contracted, is void.

Grounds of Affinity

• 3. Marriage is also prohibited on the grounds of affinity. Thus, a man cannot marry:

1. 1. His wife’s mother or grandmother, however high;
   2. His wife’s daughter or grand-daughter, however lowsoever, if his marriage with his wife is consummated;
   3. His father’s wife or any other ascendant’s wife;
   4. His sons or any other lineal descendant’s wife.

Such a marriage, if contracted, would be void.

• Fosterage is another impediment to a valid Muslim marriage.

These are marriage with a fifth wife, marriage without proper witnesses, marriage when there is a difference of religion, unlawful conjunction, or marriage with a woman undergoing iddat.

Pregnancy at the Time of Nikah

These marriages are not void and are only irregular because the impediments can be removed or rectified. Pregnancy of a wife at the time of nikah does not render the nikah invalid. In Amina v. Hassan Koya [ii], a wife filed a suit for maintenance for herself and for the child. The trial court granted maintenance for the wife but not for the child, reasoning that she had concealed the fact of pregnancy and the husband was unaware of the child’s existence. The High Court affirmed the reversal, reasoning that the marriage was invalid because the wife had concealed the fact that she was pregnant at the time of nikah by a person other than the non-applicant. Hence her appeal to the Supreme Court. The Supreme Court found a ‘basic fallacy’ in the husband’s plea that he was unaware of the pregnancy. There were enough and more facts to indicate that the husband was aware.

• Effects of Legal Marriage or Nikah

Briefly stated, the following are the legal effects of a valid marriage:[iii]

1. Sexual intercourse becomes lawful and the children born of the union are legitimate.
2. The wife becomes entitled to her dower (mahr).
3. The wife becomes entitled to maintenance.
4. Mutual rights of inheritance are established.
5. The prohibitions regarding marriage due to the rules of affinity come into operation.
6. The wife is not entitled to remarry after the death of her husband or after the dissolution of marriage without observing iddat.
7. Where the parties enter into an agreement either at the time of the marriage or subsequent to it, the court will enforce its stipulations, provided they are not inconsistent with the provisions or the policy of the law.
8. A woman does not change her status on marriage. She remains subject to her own premarital school of law. Neither the husband nor the wife acquires any interest in the property of the other by reason of marriage.

• Muta Marriage

The word ‘muta’ literally means ‘enjoyment, use.’. [iv] It is a ‘marriage for pleasure’ for a fixed period of time, also known as temporary marriage. The institution of muta, which was fairly common in Arabia before and at the time of the Prophet, is now not recognized by any school of Muslim law in India, except the Ithna Ashari Shiite or Shia school. In practice, however, the institution of muta marriage is almost obsolete in India.

The essentials of Muta are:

1. Form, i.e., proper contract, which means declaration and acceptance;
2. Subject, i.e., a man may contract a muta with a woman professing the Mohammedan, Christian, or Jewish religion or even with a fire-worshiper, but not with a woman following any other religion. A Shia woman, however, cannot contract a muta with a non-Muslim. Relations prohibited by affinity are also unlawful in such marriage;
3. Term, which means that the period of cohabitation should be fixed, which may be a day, a month, a year or a term of years, and
4. 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.

The legal incidents of Muta are:

• It does not create mutual rights of inheritance between the man and the woman.
• Children conceived of the relationship are legitimate and can inherit from both parents.
• Where the cohabitation commences in a muta, but there is no evidence as to the term and the cohabitation continues, the proper inference would, in default of the evidence to the contrary, be that the muta continued during the whole period of cohabitation. Children conceived during that period are legitimate and capable of inheritance.
• Where there is evidence of the term, but cohabitation continues after the expiry of the term, the inference is that the term was extended and the children conceived during the extended term are legitimate.
• A muta marriage is dissolved ipso facto by the expiry of the term.
• No right of divorce is recognized in muta, but the husband may, at his will, put an end to the contract by ‘making a gift of the term’ (hiba-i-muddat) to the wife, even before the term ends. The wife’s consent is not required for such termination.
• Dower is a necessary condition of muta. Where the marriage is consummated, the wife is entitled to the whole amount, even if the husband ends the contract before the term expires. If the marriage is not consummated, the wife is entitled to half the dower. If she leaves before the expiry of the term, the husband is entitled to deduct a proportionate part of the dower.
• A muta wife is not entitled to maintenance under Shia law. She was, however, held to be entitled to maintenance as a wife under the provisions of Section 488 of the Code of Criminal Procedure, 1882 (Section 125 of the Code of Criminal Procedure, 1973) in Luddun v. Mirza Kumar[v]. This decision is of doubtful authority according to Mulla, because, as stated in Sharaya-ul-Islam, ‘the name of a wife does not in reality apply to a woman contracted in muta.’[vi]
• A man may contract muta with any number of women.

Apart from the Shias, a muta marriage is not recognized by any other school of law and even amongst the Shias, the practice is almost obsolete in India.

CONCLUSION

Muslim family law, particularly regarding marriage, is a complex framework rooted in both religious doctrine and cultural practices. The institution of nikah highlights the importance of mutual consent, legal obligations, and the roles of family within the marriage contract. With specific requirements for capacity, proposal, acceptance, and the prohibition of certain impediments, Muslim marriage underscores the need for a valid and respected union. The nuances of muta marriage, while largely obsolete, further illustrate the diversity within Islamic marital practices. Ultimately, understanding these principles is essential for recognizing the rights and responsibilities that govern Muslim families, fostering an environment where both partners can thrive within the bounds of their faith and culture.

[i]Ghulam Kubra Bibi v. Mohammad Shafi Mohammad Din, AIR 1940 Pesh 2.

[ii] Amina v. Hassan Koya, AIR 2004 SC 1227: (2003) 6 SCC 93.

[iii] Kulsumbai KA Kadir v. AK Walad Saikh Ahmad, AIR 1921 Bom 205: (1921) ILR 45 Bom 157.

[iv] Fyzee, Outlines of Mohammedan Law, 1974.

[v] Luddun v. Mirza Kumar, (1882) 8 Cal 736.

[vi] Fyzee, Outlines of Mohammedan Law, 1974.