Marriage Nikah & Mehar Dower.pdf

©2023, MD. HAROON RASHEED, BENGALURU, KARNATAKA, INDIA
Sources & References from:
MOHAMMEDAN LAW, BY
- MULLA
- AQIL AHMAD
- A.A. FYZEE
- SYED KHALID
RASHEED
- TAHIR
MAHMOOD
& SAIF MAHMOOD
MOHAMMED HAROON
B.A.LL.B (Hons.), B.S.W, LL.M, PGDCLCF (NLSIU), PGDADR (NALSAR)
ADVOCATE | ARBITRATOR (I.I.A.M.) | LAW
Address: No. 86/3, 1st Floor, Coles Road, Frazer Town,
Bengaluru
Mob: +91-9686034210; Email Id: adv.mdharoon@gmail.com
HAROON RASHEED, BENGALURU, KARNATAKA, INDIA
THE CONCEPT OF MARRIAGE UNDER M
In the religion of Islam, the Muslims follow Mohamme
Law/Islamic Shariat and the concept of Muslim Marriage is
known as “Nikah”. Before coming to the law proper, we
shall consider three aspects of marriage in Islamic Law,
which are necessary to understand the institution of
marriage as a whole, namely (i
(iii) Religious.
(i) Legal Aspect- Juristically, it is a contract and not a
sacrament. Being a contract, it has three characteristics
(a) there can be no marriage without consent;
(b) the terms of marriage contract a
limits capable of being altered to suit individual cases;
(c) as in a contract, provision is made for its breach, to
wit, the various kinds of dissolution by act of parties
or by the operation of law;
(ii) Social Aspect- There are three facto
remembered :
(a) Islamic law gives to the woman a definitely
high social status after marriage;
(b) Restrictions are placed
polygamy of pre-
controlled polygamy is allowed;
(c) The Prophet both by example and percept,
encouraged the status of marriage.
(iii) Religious Aspect- The Prophet of Islam was
determined to raise the status of women. He asked
people to see their brides before marrying them and
that taught that nobility of character is the best for
marrying a woman and to keep intact an order in the
society;
Pre-islamic Era in Saudi Arabia: The
or looked upon as commodities, treated as chattels,
and were not given any right of inheritance and were
absolutely dependent. After marriage
not loose her individuality. She remains the absolute
owner of her individual rights; even after marriage
she can alienate or transfer her property in any way
AROON RASHEED
ADVOCATE | ARBITRATOR (I.I.A.M.) | LAW MAGISTER
No. 86/3, 1st Floor, Coles Road, Frazer Town,
Bengaluru- 560 005, Karnataka, India
Email Id: adv.mdharoon@gmail.com
MOHAMMEDAN LAW:
In the religion of Islam, the Muslims follow Mohammedan
Law/Islamic Shariat and the concept of Muslim Marriage is
Before coming to the law proper, we
shall consider three aspects of marriage in Islamic Law,
are necessary to understand the institution of
marriage as a whole, namely (i) Legal, (ii) Social,
Juristically, it is a contract and not a
sacrament. Being a contract, it has three characteristics
(a) there can be no marriage without consent;
(b) the terms of marriage contract are within legal
limits capable of being altered to suit individual cases;
(c) as in a contract, provision is made for its breach, to
wit, the various kinds of dissolution by act of parties
There are three factors to be
Islamic law gives to the woman a definitely
h social status after marriage;
Restrictions are placed upon the unlimited
-Islamic times, and a
controlled polygamy is allowed;
The Prophet both by example and percept,
couraged the status of marriage.
The Prophet of Islam was
determined to raise the status of women. He asked
people to see their brides before marrying them and
that taught that nobility of character is the best for
to keep intact an order in the
islamic Era in Saudi Arabia: The woman was seen
or looked upon as commodities, treated as chattels,
and were not given any right of inheritance and were
absolutely dependent. After marriage, woman does
her individuality. She remains the absolute
owner of her individual rights; even after marriage
she can alienate or transfer her property in any way

MOHAMMEDAN LAW, BY
- MULLA
- AQIL AHMAD
- A.A. FYZEE
- SYED KHALID
RASHEED
- TAHIR
MAHMOOD
& SAIF MAHMOOD
MOHAMMED HAROON
Bengaluru
she pleases without extraneous control of her
husband. She can enter into binding contracts with
her husband and proceed against him in courts of law,
if necessary and woman enjoys these positions
through the injunctions of the Holy Quran.
There are various definitions of Marriage/Nikah and few of
them are:
1. According to Section § 250 of the Mulla on Mohammedan
Law considering HEDAYA 25, BAILLIE
“Marriage (nikah) is defined to be a contra
object the procreation and the legalizing of children
2. According to HEDAYA, - “Nikah in its primitive sense,
means, carnal conjunction. Some have said that it signifies
conjunction generally. In the language of the law it implies a
particular contract used for the purpose of legalizing
generation.”
3. According to AMEER ALI, - “Marriage is an institution
ordained for the protection of society, and in order that human
beings may guard themselves from foulness and unchastity
4. According to JUSTICE MAHMOOD,
Mohammedans is not a sacrament, but purely a civil contra
5. According to M.U.S. JUNG, - “Marriage though essentially a
contract is also a devotional act, its objects are the right of
enjoyment, procreation of children and the regulation of social
life in the interest of the society.”
6. According to ABDUR RAHIM, - “
regard the institution of marriage as partaking both of the
nature of ibadat or devotional acts and muamlat or dealings
among men.”
7. ASHABAH says: “Marriage is a contract underlying a
permanent relationship based on mutual consent on the part of
a man and woman.”
8. According to KEFAYA, - “Marriage is a contract which has
for its design or object the procreation of children; it was also
instituted for the comfort of life, and is one of the prime or
original necessities of man. It is, therefore, lawful in extreme
old age after the hope of off-springs has ceased, and even in the
last or death-illness.”
AROON RASHEED
she pleases without extraneous control of her
husband. She can enter into binding contracts with
her husband and proceed against him in courts of law,
if necessary and woman enjoys these positions
h the injunctions of the Holy Quran.
There are various definitions of Marriage/Nikah and few of
of the Mulla on Mohammedan
Law considering HEDAYA 25, BAILLIE’s DIGEST 4 –
Marriage (nikah) is defined to be a contract which has for its
object the procreation and the legalizing of children.”
Nikah in its primitive sense,
means, carnal conjunction. Some have said that it signifies
conjunction generally. In the language of the law it implies a
rticular contract used for the purpose of legalizing
Marriage is an institution
ordained for the protection of society, and in order that human
beings may guard themselves from foulness and unchastity.”
JUSTICE MAHMOOD, - “Marriage among
Mohammedans is not a sacrament, but purely a civil contract.”
Marriage though essentially a
contract is also a devotional act, its objects are the right of
nd the regulation of social
“The Muhammadan jurists
regard the institution of marriage as partaking both of the
nature of ibadat or devotional acts and muamlat or dealings
Marriage is a contract underlying a
permanent relationship based on mutual consent on the part of
Marriage is a contract which has
for its design or object the procreation of children; it was also
tituted for the comfort of life, and is one of the prime or
original necessities of man. It is, therefore, lawful in extreme
springs has ceased, and even in the

MOHAMMEDAN LAW, BY
- MULLA
- AQIL AHMAD
- A.A. FYZEE
- SYED KHALID
RASHEED
- TAHIR
MAHMOOD
& SAIF MAHMOOD
MOHAMMED HAROON
Bengaluru
9. According to TYABJI, - “Marriage brings about a relation
based on and arising from a permanent contract for intercourse
and procreation of children, between a man and a woman, who
are referred to as ‘parties to one marriage’ and who after being
married, become husband and wife.”
10. The Prophet of Islam, Muhammad is reported to have
said:
- “Marriage is my Sunna (tradition/way of life)
and those who do not follow this way of life
are not my followers.”
And that-
“There is no monkery in Islam.”
THE OBJECTS OF MARRIAGE
According to Tarmizi there are five objectives of marriage
(nikah):
(i) The restraint of sexual passion;
(ii) The ordering of domestic life;
(iii) The increase of the family;
(iv) The discipline of the same in the care and
responsibility of wife and children; and
(v) The upbringing of virtuous children;
HEDAYA, speaks of the ends of marriage as
(a) Cohabitation;
(b) Society; and
(c) Equal Friendship;
The purposes of marriage are perpetuation of human
race and attainment of chastity, continence, mutual
love, affection and peace.
The Prophet of Islam said “Men marry women for their
piety, or their property, or their beauty, but you should
marry for piety.”
AROON RASHEED
Marriage brings about a relation
based on and arising from a permanent contract for intercourse
of children, between a man and a woman, who
are referred to as ‘parties to one marriage’ and who after being
The Prophet of Islam, Muhammad is reported to have
“Marriage is my Sunna (tradition/way of life)
e who do not follow this way of life
“There is no monkery in Islam.”
ARRIAGE (NIKAH)
According to Tarmizi there are five objectives of marriage
The restraint of sexual passion;
The discipline of the same in the care and
responsibility of wife and children; and
The upbringing of virtuous children;
HEDAYA, speaks of the ends of marriage as-
The purposes of marriage are perpetuation of human
race and attainment of chastity, continence, mutual
The Prophet of Islam said “Men marry women for their
piety, or their property, or their beauty, but you should

MOHAMMEDAN LAW, BY
- MULLA
- AQIL AHMAD
- A.A. FYZEE
- SYED KHALID
RASHEED
- TAHIR
MAHMOOD
& SAIF MAHMOOD
MOHAMMED HAROON
Bengaluru
THE ESSENTIALS OF MARRIAGE (NIKAH
(i) Offer on the part of one party to the
(ii) Acceptance by the other party;
(iii) Presence of two Witnesses where the parties are
Hanifis; no witnesses are required if the parties are
Shias;
(iv) Both parties must be competent;
(v) If party minor must be assisted by her Guardian
(father, brother or paternal grand
maternal uncle etc., in case of Hanfi and for Shia’s
only father or paternal grandfather howsoever
high)
(vi) Presence of Vakil (person who acts as the person
who administers the Nikah Marriage Contract
both parties clearly explaini
conditions);
(vii) The words with which the marriage is contracted
must be clear and unambiguous;
(viii) The proposal and acceptance must both be
expressed in one and the same meeting;
(ix) DOWER or MEHER
(x) No other legal disabilities;
According to AMEER ALI, the essential conditions of a
valid (sahih) marriage may be summarized as follows:
(a) Ijab (offer)
(b) Qabool (acceptance)
(c) Baligh (adult age, as concept of majority back
then was puberty, thus boy or girl attaining the
age of puberty was considered to be
having ability to contract)
(d) Rashid (sound mind, not
deprived)
(e) Parties, when minor their guardians
(f) Two witnesses (Hanfi Law not Shia Law)
(g) Same meeting (that is at one session complete)
(h) with DOWER/MEHER;
(i) Presence of Vakil who administers the contract of
marriage Nikah to both parties;
AROON RASHEED
IKAH) : CONDITIONS
Offer on the part of one party to the marriage;
Acceptance by the other party;
Presence of two Witnesses where the parties are
Hanifis; no witnesses are required if the parties are
Both parties must be competent;
If party minor must be assisted by her Guardian
al grand-father, mother,
maternal uncle etc., in case of Hanfi and for Shia’s
only father or paternal grandfather howsoever
Presence of Vakil (person who acts as the person
who administers the Nikah Marriage Contract to
both parties clearly explaining all the terms and
The words with which the marriage is contracted
must be clear and unambiguous;
The proposal and acceptance must both be
expressed in one and the same meeting;
ALI, the essential conditions of a
valid (sahih) marriage may be summarized as follows:
Baligh (adult age, as concept of majority back
then was puberty, thus boy or girl attaining the
age of puberty was considered to be MAJOR and
Rashid (sound mind, not majnun or mentally
Parties, when minor their guardians,
Two witnesses (Hanfi Law not Shia Law)
Same meeting (that is at one session complete);
administers the contract of
marriage Nikah to both parties;

MOHAMMEDAN LAW, BY
- MULLA
- AQIL AHMAD
- A.A. FYZEE
- SYED KHALID
RASHEED
- TAHIR
MAHMOOD
& SAIF MAHMOOD
MOHAMMED HAROON
Bengaluru
The Completion of this contract whic
proposal or demand in marriage and ends with the consent
is called AQD”.
THE KHIYAR-AL-BULUGH : OPTION OF
If a Muslim minor has been married during minority by a
guardian, the minor has the right on attaining majority to
repudiate such marriage. Such a minor may be given in
marriage either (1) by the father or grandfather, or (2) by any
other guardian. The concept of Guardianship in marriage
was known as Jabr, the right to contract to give a minor in
marriage. And marriage (nikah)
unauthorized person is invalid. Such unauthorized person
was known as Akd Fazuli.
In ancient times such right was not available to the Minor
Girl upon attaining Majority through puberty but in later
times it was recognised. The idea of marriage back then was
also linked to security of the girl wherein during those times
if any girl became orphan, to protect the evil eyes upon her
and to protect her honor and dignity her responsibility was
handed over to the male under the relationship
Also, sexual relations or physical relations with such minors
were strictly prohibited.
For, Sunnis as soon as such marriage or nikah with minor
was solemnized, the presumption was that the marriage was
approved by the minor during minority
Shia’s a minor’s marriage must be approved expressly by the
minor upon attaining majority through puberty, if the sane
was not ratified by the minor, then it is no marriage at all in
the eyes of law.
AROON RASHEED
The Completion of this contract which commences with
proposal or demand in marriage and ends with the consent
PTION OF PUBERTY
If a Muslim minor has been married during minority by a
guardian, the minor has the right on attaining majority to
e such marriage. Such a minor may be given in
marriage either (1) by the father or grandfather, or (2) by any
The concept of Guardianship in marriage
, the right to contract to give a minor in
marriage. And marriage (nikah) contracted by an
unauthorized person is invalid. Such unauthorized person
In ancient times such right was not available to the Minor
Girl upon attaining Majority through puberty but in later
of marriage back then was
also linked to security of the girl wherein during those times
if any girl became orphan, to protect the evil eyes upon her
and to protect her honor and dignity her responsibility was
handed over to the male under the relationship of marriage.
Also, sexual relations or physical relations with such minors
For, Sunnis as soon as such marriage or nikah with minor
was solemnized, the presumption was that the marriage was
approved by the minor during minority. But, according to
Shia’s a minor’s marriage must be approved expressly by the
minor upon attaining majority through puberty, if the sane
was not ratified by the minor, then it is no marriage at all in

MOHAMMEDAN LAW, BY
- MULLA
- AQIL AHMAD
- A.A. FYZEE
- SYED KHALID
RASHEED
- TAHIR
MAHMOOD
& SAIF MAHMOOD
MOHAMMED HAROON
Bengaluru
LEGAL EFFECTS FLOWING FROM A VALID
BAILEE DIGEST at p. 13 and Fyzee 1964
(i) Sexual intercourse becomes lawful and the children born
of the union are legitimate;
(ii) the wife becomes entitled to her dower;
(iii) the wife becomes entitled to maintenance;
(iv) the husband becomes entitled to restrain the wife's
movements in a reasonable manner;
(v) mutual rights of inheritance are established;
(vi) the prohibitions regarding marriage due to the rules of
affinity come into operation;
(vii) the wife is not entitled to remarry after the death of her
husband, or after the dissolution of her marriage, with
observing iddat;
(viii) where there is an agreement between the parties,
entered into either at the time of the marriage or subsequent
to it, its stipulations will be enforced, insofar as they are
consistent with the provisions or the policy of the la
(ix) neither the husband nor the wife acquires any interest in
the property of the other by reason of marriage.
AROON RASHEED
ALID MARRIAGE
1964 at p. 116-117
lawful and the children born
(ii) the wife becomes entitled to her dower;
(iii) the wife becomes entitled to maintenance;
(iv) the husband becomes entitled to restrain the wife's
al rights of inheritance are established;
(vi) the prohibitions regarding marriage due to the rules of
(vii) the wife is not entitled to remarry after the death of her
after the dissolution of her marriage, without
(viii) where there is an agreement between the parties,
entered into either at the time of the marriage or subsequent
to it, its stipulations will be enforced, insofar as they are
consistent with the provisions or the policy of the law; and
(ix) neither the husband nor the wife acquires any interest in
the property of the other by reason of marriage.

MOHAMMEDAN LAW, BY
- MULLA
- AQIL AHMAD
- A.A. FYZEE
- SYED KHALID
RASHEED
- TAHIR
MAHMOOD
& SAIF MAHMOOD
MOHAMMED HAROON
Bengaluru
THE CONCEPT OF INTER-RELIGIOUS MARRIAGES
In respect of an inter-religious marriage, Sunni and Shia
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)
particularly Abrahamic Religions such as Jews, Chri
and so on. 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.
There are two divergent beliefs, faith
(1) Islam is a new religion born after the Prophet
Muhammad was born in 571 AD and attained prophet
hood at the age of 40 years when he was meditating and
finding answers to GOD, where Angel Gabriel visits him
and asks him to “READ” (in Arabi
and will of the Almighty God who created everything
and thus, the Holy Book (Divine) Quran was revealed to
the prophet;
(2) The other is that the religion Islam is merely a revival of
monotheistic faith instilled by the Abrahamic faith wh
was descendant of Adam (First Prophet) his descendant
Noah or Nuh (Prophet of God believing in Monotheistic
Religion, faith or belief that there is only One God). In
this bloodline, there was Prophet Moses or Musa who
was revealed Torah/Ten Commandments
/ Kitab), then there was Prophet King David or Dawood
or Daud who was revealed Zabur or Zaboor (2
Book/Kitab), followed by Prophet Jesus or Isa who was
revealed Injeel or Holy Bible / Testaments (3
Book/Kitab) and
AROON RASHEED
ARRIAGES
religious marriage, Sunni and Shia
Laws are different. The law is, therefore discussed separately
d 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) here
such as Jews, Christians
. 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.
that:
Islam is a new religion born after the Prophet
Muhammad was born in 571 AD and attained prophet-
hood at the age of 40 years when he was meditating and
finding answers to GOD, where Angel Gabriel visits him
and asks him to “READ” (in Arabic IQRA) by the power
and will of the Almighty God who created everything
and thus, the Holy Book (Divine) Quran was revealed to
The other is that the religion Islam is merely a revival of
monotheistic faith instilled by the Abrahamic faith who
was descendant of Adam (First Prophet) his descendant
Noah or Nuh (Prophet of God believing in Monotheistic
Religion, faith or belief that there is only One God). In
this bloodline, there was Prophet Moses or Musa who
was revealed Torah/Ten Commandments (1st Holy Book
/ Kitab), then there was Prophet King David or Dawood
or Daud who was revealed Zabur or Zaboor (2nd Holy
Book/Kitab), followed by Prophet Jesus or Isa who was
revealed Injeel or Holy Bible / Testaments (3rd Holy

MOHAMMEDAN LAW, BY
- MULLA
- AQIL AHMAD
- A.A. FYZEE
- SYED KHALID
RASHEED
- TAHIR
MAHMOOD
& SAIF MAHMOOD
MOHAMMED HAROON
Bengaluru
Lastly, that Prophet Muhammad who was the Prophet of
Islam was told to be the seal of prophets and that it wa
declared by God that no more prophets will come after
Prophet Muhammad and finally a final revelation in form
of Holy Quran (4th Holy Book/Kitab) was revealed to
Prophet Muhammad. Thus, making assertion that Islam
is the reviving of the previous Abrahami
faith which was corrupted by the passage of time by its
followers to suit their needs and desires and
conveniences. Thus, the Kitabiyas would mean Jews, the
followers of Prophet Moses or Musa, the Christians, the
followers of Prophet Jesus or Isa, followers of King David
(not the Fire Worshippers) and lastly, Muslims.
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 irregul
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
void; it is merely irregular.
Shia law 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.
However, a Shia male may contract a Muta
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
male.
AROON RASHEED
that Prophet Muhammad who was the Prophet of
was told to be the seal of prophets and that it was
declared by God that no more prophets will come after
Prophet Muhammad and finally a final revelation in form
Holy Book/Kitab) was revealed to
Prophet Muhammad. Thus, making assertion that Islam
is the reviving of the previous Abrahamic Monotheistic
faith which was corrupted by the passage of time by its
followers to suit their needs and desires and
Thus, the Kitabiyas would mean Jews, the
followers of Prophet Moses or Musa, the Christians, the
r Isa, followers of King David
(not the Fire Worshippers) and lastly, Muslims.
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
ated as valid when the girl
converts to Islam. That is to say, the marriage of a Sunni
Muslim or non-Kitabia female is not
Shia law Shia male has no right to contract a marriage with
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.
However, a Shia male may contract a Muta-marriage with a
worshipping (Parsi) female. Marriage of a
Muslim male.
A Muslim female, whether Shia or Sunni, has no right to
enter into the contract of marriage with any non-Muslim

MOHAMMEDAN LAW, BY
- MULLA
- AQIL AHMAD
- A.A. FYZEE
- SYED KHALID
RASHEED
- TAHIR
MAHMOOD
& SAIF MAHMOOD
MOHAMMED HAROON
Bengaluru
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 inter-religious marriages under Muslim law
may now be summarised, as under-
1. Muslim male (of any sect)
+ Muslim female (of any sect)
2. Sunni male + Kitabia female
3. Sunni male + Female who is neither Muslim
nor Kitabia
...Marriage is Irregular/Voidabl
4. Shia male + Non-Muslim female
5. Muslim female + Non-Muslim male
KINDS OF MARRAIGES:
1. Valid (Sahih);
2. Void (Batin);
3. Voidable or Irregular (Fasid)
4. Mutta (Temporary) Marriages which are only
recognised by specific sect in Shia’s i.e.,
Asharia Shias which is strictly condemned by
other Muslims;
According to Sunni law the marriage may be classified into
three categories:- (1) Valid (Sahih),
(3) Void (Batil), (3) Irregular (Fasid).
AROON RASHEED
If a Muslim female marries a Hindu, Jew or a Christian male.
the marriage, under both the schools of Muslim law, is void.
religious marriages under Muslim law
...Marriage is Valid
...Marriage is Valid
Sunni male + Female who is neither Muslim
...Marriage is Irregular/Voidable
Muslim female
...Marriage is Void
Muslim male
...Marriage is Void
Voidable or Irregular (Fasid);
Mutta (Temporary) Marriages which are only
sect in Shia’s i.e., Ithna
Asharia Shias which is strictly condemned by
According to Sunni law the marriage may be classified into

MOHAMMEDAN LAW, BY
- MULLA
- AQIL AHMAD
- A.A. FYZEE
- SYED KHALID
RASHEED
- TAHIR
MAHMOOD
& SAIF MAHMOOD
MOHAMMED HAROON
Bengaluru
Under the Shia law, irregular marriages are not recognised.
A marriage according to Shia law, may be classified into
following categories:-
(1) Valid (Sahih),
(2) Void (Batil),
(3) Temporary (Muta)..
Note
However, it is submitted that, although the common practice
is to regard valid, void and irregular as the three kinds of
Muslim-marriage yet, it may be noted that it is erro
call them as different kinds of marriage. As a matter of fact,
the only kind of Muslim-marriage which is accepted to be
perfectly lawful and 'correct' is the valid (Sahih) marriage. A
marriage which has been contracted in violation of any of the
essential legal conditions, is no marriage at all; therefore it
does not constitute any separate category as 'void marriage'.
Similarly, a marriage in which there is some irregularity, is
an incomplete marriage which becomes perfectly valid as
soon as the particular irregularity is removed. Initially every
marriage is contracted to be a valid marriage. If there is any
fundamental legal defect in it, the marriage becomes void. If
the defect is in the nature of mere irregularity, the marriage
is rendered irregular. However, the 'temporary marriage'
(Muta), under Shia law, may certainly be regarded as a
distinct kind of marriage.
Valid (Sahih) Marriage
Under all the schools of Muslim law, a valid marriage is that
which has been constituted in accordance with
conditions prescribed under the law. That is to say, a
marriage is valid only where :-
AROON RASHEED
Under the Shia law, irregular marriages are not recognised.
Shia law, may be classified into
However, it is submitted that, although the common practice
is to regard valid, void and irregular as the three kinds of
marriage yet, it may be noted that it is erroneous to
call them as different kinds of marriage. As a matter of fact,
marriage which is accepted to be
perfectly lawful and 'correct' is the valid (Sahih) marriage. A
marriage which has been contracted in violation of any of the
ssential legal conditions, is no marriage at all; therefore it
does not constitute any separate category as 'void marriage'.
Similarly, a marriage in which there is some irregularity, is
an incomplete marriage which becomes perfectly valid as
articular irregularity is removed. Initially every
marriage is contracted to be a valid marriage. If there is any
fundamental legal defect in it, the marriage becomes void. If
the defect is in the nature of mere irregularity, the marriage
ular. However, the 'temporary marriage'
(Muta), under Shia law, may certainly be regarded as a
Under all the schools of Muslim law, a valid marriage is that
which has been constituted in accordance with the essential
conditions prescribed under the law. That is to say, a

MOHAMMEDAN LAW, BY
- MULLA
- AQIL AHMAD
- A.A. FYZEE
- SYED KHALID
RASHEED
- TAHIR
MAHMOOD
& SAIF MAHMOOD
MOHAMMED HAROON
Bengaluru
(1) the parties are competent;
(2) the consent of the parties, or of their guardians, is free; (3)
the offer and acceptance has been made according to law;
and lines.
(3) there is no prohibition for marriage between the parties.
Legal Effects of a valid marriage have already been
discussed in the preceding
Void (Batil) Marriage
A void marriage is no marriage at all. It exists neither in fact
nor in law; it is an illegal union. Following marriages are
void :- (1) Marriage in violation of absolute pro
is to say, a marriage i which the parties are within the
prohibited relationship on the ground of
affinity or fosterage.
(2) Marriage with any lawfully married woman (polyandy
being strictly prohibited in Islam).
Shia law-Under Shia Law, in addition to the above
mentioned situations, following marriages are also void :
(1) Marriage against the prohibition of unlawful conjunction;
(2) Marriage with the fifth wife; (3) Marriage during
pilgrimage;
(4) Marriage with any non-Muslim; and (5) Marriage with a
woman undergoing Iddat.
Legal Effects of a Void Marriage
A marriage which is void ab initio, is a radically illegal union
from the very beginning; it does not create any conjugal right
or obligation between the parties. The
illegitimate. and not get mutual rights of inheritance. The
wife is neither entitled to the dower nor maintenance under
Muslim law. As a void marriage is no marriage at all, the
parties are free to contract another marriage lawfully.
AROON RASHEED
(2) the consent of the parties, or of their guardians, is free; (3)
the offer and acceptance has been made according to law;
) there is no prohibition for marriage between the parties.
lid marriage have already been
A void marriage is no marriage at all. It exists neither in fact
nor in law; it is an illegal union. Following marriages are
(1) Marriage in violation of absolute prohibitions, that
is to say, a marriage i which the parties are within the
prohibited relationship on the ground of consanguinity or
(2) Marriage with any lawfully married woman (polyandy
Under Shia Law, in addition to the above-
mentioned situations, following marriages are also void :-
(1) Marriage against the prohibition of unlawful conjunction;
(2) Marriage with the fifth wife; (3) Marriage during
slim; and (5) Marriage with a
A marriage which is void ab initio, is a radically illegal union
from the very beginning; it does not create any conjugal right
or obligation between the parties. The is unlawful and are
illegitimate. and not get mutual rights of inheritance. The
wife is neither entitled to the dower nor maintenance under
Muslim law. As a void marriage is no marriage at all, the
parties are free to contract another marriage lawfully.

MOHAMMEDAN LAW, BY
- MULLA
- AQIL AHMAD
- A.A. FYZEE
- SYED KHALID
RASHEED
- TAHIR
MAHMOOD
& SAIF MAHMOOD
MOHAMMED HAROON
Bengaluru
Irregular (Fasid) Marriage
Irregular marriages are recognised only under the
Sunni law. The irregular marriage is an
incomplete marriage. If there is any illegality in a
marriage which may be removed, the marriage is
irregular. As soon as that illegality or irregularity
is removed, such marriage becomes perfectly
valid. A marriage contracted in violat
the relative prohibitions, is regarded as irregular
marriage because relative prohibitions are merely
temporary which may be removed afterwards.
Following marriages are regarded as irregular
marriages:-
(1) Marriage against the rule of unlaw
conjunction.
(2) Marriage with the fifth wife. (3) Marriage
without two competent witnesses.
(4) Marriage with a woman who is neither
Muslim nor Kitabia.
(5) Marriage with a woman undergoing Iddat.
LEGAL EFFECTS OF AN IRREGULAR MARRIAGE
(1) Cohabitation is lawful.
(2) Children are legitimate and have right to inherit the
properties of their parents.
(3) The husband and the wife have no mutual rights of
inheritance. That is to say, if the marriage is irregular and
the husband dies, the wife is not entitled to inherit his
properties. Similarly, husband too is not entitled to inherit
the properties of the wife.
AROON RASHEED
Irregular (Fasid) Marriage
Irregular marriages are recognised only under the
ular marriage is an
incomplete marriage. If there is any illegality in a
marriage which may be removed, the marriage is
irregular. As soon as that illegality or irregularity
is removed, such marriage becomes perfectly
valid. A marriage contracted in violation of any of
the relative prohibitions, is regarded as irregular
marriage because relative prohibitions are merely
temporary which may be removed afterwards.
Following marriages are regarded as irregular
(1) Marriage against the rule of unlawful
(2) Marriage with the fifth wife. (3) Marriage
without two competent witnesses.
(4) Marriage with a woman who is neither
(5) Marriage with a woman undergoing Iddat.
ARRIAGE:
(2) Children are legitimate and have right to inherit the
(3) The husband and the wife have no mutual rights of
inheritance. That is to say, if the marriage is irregular and
t entitled to inherit his
properties. Similarly, husband too is not entitled to inherit

MOHAMMEDAN LAW, BY
- MULLA
- AQIL AHMAD
- A.A. FYZEE
- SYED KHALID
RASHEED
- TAHIR
MAHMOOD
& SAIF MAHMOOD
MOHAMMED HAROON
Bengaluru
(4) The wife is not entitled to dower if the marriage has not
been consummated.
(5) Where consummation has taken place, the wife is
entitled to get only the specified or the proper dower,
whichever is less.
(6) If the marriage has not been consummated, the wife is
not required to observe any Iddat.
(7) Where the marriage is consummated, the wife is
required to observe an Iddat only of three monthly courses
whether the marriage dissolves by divorce or by death of
the husband. After the death of the husband, the widow
need not observe the death-Iddat (four months ten days);
three months-Iddat is sufficient.
(8) Irregular marriage is not a perfect union of husband
and wife. It is regarded as unholy union. It is the duty of
the Khazi or the Court to separate them and dissolve their
marriage. An irregular marriage may also be terminated by
the parties themselves, either before or after
consummation.
Shia Law- Irregular marriages are not recognized under the
Shia Law. A marriage, among the Shias, may be either
valid or void.
TEMPORARY MARRIAGE (MUTA)
Muta is a distinct kind of marriage recognised only by the
Ithna Asharia Shias. Muta may be defined as a temporary
union of male and female for specified duration, on
payment of some consideration. As against the permanent
or a regular marriage (Nikah), the Muta may be regarded
as a temporary marriage. Literal meaning of the Arabic
word 'Muta' is 'enjoyment'; therefore, it may also be
regarded as 'marriage for pleasure'. In the earlier days
Islam, when the Arabs had to live away from their homes
for a considerably long period either on account of wars or
on trade-journeys, they used to satisfy their sex
through prostitutes.
AROON RASHEED
(4) The wife is not entitled to dower if the marriage has not
(5) Where consummation has taken place, the wife is
specified or the proper dower,
ot been consummated, the wife is
(7) Where the marriage is consummated, the wife is
required to observe an Iddat only of three monthly courses
whether the marriage dissolves by divorce or by death of
e death of the husband, the widow
Iddat (four months ten days);
(8) Irregular marriage is not a perfect union of husband
and wife. It is regarded as unholy union. It is the duty of
he Court to separate them and dissolve their
marriage. An irregular marriage may also be terminated by
the parties themselves, either before or after
Irregular marriages are not recognized under the
Shias, may be either
TEMPORARY MARRIAGE (MUTA)
Muta is a distinct kind of marriage recognised only by the
Ithna Asharia Shias. Muta may be defined as a temporary
union of male and female for specified duration, on
eration. As against the permanent
or a regular marriage (Nikah), the Muta may be regarded
as a temporary marriage. Literal meaning of the Arabic
word 'Muta' is 'enjoyment'; therefore, it may also be
regarded as 'marriage for pleasure'. In the earlier days of
Islam, when the Arabs had to live away from their homes
riod either on account of wars or
journeys, they used to satisfy their sex-desires

MOHAMMEDAN LAW, BY
- MULLA
- AQIL AHMAD
- A.A. FYZEE
- SYED KHALID
RASHEED
- TAHIR
MAHMOOD
& SAIF MAHMOOD
MOHAMMED HAROON
Bengaluru
In order to avoid the development of prostitution in the
society and to confer legitimacy upon chil
unions, temporary marriage was recognized
by the Prophet for sometime. But, later on, when he felt
this concession was being exploited
absolutely. It is said that Caliph Omar had made an attempt
to suppress and condemn the practice of M
best to abolish it from the society. Since then, the M
of marriage has not been in practice under any school of
Muslim law except the Ithna Asharia Shia law
the Muta form of marriage is now not recognized under any
school of Muslim law except the Ithna Asharia. However, the
practice of Muta is not very common in India
ESSENTIALS OF MUTA MARRIAGE
The Muta-marriage must be contracted according to the
rules prescribed by Ithna Asharia law. A Muta contracted
against any of the following legal conditions is an unlawful
union Essential conditions for a valid
guardian may be summarised as under :
(1) The parties must have attained the age of puberty
(fifteen years) and mus also possess a sound mind.
Guardians cannot contract Muta of any mince Minor's Muta
is void even if it has been contracted by marriage
(2) The Shia male may contract Muta with any Muslim,
Kitabia or a fire worshipping woman, but he has no right to
contract Muta with the woman f any other religion. Muta
with a Hindu woman is void. But, a Shia woman cannot
contract muta with any non-Muslim.
There is no restriction as to the number of Muta
may contract a Muta form of marriage with as many wives
at a time as he likes.
AROON RASHEED
In order to avoid the development of prostitution in the
society and to confer legitimacy upon children of such
unions, temporary marriage was recognized and permitted
by the Prophet for sometime. But, later on, when he felt that
this concession was being exploited, he prohibited it
t is said that Caliph Omar had made an attempt
to suppress and condemn the practice of Muta and tried his
the society. Since then, the Muta form
of marriage has not been in practice under any school of
Muslim law except the Ithna Asharia Shia law. Accordingly,
the Muta form of marriage is now not recognized under any
ept the Ithna Asharia. However, the
practice of Muta is not very common in India.
marriage must be contracted according to the
rules prescribed by Ithna Asharia law. A Muta contracted
l conditions is an unlawful
union Essential conditions for a valid muta-marriage-
guardian may be summarised as under :-
(1) The parties must have attained the age of puberty
(fifteen years) and mus also possess a sound mind.
of any mince Minor's Muta
is void even if it has been contracted by marriage-guardian
(2) The Shia male may contract Muta with any Muslim,
Kitabia or a fire worshipping woman, but he has no right to
contract Muta with the woman f any other religion. Muta
ith a Hindu woman is void. But, a Shia woman cannot
Muslim.
There is no restriction as to the number of Muta-wives. One
may contract a Muta form of marriage with as many wives

MOHAMMEDAN LAW, BY
- MULLA
- AQIL AHMAD
- A.A. FYZEE
- SYED KHALID
RASHEED
- TAHIR
MAHMOOD
& SAIF MAHMOOD
MOHAMMED HAROON
Bengaluru
(3) The consent of both the parties must be a free consent
(4) The formalities of offer and acceptance, which are
necessary for a regular marriage, are also essential in the
muta form of marriage. Muta may be
without the witnesses.
The Muta marriage may be contracted eit
the word 'Muta or any other word signifying temporary
marriage.
(5) There must not exist any prohibited relationship
between the parties.
(6) The period for which the Mula is being contracted,
must be clearly specified
It may be for a day. for a week or for certain years. As a
matter of fact, the fundamental difference between
and a Nikah is that, in a marriage if its period has been
specified (how so long that period may be) the marriage
becomes a Muta, whereas a marriage without any specific
period is always a Nikah. It may be noted that the word
'Muta' in itself does not render a marriage temporary. If a
Muta form of marriage has been contracted but its
duration has not been specified, it is regarded as a
permanent marriage (Nikah).
In S.A. Hussain v. Rajamma AIR (1977) AP 153
Habibulla contracted a Muta with Rajamma
properties of her husband. But this inheritance was
challenged by Hussain (brother of Habibulla) on the
ground that the marriage between Rajamma and his
brother was simply a Muta-marriage under which a
widow is not entitled to inherit the properties of her
husband. A Shia witness confirmed that he had seen the
Muta form of marriage between Habibulla and Rajamma,
but he also said that no period was specified at that time.
AROON RASHEED
(3) The consent of both the parties must be a free consent
(4) The formalities of offer and acceptance, which are
r a regular marriage, are also essential in the
form of marriage. Muta may be contracted lawfully
The Muta marriage may be contracted either by the use of
the word 'Muta or any other word signifying temporary
must not exist any prohibited relationship
(6) The period for which the Mula is being contracted,
It may be for a day. for a week or for certain years. As a
matter of fact, the fundamental difference between a Muta
and a Nikah is that, in a marriage if its period has been
specified (how so long that period may be) the marriage
becomes a Muta, whereas a marriage without any specific
period is always a Nikah. It may be noted that the word
ot render a marriage temporary. If a
Muta form of marriage has been contracted but its
duration has not been specified, it is regarded as a
AIR (1977) AP 153, a Shia male
with Rajamma inherited the
properties of her husband. But this inheritance was
challenged by Hussain (brother of Habibulla) on the
ground that the marriage between Rajamma and his
marriage under which a
herit the properties of her
husband. A Shia witness confirmed that he had seen the
Muta form of marriage between Habibulla and Rajamma,
but he also said that no period was specified at that time.

MOHAMMEDAN LAW, BY
- MULLA
- AQIL AHMAD
- A.A. FYZEE
- SYED KHALID
RASHEED
- TAHIR
MAHMOOD
& SAIF MAHMOOD
MOHAMMED HAROON
Bengaluru
It was held by the court that a Muta without any specified
period, is to be treated as a permanent marriage (Nikah). In
this case, although the word Muta was
was not specified, therefore, the marriage was treated as
permanent marriage under which Rajamma was entitled to
inherit her husband's properties.
In Shahzada Qanum v. Fakhr Jahan
High Court of Hyderabad observed th
difference between a Mura in which the period has not
been specified and a Mata contracted for life'. It was held
by the court that a Muta 'for life' is like a Muta for
unspecified period, and it must be treated as a perm
marriage (Nikah).
But, it is respectfully submitted that fixation of the period
by the words 'for life' is nothing but to specify the period of
a Muta and it can never be regarded as a permanent
marriage. Fyzce rightly observes that to equate a 'Muta for
life' with a regular Nikah is a serious step,
(7) The dower (consideration) must be specified at the time
of the contract. Where the dower has not been fixed. the
Muta-marriage is void. It may be noted that specification of
the dower is necessary for the validity of
marriage but it is not essential for a permanent marriage
(Nikah).
LEGAL EFFECTS OF MUTA-MARRIAGE
(1) The cohabitation between the parties is lawful.
(2) The children are legitimate and have rights to
inherit the properties of both the p
(3) But, the Muta-husband and wife have no mutual
rights of inheritance.
AROON RASHEED
It was held by the court that a Muta without any specified
period, is to be treated as a permanent marriage (Nikah). In
this case, although the word Muta was used but the term
was not specified, therefore, the marriage was treated as
permanent marriage under which Rajamma was entitled to
Shahzada Qanum v. Fakhr JahanAIR (1953) Hyd. 6, the
High Court of Hyderabad observed that there is no
difference between a Mura in which the period has not
been specified and a Mata contracted for life'. It was held
by the court that a Muta 'for life' is like a Muta for
unspecified period, and it must be treated as a permanent
But, it is respectfully submitted that fixation of the period
by the words 'for life' is nothing but to specify the period of
a Muta and it can never be regarded as a permanent
marriage. Fyzce rightly observes that to equate a 'Muta for
gular Nikah is a serious step,
(7) The dower (consideration) must be specified at the time
of the contract. Where the dower has not been fixed. the
marriage is void. It may be noted that specification of
essary for the validity of a Muta form of
marriage but it is not essential for a permanent marriage
ARRIAGE:-
(1) The cohabitation between the parties is lawful.
(2) The children are legitimate and have rights to
inherit the properties of both the parents.
husband and wife have no mutual

MOHAMMEDAN LAW, BY
- MULLA
- AQIL AHMAD
- A.A. FYZEE
- SYED KHALID
RASHEED
- TAHIR
MAHMOOD
& SAIF MAHMOOD
MOHAMMED HAROON
Bengaluru
(4) The wife is entitled to get full dower even if the
husband does not cohabit for the full term and leaves
the wife before the expiry of the term. But, if the wife
leaves the husband, then husband has a right to
deduct the amount of dower proportionate to the
unexpired period of the duration.
(5) A Muta wife is not entitled to get any
maintenance from the husband u the Shia law; but
she is entitled to claim maintenance under the Cr
Procedure Code
(6) Where consummation has not taken place, the
wife need not observe any A.
If the Muta-marriage termina
the wife the wife is required to undergo;
(7) There is no divorce in a Muta form of marriage.
The marriage in this form dissolves:
either party, or (ii) on the expiry of the specified
period, or Gift) the husband leaves the wife before
expiry of the term.
(8) In a Muta form of marriage, if it is not know
to when the term expired but
continues till the death of the husband, the proper
inferenc would be that Muta contin
the life.
Similar would be the inference where the
cohabitation continues after de expiry of a known
period. It is submitted that in such cases a life
Mata to be presumed. The issues are legitimate and
may inherit the properties of the
husband or wife may not mutually inherit each other.
RESTITUTION OF CONJUGAL
Restitution of conjugal rights means restoring the
right of a spouse to live with the
marriage it is implied that husband and wife both
have legal right to cohabit and live together.
AROON RASHEED
itled to get full dower even if the
husband does not cohabit for the full term and leaves
the wife before the expiry of the term. But, if the wife
leaves the husband, then husband has a right to
deduct the amount of dower proportionate to the
iod of the duration.
(5) A Muta wife is not entitled to get any
usband u the Shia law; but
she is entitled to claim maintenance under the Cr
(6) Where consummation has not taken place, the
marriage terminates after consumination,
the wife the wife is required to undergo;
(7) There is no divorce in a Muta form of marriage.
dissolves: (i) by death of
) on the expiry of the specified
riod, or Gift) the husband leaves the wife before
(8) In a Muta form of marriage, if it is not known as
to when the term expired but the cohabitation
continues till the death of the husband, the proper
inferenc would be that Muta continues throughout
Similar would be the inference where the
cohabitation continues after de expiry of a known
period. It is submitted that in such cases a life-long
Mata to be presumed. The issues are legitimate and
may inherit the properties of the parents, but
husband or wife may not mutually inherit each other.
CONJUGAL RIGHTS
Restitution of conjugal rights means restoring the
right of a spouse to live with the other. In every
marriage it is implied that husband and wife both
legal right to cohabit and live together.

MOHAMMEDAN LAW, BY
- MULLA
- AQIL AHMAD
- A.A. FYZEE
- SYED KHALID
RASHEED
- TAHIR
MAHMOOD
& SAIF MAHMOOD
MOHAMMED HAROON
Bengaluru
If any spouse lives separately without any
reasonable excuse and deprives the other from his (or
her) company, the other spouse is deprived of his
(her) legal conjugal right. Such other aggrieved
spouse is then entitled to file a suit against the party
who lives separately. If the court finds that the
spouse who is living separately without any
reasonable justification, it shall pass order and
compel him (her) to live together. Such a suit by the
aggrieved party is called a suit for the restitution of
conjugal nights. The success or failure of a suit for
restitution of conjugal rights depends on the fact
whether the other spouses has any just cause for
living separately or not. If a spouse lives separately
due to some reasonable and just cause e.g.
completing studies or due to transfer in service, the
other spouse cannot compel him (her) to live
together. The count then refuses to pass order for
restitution of conjugal rights. It is for the court to
decide whether, under the circumstances, a spouse
has reasonable excuse for living separately of not. It
is found that in a married life it is generally the wife
who, under some compulsion. has to leave the
husband and live separately. And, generally husband
files a suit for restitution of conjugal rights. The wife
defends her separation from husband. Under
law, a wife can take following Defenses against
husband’s claim for restitution of conjugal rights:
(1)False charge of adultery against wife by her
husband.
(2)The wife had demanded her prompt dower which
had not been paid provided
taken place.
(3)Repudiation of marriage by wife by e
'option of puberty',
AROON RASHEED
If any spouse lives separately without any
e and deprives the other from his (or
her) company, the other spouse is deprived of his
(her) legal conjugal right. Such other aggrieved
spouse is then entitled to file a suit against the party
who lives separately. If the court finds that the
s living separately without any
reasonable justification, it shall pass order and
compel him (her) to live together. Such a suit by the
aggrieved party is called a suit for the restitution of
conjugal nights. The success or failure of a suit for
n of conjugal rights depends on the fact
whether the other spouses has any just cause for
living separately or not. If a spouse lives separately
due to some reasonable and just cause e.g.
completing studies or due to transfer in service, the
annot compel him (her) to live
together. The count then refuses to pass order for
restitution of conjugal rights. It is for the court to
decide whether, under the circumstances, a spouse
has reasonable excuse for living separately of not. It
in a married life it is generally the wife
who, under some compulsion. has to leave the
husband and live separately. And, generally husband
files a suit for restitution of conjugal rights. The wife
defends her separation from husband. Under Muslim
ife can take following Defenses against
husband’s claim for restitution of conjugal rights:
False charge of adultery against wife by her
The wife had demanded her prompt dower which
had not been paid provided no consummation has
Repudiation of marriage by wife by exercising

MOHAMMEDAN LAW, BY
- MULLA
- AQIL AHMAD
- A.A. FYZEE
- SYED KHALID
RASHEED
- TAHIR
MAHMOOD
& SAIF MAHMOOD
MOHAMMED HAROON
Bengaluru
(4)Renunciation of Islam by
using objectionable words against the prophet.
(5)The husband has been declared out caste
(6) Violation of a condition laid down in the marriage
agreement, if any. However, such condition must
legal and must not be void.
(7) Physical or mental cruelty by husband.
It may be noted that the above
are only some of the instances of wife's reasonable
excuse for living separately. Under the Dissolution of
Muslim Marriages Act, 1939, the scope of mental
cruelty has now been widened. Therefore, any
ground which has been regarded as a ground for
dissolution of marriage by wife under this Act or any
such act of husband which may be regarded as
'mental cruelty' by husband may be a reasonable
excuse for the wife to live separ
CASE-LAWS/JUDICIAL DECISIONS/PRECEDENTS
1. Abdul Karim v. Amina Bibi (1935) Bom. 308
It was held, “repudiation of marriage by wife by exercising
‘option of puberty’ accepted”
2. Shohrat Singh v. Jafri Bibi (1915) 17 Bom LR 13
It was held, “in a muta marriage, if it is not known as to when
the term expired but the cohabitation continues till the death
of the Husband, the proper inference would be that Muta
continues throughout the life.
3. Luddon v. Mirza Kamar (1882) 8 Cal 736
A Muta wife is not entitled to get any maintenance from the
husband under the Shia Law; but she is entitled to claim
maintenance under the Criminal Procedure Code.
AROON RASHEED
(4)Renunciation of Islam by husband or husband's
against the prophet.
(5)The husband has been declared out caste.
(6) Violation of a condition laid down in the marriage
agreement, if any. However, such condition must be
cal or mental cruelty by husband.
It may be noted that the above-mentioned defenses
are only some of the instances of wife's reasonable
excuse for living separately. Under the Dissolution of
Muslim Marriages Act, 1939, the scope of mental
been widened. Therefore, any
ground which has been regarded as a ground for
dissolution of marriage by wife under this Act or any
such act of husband which may be regarded as
'mental cruelty' by husband may be a reasonable
excuse for the wife to live separately.
RECEDENTS
(1935) Bom. 308
It was held, “repudiation of marriage by wife by exercising
(1915) 17 Bom LR 13
arriage, if it is not known as to when
the term expired but the cohabitation continues till the death
of the Husband, the proper inference would be that Muta
(1882) 8 Cal 736
d to get any maintenance from the
husband under the Shia Law; but she is entitled to claim
maintenance under the Criminal Procedure Code.

MOHAMMEDAN LAW, BY
- MULLA
- AQIL AHMAD
- A.A. FYZEE
- SYED KHALID
RASHEED
- TAHIR
MAHMOOD
& SAIF MAHMOOD
MOHAMMED HAROON
Bengaluru
4. Banne Saheb v. Abida Begum AIR (1922) Oudh) 251
It was held that husband and wife would be free to live
separately in future without any reasonable cause.
5. Abdul v. Hussenibi, (19004) Bom. LR 728
It was held that, “a contract between the parties that wife
shall generally be at liberty to live with her parents, has been
held illegal by the Bombay High Court.
6. Nizamul Haque v. Begum Noorjahan
It was held by Calcutta High Court that, “the husband would
live in the wife’s house and would not compel the wife to live
with him or with his other relations, was valid.
7. Mohd., Khan v. Shamli, AIR (1972) J&K 8
In Jammu & Kashmir, there is a well established custom of
Khanadamad under which after marriage, the hus
with the wife’s parents. The High Court of J&K accordingly,
held that an agreement under which the husband was
required to live with the wife’s parents was valid.
8. R v. Khato Bai (1869) 6 Bom HCR 9
It was held that by the court that a wife may
the theft of her husband’s properties. Similarly, the husband
too cannot deal with the properties of the wife without her
consent.
9. Mt. Ruro v. Bagh Singh, AIR (1953) Lah 23
It was held that there is no prohibition in marrying the wife of
one’s parent’s brother. Thus, a man can lawfully marry his
divorced or widowed Mami or Chachi.
10. Abdul Latif v. Niaz Ahmed, (1909) 31 All 343,
It was held that where the marriage is invalidated by
rejection, it becomes void.
AROON RASHEED
AIR (1922) Oudh) 251
It was held that husband and wife would be free to live
separately in future without any reasonable cause.
Abdul v. Hussenibi, (19004) Bom. LR 728
ontract between the parties that wife
shall generally be at liberty to live with her parents, has been
held illegal by the Bombay High Court.
AIR (1966) Cal 465
It was held by Calcutta High Court that, “the husband would
ive in the wife’s house and would not compel the wife to live
with him or with his other relations, was valid.
, AIR (1972) J&K 8
In Jammu & Kashmir, there is a well established custom of
under which after marriage, the husband lives
with the wife’s parents. The High Court of J&K accordingly,
held that an agreement under which the husband was
required to live with the wife’s parents was valid.
It was held that by the court that a wife may be convicted for
the theft of her husband’s properties. Similarly, the husband
too cannot deal with the properties of the wife without her
, AIR (1953) Lah 23
It was held that there is no prohibition in marrying the wife of
. Thus, a man can lawfully marry his
divorced or widowed Mami or Chachi.
, (1909) 31 All 343,
the marriage is invalidated by

MOHAMMEDAN LAW, BY
- MULLA
- AQIL AHMAD
- A.A. FYZEE
- SYED KHALID
RASHEED
- TAHIR
MAHMOOD
& SAIF MAHMOOD
MOHAMMED HAROON
Bengaluru
11. Mafizuddin Mandalv. Rahima Bibi, AIR (1934) Cal. 104 &
Pir Mohammad v. State of M.P., AIR (1960) MP 24
The marriage does not dissolve merely by the exercise
option of puberty. Confirmation by court is necessary for
dissolution of marriage. However, only a formal approval of
the Court is sufficient; decree is not necessary. It may be
noted that as the marriage does not dissolve wi
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. (MULLA p. 299)
12. Aziz Bano v. Muhammad Ibrahim, (1925) 47 A
In exceptional cases, where it is proved that the father or the
grandfather had contracted the marriage either fraudulently
or negligently, the minor has a right to repudiate the
marriage on attaining puberty.
13. Monijan v. District Judge, Birbhum,
A guardian appointed by the Court for the protection of the
person or the property of the minor has no right to contract
the minor’s marriage without permission of the Court.
14. Ayub Hassan v. Mst. Akhtari, AIR (1963) All 525,
On the other hand, a guardian for marriage need not 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 remote guardian has no right to contract the
minor’s marriage. Marriage by a remoter guardian without
the consent of the nearer available guardian (unless such
nearer guardian is insane or missing) is void.
15. Kamma v. Ithuamma, (1967) KLT 913, the Kerala High
Court has held that if a Shafie girl has attained puberty, the
consent of her guardian is not necessary.
AROON RASHEED
, AIR (1934) Cal. 104 &
., AIR (1960) MP 24
lve merely by the exercise of
option of puberty. Confirmation by court is necessary for
dissolution of marriage. However, only a formal approval of
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
to inherit the properties of the
, (1925) 47 All 823,
In exceptional cases, where it is proved that the father or the
grandfather had contracted the marriage either fraudulently
or negligently, the minor has a right to repudiate the
(1914) 42 Cal 351
A guardian appointed by the Court for the protection of the
person or the property of the minor has no right to contract
the minor’s marriage without permission of the Court.
, AIR (1963) All 525,
On the other hand, a guardian for marriage need not 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
dian has no right to contract the
minor’s marriage. Marriage by a remoter guardian without
the consent of the nearer available guardian (unless such
nearer guardian is insane or missing) is void.
, (1967) KLT 913, the Kerala High
urt has held that if a Shafie girl has attained puberty, the
consent of her guardian is not necessary.

MOHAMMEDAN LAW, BY
- MULLA
- AQIL AHMAD
- A.A. FYZEE
- SYED KHALID
RASHEED
- TAHIR
MAHMOOD
& SAIF MAHMOOD
MOHAMMED HAROON
Bengaluru
Under Shafai and Maliki laws, the consent of the girl is
irrelevant. In the marriage, of Shafai and Maliki girls, the
consent of their father or guardian is necessary even if they
have attained puberty.
The requirement of the age of puberty is essentia
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.
16. 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 in) 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 This, it may be us
absence of any evidence to the contrary, a Muslim is
presumed to have attained puberty at the age of fifteen
years.
17. In Shia case, Nawab Sadiq Ali Khan v. Jai Kishori
Bom LR 1346 (PC) the Privy Council had observed that the
age of puberty for a girl is none years. But this has not been
accepted as a general rule.
AROON RASHEED
Under Shafai and Maliki laws, the consent of the girl is
irrelevant. In the marriage, of Shafai and Maliki girls, the
consent of their father or guardian is necessary even if they
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
r marriage no consent of the guardian is necessary
Mst. Atika Begum v. Mohd. Ibrahim, (1916) AIR PC 250.
the Privy Council has laid down a clear law about the age of
w a girl becomes major on
either of the two events: (i) the completion
attainment of a state of puberty
at an earlier period." The same rule may be applicable in
respect of the age of a boy This, it may be us that in the
absence of any evidence to the contrary, a Muslim is
puberty at the age of fifteen
Nawab Sadiq Ali Khan v. Jai Kishori, (1928) 20
the Privy Council had observed that the
of puberty for a girl is none years. But this has not been

MOHAMMEDAN LAW, BY
- MULLA
- AQIL AHMAD
- A.A. FYZEE
- SYED KHALID
RASHEED
- TAHIR
MAHMOOD
& SAIF MAHMOOD
MOHAMMED HAROON
Bengaluru
18. In Anis Begam v. Mohd. Istafa.(1913) 55 All 743, 756
Sulaiman. C.J. has pointed out that apart from being a
contract, a Muslim marriage is also a religious sacrament.
After taking into account all the three aspects, it may be
concluded that in so far the nature of a Muslim marriage is
concerned, in form or appearance it is contractual ba in
essence its nature is undoubtedly socio
A Muslim marriage, (a) creates the rights and obligation
the husband and wife: (b) confers a defin
them, and (c) is also their religious duty.
19. In Abdul Kadir v. Salima, (1886) 8 All. 149 (FB)
It was held by Justice Mahmood
Mohammedans is not a sacrament (sanskar) but purely a
civil contract.”
20. In M. Jainoum v Ammanullah Khan
the 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 M
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
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 customary right. In
the above mentioned case, the registration of marriage was
recognised under the customary law o
plaintiff. He had informed the Secretary of the Jamath (who
was incharge 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 l
AROON RASHEED
.(1913) 55 All 743, 756
Sulaiman. C.J. has pointed out that apart from being a
contract, a Muslim marriage is also a religious sacrament.
After taking into account all the three aspects, it may be
ure of a Muslim marriage is
concerned, in form or appearance it is contractual ba in
essence its nature is undoubtedly socio-religious.
creates the rights and obligations of
confers a definite social status of
is also their religious duty.
, (1886) 8 All. 149 (FB)
It was held by Justice Mahmood that marriage among
Mohammedans is not a sacrament (sanskar) but purely a
h Khan, AIR (2000) Mad 381,
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
custom, a valid custom, which is not violative of personal
ed that if Muslims in a particular area
have established and developed the practice of registration
of marriage, it would certainly become a customary 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
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.

MOHAMMEDAN LAW, BY
- MULLA
- AQIL AHMAD
- A.A. FYZEE
- SYED KHALID
RASHEED
- TAHIR
MAHMOOD
& SAIF MAHMOOD
MOHAMMED HAROON
Bengaluru
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 custom
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.
LEGAL DISABILITIES OR PROHIBITIONS OF
BY AQIL AHMAD
No legal disability-
Legal disability means the existence of circumstances
under which marriage is not permitted.
These prohibitions have been classified into four
classes as follows:
1. Absolute incapacity or prohibition.
2. Relative incapacity or prohibition.
3. Prohibitory incapacity or prohibition.
4. Directory incapacity or prohibition.
1. Absolute incapacity.-Absolute incapacity to marry
arises from-
(a) Consanguinity,
(b) affinity,
or (c) fosterage.
AROON RASHEED
But the Secretary of Jamath intentionally did not come to
d 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.
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
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
ROHIBITIONS OF MARRIAGE (NIKAH)
Legal disability means the existence of circumstances
under which marriage is not permitted.
These prohibitions have been classified into four
1. Absolute incapacity or prohibition.
Relative incapacity or prohibition.
3. Prohibitory incapacity or prohibition.
4. Directory incapacity or prohibition.
Absolute incapacity to marry

MOHAMMEDAN LAW, BY
- MULLA
- AQIL AHMAD
- A.A. FYZEE
- SYED KHALID
RASHEED
- TAHIR
MAHMOOD
& SAIF MAHMOOD
MOHAMMED HAROON
Bengaluru
(4) Consanguinity (Qurabat)
blood relationship and bars a man from marrying
(i) his mother or grandmother how highsoever,
(ii) his daughter or grand-daughter how lowsoever,
(iii) his sister whether full, consanguine or uterine
(Where two persons have the common mother and
father, they are called full brothers or sisters Where
mother is common, but fathers are different, these
two persons are called uterine brothers or sisters.
Where mothers are different but father is common,
such two p called consanguine brothers or sisters.)
(iv) his niece or great-niece how lowsoever,
(v) his aunt (father's sister, mother's sister) or great
aunt, how highsoever, whether paternal or maternal.
A marriage with a woman prohibited by reason of
consanguinity is void.
Issues from such marriage are illegitimate.
(b) Affinity (Mushaarat).-A man is prohibited from
marrying:
(1) his wife's mother or grand
highsoever;
(2) his wife's daughter or grand
lowsoever;
(3) wife of his father or paternal grand
highsoever;
(4) wife of his son or son's son or daughter's son how
lowsoever.
affinity is void.
In case (2), marriage with the wife's daughter or
prohibited only if the marriage with the wife was
consummated.
AROON RASHEED
(4) Consanguinity (Qurabat)-Consanguinity means
blood relationship and bars a man from marrying-
grandmother how highsoever,
daughter how lowsoever,
(iii) his sister whether full, consanguine or uterine
(Where two persons have the common mother and
father, they are called full brothers or sisters Where
fathers are different, these
two persons are called uterine brothers or sisters.
Where mothers are different but father is common,
such two p called consanguine brothers or sisters.)
niece how lowsoever,
er, mother's sister) or great
aunt, how highsoever, whether paternal or maternal.
Issues from such marriage are illegitimate.
A man is prohibited from
(1) his wife's mother or grand-mother how
(2) his wife's daughter or grand-daughter how
(3) wife of his father or paternal grand-father how
(4) wife of his son or son's son or daughter's son how
iage with a woman prohibited by reason of
In case (2), marriage with the wife's daughter or
prohibited only if the marriage with the wife was

MOHAMMEDAN LAW, BY
- MULLA
- AQIL AHMAD
- A.A. FYZEE
- SYED KHALID
RASHEED
- TAHIR
MAHMOOD
& SAIF MAHMOOD
MOHAMMED HAROON
Bengaluru
(d) Fosterage (Riza).-When a child under the suckled
by a woman other than its own mother, the
woman becomes the foster mother of the child.
(e) A man may not, for instance, marry
mother of her daughter, or his foster
Exceptions-
Under Sunni Law, there are few exceptions to the
general rule of prohibition on the ground of fosterage
and a valid marriage may be contracted with:
(1) sister's foster-mother, or
(2) foster-sister's mother, or
(3) foster-son's sister, or
(4) foster-brother's sister.
The Shia jurists place fosterage and consanguinity on
the same footing and refuse to recognize the
exceptions permitted by the Sunnis as held in
v. Rudsia Begum, 24 Cal 643.
The abovementioned prohibitions on account of
'consanguinity', 'affinity' or fosterage' are absolute
and the marriages contracted in contravention of
these rules are void.
2. Relative incapacity.-Relative incapacity springs
from cases which render the marriage invalid or
irregular only so long as the cause which creates the
bar exist. The moment it is removed, the incapacity
ends and the marriage becomes valid and binding.
Thus, it differs from the case of absolute incapacity
where the marriage is void ab initio
become valid. For instance, a man is prohibited from
marrying more than four wives at a time. His
marriage with the fifth will be invalid or irregular
until he divorces one of them.
AROON RASHEED
When a child under the suckled
by a woman other than its own mother, the
woman becomes the foster mother of the child.
A man may not, for instance, marry his foster-
mother of her daughter, or his foster-sister
here are few exceptions to the
general rule of prohibition on the ground of fosterage
and a valid marriage may be contracted with:
The Shia jurists place fosterage and consanguinity on
the same footing and refuse to recognize the
exceptions permitted by the Sunnis as held in Iruraiya
The abovementioned prohibitions on account of
'consanguinity', 'affinity' or fosterage' are absolute
and the marriages contracted in contravention of
Relative incapacity springs
ender the marriage invalid or
irregular only so long as the cause which creates the
bar exist. The moment it is removed, the incapacity
ends and the marriage becomes valid and binding.
Thus, it differs from the case of absolute incapacity
void ab initio and can never
become valid. For instance, a man is prohibited from
marrying more than four wives at a time. His
marriage with the fifth will be invalid or irregular
until he divorces one of them.

MOHAMMEDAN LAW, BY
- MULLA
- AQIL AHMAD
- A.A. FYZEE
- SYED KHALID
RASHEED
- TAHIR
MAHMOOD
& SAIF MAHMOOD
MOHAMMED HAROON
Bengaluru
The following are the cases of relative incapacity.
(a) Unlawful conjunction.
(b) Polygamy, or marrying a fifth wife.
(c) Absence of proper witnesses.
(d) Differences of religion..
(e) Woman undergoing iddat.
(f)Unlawful conjunction.-
It means contemporaneously marrying two women
so related to each other by consanguinity, affinity or
fosterage, that they could not have lawfully
intermarried with each other if they had been of
different sexes. Thus a Muslim man cannot marry
two sisters, or an aunt and her niece. The reason
behind this prohibition is to avoid confusion of
kindred, with his wife's sister till his first wife is
living. This bar may, however, be is, dual
relationship. A Muslim therefore, cannot contract a
valid marriage removed by divorcing his first wife or
when she is dead.
The bar or unlawful conjunction renders a marriage
irregular, not void.
In Azizunnissa v. Karimunissa
held that the marriage of a man with his wife's sister,
his wife being undivorced and alive, was null and
void. But under Sunni law such marriage will be an
irregular marriage.
Under the Shia law, a Muslim may marry his wife
aunt, but he cannot marry his wife's niece without
her permission. Marriage prohibited by reason of
unlawful conjunction is void under Shia Law.
(b) Polygamy or marrying a fifth wife
plurality of wives, .i.e., marrying a fifth wife.
AROON RASHEED
The following are the cases of relative incapacity.
(b) Polygamy, or marrying a fifth wife.
proper witnesses.
(e) Woman undergoing iddat.
It means contemporaneously marrying two women
so related to each other by consanguinity, affinity or
fosterage, that they could not have lawfully
rried with each other if they had been of
different sexes. Thus a Muslim man cannot marry
two sisters, or an aunt and her niece. The reason
behind this prohibition is to avoid confusion of
kindred, with his wife's sister till his first wife is
bar may, however, be is, dual
relationship. A Muslim therefore, cannot contract a
valid marriage removed by divorcing his first wife or
The bar or unlawful conjunction renders a marriage
(1895) 2 Cal 130 , it was
held that the marriage of a man with his wife's sister,
his wife being undivorced and alive, was null and
void. But under Sunni law such marriage will be an
Under the Shia law, a Muslim may marry his wife's
aunt, but he cannot marry his wife's niece without
her permission. Marriage prohibited by reason of
unlawful conjunction is void under Shia Law.
(b) Polygamy or marrying a fifth wife-It means
marrying a fifth wife. It is

MOHAMMEDAN LAW, BY
- MULLA
- AQIL AHMAD
- A.A. FYZEE
- SYED KHALID
RASHEED
- TAHIR
MAHMOOD
& SAIF MAHMOOD
MOHAMMED HAROON
Bengaluru
unlawful for a Mohammedan to have more wives
than four. Marriage with a fifth wife is irregular
under Sunni law but this may be removed by
divorcing one of them. Under Shia Law, marriage
with the fifth wife is not merely irregular, it is void.
In ancient times before the promulgation of Islam, a
man was not 1 from marrying any number of wives,
but the Prophet limited the number to four and
represented monogamy as an ideal form of marriage.
The Shias did not observe any such restriction as
regards temporary marriage, thus both the great
tolerate polygamy to this extent, as is evident from
the text of the Holy Quran. "Marry such women as
seem good to you, two three or four; but if you fear
that you cannot do justice (between them) then
marry only one-this is better so that you may deviate
from the right path".
"And it is not in your power to
wives, even t may covet it; but keep yourself not
aloof from one with total aversion, nor leave h
one in suspense......" Thus it can be said that the
Muslims of law inherited the doctrine of plurality of
wives from time immemorial
restricted the number to the legal four and that also
in the restricted sense that all wives should be treated
equally.
A Muslim woman cannot carry more than one
husband. If a Muslim marries a second husband, she
is liable for bigamy under Section 494, Indian
Woman Penal Code and the issues of such a marriage
are illegitimate. In India no Muslim marrying under
or getting his marriage registered under the Special
Marriage Act, 1954, can marry a second wife during
the life-time of his spouse.
AROON RASHEED
unlawful for a Mohammedan to have more wives
than four. Marriage with a fifth wife is irregular
under Sunni law but this may be removed by
divorcing one of them. Under Shia Law, marriage
with the fifth wife is not merely irregular, it is void.
In ancient times before the promulgation of Islam, a
man was not 1 from marrying any number of wives,
the Prophet limited the number to four and
represented monogamy as an ideal form of marriage.
observe any such restriction as
porary marriage, thus both the great sects
tolerate polygamy to this extent, as is evident from
text of the Holy Quran. "Marry such women as
seem good to you, two three or four; but if you fear
that you cannot do justice (between them) then
this is better so that you may deviate
"And it is not in your power to do justice between
wives, even t may covet it; but keep yourself not
aloof from one with total aversion, nor leave her like
Thus it can be said that the
Muslims of law inherited the doctrine of plurality of
wives from time immemorial and subsequently it
restricted the number to the legal four and that also
in the restricted sense that all wives should be treated
Muslim woman cannot carry more than one
marries a second husband, she
under Section 494, Indian
Woman Penal Code and the issues of such a marriage
are illegitimate. In India no Muslim marrying under
or getting his marriage registered under the Special
Marriage Act, 1954, can marry a second wife during

MOHAMMEDAN LAW, BY
- MULLA
- AQIL AHMAD
- A.A. FYZEE
- SYED KHALID
RASHEED
- TAHIR
MAHMOOD
& SAIF MAHMOOD
MOHAMMED HAROON
Bengaluru
(c) Absence of proper witnesses. It is esse
amongst the Sunnis that at least two
or one male and two female witnesses must be
present to testify that the contract of marriage was
properly entered into between the parties. The
Hanafi Jurists insisted upon the presence of
witnesses because in connection with the testimony
of marriage, they had in view the authentication of
its factum. Absence would affect its contractual
completeness Such marriages have, therefore, been
held invalid or irregular under Sunni law, as the
condition of testimony is not so essential th
cannot be dispensed with.
The witnesses must be of sound mind, adult a
Muslim.
In Shia Law, a marriage contracted b
themselves or their guardians in private are held
valid. Presence of witnesses is not necessary.
Differences of religion-A Sunni male can marry a
Muslim femar any sect) or a Kitabia. Marriage with
the Kitabia, i.e. a woman who believe in a revealed
religion possessing a Divine Book viz Islam,
Christianity Judaism is valid under Sunni Law. But
he cannot marry an idolatress or fi
A marriage, however, with a idolatress or a fire
worshipper is merely irregular in Sunni Law, but
void in Shia Law. A Muslim woman cannot marry
any man who is not a Muslim, whether he is Kitabi
(ie., a man believing in a revealed religion
a Divine Book) or not Kitabi According to Mulla, a
marriage between a Muslim woman and non
male is irregular. But according to Fyzee, such a
marriage is totally void being against the dictates of
the Holy Quran.
AROON RASHEED
(c) Absence of proper witnesses. It is essential
least two male witnesses
or one male and two female witnesses must be
present to testify that the contract of marriage was
properly entered into between the parties. The
Hanafi Jurists insisted upon the presence of
witnesses because in connection with the testimony
of marriage, they had in view the authentication of
its factum. Absence would affect its contractual
completeness Such marriages have, therefore, been
held invalid or irregular under Sunni law, as the
condition of testimony is not so essential that it
sses must be of sound mind, adult and
In Shia Law, a marriage contracted by the spouses
guardians in private are held
e of witnesses is not necessary.
unni male can marry a
Muslim femar any sect) or a Kitabia. Marriage with
the Kitabia, i.e. a woman who believe in a revealed
religion possessing a Divine Book viz Islam,
Christianity Judaism is valid under Sunni Law. But
he cannot marry an idolatress or fire-worshipper.
A marriage, however, with a idolatress or a fire
worshipper is merely irregular in Sunni Law, but
void in Shia Law. A Muslim woman cannot marry
any man who is not a Muslim, whether he is Kitabi
(ie., a man believing in a revealed religion possessing
a Divine Book) or not Kitabi According to Mulla, a
marriage between a Muslim woman and non-Muslim
male is irregular. But according to Fyzee, such a
marriage is totally void being against the dictates of

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