Concept OR Marriage and divorce under muslim Law

CONCEPT OR MARRIAGE AND DIVORCE UNDER MUSLIM LAW

(Extracts from Principles of Mahomedan Law)

A.- MARRIAGE

250. Definition of marriage.- Marriage (nikha) is defined to be a contract which has for its object the procreation and the legalizing of children.

251. Capacity for marriage.- (1) Every Mahomedan of sound mind, who has attained puberty, may enter into a contract of marriage.

(2) Lumatics and minors who have not attained puberty may be validly contracted in marriage by their respective guardians (ss.270-275).

(3) A marriage of a Mahomedan who is of sound mind and has attained puberty, is void, if it is brought about without his consent.

Explanation.- Puberty is presumed, in the absence of evidence, on completion of the age of fifteen years.

252. Essential of a marriage.- It is essential to the validity of a marriage that there should be a proposal made by or on behalf of one of the parties to the marriage, and an acceptance of the proposal by or on behalf of the other, in the presence and hearing of two male or one male and two female witnesses, who must be sane and adult Mahomedans. The proposal and acceptance must both be expressed at one meeting; a proposal made at one meeting and an acceptance made at another meeting do not constitute a valid marriage. Neither writing nor any religious ceremony is essential.

253. Valid, irregular and void marriage.- A marriage may be valid (sahih), or irregular (fasid), or void from the beginning (batil).

254. Absence of witnesses.- A marriage contracted without witnesses as required by section 252 is irregular, but not void.

255. Number of wives.- A Mahomedan may have as many as four wives at the same time but not more. If he marries a fifth when he has already four, the marriage is not void, but merely irregular.

256. Plurality of husbands.- It is not lawful for a Mahomedan woman to have more than one husband at the same time. A marriage with a woman, who has her husband alive and who has not been divorced by him, is void.

257. Marriage with a woman undergoing iddat.- (1) A marriage with a woman before completion of her iddat is irregular, not void. The Lahore High Court at one time treated such marriages as void; but in a later decision held that such a marriage irregular and the children legitimate.

(2) Iddat.- “Iddat” may be described as the period during which it is incumbent upon a woman, whose marriage has been dissolved by divorce or death to remain in seclusion, and to abstain from marrying another husband. The abstinence is imposed to ascertain whether she is pregnant by the husband, so as to avoid confusion of the parentage. When the marriage is dissolved by divorce, the duration of the iddat, if the woman is subject to menstruation, is three courses; if she is not so subject, it is three lunar months. If the woman is pregnant at the time, the period terminates upon delivery. When the dissolved by death, the duration of the iddat if four months and ten days. If the woman is pregnant at the time, the iddat lasts for four months and ten days or until delivery, whichever period is longer.

If the marriage is dissolved by death, when wife is bound to observe the iddat whether the marriage was consummated or not. If the marriage was dissolved by divorce, she is bound to observe the iddat only of the marriage was consummated; if there was not consummation, there is not iddat, and she is free to marry immediately.

The iddat of divorce commences from the date of the divorce and that of death from the date of death. If information of divorce or of death does not reach the wife until after the expiration of the period of iddat, she is not bound to observe any iddat [Baillie, 357].

258. Marriage between a Sunni and Shia.- A Sunni male may contract a valid marriage with a Shia female, and a Shia male amy contract a valid marriage with a Dunni female.

259. Difference of religion.- (1) A Mahomedan male may contract a valid marriage not only with a Mohomedan woman, but also with a Kitabia, that is, a Jewess or a Christian, but not with an idolatress or a fire-worshipper. A marriage, however, with a idolatress or a fire-worshipper, is not void, but merely irregular.

(2) A Mahomedan woman cannot contract a valid marriage except with a Mahomedan. She cannot a valid marriage even with a Kitabi, that is, a Christian or a Jew. A marriage however, with a non-Muslim, whether he is a Kitabi, that is, A Christian or Jew, or a non-Kitabi, that is, an idolator or a fire-worshipper, is irregular, not void.

260. Prohibition on the ground of consanguinity.- A man is prohibited from marrying (1) his mother or his grandmother how high soever; (2) his daughter or granddaughter how low soever; (3) his sister whether full, consanguine or uterine; (4) his niece or great niece how low soever; and (5) his aunt or great aunt how high soever, whether paternal or maternal. A marriage with a woman prohibited by reason of consanguinity is void.

261.Prohibition on the ground of affinity.- A man is prohibited from marrying (1) his wife’s mother or his grandmother how high soever; (2) his wife’s daughter or granddaughter how low soever; (3) the wife of his father or paternal grandfather how high soever; (4) the wife of his son, or his sons’ son or daughter’s son how low soever. A marriage with a woman prohibited by reason of affinity is void.

262. Prohibition on the ground of fosterage.- Whoever is prohibited by consanguinity or affinity is prohibited by reason of fosterage except certain faster relations, such as sister’s foster-mother, or foster-sister’s mother, or foster-son’s sister, or foster-brother’s sister, with any of whom a valid marriage may be contracted. A marriage prohibited by reasons of fosterage is void.

263. Unlawful conjunction.- A man may not have at the same time two wives who are so related to each other by consanguinity, affinity or fosterage, that if either of them had been a male, they could not have lawfully intermarried, as for instance, two sisters, or aunt and niece. The bar of unlawful conjunction renders a marriage irregular, not void.

264. Distinction between void and irregular marriages.- (1) A marriage which is not valid may be be either void or irregular.

(2) A void marriage is one which is unlawful in itself, the prohibition against the marriage being perpetual and absolute. Thus a marriage with a woman prohibited by reason of consanguinity (s.260), or affinity (s.261), of fosterage (s.262), is void, the prohibition against marriage with such a woman being perpetual and absolute.

(3) An irregular marriage is one which is not unlawful in itself, but unlawful “for something else”, as where the prohibition is temporary or relative, or when the irregularity arises from an accidental circumstance, such as the absence of witnesses. Thus the following marriages are irregular, namely-

(a) a marriage contracted without witnesses (s.254);

(b) a marriage with a fifth wife by a person having four wives (s.255);

(d) a marriage prohibited by reason of difference of religion (s.259);

(e) a marriage with a woman so related to the wqife that if one of them had been a male, they could not have lawfully intermarried (s.263).

The reason why the aforesaid marriages are irregular, and not void, is that in cl. (a) the irregularity arises from an accidental circumstances; in cl. (b) the objection may be removed by the man divorcing one of his four wives; in cl. (c) the impediment ceases on the expiration of the period of iddat; in cl. (d) the objection may be removed the wife becoming a convert to the Mussalman, Christian or Jewish religion, or the husband adopting the Moslem faith; and in cl. (e) the objection may be removed by the man divorcing the wife who constitutes the obstacle; thus if a man who has already married one sister marries another, he may divorce the first, and make the second lawful to himself.

265. Effects of valid (sahih) marriage.- A valid marriage confers upon the wife the right of dower, maintenance and residence in her husband’s house, imposes on her the obligation to be faithful and obedient to him, to admit him to sexual intercourse, and to observe the iddat. It creates between the parties prohibited degrees of relation and reciprocal rights of inheritance.

266. Effects of a void (batil) marriage.- A void marriage is no marriage at all. It does not create any civil rights or obligations between the parties. The offspring of a void marriage are illegitimate.

267. Effects of an irregular (fasid) marriage.- (1) An irregular marriage may be terminated by either party, either before or after consummation, by words showing an intention to separate, as where either party says to the other : I have relinquished you”. An irregular marriage has no legal effect before consummation.

(2) If consummation has taken place-

(i) the wife is entitled to dower, proper or specified whichever is less (ss. 286, 289);

(ii) she is bound to observe the iddat, but the duration of the iddat both on the divorce and death is three courses [Sec.S.257(2)];

(iii) the issue of the marriage is legitimate. But an irregular marriage, though consummated, does not create mutual rights of inheritance between husband and wife (Baillie, 694, 701). The Cheif Court of Oudh has held that it does create such rights, but the decision, it is submitted, is not correct.

268. Presumption of marriage.- Marriage will be presumed, in the absence of direct proof, from-

(a) prolonged and continual cohabitation as husband and wife; or,

(b) the fact of the acknowledgement by the man of the paternity of the child born to the woman, provided all the conditions of a valid acknowledgement mentioned in section 344 below are fulfilled; or,

The presumption does not apply if the conduct of the parties was inconsistent with the relation of husband and wife, nor does it apply if the woman was admittedly a prostitute before she was brought to the man’s house. The mere fact, however, that the woman did not live behind the purda, as the admitted wives of the man did, is not sufficient to rebut the presumption.

269. Muta Marriage.- (1) The Siha law recognizes two kinds of marriage, namely, (1) permanent, and (2) muta or temporary.

(2) A Shia of the male sex may contract a muta marriage with a woman professing the Manomedan, Christian or Jewish religion, or even with a woman who is a fire worshipper, but not with a woman following any other religion. But a Shia woman may not contract a muta marriage with a non-Moslem.

(3) It is essential to the validity of a muta marriage that (1) the period of cohabitation should be fixed, and this may be a day, a month, a year or a term of years, and that (2) some dower should be specified. When the term is fixed, but the dower is not specified, the contract is void. But if the dower is specified, and the term is not fixed, the contract, though void as a muta, may operate as a “permanent” marriage.

(4) The following are the incidents of a muta marriage:-

(a) a muta marriage does not create mutual rights of inheritance between the man and the woman, but children conceived while it exists are legitimate and capable of inheriting from both parents;

(b) where the cohabitation of a man and a woman commences in a muta marriage, but there is no evidence as to the term for which the marriage was contracted and the cohabitation contunues, the proper inference would, in default of evidence to the contrary, be that the muta continued during the whole period of cohabitation, and that children conceived during that period were legitimate and capable of inheriting from their father;

(c) even if there is evidence of the term for which the muta marriage was fixed and cohabitation continues after the expiry of that term, the inference is that the term was extended for the whole period of the cohabitation and that the children conceived during the extended term are legitimate;

(d) a muta marriage is dissolved ipso facto by the expiry of the term. No right of divorce is recognized in the case of a muta marriage, but the husband may at his will put an end to the contract of marriage by “making a gift of the term” (hiba-i-muddat) to the wife, even before the expiration of the fixed term;

(e) if a muta marriage is not consummated, the woman is entitled to half the dower. If the marriage is consummated, she is entitled to full dower, evewn though the husband may put an end to the contract by giving away the enexpired portion of the term. If the woman leaves her husband before the expiryof the term, the husband is entitled to deduct a proportionate part of the dower’

(f) a woman married in the muita form is not entitled to maintenanc under the Shia law. But it has been held that she is entitled to maintenance as a wife under the provisions of section 488 of the Criminal Procedure Cose.

270. Marriage of minors.- A boy or a girl who has not attained puberty (in this Part called a minor), is not competent to enter into a contract of marriage, but he or she may be contracted in marriage by his or her guardian.

271. Guardianship in marriage (jabar).- The right to contract a minor in marriage belongs successively to the (1)father, (2)paternal grandfather how high soever, and (3) brother and other male relations on the father’s side in the order of inheritance enumerated in the table of Residuaries. In default of paternal relations, the right devolves upon the mother, maternal uncle or aunt and other maternal relation within the prohibited degrees. In default of maternal kindered, it devolves upon the ruling authority.

272. Marriage brought about by father or grandfather.- When a minor has been contracted in marriage by the father or father’s the contract of marriage is valid and binding, and it cannot be annulled by the minor on attaining puberty. But where a father or father’s father as acted fraudulently or negligently, as where the minor is married to a lunatic, or the contract is to the manifest disadvantage of the minor, the contract is voidable at the option of the minor on attaining puberty.

273. Repudation under the Dissolution of Muslim Marriages Act, 1939.- By the Dissolution of Muslim Marriages Act, 1939, all restriction on the option of puberty in the case of a minor girl whose marriage has ebbn arranged by a father or grandfather has been abolished, and under section 2 (vii) of the Act a wife is entitled to the dissolution of her marriage if she proves the following facts, namely, (1) the marriage has not been consummated, (2) the marriage took place before the attained the age of 15 years, and (3) she has repudiated the marriage before attaining the age of 18 years repudiated the marriage before attaining the age of 18 years. The High Court of Lahore has decided that a decree of court is not necessary to invalidate the marriage which has been repudiated by the wife, but the High Court Madhya Pradesh has held that a decree of the court is necessary.

274. Marriage brought about by other guardian Options of puberty.- When a marriage is contracted for a minor by any guardian other than the father or father’s father, the minor has the option to repudiate the marriage on attaining puberty. This technically called the “option of puberty” (khyar-ul-bulugh).

The right of repudiating the marriage is lost, in the case of a female, if after attaining puberty and after being informed of the marriage and of her right to repudiate it, she does not repudiate without unreasonable delay. The Dissolution of Muslim Marriages Act, 1939, however, gives her the right to repudiate the marriage before attaining the age of eighteen years, provided that the marriage has not been consummated. But in the case of a mael, the right continues until he has ratified the marriage either expressly or impliedly as by payment of dower or by cohabitation.

275. Effect of repudiation.- The mere exercise of the option of repudiation does not operate as a dissolution of the marriage. The repudiation must be confirmed by the court. Until then the marriage subsists, and if either party to the marriage dies, the other will inherit from him or from her, as the case may be.

276. Marriage of lunatics.- The provisions of section 270 to 275, relating to the marriage of minors, apply to the marriage of lunatics, with this differences that the options is to be exercised when the lunatic recovers his or her reasons.

B. MAINTENANCE OF WIVES

277. Husband’s duty to maintain his wife.- The husband is bound to maintain his wife (unless she is too young for matrimonial intercourse), so long as she is faithful to him and obeys his reasonable orders. But he is not bound to maintain a wife who refuses herself to him, oris otherwise disobedient, unless the refusal or disobedience is justified by non payment of prompt (s.290) dower, or the leaves the husband’s house on account of his cruelty.

278. Order for maintenance.- If the husband neglects or refuses to maintain his wife without any lawful cause, the wife may sue him for maintenance, but she is not entitled to a decree for past maintenance, unless the claim is based on a specific agreement. Or, she may apply for an order of maintenance under the provisions of the Code of Criminal Procedure, 1908, section 488, in which case the court may order the husband to make a monthly allowance in the whole for her maintenance not exceeding five hundred rupees.

279. Maintenance on divorce.- (1) After divorce, the wife is entitled to maintenance during the period of iddat (s.257). If the divorce is not communicated to her until after the expiry of that period, she is entitled to maintenance until she is informed of the divorce.

(2) A widow is not entitled to maintenance during the period of iddat consequent upon her husband’s death.

280. Agreement for future maintenance.- An antenuptial agreement between a Mahomedan and his prospective wife, entered into with the object of securing the wife against ill-treatment, is not void as being against public policy. Similarly, an agreement between a Mahomedan and his first wife, made after his marriage with a second wife, providing for a certain maintenance for her if she should not in future get on with the second wife, is not void on the ground of public policy. Similarly, an agreement by a Mahomedan with his second wife that he would allow her to live in her parents’ house and pay her maintenance is not against public policy. See section 281 (3) and 321. It has been held in Bombay that an agreement for future separation between husband and wife is void as being against public policy under the Indian Contract Act, 1872, section 23. An agreement, therefore, which provides for a certain maintenance to be given to the wife in the event of a future separation between them, is also void. If the marriage is dissolved by divorce, the wife is entitled to maintenance for the period mentioned in section 279, and not for life, unless the agreement provides that it is for life.