In Muslims, marriage is regarded as a civil contract the object of which is the legalization and the procreation of children. Before understanding the nature of Muslim marriage and laws pertaining to a Muslim marriage it is important to define who is a Muslim?
For the purpose of application of the Muslim law, Muslims fall into two categories:
- Muslims by birth or origin
- Muslims by religion or conversion.
According to the Shariat, even if one of the parents of a child is a Muslim the child is will be regarded as a Muslim. The term Shariat as used above means the canon of the law of Islam or the totality of the commandments of Allah. It is a code of obligations where the legal considerations occupy a secondary place.
The Shariat Act, 1937 provides a statutory recognition to the rule of Islam and it applies to all those who profess Islam as their religion. However, it pertinent to note that Muslim Law as applied in India is the Shariat as modified by the principles of equity, justice, and good conscience. The Muslim law is not made applicable in all matters and the Courts apply it only on certain specific matters. Best divorce lawyer in Delhi, when asked for legal advice on matters pertaining to Muslim marriage divorce and maintenance, prioritize the Sharia Law/Muslim Law as the Shariat Act requires the Courts to apply Muslim Law in matters of marriage and divorce if both the parties are Muslims.
Marriage among Muslims as mentioned above is considered as a contract and Justice Mehmood has defined Muslim marriage as a civil contract upon the completion of which by proposal and acceptance all the rights and obligations which it creates arise immediately and simultaneously. Abdur Rahim is said to have best defined the nature of Muslim marriage. According to Abdur Rahim, ‘the Muhammadan jurists regard the institution of marriage as partaking both the nature of ibadat or devotional acts and muamlat or dealings among men’. The Courts in India have however established that marriage among muslins are of the nature of a civil contract and although, marriage among Muslims is a Contract they are solemnized generally with the recitation of various verses of Quran. The Muslim Law does not prescribe any service peculiar to the occasion.
Essentials of a Muslim marriage which need to be satisfied are:
- The parties to the marriage must be of sound mind and should have attained the age of puberty. In case parties are a minor then the guardian shall make the offer and the guardian of the opposite party would accept the same.
- An offer to marriage must be made by one either himself or through someone and same must be accepted by or on behalf of the other party.
- The offer and acceptance of marriage must be made in presence and hearing of two male witnesses or one male and two females. It is important that the witnesses to the marriage must be Muslims.
- The words used in offer and acceptance must be clear and should unequivocally convey the intention to marry
- Lastly, Mahar/ Dower is regarded as a unique feature of a Muslim marriage.
Under Muslim Law, it is prescribed that if any deficiency is incurred during the solemnization of marriage the same is cured once the marriage is consummated. However, merely because a Muslim has the capacity to marriage and the essentials abovementioned are satisfied does not necessarily by itself make a Muslim marriage a valid Muslim marriage.
For the solemnization of a valid Muslim marriage, it is important that no legal bar should exist at the time of the marriage. Legal bar is either an absolute bar or a relative bar. The violation of an absolute bar renders the marriage null and void while the violation of a relative bar only makes the marriage irregular.