Editor’s Note: The Arabic term ‘nikah’ is used to describe marriage is transliterated into “the Union of Sexes” and under this Arabic term, marriage became a civil contract in Muslim Law, as intended by the Prophet Mohammed. It has since become one of the most sacrosanct social institutions known to Man, while providing equal importance and according equal rights to both sexes.
Chastity is forbidden and, in fact, looked down upon in Muslim communities. Marriage is a contract for the purposes of the legislation of intercourse, procreation of children and the regulation of social life in the interests of society by creating both rights and duties for the parties partaking in this social contract and also between the parties and the children born out of the aforesaid union. It can be entered into by parties who have reached puberty (majority for the purposes of marriage) or by guardians of the persons concerned. Even lunatics can be entered into marriage by their guardians.
Unlike civil contracts, however, a contract of nikah cannot be time-limited, not cancelled if procreation is not possible (due to various reasons). It is, however, a very devotional act from the perspective of the Muslim religion- an entwinement of two souls to achieve the spiritual ends of continuing the line of the male.
Introduction- The History of Nikah
In pre-Islam Arabia, the laws were favorable towards men and discriminatory against women. Polygamy had to be accounted for in a very few blood relationships like in marriage with one’s real mother or sister. Marriages were of different kinds and divorce was simple and easy for men. Women were denied their basic rights since men were always considered superior. Women were treated as chattels, and were not given any right of inheritance and were absolutely dependent.it was prophet Mohammad who brought about a complete change in the position of women.
Prophet Mohammad placed a woman on a footing of almost perfect equality with men in the exercise of all legal powers and functions.[i] Under the Muslim, Law marriage is considered a civil contract. After the marriage, women do not lose their individuality. She still remains a distinct member of the community.
The Arabic word ‘Nikah’ (marriage) means “the union of sexes” and in law, this means “marriage”. The term ‘Nikah’ has been used for marriage under Muslim law. ‘Nikah’ literally means, “to tie up together”. It implies a particular contract for the purpose of legalizing generation. Nikah in its primitive sense means carnal conjugation. It is a matrimonial contract as well as an institution that gives the women a particular and high status in the society. Nikah was to ensure stability in married life as it bound both the partners together for an indefinite period and also required the woman to be honored with the mahr.
Islam, unlike other religions, is a strong advocate of marriage. There is no place for celibacy in Islam like the Roman Catholic priests and nuns. The Prophet has said, “There is no Celibacy in Islam.”
Definition of Marriage
Marriage (nikah) is defined to be a contract which has for its object the procreation and the legalizing of children.[ii]
Contract: Marriage according to the Mahomedan law is not a sacrament but a civil contract. All rights and obligations it creates arise immediately and, are not dependent on any condition precedent such as the payment of dower by husband to a wife.[iii]
Ashabah says: “ Marriage is a contract underlying a permanent relationship based on mutual consent on the part of a man and woman.”
In Shoharat Singh v. Jafri Begum,[iv] the Privy Council said that nikah (marriage) under the Muslim law is a religious ceremony.
The sanctity attached to the institution of marriage in the Islamic system has neither been comprehended nor sufficiently appreciated by outsiders. Marriage is recognized in Islam as the basis of society. It is a contract but also a sacred covenant. Marriage as an institution leads to the uplift of man and is a means for the continuance of the human race. The main aim of the institution of marriage is to protect society from foulness and unchastity. It has also been said that marriage is so holy a sacrament, that in this world it is an act of ibadat or worship, for it preserves mankind free from pollution.[v]
Thus, marriage according to Muslim Law is a contract for the purposes of legislation of intercourse, procreation of children and regulation of social life in the interest of society by creating:
- the rights and duties between the parties themselves, and
- between each of them and the children born from the union.
Capacity of Marriage
- Every Mahomedan of sound mind, who has attained puberty may enter into the contract of marriage.
- Their respective guardians may validly contract lunatics and minors who have not attained puberty in marriage. (Sec 270-275)
- A marriage of a Mahomedan, who is of sound mind and has attained puberty, is void if it is brought about without his consent.
Nature of Muslim Marriage
There is divergence of opinion with regard to the nature of Muslim marriage. Some jurists are of the opinion that Muslim marriage is purely a civil contract while others say it is a religious sacrament in nature.
Marriage under Muslim law has similar characteristics as a contract.[vi] For instance:
- As marriage requires proposal (Ijab) from one party and acceptance (Qubul) from the other so is the contract. Moreover, there can be no marriage without free consent and such consent shouldn’t be obtained by means of fraud, coercion or undue influence.
- Just as in case of contract, entered into by a guardian, on attaining majority, so can a marriage contract in Muslim law, be set aside by a minor on attaining the age of puberty.
- The parties to a Muslim marriage may enter into any ante-nuptial or post-nuptial agreement which is enforceable by law provided it is reasonable and not opposed to the policy of Islam. As is the case with a contract.
- The terms of a marriage contract may also be altered within legal limits to suit individual cases.
- Although discouraged both by the Holy Quran and Hadith, yet like any other contract, there is also provision for the breach of marriage contract.
Justice Mahmood observed:
“ Marriage among Muhammedans is not a sacrament, but pureply a civil contract; and though it is solemnized generally with the recitation of certain verses from the Quran, yet the Muhammedan law doesn’t positively prescribe any service peculiar to the occasion.”
He described that Muslim marriage was dependent upon declaration or proposal of the one and the consent or the acceptance of the other of the contracting parties.
From the above observation, Justice Mahmood couldn’t be held to have taken the view that marriage is nothing but purely a civil contract. As per him the dower in the Muslim marriage shouldn’t be confused with consideration in the context of civil contract.
In a lucid and erudite judgment Pareed Pillay, J. of the Kerala High Court, in Adam v. Mammad[vii], has set out the salient feature of Islamic law of marriage. In the case before him, he held that where the girl’s father had given his consent, and the daughter had withheld hers, no valid marriage had taken place. Here the judge cited J. Mahmood’s classic dicta in Abdul Qadir’s case, and upheld that for the validity of a marriage, consent is a must.
In Yusuf v. Sowramma[viii], there is a popular misconception by J. V.R. Krishna Iyer that no religious significance or social solemnity attach to Muslim marriage and it is merely a civil contract. The learned judge doesn’t put forward any definite argument and hasn’t gone through the principles of Shariah it is said.
Though sacramental nature of marriage is considered as an orthodox view it is also supported by the Judiciary. Anis Begum v. Mohammad Istafa,[ix] is a leading case on the point where C.J Sir Shah Sulaiman has tried to put a more balanced view of the Muslim marriage by holding it both a civil contract and a religious sacrament.
Taking religious aspect into account Muslim marriage us a devotional act (ibadat). The Prophet is reported to have said that marriage is essential for every physically fit Muslim who could afford it.
Muslim marriage is not merely a contract because:
- unlike a civil contract, it cannot be made contingent on future event; and
- unlike civil contracts, it cannot be for a limited time (muta marriage is an exception).
- Unlike a civil contract, the analogy, of lien cannot be applied to a marriage contract. Secondly, the contract of sale of goods may be canceled by unpaid seller. He may resell the goods by rescinding such contract, whereas, in a contract of marriage, the wife is not entitled to divorce her husband or to remain with a third person if a part of his dower remains unpaid.
As per Dr.Jung:
“Marriage though essentially a contract is also a devotional act, its objects are rights of enjoyment and procreation of children and regulation of social life in the interest of society.”[x]
On the basis of Juristic opinion, we can easily conclude, that marriage is simply a civil contract under Muslim Law. It fulfills all the conditions of a contract-proposal and acceptance, free consent and consideration.
But from the religious angle, Muslim marriage is a devotional act. Marriage is not devoid of all religious and spiritual values. Along with its secular aspect, it also partakes the elements of a sacred union of two souls means for spiritual ends.
In the Quran and Hadith, spouses are strictly enjoined to love and honor each other. Enjoyment and showering love and affection by each one has been called a noble act. Marriage under Islam is sacrament keeping the view of Quranic injunction and traditions.
In the ultimate analysis, it can be said that the marriage in Islam is neither purely a civil contract nor a sacrament. It is devoid of none but the blending of the two.
Formatted on 3rd March 2019.
- Mulla; Lexis Nexis: Buttersworth Publications, Islamic Law
- Tanzeem Fatima; Islamic Law and Judiciary
- Aqil Ahmad; Mohammedan Law
[iii] Abdul Kadir v. Salima, 1886.
[iv]Qureshi (MA) : Marriage and Matrimonial Remedies, (1978) p.43.
[v] Definition based on the Quran and traditions.
[vi] Abdul Kadir v. Salima,1886.
[vii](1990) (1) KLT 172.
[viii]AIR(1971) Ker. 261.
[ix] (1933)55 AP 743.
[x] Dr. Jung (M.U.S), “ Dissertation on the Development of Muslim Law in British India”, pp.1-2