(3) The required formalities are duly completed, and
(4) There must not be any prohibition or impediment in contracting the marriage.
We may now discuss these essential conditions in detail.
I. Competence of the Parties:
At the time of marriage, both the parties i.e. the boy and the girl, must be competent to enter into the contract of marriage. The parties are competent if they are—
(a) Of the age of puberty,
(b) Of sound mind, and
(a) Age of Puberty:
For purposes of marriage, dower and divorce, the age of majority under Muslim law is not eighteen years. In respect of these matters the age of majority is considered to be equal to the age of puberty. Age of puberty is an age at which a person is supposed to acquire the sexual competency.
This competency may be ascertained on the basis of the physical features of the boy and the girl. According to Heclayu, the earliest possible age of puberty with respect to a boy, is twelve years, and with respect to a girl, nine years.
But, this cannot be treated as absolute rule regarding the age of marriage because sexual competency, as evidenced by physical features, depends upon several factors and may vary from person to person. It is therefore difficult to ascertain this age by the physical appearance.
Keeping in view the practical difficulty of ascertaining the age of puberty by physical features, the courts have presumed that the age of puberty is acquired on the completion of fifteen years. In Mst. Atika Begum v. Mohd. Ibrahim, the Privy Council has laid down a clear law about the age of puberty in following words:
“According to Mohammedan law a girl becomes major on the happening of either of the two events: (i) the completion of her 15th year or (ii) on her attainment of a state of puberty at an earlier period.”
The same rule may be applicable in respect of the age of a boy. Thus, it may be said that in the absence of any evidence to the contrary, a Muslim, is presumed to have attained puberty at the age of fifteen years.
The requirement of the age of puberty is essential not only because of competency for consummation, but also because it is considered to be the age at which the parties can give their own consent for the marriage. After attaining fifteen years, a person becomes mature enough to give consent for his or her marriage no consent of the guardian is necessary to validate the marriage.
Under Muslim law a person who has not attained the age of puberty (fifteen years) is a minor. As such, he (or she) has no capacity to give consent for marriage. A minor’s marriage without the consent of guardian is void. If, on behalf of the minor, his or her guardian gives the consent, the marriage is lawful.
A minor’s marriage is, therefore, valid only with the consent of the guardian. Under Muslim law, following persons are recognised as guardians for contracting the marriage of minors:
(2) Paternal grandfather, how high so ever,
(3) Brother or other male members of the father’s family,
(5) Maternal uncle, aunt or other maternal relations.
It is to be noted that first of all the right of guardianship in marriage is given to the father. In the absence of father this right passes on to the next guardian in the order of priority. In absence of any of the above-mentioned guardians, a minor’s marriage may be contracted by Kazi or an authority of the Government.
The ‘guardians for marriage’ must be distinguished from the ‘guardians appointed by court’. A guardian appointed by court for the protection of the person or the property of the minor has no right to contract the minor’s marriage without prior permission of the court.
On the other hand, a ‘guardian for marriage’ need not take such permission; he can contract the marriage without permission of the court. Another important point in respect of the guardianship in marriage is that in presence of a nearer guardian, the remoter guardian has no right to contract the minor’s marriage. Marriage by a remoter guardian without consent of the nearer available guardian (unless such nearer guardian is insane or missing) is void.
Under Shia law, the only guardians for marriage are (1) the father, and (2) the paternal grand-father, how highs ever. A marriage contracted by any other guardian must be expressly confirmed by the minor on attaining puberty.
The Child Marriage Restraint Act, 1929 (as amended in 1978):
Minor’s marriage as discussed in the preceding lines, is however, subject to the provisions of the Child Marriage Restraint Act, 1929 (as amended in 1978). The object of this enactment is to prevent marriages in which either of the parties is under a certain age limit.
The Act is applicable to every person in India, including Muslims. Section 2 of the amended Act provides that the minimum age for marriage is 21 years for males and 18 years for the females. A marriage, in which any of the parties is below the prescribed age, is a “child marriage”. A guardian or any person who performs or conducts any “child marriage” commits an offence. The amending Act, 1978, includes provisions for strict implementation of the Act.
Section 7 of this Act now provides that offences under the Act are cognizable offence and a police officer may investigate them in the same manner as he does in respect of cognizable offences under the Criminal Procedure Code. However, no arrest can be made under this Act without a warrant or an order of a Magistrate. Effects of this enactment on minor’s marriage (including a Muslim marriage) may be summarised as under:
(1) If a marriage is a ‘child-marriage’ within the meaning of this Act, the marriage is not void. The marriage exists and is perfectly valid.
(2) But, a person who contracts, directs, conducts or performs a minor’s marriage, commits a cognizable offence and is to be punished under the Act.
(3) Under Section 12 of the Act, a ‘child-marriage’ may be prevented by means of an injunction from the Court before such a marriage takes place. Violation of such an injunction is also punishable.
Option of Puberty (Khyar-ul-Bulugh):
Under Muslim law, a minor on attaining the age of puberty, has a right to approve or disapprove the marriage contracted by a guardian who was neither father nor paternal grandfather. This is called the ‘option of puberty’. In other words, marriage of a minor contracted by any person other than minor’s father or grand-father is voidable at the option of such minor.
If a person, on attaining puberty, chooses to repudiate the marriage by exercising his right of ’option of puberty’ the marriage is dissolved with immediate effect. On the other hand, if the minor, on attaining puberty, opts to approve the marriage, it is considered to be a valid marriage since its very beginning.
However, the exercise of this right is not compulsory; the minor, on attaining puberty, may or may not exercise this right. Where a person has not exercised the right of option of puberty after becoming adult, it is presumed that he or she has approved the marriage contracted during minority.
But, under Shia law a minor’s marriage must be approved by the minor on attaining puberty. According to Shia law, therefore, unless the minor on attaining majority, expressly ratifies the marriage, it is no marriage at all in the eyes of law.
Rules relating to the ’option of puberty’ under Muslim law, may be stated as under:
(i) The ‘option of puberty’ cannot be exercised by husband if his marriage was contracted by father or grandfather. Father and the grandfather are supposed to be the best persons to safeguard the minor’s interests. Therefore, their choice in the marriage is normally binding on a minor.
However, in exceptional cases, where it is proved that father or the grandfather had contracted the marriage either fraudulently or negligently, the minor has a right to repudiate the marriage on attaining puberty.
(ii) A wife can exercise option of puberty even if her marriage was contracted by her father or grandfather. Before 1939, a Muslim wife was not entitled to exercise option of puberty if the marriage was contracted by father or grandfather. But the Dissolution of Muslim Marriage Act, 1939, has now modified the law in regard to the ‘option of puberty’ by a wife.
Section 2(vii) of this Act provides that a Muslim wife is entitled to obtain a decree for the dissolution of her marriage on the ground that her marriage was contracted by her father or any other guardian during her minority (i.e. when she was under the age of 15 years). At present, a Muslim wife has an absolute right of the option of puberty and she can repudiate her marriage even if it was contracted by her father or grandfather.
(iii) The option must be exercised by a wife immediately after the attainment of puberty. If there is an unreasonable delay in the exercise of the option, her right is lost. However, under Section 2(vii) of the Dissolution of Muslim Marriage Act, 1939 a Muslim wife has a right to exercise this option till she attains the age of eighteen years.
If she fails to exercise the right after attaining the age of eighteen years, it may be considered as unreasonable delay and her right may be lost. But in the case of a husband, the option continues till he approves the marriage either expressly or impliedly. Payment of dower to the wife or cohabitation with her is regarded as implied approval of the marriage by a husband.
(iv) When consummation takes place, the husband’s right of option is lost because consummation is regarded as implied consent. The ‘option of puberty’ of a wife is also lost after the consummation provided it was not (i) before attainment of her age of puberty, or (ii) against her consent.
(v) The marriage does not dissolve merely by the exercise of option of puberty. Confirmation by court is necessary for dissolution of marriage. However, only a formal approval by the court is sufficient; decree is not necessary.
It may be noted that as the marriage does not dissolve without confirmation therefore, where any spouse dies after the exercise of the option but before court’s confirmation, the surviving spouse is entitled to inherit the properties of the deceased.
(b) Soundness of Mind:
At the time of the marriage, both the parties must be of sound mind. Persons of unsound mind have no capacity to enter into the contract of marriage because their own consent for the marriage is no consent in the eyes of law.
Unsoundness of mind is of two kinds, idiocy and lunacy. Idiocy refers to an abnormal state of mind in which a person is completely incapable of knowing the legal consequences of his activities. Such persons are called idiots and cannot marry.
Lunacy is a mental disease which may be cured. Such persons are called lunatics and they also have no understanding but sometimes they may behave like sane persons. The period during which a lunatic behaves like a sane person with normal understanding, is called ‘lucid interval’. Marriage by a lunatic during ‘lucid interval’ is a valid marriage.
Marriage of Insane Persons:
Marriage by an idiot is void. Except during ‘lucid interval’ the marriage by a lunatic is also void. But a person of unsound mind may be contracted in lawful marriage by a ‘marriage guardian’. In the marriage of an insane person by a guardian, same rules of ‘option of puberty’ are applicable as are applied in the case of minor’s marriage. An insane person, whose marriage was contracted by a guardian other than father or grandfather, has an option to repudiate the marriage on recovering his or her reason.
(c) Religion of the Parties:
As the marriage is to be governed by the rules of Muslim law, both the parties have a right to marry a Muslim, irrespective of sect or the sub-sect. Where both the parties are Muslims but they belong to different sects (e.g. one is Shia and the other is Sunni), the marriage is inter-sect marriage. Inter-sect marriages are perfectly valid.
Thus marriage of a Shia boy with a Sunni girl is valid. Similarly, the marriage of Hanafi boy with a girl belonging to Shafie or the Ithna Asharia sect is also lawful. Under Muslim law so long as the religion of both the parties is Islam, the validity of their marriage is not affected by any difference in the sector sub-sect. If the religion of the parties is different i.e. where one party is a Muslim but the other is a non-Muslim, their marriage becomes an interreligious marriage.
In respect of an inter-religious marriage, Sunni and Shai laws are different. The law is, therefore discussed separately under both the schools.
Under Sunni law, a boy is allowed to marry a Muslim girl of any sect and is also allowed to marry a Kitabia girl. A girl is Kitabia if she belongs to a community the origin of which is believed from a heavenly revealed kitab (book).
Under the law, Christians and the Jews are regarded as the Kitabia communities. Thus, a Sunni male has a right to contract a lawful marriage with a Christian or a Jew woman; their marriage is perfectly valid.
If a Sunni male marries a female who is neither a Muslim nor Kitabia, the marriage is not void; it is merely irregular (Fasid). As discussed in the following pages, an irregular marriage is neither valid nor void.
As soon as the irregularity is removed, the irregular marriage becomes valid. For example, the marriage of a Sunni boy with a Fire- worshipper (Parsi) or a Hindu girl is merely irregular and may be regularised and treated as valid when the girl converts to Islam. That is to say, the marriage of a Sunni male with any non-Muslim or non-Kitabia female is not void; it is merely irregular.
Shia male has no right to contract a marriage with any non-Muslim female. A Shia male cannot marry even Kitabia female. The marriage of a Shia man with a Hindu, Jew, Christian or a Fire Worshipping woman is void.
Hawever, a Shia male may contract a Muta-marriage with a Kitabia or a Fire worshipping (Parsi) female.
Marriage of a Muslim female with a non-Muslim male:
A Muslim female, whether Shia or Sunni, has no right to enter into the contract of marriage with any non-Muslim male. If a Muslim female marries a Hindu, Jew or a Christian male, the marriage, under both the schools of Muslim law, is void.
Law relating to in.ter-religious marriages under Muslim law may now be summarised, as under—
(i)Muslim male (of any sect) + Muslim female (of any sect)Marriage is valid.
(ii)Sunni male + Kitabia femaleMarriage is valid.
(iii)Sunni male + Female who is neither Muslim nor KitabiaMarriage is irregular.
(iv)Shia male + Non-Muslim femaleMarriage is void.
(v)Muslim female + Non-Muslim maleMarriage is void.
The Special Marriage Act, 1954:
A Muslim, whether male or female, can lawfully marry a non-Muslim under the Special Marriage Act, 1954. Marriage contracted under this Act is called ‘court marriage’. When a person (whether Hindu or Muslim etc.) contracts marriage under this Act, the marriage is not governed by the personal law applicable to him.
Thus, if any Muslim contracts a marriage under this Act the marriage and its other incidents (i.e., rights and duties of the parties) are regulated by the provisions of this Act and Muslim personal law is not applicable.
Succession of the properties of the couples married under the Special Marriage Act, 1954, is governed by the provisions of the Indian Succession Act, 1925, and not by the Muslim Law of inheritance.
II. Free Consent of the Parties:
Consent is an essential element in a Muslim-marriage. Where the parties to the marriage are sane and adult, it is their own consent which is required. But if any one of them is either minor or an insane, then the consent on his or her behalf must be given by the guardian. For a valid marriage consent somehow obtained, is not sufficient. The consent of the parties or of their guardians must be a free consent. If the consent has not been given voluntarily and is not free, it is no consent at all. Consent is not free if it is given under compulsion, fraud or mistake of fact.
When the consent for a marriage is obtained by application of force, under threats, coercion or any other compulsion, it is not free and it cannot be said that such a person has intended to what he or she has consented. Under all schools of Muslim law except Hanafi if the consent of the parties or of their guardians has been obtained under any compulsion, the marriage is void.
Under Hanafi law, even if the consent has been given under compulsion, the marriage is valid. This peculiar Hanafi rule may not appeal to a reasonable prudent man but its authority is not doubtful. It is based on the following tradition: “Apostle of God said, ‘there are three things which whether done in joke or earnest, shall be considered as serious and effectual; one, marriages, the second, divorce and the third taking back.”
It must be noted that the legality of a marriage under compulsion, is an exceptional rule peculiar only to Hanafis; under other schools of Sunni sect and also under the Shia law such a marriage is void.
Fraud is committed where there has been a dishonest concealment of certain relevant facts or a false statement in obtaining the consent for a marriage. If the consent has been obtained by playing fraud, the marriage is voidable at the option of the party defrauded.
That is to say, when such a defrauded person comes to know that fraud was committed in the marriage, he or she may either accept the marriage as lawful or reject it altogether. Where the marriage is invalidated by rejection, it becomes void.
On the other hand, if such a person thinks that there is no harm in being deceived, he or she may approve the marriage expressly or impliedly; the marriage then continues to be lawful.
Mistake of Fact:
Two persons are said to consent when they agree upon the same thing in the same sense. If at the time of marriage both the parties, and their guardians, are under a mistake of fact relevant to their marriage, there is no consent and the marriage is void. For example, if there is a mistake as to the identity of the girl to whom the offer has been intended, the marriage is void because there is no formation of a lawful contract.
III. Formalities in the Marriage:
Under Muslim law, religious ceremonies or rites are not necessary to validate the marriage. According to Ameer Ali, a Mahommedan marriage requires no particular or formal rites (sacrament) to constitute it valid in law.
Under Muslim law the only essential formalities are that the offer and the acceptance are made at the same sitting. These legal formalities must necessarily be fulfilled to constitute a valid marriage.
Offer and Acceptance:
Offer (Ijab) signifies willingness of a person to contract a marriage with the other. The offer is in the form of declaration and is generally made from the side of the boy or his guardian. The offer for the marriage must also be accepted by the girl or her guardian. Acceptance (Qabool) is made by girl or her guardian. No specific words are prescribed for an offer and acceptance, but they must indicate expressly a clear intention of the parties (or of their guardians) to marry. The offer and the acceptance should not be of uncertain or doubtful nature.
Oral or Written:
The offer and the acceptance may either be oral or in writing. That is to say, the offer or the acceptance may be through words of mouth or may be reduced to writing. Where it is in writing, it is called Kabinnamah which is an important documentary evidence of the marriage.
At the same sitting:
In a valid marriage the offer and the acceptance must have been made at the same sitting. This means that the proposal for the marriage and its subsequent acceptance are at one place of meeting. “Same sitting” or ‘one place of meeting’ is not to be interpreted literally.
The idea behind this legal requirement is that the offer and the acceptance must be simultaneous to each other so that they may form part of the same transaction. Where it appears that offer and the acceptance are isolated, there is no formation of marriage contract.
For example, if both the parties are present at one place but after the offer has been made the other party leaves the place for sometime before accepting it, and then comes back again at that place and accepts the offer, the offer and acceptance are not simultaneous and there is no marriage.
On the other hand, if both the parties are not at one place but there is proximity or continuity in the offer and the acceptance so that there is one transaction, the marriage is valid. For example, “H sends a messenger, or writes a letter to W, offering her marriage.
W receives the messenger or reads the letter, in prese.ice of two witnesses, and declares her acceptance of the offer in their presence. This constitutes a lawful marriage.” It is submitted that, in the same manner, the validity of a marriage contracted on telephone, may also be examined.
Offer and the acceptance must be reciprocal to each other. That is to say the acceptance must be exactly for the proposal and nothing else. If the acceptance is conditional or with modifications, it is no acceptance of the proposal.
Where a man says, “I offer to marry you on Rs. 1,000 as dower” and the acceptance is given by the woman as, “yes, I accept the marriage on Rs.2, 000 as dower”, there is no reciprocity in the offer and acceptance and the marriage is void.
Conditional or Contingent Marriage:
The offer and the acceptance must he with an intention to marry presently, i.e., with immediate effect. If the offer or the acceptance is conditional, or depends upon an uncertain future event, there is no marriage. Where an offers to marry Â in the next month, there is no marriage even after that month has passed away.
Similarly, if an offers to marry Â provided she gets through her examination in the first division, there is no marriage even if Â gets a first division. Again, where an offer to marry Â provided there is no rain in the next month, there is no valid marriage even if there has been no rain in the next month. A conditional marriage is simply a promise to marry in future.
Presence of Witnesses:
The offer and the acceptance must he made in presence of two competent witnesses. Any male Muslim, who is of sound mind and has attained puberty, can act as a witness. But, if two male Muslims are not available, one male together with two adult female Muslims of sound mind, may fulfill this legal requirement.
However, on this logic, four females are not regarded as competent witnesses in the marriage. It is not necessary that two persons are specifically asked to act as witnesses, it is sufficient if they were present in the marriage and have heard and understood the offer and acceptance. A marriage without witness or with incompetent witnesses is irregular (fasid).
According to Shia law, the presence of witnesses is not legally required. A marriage without witnesses is valid under Shia law.
Registration of Muslim-Marriage:
Under Muslim personal law, registration of marriage is not necessary. However, the States of Punjab, Bengal (& Bihar), Assam and Orissa have enacted laws in 1876, 1935 and 1949 respectively for the registration of Muslim marriages and divorce in their territories.
The purpose of registration in these enactments is to make the ‘proof of a marriage or divorce easier and authentic. But under these enactments, the registration of Muslim-marriage or divorce is not compulsory. It is only optional. The validity of marriages or divorce is not affected if they have not been registered.
Besides enactments, the provision for optional registration of a Muslim-marriage may be found also in customary laws of certain localities in India. In M. Jainoon v. Ammanullah Khan, Madras High Court held that although under Muslim law registration of marriage is not compulsory but it cannot also be said that Muslim Personal Law prohibits registration.
In order to ascertain a proper mode of proof, the Muslims of any particular locality may develop the process of registration by which the proof of marriage may be made easier. In a course of time, this process may develop into a custom, a valid custom, which is not violative of personal law.
The Court observed that if Muslims in a particular area have established and developed the practice of registration of marriage, it would certainly become a nut marry right. In the above mentioned case, the registration of marriage was recognised under the customary law of the locality of the plaintiff.
He had informed the Secretary of the Jamath (who was in charge of the marriage-register) about the date and time of the solemnisation of his marriage so that his marriage could be registered as required under the customary law.
But the Secretary of Jamath intentionally did not come to register the marriage nor did he send the said register on the date of marriage. Since the marriage could not be solemnised on the specified date, the plaintiff suffered great mental agony for the compensation of which he filed a suit for damages against the Secretary of Jamath.
The Madras High Court held that since the registration of marriage was recognised as a customary law of the locality, the plaintiff has a legal right under his customary law to get his marriage registered. The Court observed that intentional absence of the Secretary and his failure to send the register amounted to denial of plaintiff’s legal right which resulted in untoward and unpleasant events at his marriage function causing him mental agony.
Therefore, the Court held the suit for ‘recovery of violation of customary right and causing mental agony, and medical expenses would be maintainable. The Court held Secretary of Jamath liable and ordered him to pay Rs. 5000 (as claimed by the plaintiff) to compensate the plaintiff.
Indian-Christian Marriage Act, 1872:
The Indian Christian Marriage Act, 1872, extends to the whole of India except Jammu & Kashmir and is applicable to marriages between persons at least one of whom is a Christian. Under this Act if any party to marriage is a Christian, the marriage must be registered and it must take place before the Registrar.
The marriage of a Sunni male with Christian female is valid under Muslim personal law. But in India such marriage must be solemnised before Marriage-Registrar. If it is not registered, the marriage is void under this Act.
IV. Absence of Prohibitions:
In a valid marriage, there must not exist any of the prohibitions laid down under Muslim personal law. Prohibitions in the marriage are impediments or restrictions upon the right of a person to contract a marriage. Since marriage is also a social institution in Islam, the Muslim law requires that contract of marriage must not be against the interests of the society.
Law therefore, prohibits the marriage between certain persons or being contracted under certain circumstances. Prohibitions in Muslim-marriage are of two kinds: (i) the absolute prohibitions and (ii) the relative prohibitions.
Absolute prohibitions in the marriage are mandatory in nature. A marriage contracted in violation of any of the absolute prohibitions is null and void under all the schools of Muslim law. For a valid marriage, therefore, there must be absence of prohibited relationship between the parties.
There is an absolute prohibition for a Muslim to marry a person who is within his or her ‘prohibited relationship’. Two persons are said to be within ‘prohibited relationship’ if they are related to each other by (1) consanguinity, (2) affinity, or (3) fosterage.
(1) Consanguinity (Relation by blood):
Under consanguinity or blood-relationship, a Muslim cannot marry with any ol his (or her) following relations:
(a) One’s own ascendant or descendant, how highsoever.
(b) Descendants of one’s father and (or) mother how lowsoever.
(c) Brothers or sisters of one’s ascendants how highsoever.
(a) One’s own ascendants and descendants: ascendants how. Highsoever and descendants how lowsoever.
Father and mother of a person are his (her) ascendants. Ascendants of higher degree from the side of father are father’s father, father’s father’s father, etc., how highsoever. Similarly, ascendants of higher degree from the side of mother are mother’s mother and mother’s mother’s mother etc., how highsoever.
A Muslim is prohibited to marry with any of his (her) ascendants how highsoever. That is to say, a man is prohibited to marry his mother, mother’s mother etc. of any higher degree. A woman is prohibited to marry father’s father etc. of any higher degree.
Sons and daughters of a person are his (her) descendants. Descendants of lower degree are son’s son or daughter’s son etc. how lowsoever. A Muslim is prohibited to marry also with any of his (her) descendants how lowsoever. Thus, a man cannot marry his duaghter, daughter’s daughter (or son’s daughters etc.), in any lower degree. Similarly, a woman cannot marry her son, son’s son (or daughter’s son) etc. in any lower degree.
(b) Descendants of one’s Father and (or) Mother; descendants how lowsoever.
A person is a descendant of one’s father and mother. The other descendants of one’s father and mother arc one’s real brothers and sisters. Descendant in the lower degree of one’s parents are his own sons and daughters and also the sons and daughters of his real brother or sister.
A man is therefore prohibited to marry his real (full) sister or a woman is prohibited to marry her real (full) brother. A man is prohibited to marry not only his real (full) sister but also his uterine and consanguine sisters. Similarly, a woman cannot marry her uterine and the consanguine brother.
A man is also prohibited to marry the daughters or granddaughters of his brothers and sisters. That is to say, he cannot marry his Bhatiji (or Bhanji) and the daughters of such Bhatiji and Bhanji or Bhanja and Bhatija.
A man is prohibited to marry also the descendants (i.e. daughter’s daughter or son’s daughter) of his uterine or consanguine brother or sister, just as he is prohibited to marry the descendants of his real brother or sister.
There is, however, no prohibition in the marriage of cousine-brother and sister. That is to say, Chachere, Mamere, Phuphere or Mausere borther and sister can lawfully marry cach other.
(c) Brothers or Sisters of one’s Ascendants, how highsoever.
A man is prohibited to marry the sisters of his father or mother. Thus a man cannot marry his Booa (Phuphi) or his Mausi (Khala). A woman cannot marry her paternal or maternal uncle (Chacha or Mama).
A man is also prohibited to marry the Booa or Mausi of either of his parents. A woman is prohibited to marry Chacha or Mama of her parents.
It is to be noted that there is no prohibition in marrying the wife of one’s parent’s brother. Thus, a man can lawfully many his divorced or widowed Mami or Cltachi.
(2) Affinity (Relation by marriage):
Affinity means nearness. It is created through marriage. On the basis of at Unity one cannot marry with any of the following relations:
(a) Ascendant or descendant of one’s wife (or husband).
(b) Wife (or husband) of one’s ascendant or descendant.
(a) The ascendant or the descendant of one’s wife (or husband); ascendants how highsoever and descendants how lowsoever.
A man is prohibited to marry his wife’s mother or wife’s mother’s mother of any higher degree. A woman is prohibited to marry her husband’s father or husband’s father’s father of any higher degree.
A man is also prohibited to marry his wife’s daughter or wife’s granddaughter how lowsoever. Similarly, a woman cannot marry her husband’s son or husband’s great grandson, how lowsoever.
A man can marry the descendant of his wife if his own marriage with the wife has not been consummated.
(b) Wife (or husband) of any ascendant or descendants; ascendants how highsoever and descendants how lowsoever.
A man is prohibited to marry the wife of his father or grandfather of any higher degree. Similarly a woman cannot marry the husband of her mother or husband of her grand-mother etc.
It is to be noted that here, the prohibition includes restriction in the marriage of a man with his step-mother (i.e. the other wives of his father, if any, other than his real mother).
A man is also prohibited to marry the wife of his son, or wife of the grandson of any lower degree. Similarly, a woman is prohibited to marry the husband of her daughter or the husband of her granddaughter of any lower degree.
(3) Fosterage (Relation by Milk):
Where a child, under the age of two years, has sucked the milk of any woman (other than its own mother) such a woman is called the foster-mother of that child. Although there is no blood-relationship between that woman and the child yet she is treated as the real mother of that child for purposes of prohibitions in the marriage. The reason behind this rule is that breast-feeding to any child, necessary for child’s life and development, is regarded as the act of giving birth to that child.
Anyone who is prohibited on the ground of consanguinity and affinity is alsn prohibited by reason of fosterage. For example, a man is prohibited to marry his foster- mother, foster-mother’s daughter etc. But there are certain exceptional foster-relations with whom a marriage is not prohibited under Sunni law. For example, under Sunni law there is no prohibition in marrying sister’s foster-mother, foster-sister’s mother, foster- brother’s sister etc.
The prohibition on the ground of fosterage has almost become outdated because in most of the families of Indian Muslims, this relationship is now not in practice.
As discussed earlier, the prohibitions on the ground of consanguinity, affinity and fosterage are of absolute nature and a marriage in violation of these rules is void ab initio under all the schools of Muslim law.
Relative prohibitions are those prohibitions the compliance of which is not mandatory (must) but their presence is deemed to be unjust. Under Shariat the rules which are not mandatory are called directory (Mustahab) and are without any legal effect.
Therefore, a marriage contracted in violation of these prohibitions is merely irregular, not void. As a matter of fact, the violation of any relative prohibition in marriage is because of some small irregularity. As soon as that irregularity is removed, the marriage becomes perfectly valid.
Under Shia law, which does not recognise an irregular marriage, a marriage against any of these prohibitions is either void or perfectly valid. The relative prohibitions are given below.
(1) Unlawful Conjunctions:
A Muslim is prohibited to have two wives at a time if these two wives are related to each other (by .consanguinity, affinity or fosterage) in such a manner that if they had been of different sexes, they could not have inter-married.
Marriage with two such wives is an unlawful conjunction. For example, a man is prohibited to marry the sister of his wife because, if one of them is presumed to be a male, they would become brother and sister and could not inter-marry. Similarly, a Muslim cannot marry the aunt (Booa or Mausi i.e. khala) or the niece of his wife. However, a man can lawfully marry his wife’s sister after the death or divorce of the wife.
A marriage against the rule of unlawful conjunctions is irregular.
(i) Under Shia law, marriage with wife’s aunt (Booa or Mausi i.e. Khala) is not unlawful conjunction. Therefore one can marry with his wife’s aunt. But he cannot marry with wife’s neice without consent of the wife; with wife’s consent, marriage with wife’s neice is permitted.
(ii) A marriage against the rule of unlawful conjunctions (except marriage with wife’s aunt) is void under Shia law.
(2) Marriage with the Fifth Wife:
Muslim law permits a limited polygamy of four wives. That is to say, a Muslim can marry lawfully with four wives at a time. But he is prohibited to marry with a fifth wife. However, marriage with the fifth wife is only irregular. After the death or the divorce of any of the four wives, this irregularity does not exist, and he can lawfully marry because at a time he will have four wives, which is permissible.
Marriage with the fifth wife is void.
(3) Marriage with non-Muslim:
As discussed earlier, a Sunni male can lawfully contract the marriage with a Kitabia female, but he is prohibited to marry a non-Muslim or non-Kitabia woman. For example, he is prohibited to marry a Hindu woman. But a marriage against the prohibition is simply irregular, not void ab initio.
Marriage with any non-Muslim is void.
(4) Marriage without Witnesses:
Sunni law prohibits a marriage being contracted without two competent witnesses. A marriage without witnesses or with incompetent witnesses is, however merely irregular.
Under Shia law, the presence of witnesses is not necessary. A marriage contracted without witnesses is, therefore, valid under the Shia law.
(5) Marriage during Iddat:
Iddat is that period which a woman has to undergo after divorce or death of her husband. Marriage with a woman undergoing Iddat is prohibited under Muslim law. According to Sunni law, a marriage with a woman observing Iddat, is merely irregular; but according to Shia law the marriage is void. However, the prohibition of marrying a woman during Iddat, is a temporary prohibition which comes to an end after the expiry of the specified period.