A Muslim marriage is a civil contract. Discuss the nature of the Muslim marriage.
Category : Family Law – II
Marriage i.e. nikah meant different forms of sex relationship between man and a woman established on certain terms. In ancient age women were treated as chattels and were not given any right of inheritance and were absolutely dependent. It was Prophet Mohammad who brought about a complete change in the position of women. The improvement was vast and striking and their position is now unique as regards their legal status. After marriage woman does not lose her individuality and she remains a distinct member of the community. Under the Muslim Law marriage is considered as Civil Contract. The contract of marriage gives no power to anyone over her person or property beyond what the law defines. Woman remains the absolute owner of individual rights even after marriage.
DEFINITION OF MARRIAGE (NIKAH):-Marriage (nikah) literally means the union of sexes and in law this term means, ‘marriage’. Marriage has been defined to be a contract for the purpose of legalising sexual intercourse and procreation of children.”
In Hedaya, it is defined as, “Nikah in its primitive sense means carnal conjunction.” Some have said that, “it signifies conjunction generally and finally in the language of law it implies a particular contract used for the purpose of legalising generation.” The Prophet of Islam is reported to have said, “That Marriage is my sunna and those who do not follow this way of life are not my followers.”
Thus marriage according to Muslim Law is a contract for the purpose of legalising sexual intercourse and the procreation of legitimating of children and the regulation of social life in the interest of the society.
NATURE OF MUSLIM MARRIAGE:- There are divergence of opinion with regard to the nature of Muslim marriage. Some jurists are of the opinion that Muslim marriage is purely a civil contract while others say that it is a religious sacrament in nature. In order to better appreciate the nature of Muslim marriage it would be proper to consider it in its different notions.
Muslim marriage by some writers and jurists is treated as a mere civil contract and not a sacrament. This observation seems to be based on the fact that marriage under Muslim Law has similar characteristics as a contract. For example:-
- i)A marriage requires proposal (Ijab) from one party ad acceptance (Qubul) from the other so it is the contract. Moreover there can be no marriage without free consent and such consent should not be obtained by means of coercion, fraud or undue influence.
- ii)Similar as in the case of contract, entered into by a guardian on attaining majority so can a marriage contract in Muslim Law, be set aside by a minor on attaining the age of puberty.
iii) The parties of the Muslim marriage may enter into any ante-nuptial or post-nuptial agreement which is enforceable by law, provided that it is reasonable and not opposed to the policy of Islam. Same is in the case of a Contract.
- iv)The terms of a marriage contract may also be altered within legal limits to suit individual cases.
- v)Although discouraged both by the holy Quran and Hadith, yet like any other contract, there is also provision for the breach of marriage contract.
- vi)In the leading case of Abdul Qadir v/s Salima-1886, it emphasise the contractual aspect and analogy of Muslim Marriage contract with contract of sale.
CONCLUSION:- Thus marriage according to Muslim Law is a contract for the purpose of legalising sexual intercourse and the procreation of legitimating of children and the regulation of social life in the interest of the society. However it is further viewed that marriage is not purely a civil contract but a religious sacrament too. Though sacramental nature of marriage is considered as an orthodox view but it is also supported by the judiciary in the leading case of Anis Begum v/s Mohammad Istafa-1933,in the case Sulaiman has tried to put a more balanced view of the Muslim marriage by holding it both civil contract and a religious sacrament.