Open Access Research Article
CONCEPT OF CONSENT IN MUSLIM MARRIAGE.
Published Paper
Article Details
CONCEPT OF CONSENT IN MUSLIM
MARRIAGE.
AUTHORED BY - PRADICTA SHREY
3rd Year Law Student, BBA LLB
Symbiosis Law School, Nagpur
2021-26
ABBREVIATION:
i.e - that is
BY- written by
MM- Muslim
Marriage
INTRODUCTION:
Marriage is a concept of the union of
two parties usually opposite genders, solemnized together legally and socially,
usually by law, rules customs, traditions, and beliefs of whichever culture,
religion, or regime they belong to.
Talking about the Concept of Muslim
marriage, then MM has been defined as a civil contract for the purpose of
legalizing sexual intercourse and the procreation of children.
Going by the definition of marriage
as per Muslim law, marriage is a contract, so for a valid contract to be there,
one of the essential conditions is valid consent or voluntary consent, i.e
consent without any coercion, fraud, misrepresentation, and any external force.
So here also a marriage to be legally
solemnized under Muslim law, consent is an essential condition to consider.
In this research paper, we will look
at the necessity of consent in a Muslim marriage, the importance of it in
considering the marriage to be legal, and the remedies available if one is
deprived of valid consent.
LITERATURE REVIEW:
BOOKS:
1. “THE
FIQH OF MARRIAGE IN THE LIGHT OF QURAN AND SUNNAH”
BY - Dr. SAALIH IBN GHANIM AL- SADLAAN
The book is written by a professor at
the College of Shareeah at Riyadh, Saudi Arabia. This book is written in
accordance with Fiqh or the concept or philosophy behind Islamic law, which is
founded on the Prophet's traditions and the Koran's teachings, in relating it
with marriage, in light of the Quran and Sunnah.
This book contains the discussion on
the position of the dower, the minimum and maximum amount of the dower, and the
circumstances in which the woman is entitled to all, half or none of her dower
are among the subjects he covers that are covered in classic works of fiqh. The
book also covers Islamic sexual etiquette and the rights of the husband and
wife.
The book also focuses on the
essentials required for marriage to be solemnized validly under Muslim law. The
process for announcing the marriage, its meaning, its process to solemnize, the
essentials, and the provisions required for it is contained in the book. The
book also focuses on the rights and duties prescribed in Islamic law for the
parties in the marriage agreement, after the marriage, and to be provided while
entering into the marriage agreement. (al- Sadlaan #)
ARTICLES:
1. “NIKAH- A CONTRACT OF MARRIAGE”
BY-
HARSH NAYAK
In this article the author has described
marriage as a contract under Muslim law and the Muslim community. As per this
article, the word marriage is termed “Nikah” in Muslim law, which is an Arabic
word and it means a contract or a civil agreement under law. Marriage is the
intended outcome of this contract, and it is intended to specify the rights and
responsibilities of the two sexes. Respect for each other's rights and
obligations is due between the parties with an interest in this agreement as
well as between the parties and any children born from this union.
This article emphasizes the Islamic
marriage contract, which is a binding legal union of bride and groom. A
contract that enables a man and a woman to cohabitate and provide for one
another within the parameters of the obligations and rights set forth for them.
According to Mahomedan law, marriage is a civil contract, not a sacrament.
As per this article, The fundamental
elements of any contract are proposal and acceptance, and this is also true of
the Muslim marriage contract. This marriage shall be consummated at one
meeting, in the presence of two witnesses. Both consents must be freely given,
with no outside pressure.
Muslim weddings are governed by a
civil contract, in contrast to Hindu weddings, where being married is a ceremony.
Marriage is necessary to legitimize a child. The marriage establishes distinct
rights and obligations for both partners in accordance with the norms that have
been agreed upon.
According to Muslim law, marriage is
just a civil contract, as we can easily deduce based on the legal perspective.
It satisfies all requirements for contractual acceptability, free consent, and
consideration. (Nayak #)
2. “FORMS
OF MARRIAGE”
BY-PRIYANSHU GUPTA
In this article the author has
discussed various forms of marriage, present in our community and society. As
per, Islam views marriage as a social compact. The bride and groom, along with
their respective families, come to an agreement whereby the groom's family
agrees to give the bride and her family money in exchange for her consent to
get married.
As per this article, Shahih marriage
or a valid marriage is a term used for legitimate marriage, following Muslim
law. The one, that has been established in accordance with essential
conditions.
And a marriage that is illegal from
the outset is termed a Batil Marriage or void marriage. The parties are not
given any civil rights or obligations under it. Such marriages are mainly those
which are done by violating the essential conditions required for a valid
marriage. Such marriages include even those marriages which are products of
coercion or without the voluntary consent of any party.
Hence, through this article, the
author has explained the importance of valid and voluntary consent in a Muslim
marriage. (Gupta #)
3.
“SOME ASPECTS OF MUSLIM MARRIAGE IN INDIAN SUB-CONTINENT: A
REVIEW”
BY-
Mohd. NURUL HAQ.
In this article, the author has
discussed the various aspects of Muslim marriage. As per the article, Marriage
under Muslim law has extremely clear legal implications. Therefore, it is
imperative that the legal features of marriage be well understood in order to
appreciate a proper notion of it.
This article discussed various legal
features of Muslim marriage while also attempting to determine how much
legislation and judicial rulings have impacted these legal aspects of Muslim
marriage.
The article has termed Muslim
marriage as a contract and also illustrated the importance and requirement for
registration of the same. Every marriage is typically attended by some types of
customary rites, even if it is not required by law that any specific ceremony
be performed. The contract is concluded by the offer and acceptance in front of
witnesses.
And since the marriage has been
described in the form of offer and acceptance, so the valid consent of both the
parties is required as under the Indian Contract act, an agreement or a
contract is valid only when, both the offer and acceptance of the agreement are
done with the free consent.
And in order to make this contract of
marriage recognizable in the eyes of law, it is necessary to register the same
by appointing vakils.
The article has shown the importance
of registration of such marriage by mentioning that, Complicated issues about
the legality and presence of nikah between specific parties frequently come up
in civil and criminal courts, hence marriage registration must be made
mandatory.
In order to recognize the valid
consent and clarity over the consent of both the parties to be in cohabitation
or the social union of marriage under Muslim, giving the marriage legal
recognition is necessary that is done through registration.
Hence registration also clarifies and
ensures the valid consent of both the parties. (Haq #)
4.
“MARRIAGE AGREEMENTS UNDER MUSLIM LAW- A WEAPON IN THE HANDS OF MUSLIM WOMEN”
BY- NANDA CHIRANJEEVI RAO
The article has mentioned that the
nature of Muslim marriage is that of contractual form. And since, it is a
contractual form of marriage, the individuals involved are free to agree to a
number of terms and conditions prior to or during the marriage, by entering
into an agreement.
But the condition is that the
agreement should be legal and that to follow all the norms and essentials
provided in the Muslim law.
Looking into the provisions available
in the Muslim law, one of the essential is valid consent. That is the consent
of both the parties free and voluntarily, and without any coercion, fraud or
misrepresentation.
Emphasizing Muslim women’s rights in
marriage, the article is describing that the provisions that are termed to be
necessary for the agreement as per the Muslim law, those provisions not only
provide them protection from uncertainty in marital life but also from forceful
marriage or marriage against their will.
This article also describes the legal
conditions of the agreement for marriage and if any term or condition is
illegal or not as per any of the parties of the marriage, then they can step
out of the marriage by denying giving their consent.
The article mainly enlightens the
fact that how women are protected and are provided various rights by Muslim
law.
The consent of a woman plays a vital
role even when a Muslim man is going for second marriage or bigamy, as per the
Muslim law, for a man to enter into second marriage or bigamy, legally or as
per Muslim provision, the consent of the first wife to be taken is necessary.
Hence consent is a vital role in the
marriage agreement in Muslim law. (RAO #)
5. “SEXUAL CONSENT, MARRIAGE, AND CONCUBINES IN ISLAM”
BY-
ABU AMINA ELIAS
The article focuses on marriage in
Muslim law as a form for making sexual relationships valid. As per the article,
Islam places a high value on morality when it comes to consent in valid
marriages and other legal sexual relationships. After all, according to the
Quran, a marriage should be founded on love and mercy, and a healthy sexual
connection includes both partners enjoying themselves. In Islam, sexual
violence of any kind or forceful sexual relationship has never been legal and
never will be. And since marriage is the way to legally enter into a sexual
relationship, having a marriage without valid consent is termed to be illegal
in Muslim laws.
However, modern developed secular
liberal cultures have converted the idea of "consent" into not merely
a moral necessity but also the main legal requirement that makes sex
legitimate.
In Islam, sex is considered valid
only in two cases marriage and concubinage.
And due to the abolition of slavery,
concubinage is no more valid. The discussion of consent as a matter of law is
less relevant to Muslims who adhere to Islamic teachings. By confining sex to
marriage, Muslims are secure from the legal and moral anarchy that the sexual
revolution has unleashed.
Additionally, because
"consent" is a rather contemporary legal issue, the early Muslims did
not directly address it. (Elias #)
CASE LAW:
1. “AMINA
v. HASSN KOYA (2003) 6 SCC 93”
In this case, the husband went for
divorce on the ground that the wife delivered a child after 4 months of
marriage, meaning here by that she was 5 months pregnant at the time of
marriage, and that he was aware of this fact. The husband went for divorce
after 4 and a half years.
The court here raised the point of
the form of marriage in Muslim law.
The court in the fourth para of its
judgment mentioned that marriage in Muslim law is of Contract form, where two
parties enter into the agreement by giving their consent.
The court said that it, is impossible
for a 5 months pregnant woman to curtail her pregnancy, and since the husband
has entered into the marriage agreement it means, he had given his consent,
even after knowing that the wife is pregnant. Moreover, the consent was not
given under any external force, so it was valid and hence the marriage is
valid.
2. AHMAD-UN-NISE
BEGUM VS. ALI AKBAR SHAH (1942) 199 IC 531
In this case the court regarding a
Muslim marriage said that, when the consent to the marriage has not been
obtained, consummation against the will not validate the marriage. Herby the
court referred that for a marriage to be validated under Muslim marriage
consent should be taken, referring the consent as essential in a Muslim
marriage.
3. SAYAD
MOHIUDDIN V. KHATIJABI (1939) 41 BOMLR 1020:
In this case, a Muslim girl was
forced into an arranged marriage by her father. When the same was contested in
court, the judge ruled that the marriage was not lawful because it was
performed against the girl's will and consent.
STATEMENT OF PROBLEMS:
o
In
Islam, even after mentioning essential requirements for a valid marriage having
consent as one of them, there isn’t a foreground application of it.
o
The
foundation of a flourishing Muslim society is marriage. A peaceful and
contented household offers significant advantages to all of its residents in
terms of personal fulfillment, health, longevity, and social life is a result
of a healthy marital relationship, but due to the lack of valid consent in the
marriage agreement, marriage in Muslim law lacks its basic autonomy in way of
achieving its goal.
o
Due
to the lack of valid consent in marriage, couples of all ages are showing a trend
of diminishing marital happiness.
o
Marriage
in Islam is in form of an agreement between the two parties, but there are
incidents when parties in this agreement do have the external force to give
their consent, which violates the provisions for the marriage of Muslim law and
is also invalid.
HYPOTHESIS:
Most specialists concur that
effective communication, hard work, commitment, and continual evaluation of our
expectations are necessary for a happy and fulfilling marriage. Talking about
effective communication, in Islam, since the marriage is in agreement form so
it appears that effective communication is also necessary for determining the
conditions and essentials of agreement.
This effective communication is a way
to determine the valid consent in the marriage agreement in Islam law.
When it comes to the form of marriage
in Islamic law, then it is mainly a contract of marriage in which the two
parties come, after giving their consent and the essentials of the contract
should be in accordance with the provisions of Muslim law. If we will look at
this contract from the legal perspective, or under The Indian Contract Act
1872, the consent given by both parties should be free of any type of coercion,
misrepresentation, fraud, or any external force for the contract to be valid
and hence the marriage to be legally valid and in accordance to the Muslim law.
It appears that consent is one of the
essential ingredients provided in the provisions of the Muslim law for a valid
marriage.
OBJECTIVES:
o
To examine the form of marriage present in Muslim law.
o
To determine the essentials for a valid marriage in
Muslim law.
o
To explain the importance of consent and its relevance
to the validity of marriage in Muslim law.
RESEARCH METHODOLOGY:
The researcher's chosen research
methodology is the Doctrinal approach.
As part of the research, the
researcher would examine the Indian Constitution, Provisions of Muslim law,
statutes, case law, articles, essays, reports, and books.
CHAPTERISATION:
o
The
first Chapter is the abbreviation dealing with abbreviation forms used in the
research paper.
o
The
second chapter consist of a literature review in which various forms of reading
materials and literature are summarised and reviewed.
o
The
third chapter is a statement of problems in which the problems that will be
addressed in the research are mentioned.
o
The
fourth chapter is the hypothesis that describes the notion that we have our
understanding of the topic before the research.
o
The
fifth chapter is objectives that tell about the point that we would focus in
the research paper.
o
The
sixth chapter talks about the research method used in writing this research
paper.
Works Cited
- al- Sadlaan, Dr. Saalih ibn
Ghanim. The Fiqh Of Marriage In The
Light Of Quran And Sunnah. Second ed.
- Nayak, Harsh. “Nikah- A Contract
Of Marriage.” Jus Corpus Law Journal,
24 August 2021. Manupatra,
https://articles-manupatra-com.eu1.proxy.openathens. Accessed 23 August
2022
- Gupta, Priyanshu. “Forms Of
Marriage.” INTERNATIONAL JOURNAL OF
LEGAL SCIENCE AND INNOVATION, vol. 3, no. 2, 2020. Manupatra,
https://articles-manupatra-com.eu1.proxy.openathens.net/pdf. Accessed 23
August 2022.
- Haq, Mohd. Nurul. “Some Aspects
Of Muslim Marriage In Indian sub-continent: A Review.” SCC Online. SCC. Accessed 25 August 2022.
- RAO, NANDA CHIRANJEEVI.
“Marriage Agreements under Muslim Law- A Weapon in the Hands Of Muslim
Women.” SCC, 2013. SCC ONLINE. Accessed 27 AUGUST
2022.
- Elias, Abu Amina. “Sexual
Content, Marriage, And Concubines In Islam.” SCC ONLINE. Accessed 02 September 2022
ABSTRACT
Marriage is a way to bring two
parties, usually two of opposite genders, together to solemnize their soul in
order to have a family together. Marriage is a partnership typically between a
man and a woman and is recognized legally and socially. Laws, traditions,
practices, beliefs, and attitudes that define the partners' responsibilities
and confer status to their children govern it.
Speaking from legal perspective
marriage is a term used to determine the bonding of two parties, a man and
woman, liable to each other and engaged to each other in order to jointly live
together.
Marriage is mainly governed by the
traditions, cultures, and laws of religion or the community to which the
parties belong too. The ceremonies and rituals that happen in, the process of
solemnizing marriage are different in different regimes and religions.
Various laws, such as Hindu law,
Muslim law, Parsi law, etc. have their own various ways and essentials for a
marriage to be called valid under their enforcement.
Marriage in different personal laws
is of different forms, each having different names, different rituals,
different ceremonies, different essentials, and different degrees of prohibited
relationship for marriage.
But what is common in all religions
is that the parties in the marriage should be Major, legally able to enter into
a marital relationship, and should be entering into a marital relationship with
their own consent.
In this research paper, we will focus
on Muslim Marriage, considering their rituals and essentials, targeting the
importance of consent in it. We will try to figure out, how consent plays an
essential role in Muslim marriage with the purview of Muslim marriage form and
its notion of being similar to that of a Civil Contract.
We will try to figure out the
relevance of consent described in the religious texts of the Muslim community,
society's perspective on the importance of consent, and the history of Islam
law governing the concern over the concept of consent.
MARRIAGE
DEFINED IN MUSLIM LAW:
Muslim law holds that a man's
marriage to his wife is a multifaceted reality that encompasses both the sacred
and the secular. The preservation of the human race, the settling of disputes,
the promotion of love, affection, and connection between husband and wife, as
well as their joint support in meeting their needs, are the objectives of a
Muslim marriage. Instead of focusing solely on gratifying sexual lust and
reproduction, it also emphasizes the promotion and protection of chastity.
In Islamic law, marriage is termed
“Nikah” and is considered a social and legally binding agreement between two
people. Marriage is encouraged and considered to be an act of Islam.
Islam defines marriage as a
matrimonial relationship and an institution that legalizes sexual activity
between a male and female with the goal of conceiving children, fostering love,
providing support to one another, and building families, which are seen as
fundamental social units.
Looking at the auspicious book of
Islam, marriage is highly encouraged and prioritized conduct according to the
Quran. This scripture, which particularly mentions the trait of being
righteous, encourages marriage to everyone who is single. This refers to having
the ability required to carry out the duties of marriage in addition to having
the proper attitude and mindset. This scripture explains that having money
should not be viewed as a source of worry or as a barrier to getting married.
Some families forbid their children from seeking marriage until they reach a
certain financial level, and in some situations, a suitor may be rejected on
the grounds of wealth. Wealth is more transient than a partner's character,
though.
Marriage or Nikah, according to
Muslim law, is defined to be a contract that has for its object the procreation
and legalization of Children. Thus, Muslim marriage is a contract and its
object is (a) procreation and (b) legalizing children. Ameer Ali cites an
ancient text defining its object as follows: “Marriage is an institution
ordained for the protection of society and in order that human beings may guard
themselves against foulness and unchastity.” (PROF #)
Marriage is not subject to any
formalities or religious rites. Since marriage in Islam is a contract, it must
meet the standard requirements for a valid contract. Therefore, the necessary
conditions for a lawful marriage are the ability to contract the union, the
proposal, and acceptance of the union, valid consent, and the absence of any
obstacles to the union.
NATURE OF
MUSLIM MARRIAGE:
According to Islamic law, marriage
has the same legal status as a civil contract. Both parties enter into it of
their own free will. When it is formed, it also resembles a contract because
there is an offer and acceptance between the parties, granting husbands and
wives the same rights.
Some jurists are of opinion that a
marriage under Muslim law is purely a civil Contract while others say that it
is a religious sacrament.
The argument that Muslim Marriage is
a civil contract and not a sacrament is based on the fact that marriage under
Muslim law has similar characteristics to a contract.
The contract requires an offer and
acceptance on the part of parties similarly, Muslim marriage requires Ijab and
Qubool.
Going by the holy texts and
provisions of Muslim laws, forced marriage is prohibited in Islam.
WHAT IS
CONSENT:
When someone voluntarily accepts
another person's request or wish, it is called consent. Although it is a
popular term, there may be more precise definitions for it in professions
including legal, healthcare, science, and intimate interactions. Consent can be
given in various ways, including implicitly, explicitly, knowingly, and
unanimously.
In any social interaction between
people, consent is acknowledged by Islamic law as a vital component. In a wide
range of financial and non-financial activities, including as business
dealings, marriage contracts, the punishment of criminal criminals, and even
for individuals seeking medical care, the significance of mutual consent
between parties is viewed as predominant. Therefore, the necessity of mutual
consent is essential in any transaction; otherwise, the agreement will be
deemed void and of no legal force and effect.
WHAT IS FORCED MARRIAGE:
When the permission of the bride,
groom, or both have been secured by physical or emotional abuse, the marriage
is deemed to have been forced. Arranged marriages are distinct from forced
unions. In an arranged marriage, both the bride and the groom give their
approval to wed the partner that their families have suggested; in a forced
marriage, approval is not present.
People who compel someone to be
married frequently defend their actions by saying that they are doing so to
protect the person and uphold cultural or religious traditions. Every major
religion prohibits forced marriage, hence it cannot be supported on religious
grounds.
Whatever the reasoning, forced
marriage is a form of abuse and violates generally accepted standards of human
rights.
CONSENT AS AN
ESSENTIAL OF MUSLIM MARRIAGE:
The Islamic position for forced
marriage is also in the support of valid consent. Islamic law does not support
forced marriage.
In Islam, forced marriage is
forbidden. The bride and the husband must both agree to the marriage. Any
marriage that is forced is regarded as batil, or void, and requires the woman's
consent, which must be secured.
As marriage under Muslim law is
similar to a Civil Contract, so are their essentials. Just like a valid
contract to be enforced valid consent is necessary, and so is the requirement
in a Muslim marriage.
Consent is essential to the validity
of a marriage since marriage is a contract; when there is an absent of consent,
the contract is unenforceable. To this purpose, a Prophetic hadith mandates
that women, virgin or not, must be consulted and given the go-ahead prior to
marriage.
The consent plays an important role
as it determines whether the parties are willing or having the interest to
enter into a marital relationship with each other or not.
Consent also signifies the no-doubt
bonding between the two parties and hence, builds up the basic pavement for a
valid marriage.
In Muslim, a marriage cannot proceed
without the consent of the intended spouse. She must provide her consent before
her father or guardian can proceed on her behalf in any marriage contract,
regardless of if she is a virgin or has been married before. The bride's assent
is unquestionably required when a marriage is conducted by the government
registrar or another authority. If someone is representing her, the government
official will request him to present two witnesses who can attest that she has
given him permission to represent her in the marriage.
It's a common misconception that a
parent can marry his daughter to anybody he wants without getting her
permission because he serves as her guardian during the marriage. On the
contrary, she keeps her honor by doing this. In Islam, families play a key role
in the process of establishing families through marriage. But actually one
can’t marry someone against her or his consent.
For classical Muslim jurists, as well
as for the majority of cultures in the pre-modern era, marriage was not
primarily about people's freedom of choice in life mates, but this freedom of
choice was acknowledged to some extent. Instead, it concerned families' choice
of compatible partners. To that aim, an essential component of the marital laws
that the early jurists developed is a form of guardianship (wilaya). There are
two different kinds of guardians (wali, sang. ), but both must be adult male
Muslims who are free and in good mental health. First, it is believed that a
father (and possibly, in some situations, a paternal grandfather) has the
authority to coerce marriages, known as “jabr” or “ijbar”. Second, in some
circumstances, another guardian is needed if the child doesn't have a father,
for the validity of the marriage but he may not force his charge to marry.
All four Sunni schools acknowledge a
father's authority to arrange legally binding unions for both his sons and
daughters while they are still minors (up to the age of nine or onset of
menstruation for girls and puberty, up to age fifteen at the latest, for boys).
Though least so in the Hanafi school
of legal philosophy, the regulations for males and females after age differ.
All legal experts concur that once a man is no longer a minor, he can enter
into a marriage on his own behalf without the need for a guardian. Only the
Hanafi school acknowledges that a woman can do the same, but unlike a man, her
marriage is subject to challenge by her guardian if it doesn't meet certain
requirements (the groom must be her social equal (kuf') and she must stipulate
at least the full dower appropriate to a woman of her family status and
personal characteristics).
According to the majority of Hanbali
jurists, a girl over the age of nine is no longer subject to her father's right
of compulsion but needs a guardian to consummate the marriage on her behalf.
Even after her first marriage, this remains the situation. The Maliki and
Shafi'i schools of law, as well as a small number of Hanbalis, support the most
distinct division between men and women. According to these jurists, a parent
can force his daughter to be married against her will as long as she stays
virginal (bikr).
However, a grown virgin cannot be
married off by anybody other than her father without the approval of the
virgin, according to judges from all four schools. According to the majority
opinion of the jurists, regardless of which guardian contracts the marriage,
she must give her agreement for any subsequent marriage after she is no longer
regarded as a virgin. However, a guardian must enter into any marriage on her
behalf according to the Malikis and Shafi'is as well as the Hanbalis. Only the
Hanafis believe that an adult woman is capable of signing a marriage contract
on her own in a legal sense.
In contemporary Muslim countries, the
subject of permission to marriage has come up frequently. Many jurisdictions
have made an effort to address these problems by establishing minimum marriage
ages that are later than the established start dates for maturity. Some
countries with a history of requiring adult virgin women to be married off
against their will now have laws that require all adult women's permission,
regardless of whether they have been married or not. Additionally, fewer
children are getting married, and fewer women and girls are getting married
against their will to unsuitable partners thanks to shifting societal mores and
demographic realities.
Free consent from both parties is
required for a marriage to be legal. If the consent was obtained through
coercion, fraud, or factual error, it is deemed invalid, and the marriage is
deemed null and void. Marriage is illegal if it is conducted without the
parties' free permission, the court ruled in the case of Mohiuddin v.
Khatijabibi.
A Forced marriage or a marriage
against the will or without consent is usually observed happening with a girl.
Most of the time it is seen in a society that they usually can digest a boy
marrying with his own choice for once, but the consent or choice of a girl
doesn’t matter much to them. A similar situation can be seen in the Muslim
community too.
Another myth is that women aren't
allowed to propose to a man and hence cannot express their consent for any man
openly. It is regarded as culturally impolite by many Muslims. But that runs
directly counter to the truth. A woman's marriage proposal is not regarded as
an act of indecency in Islam. Culture provided humans with this concept. The
separation of the deen from cultural beliefs needs to be improved. Women were
always given freedom in Islam to marry the person of their choice and with
their consent. A very great example to verify this sentence is the life of the
Holy Prophet, The Prophet was employed by Khuwaylid bint Khadija. She proposed
marriage to the Prophet Muhammad after being moved by his sincerity and
honesty. Their marriage was consummated after the Holy Prophet agreed to the
proposition.
So in reality, Islam gives great
value to the consent of women or any person for marriage.
It is evident that Islam forbids
forced marriages from the Holy Prophet's life and the examples of his
teachings. The Quran forbids, however, the forced marriage of women. This
Quranic verse bans forced marriage among Muslims, “O you who have believed, it is not
lawful for you to inherit women by compulsion.”
In Islam, it is forbidden to coerce
females into marriages, according to a hadith attributed to the Holy Prophet.
In addition to being mentioned in Saheeh al-Bukhari 6968, the hadith was
written as Saheeh Muslim in 1419. A woman cannot be married to anybody until
her consent is obtained, according to the Holy Prophet, whether she is a
virgin, divorced, or a widow. That Islam forbids forced marriages is
demonstrated by this.
Even the life of the holy Prophet of
Islam depicts a great example that how much value free consent has for marriage
in Muslims.
Without the child's consent, parents
cannot just marry their children off. In addition to setting an example from
the Holy Prophet's life, parents should ascertain whether their child has given
their approval to the marriage. Ali once offered the Holy Prophet a request to
wed his daughter Fatima. He declined the offer and merely remarked, "In
Sha Allah" (if God wills). The Prophet Muhammad then spoke with his
daughter Fatima about her idea and sought her approval. The Prophet then
accepted Ali's proposition after she had already done so. This demonstrates how
crucial it is to get a child's perspective on marriage.
It is obvious that under Islam,
getting married with your consent and desire is completely acceptable. In
Islam, you have the option to approve of a marriage, regardless of gender.
Islam forbids parents from pressuring their children into marriage. so you can
be married to the person only if you want or with your consent.
Families may arrange an engagement
for their children, but Islamic law stipulates that the bride, groom, and
bride's guardian (wali) must all grant their legal assent before the union can
be consummated. Most academics agree that it is forbidden to get married
without the bride's permission or under duress.
Additionally, there are hadiths
(traditions based on accounts of the words and deeds of the Prophet Muhammad)
that show that forced marriage was prohibited:
According to Abdullah ibn Abbas, the
Prophet heard from a virgin that her father had married her against her will
and gave her the opportunity to make her own decisions.
Khansa Bint Khidam stated, "My
father married me to his nephew, and I did not enjoy this match, so I complained
to the Messenger of Allah, that is, to the Prophet. I should accept the plans
your father has made, he added. I said that I didn't want to accept the plans
my father had made.
Then this marriage is invalid, you
may wed whomever you like, he said. I stated that although I have accepted the
arrangements made by my father, I nevertheless wanted women to be aware that
fathers have no business meddling in their daughters' personal concerns, such
as forcing them into marriage.
These statements are proof that the
Islam religion has always given priority to the consent of parties entering the
marriage
LEGAL
PERSPECTIVE OVER THE CONSENT AS AN ESSENTIAL OF MUSLIM MARRIAGE:
Along with the Islam religion, the
court also recognizes consent as of a great value for a marriage to be legally
valid.
The partners must freely consent for
a marriage to be legal. The consent is rendered illegal as well as the wedding
is deemed null if it was gained through coercion, fraud, or factual error.
Similar circumstances occurred in
Sayad Mohiuddin vs. Khati Jabi (1939) 41 BOM LR 1020, where a major girl's
father forced her into an arranged marriage. When the same was contested in
court, the judge ruled that a marriage that was performed without the girl's
knowledge and permission was invalid.
As a result, the court underlined the
necessity of the parties' free will and consent for a marriage to be considered
lawful under the law.
The court doesn’t only stand against
a marriage done forcefully but also deceives those marriages where the consent
of the parties has been obtained fraudulently.
This can be seen by the case law of
Abdul Latif v. Niyaz Ahmad where the court held that a marriage brought in
about by a fraudulent misrepresentation is invalid unless ratified.
In the case of Ahmad- un - Nose Begum
vs. Ali Akbar Shah, the court held that when the consent of marriage has not
been obtained, Consummation against the will of the women will not validate the
marriage.
Hence, it's clear that along with the
religious texts and laws of Isam, the Indian jurisdiction also gives a great
importance to the free consent of the parties, for making a marriage valid
under Muslim law and Indian Jurisdiction.
CONCLUSION
After completing the research and
overviewing the data available, it is seen that, the marriage form available in
the Muslim community is mainly a Contract or an agreement form. Islam views
marriage as a social compact. The bride and groom, along with their respective
families, come to an agreement whereby the groom's family agrees to give the
bride and her family a certain sum of money in exchange for her consent to
marry.
Islam views marriage as a partnership
between two individuals and an institution that legalises sex between a man and
a woman in order to reproduce offspring, advance adoration, share support, and
reap other benefits. Families are viewed as the primary social unit and are
revered as such.
So in a Muslim marriage, Consent is
essential to the validity of a marriage since it is a contract, and a contract
is void without it.
Muslim law defines a valid marriage
as one which has been constituted in compliance with the prerequisite
requirements and Essentials.
Along with others, Consent is also a
key requirement in Muslim law to declare a marriage to be valid.
Eminence importance is given to the
acceptance by women for marriage. Islam recognizes the right of women to
approve of marriage. In actuality, a woman's consent is required for the
marriage to be legal.
Even the incidents from the life of
Holly Prophet and his teachings guide, how a woman is free to get out of the
marriage if, it is imposed on her forcibly, and she has all the rights with her
to come out of such marriage.
CHAPTERISATION:
o
The
first chapter in the research paper is “ABSTRACT” which focuses on the
introduction of the basics of the research paper and the approach of the
researcher to meet various issues mentioned.
o
The
second chapter “MARRIAGE DEFINED IN MUSLIM LAW” describes the understanding of
marriage as defined under Muslim law.
o
The
third chapter “NATURE OF MUSLIM MARRIAGE” informs about the form of marriage
followed in Islamic religion.
o
The
fourth chapter “WHAT IS CONSENT” describes the word Consent over which the
topic of a research paper is based.
o
The
fifth chapter “WHAT IS FORCED MARRIAGE” looks upon the marriage against the
will of the parties.
o
The
sixth chapter “CONSENT AS AN ESSENTIAL OF MUSLIM MARRIAGE” refers to the
importance of consent in Islamic law and also focuses on how various religious
text and the Prophet’s life focuses on the importance of consent and will of
the parties while entering the marriage.
o
The
seventh chapter “LEGAL PERSPECTIVE OVER THE CONSENT AS AN ESSENTIAL OF MUSLIM
MARRIAGE” talks about the various cases and decisions taken by the court
focusing the role of consent in Muslim marriages.
o
The
eighth chapter “CONCLUSION” concludes the other chapters and the concept that
the researcher tried to discuss in the whole Research paper.
Article Information
CONCEPT OF CONSENT IN MUSLIM MARRIAGE.
Authors: PRADICTA SHREY
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/01/30
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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