In legal terms, a Muslim Nikah is synonymous with “marriage” that results into creating statutory right and duties of wife and husband against each other. Under the Mohammedan law, Nikah is a civil contract between a man and a woman to legalize cohabitation and procreation. Nature of this civil contract is such that ‘Proposal for and acceptance of’ should take place in one sitting alone. The said definition and nature has been upheld by various courts and in umpteen number of judgements.
Unlike other religions, Muslim Nikah is not seen as a sacrament but a contract that is entered into by a competent man and a competent woman by signing a document called Nikahnama. This legally enforceable document stands for the evidence of union of man and woman and lays down the rights and obligations agreed upon by the bride and groom including the amount of Mehr. Nikah being a civil contract, it has its essential ingredients and disabilities too.
The essential ingredients of a Nikaah include: (i)Parties must have capacity to marry (ii) Proposal (ijab) and acceptance (qubool) (iii) Free consent of both the parties (iv) A consideration (Mehr) (v) No legal Impediment (vi)Sufficient number of witnesses (different in Shia and Sunni).
The disability which bars the Nikah being legal include: Consanguinity, Affinity, Fosterage, Polyandry, Differences of religion and Iddat period.
There are various forms of Nikah performed under Muslim law, however in legal terms there are four types of it: 1. Sahih (Valid marriage) 2. Fasid (Irregular marriage) 3. Batil (Void marriage) 4. Mut’ah marriage (for specified period and purpose)
1. Sahih Nikah (Valid Marriage of Muslim Nikah)
The Sahih Nikah is sort of marriage where all the essentials of the marriage are duly complied with by both the parties entering the contract of Nikah. Accordingly, if the couple has signed the Nikahnama by the proposal and acceptance, the groom has paid Mehr to the bride, both are competent and their consent is purely voluntary without influence of any external factor, it is deemed to be a Sahih Nikah. The Sahih kind of marriage gives rise to certain social and legal obligations for example:
(i) It makes sexual activities between the husband and the wife lawful.
(ii) The marriage accords legitimate status to the children born out of couple and they enjoy legal rights to inherit their parent’s properties.
(iii) It creates mutual rights of inheritance between husband and wife. After the death of the husband, the wife is entitled to inherit the husband’s properties and after the wife’s death, husband may also inherit her properties.
(iv) The marriage fully establishes the wife’s right to claim dower right after the completion of marriage.
(v). It ensures the wife’s right of maintenance from her husband with immediate effect.
(vi) The marriage creates obligation for the divorced wife to observe the Iddat, during which she cannot remarry.
(vii) The marriage creates prohibitions for each other to marry the relations of the other within prohibited degrees.
2. Fasid Nikah (Irregular Marriage of Muslim Nikah)
The fasid Nikah are not unlawful rather they only lack in one of the essentials or impacted by any of disabilities. Once rectified on the lacking parameters the fasid marriages become absolutely valid. The irregularities in such marriages are usually rectifiable and not permanent in nature.
For instance, if a Muslim man marries a woman who is an idol worshipper, but then the woman converts to Islam, the marriage is treated to be valid. In the matter of Ata Mohammed. v. Saiqul Bibi, it was observed that when a marriage is temporarily prohibited and not certainly restricted it is merely irregular or fasid and not void.
An irregular marriage has several aspects that requires contemplation. Irregular marriages exist only in case of Sunni Muslims whereas an irregular marriage, under Shia law, is void marriage. In general, however an irregular marriage is voidable marriage and not void-ab-initio. The social and legal obligations under fasid marriages are decided on the very fact whether the marriage was consummated or not. For example:
(i)If the marriage is consummated, the children born out of the Fasid marriage are treated legitimate.
(ii)Unless the marriage is consummated, the wife is not entitled to dower in case the husband divorces her.
(iii)The wife is not obligated to observe the period of Iddat in case the marriage was not consummated.
(iv) If the marriage was not consummated, the wife has no right to claim maintenance from the husband during the iddat period of 03 months.
So, the inadequacies or prohibitions are the cause of irregular fasid marriages. The marriages with following prohibitions are treated as ‘Fasid’.
(i)A marriage prohibited on account of difference of religion (ii) A marriage contracted without required number of witnesses (iii) A marriage with women during her Iddat period (iv) A marriage without the consent of guardian when such consent is considered necessary (v) A marriage with a woman who is pregnant (vi) A marriage with a fifth wife.
3. Batil Nikah (Void marriage of Muslim Nikah)
Batil Nikah has to do with non-enforceability. When a contract is not enforceable by law, it is called void agreement. On that note, Nikah being a civil contract, when the essentials are not met or are not rectifiable, then it is called Batil marriage or void ab initio marriage. In the matter of Munshi v. Mst. Alam Bibi, the court observed that when there is a permanent or perpetual prohibition from marriage due to non-adherence of a condition, it is void marriage. Below are some of the situations where marriages could be rendered Batil (void):
(i)Nikah between persons who are either legally / mentally / physically incapable.
(iii)Marrying a woman to make her as fifth wife, the marriage is deemed to be void.
(iii) When a man marries the woman during the period of Iddat or when she is pregnant.
(iv) Marriage by a woman to another man during the subsistence of her first marriage. (The second marriage is rendered void/ Batil)
4. Muta or Nikah Mut’ah (Temporary Marriage of Muslim Nikah)
The literal meaning of Muta’h is “pleasure marriage”. Such kind of marriages are a temporary agreement for a limited time period agreed upon by the both partners entering into Muta’h. A Nikah Muta’h can be characterized by following key points:
(i)No prescribed minimum or maximum time limit, freedom to chose the period of contract.
(ii) The marriage dissolves itself after the expiration of the decided period.
(iii) If no time limit is expressed or written, the marriage is presumed to be permanent.
(iii) The woman willing to enter Muta’h has to practice abstinence lasting up to two menstrual cycles.
(iv) No witness is required for Nikah mut’ah.
(v)The woman can lay down conditions for her sexual union throughout this time limit.
(vi) The temporary husband and wife can renew the contract but the husband to pay as per conditions of renewal.
(vii) The woman can refuse to be intimate with man or even leave him, but she must return back the amount she received from him.
The sunni sect doesn’t approve Mut’ah sort of marriages; only Shias are into such practice. The Sunnis consider this practice as prostitution. This form of Nikah is seen in Shias of Iran and that too sparingly. The practice is called ‘sigah’ there. For courts in India, it is difficult to invalidate such marriages as the Supreme Court has made live-in relationships permissible to certain degree. Further, there is a section of advocates which terms it superior to the live- in relationships.
Under whatsoever form of the marriages are in practice in Muslims, the women are seen at disadvantageous position. And, probably to safeguard the vulnerability of the women, Registration of marriage in Muslims has been made compulsory and mandatory under section 3 of Muslim Marriages Registration Act 1981.
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