The nature of a Muslim marriage has been in question before the Court of law at various instances and it is well established that Muslim marriage is not a sacrament and is of the nature of a civil contract.
Divorce lawyers in Hyderabad and even the top lawyers in India while discussing the validity of a Muslim Marriage lay great stress on the bars to Muslim marriage. Muslim Law lays down the law pertaining to Muslim Marriages and divorces and same is followed by the Courts in India.
The Law clearly states that merely because a Muslim has a capacity to marry and the essentials of marriage are fulfilled does not by itself render a Muslim marriage valid. For a Muslim marriage to be a valid marriage it is necessary that a legal bar must not have been in existence when the marriage was solemnized.
Legal bars are of two types:
1. Absolute bar:
a) Prohibition on the ground of consanguinity: A Muslim male as per the law is prohibited from marrying the following blood relations:
I. Mother, grandmother: how high so ever
II. Daughter, granddaughter: how low so ever
III. Sister: full, half or uterine
IV. Niece (brothers or sisters daughter), or grand-niece ( brother’s or sister’s daughter’s daughter: how low soever
V. Aunt or great aunt whether paternal or maternal: how high soever
The expression of how high soever and how low soever used above mean ascendents of any degree and descendants of any degree.
b) Prohibition on the ground of affinity: A Muslim is prohibited from marrying the following persons on account of a marriage:
I. Ascendants of his wife
II. Descendents of his wife
III. Wife of any ascendant
IV. Wife of any descendent
c) Prohibition on the ground of fosterage: it is important to mention that a person who is prohibited by consanguinity or affinity is prohibited by reason of fosterage. However, a Muslim is not prohibited from contracting a marriage with sister’s foster mother, foster sister’s mother, foster son’s sister or foster brother’s sister.
d) Plularity of husband: marrying a woman who has her husband alive and has not been divorced is regarded as a void marriage.
Muslim law, however, does not prohibit the marriage of two cousins whether parallel or cross cousins as is prohibited under the Hindu Law.
2. Relative bar:
a) Unlawful conjugation: A Muslim man is not allowed to have to or more wives who are related to each other by consanguinity, affinity, or fosterage that either of them had been a male they could not have unlawfully intermarried.
b) Marrying the fifth wife: A Muslim man can have only 4 wives at a time. He can marry a fifth wife only after divorcing one of the four.
c) The absence of proper witness: A Muslim marriage becomes irregular among Sunnis when there it is solemnized and there exists an absence of proper witnesses.
d) Marriage without consent: forcing a major Muslim to marry without his/her consent renders a marriage irregular.
e) The difference of religion: A Sunni male can validly marry a kitabia i.e a Jew or a Christian, but not an idolatress or a fire-worshipper. The word Khitabi used above means a person who believed in a holy book containing revelations.
f) Marriage with a woman undergoing iddat: Iddat also known as idda means the period during which it is incumbent upon a woman whose marriage has been dissolved either by virtue of divorce or death to remain in seclusion and to abstain from marrying another husband.
g) Rule of pilgrimage: If a person enters the Holy Kaba in a pilgrim dress finds another woman there and marries her, then the marriage is not regarded as a valid marriage.
h) Marriage after divorce: A person cannot remarry the woman whom he has divorced already by pronouncing triple talaq unless the woman marries another man and the marriage is consummated with him and then he divorces her.
Violation of an absolute bar renders a Muslim marriage void on the other hand violation of a relative bar makes a Muslim marriage irregular in Sunni law and void in the Shia law.