Open Access Research Article
MARRIAGE UNDER PERSONAL LAWS; AS COMPARETIVE STUDY
Published Paper
Article Details
MARRIAGE UNDER PERSONAL LAWS; AS COMPARETIVE STUDY
AUTHORED BY - RUHBAN RAFIQUE & DR. MEENU SHARMA
AMITY LAW SCHOOL, NOIDA
3.1 HISTORY
The
main stage in the advancement of Muslim Law starts with 622 A.D. (Hejarat) and
finishes with 632 A.D. the demise of the Prophet. This period is known as the
administrative period. As referenced before, the main message of God went to
the Prophet in 609 A.D. at Mecca. From that point forward, the perfect messages
were imparted to him now and again and he used to pass on them to the general
population at Mecca. Yet, those individuals did not trust that Mohammad was
giving them the message of God and furthermore doubted everything the thing he
said about God (Allah). Along these lines, the Prophet's first undertaking at
Mecca was to influence them to trust the presence of one God. The outcome was
that a large portion of the disclosures at Mecca were religious or profound and
did not contain positive law (Fiqh). In 622 A.D. Prophet Mohammad went to
Medina where the messages of God, as of now uncovered at Mecca, were
effectively accepted. In the disclosures at Medina, in this manner, the Prophet
for the most part set out the standards to control the lead of the general
population (for example positive law). There had been disclosures taking care
of every single issue of the general public.
During
this period, the accumulation and altering of the Quran likewise occurred. This
approved content of the Quran which stays without change or debasement right up
'til the present time was first distributed amid the rule of Usman, the third
Caliph. The third time frame is a long one, which ranges from 40 A.H., to the
third century after Hejira. This period was likewise essential, since it was
amid this period that crafted by gathering of the 'customs' of the Prophet
occurred. Amid the prior piece of this period, there developed the four schools
of Sunni law, which are named after their four originators. (The striking parts
of these schools are viewed as later in this Chapter.) The fourth time frame in
the improvement of Islamic law stretches out from the third century after
Hejira to the present day. After the four perceived schools had been
established, later researchers put forth a concentrated effort to the
techniques set somewhere near the organizers, and built up every framework in a
specific way. Nonetheless, no individual law specialist was ever a short time
later perceived as having a similar position as the author himself. This
proceeded till the passing of the Prophet. Along these lines, the greater part
of the law-production disclosures were made between 622 A.D. also, 632 A.D.
Divine messages or the disclosures, in the case of clarifying the idea of God
or setting down principles of positive law were gathered and contained in the
blessed book Quran.
We
have seen that the messages from God went to the Prophet just on those events
when he used to be roused with awesome forces. Rest of the time Prophet carried
on with the life of a typical individual. Maxims or the doings of the Prophet
without awesome motivation were additionally trailed by the general population
as his statutes or customs. Laws, which were not accessible in the immediate
expressions of God {Quran) were defined through the customs of the Prophet.
Hence we see that the most recent ten years before the demise of the Prophet,
were critical from the perspective of the enactment of Muslim Law. The vast
majority of the essential guidelines of law were set down amid this period
either through the expressions of God or through Prophet's very own words. As
indicated by Abdur Rahim, the main time frame has appropriately been known as
the 'administrative period' of Islam when laws were established by the heavenly
assembly and declared in the expressions of Quran or, by the statutes of Muhammad.
3.2
THE SECOND PERIOD (632-661 A.D.):
This
is known as the time of initial four Caliphs of Islam. Amid his life, Prophet
Mohammad had been a flat out specialist on law and religion. He was
otherworldly just as the regulatory leader of the Muslim State. After his
passing, the inquiry emerged with respect to who might be the successor of the
Prophet. Larger part of the general population concurred that there ought to be
a decision for his successor. In like manner, a race was held in which Abu Bakr
was chosen. Hence, Abu Bakr turned into the primary Caliph and headed the
network of the Muslims. He was father of Ayesha Begum, the most youthful spouse
of the Prophet. Abu Bakr was prevalent among the Muslims of Arabia
notwithstanding amid the life of the Prophet. He kicked the bucket in 634 A.D.
what's more, after him Omar was chosen as the second Caliph. Omar was the Chief
for a long time, and was killed in 644 A.D. After him, Osman turned into the
third Caliph through race. He headed the network for a long time yet he was
likewise killed by the rivals in 656 A.D. After him, Ali, who was the spouse of
the Prophet's girl Fatima, was chosen and he turned into the fourth Caliph. Ali
also was executed in 661 A.D. These initial four Caliphs are known as the
'appropriately guided Caliphs' (Khulfai-I-Rashidin) in light of the fact that
they had the benefit of being extremely close associates of the Prophet. At the
season of the Prophet's passing, the celestial interchanges were in the
dissipated structure. Some of them were just in the recollections of the
general population. One of the remarkable highlights of this period is that all
the heavenly messages were gathered, orchestrated subject-wise and written to
give a last shape. This accumulation is known as the sacred book Quran. The
principal gathering of Quran was by Zaid (a nearby buddy of the Prophet) amid
the standard of Abu Bakr. Be that as it may, therefore this gathering was
observed to be mistaken and opposing at numerous spots. Osman, the third Caliph
asked Zaid indeed to overhaul the blessed book and right it. The prior form of
Quran was, be that as it may, decimated by him. Along these lines, the main
true form of Quran now accessible to us is the Osman's assemblage. Another
imperative element of this period is that conventions of the Prophet were
carefully pursued. In this manner, in the second phase of the improvement of
Muslim Law the main wellsprings of law were the Quran and the customs. In so
far as the organization of equity is concerned, it was amid this period that
Omar the second Caliph, designated the first Quadi (or Qazi) to choose the
question of common nature, he proclaimed that law is incomparable and is over
the official specialist.
3.3
THE THIRD PERIOD (661-900 A.D.)
The
fourth and the remainder of the "appropriately guided Caliphs" had
two children, Hasan and Hussain. After the demise of Ali, Hasan was made the
Caliph. Be that as it may, Hasan was a holy person and disliked to include
himself in organization. He willfully surrendered for Muavia of the Umaiyad
family. Along these lines Muavia turned into the following Caliph of the Muslim
world. From him began the Ummaiyad line. Two detectable occasions occurred amid
his rule. Initially, the seat of Caliphate was moved from Medina to Damascus
and also, the workplace of Caliph, which had been elective, was made innate.
Following the rule of progression, Muavia's child Yezid turned into the
following head of Muslim realm. In the mean time Hasan, despite the fact that
not associated with the organization, was harmed to death by his very own
better half at the impelling of Yezid. In any case, Hussain, the more youthful
child of Ali, rebelled against Yezid. Be that as it may, he also was murdered
savagely at Karbala. It is huge to take note of that amid Umaiyad's standard,
Caliphate wound up ordinary sovereignty. As was self-evident, those lords were
keen on the extension of their realm instead of in the improvement of law. In
750 A.D. the Umaiyad's line was caught by Abbasids who were the relatives of
the Prophet's uncle Abbas. Abbasids made their capital at Baghdad and declared
(not at all like Umaiyads) additionally the religious or profound headship of
the Muslim realm. The Umaiyad rulers, as leaders of the Muslim State, did
nothing shocking for the advancement of law. Essentially, as rulers the
Abbasids also did not add to the advancement of law. Without consultations by
the State expert, further composition of law was embraced secretly by the
educated researchers at Mecca, Medina and Kufa. As is self-evident,
investigation of law by individual researchers offered ascend to clashing
assessments. Every researcher asserted his understanding of law to be the right
one. The scholastic contrasts among the researchers prompted the arrangement of
various schools of the Sunni organization. The Sunnis were separated into four
sub-organizations, Hanafi, Shafie, Maliki and Hanbali, each named after the
researchers who elucidated the law as per their own understandings and
thinking. Thus, the Shias were likewise separated into three sub-orders, Ithna
Ashria, Ismailia and Zaidi.
3.4 THE
FOURTH PERIOD (900-1924 A.D.)
This
period in the Islamic lawful history starts with the foundation of the four
Sunni schools and reaches out up to 1924 A.D. The Abbasids ruled for five
centuries and were toppled by the Mongols in 1258 A.D. For quite a while, the
Sunni people group stayed with no Caliph. In 1261 A.D. Abdul Kasim Ahmed was
made the Caliph with his capital at Cairo. This administration has been in
power for over two centuries. A prominent element of the Caliphate in this line
was that Caliphs had no authoritative forces. In the start of the sixteenth
century, in any case, the Ottoman ruler Selim I was welcome to head the
network. The Caliphate was exchanged to Selim I by a deed of task in 1571 A.D.
In this manner, the Caliphate go to the Ottomans and Constantinople turned into
the Dar-ul-Khilafat" Subsequently the Sultanate of Turkey was abrogated by
Mustafa Kamal Ataturk in 1922 and the Caliphate was likewise canceled
everlastingly in the year 1924 A.D. by the National Assembly of Ankara. From
the perspective of the improvement of Muslim Law, this period isn't huge at all
in light of the fact that at this stage further article of law had halted. The
reason is that after the demise of the originators of the four Sunni schools,
no researcher of their prominence and learning was accessible who could
propound new speculations of law. As no legal scholar was esteemed skilled for
individual elucidation, the law couldn't be defined through Ijtihad (sentiment
of the legal advisers). The outcome was that what was at that point set down
when in doubt of law by those four legal scholars was essentially trailed by
the general public. As such, there built up the precept of Taqlid (following or
impersonation). Under this convention the sentiments of those extraordinary
legal advisers were trailed by the researchers (muftis) of this period without
adding anything new to it. The researchers of this period have, be that as it
may, composed comprehensive analyses on the law effectively set somewhere near
the legal scholars of their separate schools.
3.5
THE FIFTH PERIOD (1924 A.D. TO PRESENT DAY)
With
the annulment of Caliphate in 1924 A.D. started the modem time of Islamic law.
This period still proceeds. After 1924 there is no Caliph as a religious head
to manage and execute the conventional law of Islam. This circumstance has been
handled by hypothetically isolating Islamic law from the religion (Shariat).
With no equipped expert to execute it, the Islamic religion turned into the
ethical set of principles though the Muslim Law with the approval of the State
was seen juridically. It is in any case, clear that juridical article of Muslim
Law has to a great extent been impacted by the study of law in European
nations. Along these lines, endeavors were made by modem Islamic nations like
Turkey, Tunisia, Egypt and so on to classify their laws in such a way, that the
intrinsic character of Shariat being protected, the law is figured as per the
prerequisites of the present society. Another critical point to note is that
once in the past all parts of human direct (considerate just as criminal) were
managed by customary Islamic laws yet "subject after subject was bit by
bit rejected from the domain of the conventional Islamic law in a few pieces of
the Muslim world. In the end, the extent of Islamic law was significantly
limited. Present day Codes of Civil and Criminal laws were established in
numerous nations possessed or managed by Muslims". Prior to foundation of
the British principle in India, the Moghul Emperors connected Muslim Law as
tradition that must be adhered to and all issues, in the case of relating to
family status or wrongdoing or income, were represented by Muslim Law. The British
Government had changed this framework by ordering a few Acts which connected to
Muslims and non-Muslims alike in the non-individual issues. It might be said in
this way, that in India the modem time frame starts with the foundation of the
British Courts. After autonomy, a similar set-up has been embraced and is being
pursued. The Shariat Act of 1937 obviously settled this circumstance by setting
out that aside from inquiries identifying with farming area, in all inquiries
in regards to intestate or testamentary progression, or some other arrangement
of individual law, (marriage, separate, dower, upkeep, guardianship and so
forth.) the standard of choice, in situations where the gatherings are Muslims,
will be the Muslim individual law. Be that as it may, only two years after the
Shariat Act, the Dissolution of Muslim Marriages Act, 1939 was established by
the Parliament which has rolled out progressive improvements in the law of
separation. A few different authorizations have been passed by the governing
body which set down standards of Muslim individual law. However, a large
portion of them either restore or clear up the arrangements of customary Muslim
Law. But the Dissolution of Muslim Marriages Act, 1939 and to some degree, the
Muslim Women (Protection of Rights on Divorce) Act, 1986 there has been no
administrative sanctioning for alteration of the standards of Muslim Law. Be
that as it may, inside their own limits the courts have intensely endeavored on
a few events to justify or generally clarify the tenets of Muslim individual
law. These legal choices have changed the utilization of conventional Muslim
Law as per the evolving financial conditions. The present Muslim Law of India,
in this way, incorporates the customary law, the administrative institutions
and, the legal points of reference.
3.6 SOURCES OF MUSLIM LAW
Muslim
Law is a religious law, and it applies to an individual, who is Muslim either
by birth or by conversion. In any case, Islamic law depends on a man's
obligations or commitments as opposed to his rights. The word Islam signifies
'all out surrender of oneself to God' and its supporter for example Muslim
signifies, 'who submitted himself to God.' The individual law of Muslims
depends on Islam. Islam had its birthplace in Arabia and from whence it was
transplanted into India. In Arabia, Prophet Hazrat Mohammed, himself an Arab,
declared Islam and set out the establishment of Islamic law. The fundamental
foundation of Islamic Legal System
was supported and created by Arab-legal scholars, and the genuine wellspring of
Islamic Jurisprudence is to be found in the pre-Islamic Arabian traditions and
utilizations of the seventh century of the Christian time. Islamic law is a part of Muslim philosophy,
giving useful articulation to the confidence, which sets down how a Muslim
should act through his religion, both towards God and towards other men. As
indicated by Prophet, Muslim Law is a charge of God and the sovereigns in the
Muslim States, and it is his (Muslim's) obligation to tail it. Islam implies
harmony by accommodation and dutifulness to the will and decrees of God and the
individuals who have acknowledged the message of harmony by accommodation to
God.
3.7 PRIMARY SOURCES OF MUSLIM LAW
·
Sunna or Ahadis
·
Quran
·
Ijma
·
Qiyas
3.8 SUNNA or AHADIS
The exacting importance of the term 'Sunna' is 'the trodden way.' It
indicates some training and points of reference of the Prophet, whatever the
Prophet said or managed without reference to God, and is treated as his
conventions. It is the second wellspring of Muslim Law. Customs are orders of
Allah in the expressions of the prophet. Where the expressions of Allah
couldn't supply an expert for a given guideline of law, Prophet's words were
treated as a specialist since it is trusted that even his truisms got
motivation from Allah. As per Muslim Law, there are two sorts of disclosures
for example show (Zahir) and inward (Batin). Show or express disclosures were
the very expressions of Allah and went to the Prophet through the blessed
messenger Gabriel. Such disclosures turned out to be a piece of the Quran. Then
again, the inner disclosures were those which were the 'Prophet's words' and
did not come through Gabriel, yet Allah roused the thoughts in his platitudes.
Such inside disclosures framed piece of Sunna. Conventions, in this way, vary
from Quran as in Quran comprises of the very expressions of God while a Sunna
is in the language of Prophet.
3.8 QURAN
It is the first or essential wellspring of Muslim Law. It is the name of
the heavenly book of the Muslims containing the immediate divine revelations
through Prophet. The immediate express or show disclosures comprise of the
interchanges which were made by the heavenly attendant, Gabriel, under bearings
from God, to Mohammed, either in the very expressions of God or by insights and
of such information which the Prophet has procured through the motivation
(Ilham) of God. Every one of the standards, laws, lessons and the acts of Islam
are drawn from Quran. The substance of Quran were not composed amid the
lifetime of the Prophet, yet these were introduced amid the lifetime of
Prophet, in the recollections of the mates. There is no systematic arrangement
of the sections in the Quran however they are dissipated all through the
content. It contains the crucial standards which control the human life. The
real part of the Quran manages philosophical and moral reflections. The Quran
comprises of correspondences of God; it is accepted to be of heavenly starting
point having no natural source. It is the first and the first authoritative
code of Islam. It is the last and supreme authority.
3.9 IJMA
With the passing of the prophet, the first law-production process
finished, so the inquiries, which couldn't be illuminated either by the
standards of the Quran or the Sunna, were chosen by the Jurists with the
presentation of the foundation of Ijma. Ijma implies understanding of the
Muslim Jurists of a specific age on a specific inquiry of law, at the end of
the day, it is the accord of Jurist's conclusion. Those people who knew about
law were called Mujtahids (Jurists). Whenever Quran and customs couldn't supply
any standard of law for a new issue, the legal scholars collectively gave their
regular supposition or a consistent choice and it was named as Ijma. Not every
single Muslim was able to take an interest in the development of Ijma, yet no
one but Mujtahids could participate in it.
There are three kinds of
Ijma:
·
Ijma of Companions: The
concurrent opinion of the companions of Prophet was considered most authoritative
and could not be overruled or modified.
·
Ijma of the Jurists: This
was the unanimous decision of the jurists (other than companion).
·
Ijma of the people or masses: It
is the opinion of the majority of the Muslims which was accepted as law. But
this kind of Ijma has little value.[1]
Once
a valid Ijma is established, it is respected equivalent to Quranic stanza for
example it is similarly official on individuals. Without Ijma, these guidelines
of Islamic law would have been diffused and fragmented. Its standards spread
the tremendous subject. Ijma confirmed the correct understanding of the Quran
and the Sunna.
3.10 QIYAS
(Analogical deductions)
The
word Qiyas was gotten from term 'Hiaqish' which signifies 'beat together.' In
Arabic Qiyas signifies 'estimation, accord, and balance.' as such, it implies
estimating or contrasting a thing with a specific standard, or to 'set up a
similarity.' If the issues which have not been secured by Quran, Sunna or Ijma,
the law might be deducted from what has been now set somewhere near these three
specialists by the procedure of relationship (Qiyas). The Qiyas is a procedure
of derivation, which helps in finding law and not to build up another law. Its
primary capacity is to broaden the law of the content, to cases which don't
fall inside the domain of the content.
3.11 SECONDARY SOURCES OF MUSLIM LAW
These
are those sources developments on the foundation laid down which are laid down by the primary sources.
·
Customs
·
Judicial
Decisions (Precedent)
·
Legislaton
3.12 CUSTOM (Urf)
A
custom is tradition passing on from one generation to another , that originally
governed human conduct and has obtained the force of law in a particular
locality. It is a natural source of law. The muslim jurist do no expressly
describe it as a source of law but those customs and usage which were not
modified or abrogated by the prophet, remained good and valid. Those customs
usage of the Arabs which were not abolished by the Prophet are held to have
been sanctioned by the jurists by their silence. During the British regime,
courts in India recognised the legal force of custom on some occasions in spite
of the fact that they were opposed to clear texts of a primary source of Muslim
Law. This caused great resentment among the orthodox Muslim and they demanded that there should not be
any place for custom in the Muslim Personal law
(Shariat) as it was un-islamic. According, the shariat Act 1937 was
enacted. Now because of this act, custom is no more any independent source of
Muslim law.
3.13 JUDICIAL DECISION (Precedent)
A
precedent is not merely an evidence of law but a source of it and the courts of
law are bound to follow the precedents. Strictly speaking, judicial decision
only declare the law as it is and are not source of it but they undoubtedly
supplement and modify the law. Muslim Law is no exception to this rule. In the
absence of any clear text of Muslim Law. The court may interpret a rule of law
according to their own concept of justice. Interpretation of Muslim law by the
judges of the Indian High Courts and the supreme court continue in modern times
to supplements and modify the Islamic law. As such they are continuing sources
of Muslim law and are regarded as precedent for future cases. In Katheessa Umma vs. Narayanath Kunhamu AIR
1964 SC 27, the Supreme Court has held that a gift by a husband to by a
husband to his minor wife above the age of fifteen incompetent guardian under
Muslim law. Although such a gift in invalid under pure Muslim law after this
decision the law in India is that under the given circumstance as gift is valid[2].
3.14 LEGISLATION
It
is generally believed in Islam that allah alone is the Supreme Legislator and
no other agency or body on earth has authority to make laws. This belief is so
deep-rooted that even today any legislative modification may be treated as an
encroachment upon the traditional Islamic law. The result is that as
independent source of Muslim law, the legislative enactments are almost
insignificant. However some important enactments on Muslim Personal law are
given below.
i.
The
Mussalam Waqf Validating Act 1913: It re-established validity
of Waaf-al-aulad (family waqf). It has simply re-established the law relating to family-waqfs which was modified
by the judicial decision.
ii.
The
Child Marriage Restrain Act, 1929:
To some extent this act modified the Muslim law regarding the age of
marriage. The act, (as amended by the act of 1978) provides that the marriage
of a boy under the age 21and of a girl under 18 years is a child marriage and
is punishable. Under muslim personal law the age for the marriage is fifteen
years.
iii.
The
Muslim Personal Law (Shariat) Application Act,1937: This
enactment confirms the general principle of Muslim of Jurisprudence customs
have no place in Muslim Law. Thus enactment has simply established the rule of
pure Muslim Law custom is not to be taken as an independent source of Muslim
law.
iv.
Dissolution
of Muslim Act, 1939: This is an enactment which may be said to
have modified the pure Muslim Law. Under this act, a Muslim wife is given a
right of judicial divorce on any of the grounds mentioned in it. Under pure
Muslim law wife had no independent right to seek divorce.
3.15 JUSTICE, EQUITY AND GOOD CONSCIENCE
Under
Muslim law principles of justice, equity and good conscience can also be
regarded as one of the source. Sometimes analogical deduction failed to satisfy
the jurists owning to narrowness and inadaptability of the habits or due to
hardship to public. In such a case, according to the Hanafis, a jurist could
use good conscience. The importance of justice, equity and good conscience as a source of Muslim law
can be well assessed by the following by
the following observation of Ameer Ali; he says that “When the great expounders
of Muslaman law have enunciated divergent doctrines or expressed different
opinions, the judge administering of the times.
SCHOOLS
OF MUSLIM LAW
3.16 ORIGIN OF SUNNI AND SHIA SECTS
The
division between the Sunnis and the Shias originated in the dispute concerning
the question of Imamat the spiritual leadership of Islam which came up for
decision and settlement immediately on the death of Prophet. On party advocated the principal of succession,
while another pressed for the election of the successor. A great majority of
Muslims, represented by Ayesha begum the youngest wife of the Prophet, pleaded
that there should be an election for the successor of the prophet because of
the prophet himself had suggested. The election was held in which Abu Bakr, who
was father of Ayesha Begum, was elected and became the first caliph. This group
of Muslims formed the Sunni sect of Islam. The Sunnis base their doctrine on
the entirety of the traditions and regard the decisions of the caliph or khalif
and of the general body of the jurist as supplementing the koranic ruled and as
equal in authority to them.
There
were minority section of Muslim who did not agree to the principle of election.
This group emphasised upon the spiritual headship of the prophet rather than
his administrative control. This group was represented by Fatima, daughter of
prophet. Their contention was that the prophet himself was. They argued that
his quality comes through the blood or belongs to his family. They advocated
that the office should go by right of appointment and succession and thus the
Imamat (headship) should be confined to the prophet own family as his nominees.
Consequently Ali, who was son-in-law of Prophet and was also his cousin was
nominated as the first imam by this group of Muslims. They dissociated
themselves from the majority and constituted a separate sec called Shia. Thus
the split which divides the Muslims as to how to find out the successor of Prophet . The Shia repudiated the authority
of the janmat while Sunnis upheld the principle of election by janmat(or the
Universality of the people) and ultimately chose out their khalifa by means of
votes. Therefore, division of islam originated with political question only but
subsequently it resulted in the separation on legal principles as well. These
two sects formed major schools of Muslim Law. The majority of Muslims are
Sunnis and hence it is presumed that the parties to a suit are Sunni unless
proved otherwise.
3.17 THE SUNNI SCHOOLS
The
full name of the Sunni branch is Ahl al-Sunna wa al-Jama'ah. Abu Bakr, the
Prophet's dear companion and father-in-law, was the principal Caliph. Sunnis at
first trusted that the situation of Caliph ought to be equitably picked, yet
after the initial four Rightly Guided Calliphs, the position transformed into
an innate dynastic rule. After the fall of the Ottoman Empire in 1923, there
has never been another Caliph. As indicated by sources, present assessments
show that around 85% of the world's Muslims are Sunni and roughly 15% are Shia.
There were different translations by the law specialists and along these lines
numerous schools came up. Sunnis perceive four madhhabs (lawful customs):
Maliki, Shafei, Hanafi, and Hanbali starting at now. These schools are
comparative and contrast for the most part on the subtleties. Despite the fact
that various different legal advisers likewise ended up prominent amid their
occasions, as it were the over four are currently perceived by far most of
Sunni Muslims. These four incredible law specialists and scholars endeavored to
systemise the Islamic law into a exhaustive sound framework which secured all
conceivable legitimate circumstances. The four noticeable schools of Islamic
law are named after their organizers and are called the Hanafiyya, the
Malikiyya, the Shafiyya,and the Hanbaliyya schools of religious law. Most
Muslims see these four schools as similarly legitimate elucidations of the
religious law of Islam. These schools are in great concession to every single
basic angle of the religion of Islam. They all recognize the expert of the Holy
Qur'an what's more, the Traditions as a definitive wellspring of the Islamic
law. Just in territories and circumstances where these two sources are quiet,
do the four schools utilize their autonomous thinking in which they may vary
with each other.
3.18 THE HANAFI SCHOOL(Great Imam Abu
Hanifa)
This
is the most famous school of sunni law. This school of the sunni is named after
its founder Abu Hanifa who was an eminent scholar of his time and was widely known
for his outstanding logical reasoning and technical legal thought. His main
contribution was that instead of accepting each and every tradition as law in
the texts of Quran itself through analogical deduction. In this manner he
preferred scientifically concluded private judgement based quran over a blind
reliance on the tradition. According to him the law must be formulated in
accordance with the changing needs of society. In the absence of law in Quran
it may also be obtained by the unanimous decision of the jurists. He further suggested if justice could not be
done under the law then the principal of justice equity(istihsan) may be
applied in interpreting and the founder of Muslim jurisprudence. Hanafi School recognises
only those tradition which have passed through the serve test regarding their
originality. Those traditions which are not authentic, are not to be accepted
as law. Abu Hanifa is said to have relied upon eighteen traditions only. On the
other hand Qiyas and Ijma as sources of law, have been given prominence under
this school. Several important principles of Hanafi law were obtained through
Qiyas. As regard Ijma, this school does not confine to the ijma of the
companions . According to Hanafi school Ijma may be formed by the jurists of any
age and may be used as a source of a law. It was for the first time under this
school that the doctrine of istihsan
(juristic equity) was in interpreting the texts of quran and traditions.
Similarly, customs usage, provided they were not against the texts of quran,
were recognised as proof of the practices of society.
3.19 THE MALIKI SCHOOL (Jurist Imam
Malik)
This
school was established by Malik-ibn-anas of Medina. He was a great scholar and
is regarded to be an authority on traditions. Unlike Hanafis this school emphasises the importance of
traditions as a source of law. It recognises the traditions of the companions,
and of successor of the companions. According to maliki school, as far as
possible, the new rules should be obtained exclusively from the traditions. If
it is not possible than only Qiyas and Ijma may be taken into consideration.
But this school recognises Ijma of only such jurists who lived in Medina. The
scope of Ijma as a source of law is therefore limited under this school malik and
subsequent jurists of this school had the privilege of being judges and as such
they had to solve problems of the public. This made their approach to law more
practical than of hanafi. Because of this fact, in interpreting a rule of law a
new element called Istidial(inferring a thing from another thing for public
welfare) was introduced by maliki jurists. Another point which is peculiar to
maliki doctrine is that it recognises the importance of customs (of medina)
more than any other school. In addition to qran traditions, ijma and qyias. The
maliki school accepts also the customs and jstdial as additional sources of
law. A noticeable feature of this school is that it is the only school in which
a married women and her properties are always supposed to be under the control
of her husband. The powers of the head of the family over his wife’s property
and over his children are the main
features of this school. A Maliki woman cannot deal with her own
properties without the consent of her husband.
3.20 THE SHAFEI SCHOOL (Scholar Ash
Shafei)
Shafei
was established by Imam Muhammad ibn Idris 'Fiery remains Shafei', an
understudy of Malikibn-Anas and was identified with the Prophet. It is most
pervasive in Egypt, Somalia and Singapore and is the school of thought
authoritatively pursued by the legislature of Brunei Darussalam and Malaysia.
It is trailed by around 15% of Muslims around the world. The Shafei School of
thought stipulates expert to four wellsprings of statute: the Quran, the Sunna
of the Prophet, Ijmah and Qiyas just as the suppositions of the Prophet's
partners. The school extended the extent of Qiyas. The school stresses on the
best possible istinbaat (deduction of laws) through the thorough use of lawful
standards instead of hypothesis or guess. Cinder Shafei contended that Sunna
negating the Quran were unsatisfactory, asserting that Sunna should just be
utilized to clarify the Quran. He asserted that if training is broadly
acknowledged all through the Muslim people group, it can't be in the inconsistency
of Sunna. In any case, a lady can't be a free specialist in her marriage
regardless of whether she is a grown-up. Fiery remains Shafei consolidated the
standards of law or Usul in his book Kitab-ul-umm. He is otherwise called the
originator of 'usul'. His "Risala" contains standards of statute or
lawful hypothesis.
3.21 THE HANABLI SCHOOL(Traditionalist
Imam Hanbal)
The
fourth and the latest school of the sunni sect was established by Imam ibn
Hanbal. His peculiar feature was that he rigidly adhered to the tradition of
the Prophet. His teaching was characterised by blind reliance on Tradition. He
laid much stress on traditions and allowed a very narrow margin to the
doctrine of analogy. It is therefore
said that Hanbal was traditionist rather than a jurist. He relied so much upon
the traditions that other sources of law namely Ijma and Qiyas were neglected
by him. He recognised Ijma only of the companions of the Prophet. Under the
school therefore, there is no scope for private judgement and human reasoning.
The result is that the doctrines of this school are rigid and uncompromising.
Because of this, ibn Hanbal and his followers were always regarded as
reactionaries and were harassed by authorities from time to time.
3.22 THE SHIA SCHOOLS
Ali
was acknowledge to be first Imam by the Shia community. He was accepted as
temporal as well as the spiritual head of community. After the death of Ali,
his two Hasan and Hussain became the second and the third Imam respectively.
After Hussain’s death, his son Zain-ul-abdeen succeeded as the as the fourth
Imam. Upto this stage the Shia community remained united but afterwards there
were divisions and sub divisions of the sect. Zain-ul-abdeen had two sons, zyad
and Muhammad Baqir. First Split took place after death Zain-ul-abdeen when some
of the Shias acknowledge Zyad as their Imam but the majority followed Muhammad
Baqir. The followers of Zyad formed a separate
sect called Zyadis whereas
Muhammad Baqir was accepted as the fifth Imam majority. This was the first
division of the Shia sect. After Mohammad Baqir’s death his son jafar Sadiq was
accepted as the fifth Imam by the majority. This was the first division of shia
sect. After Mohammad Baqir’s death of
his son Jafar Sadiq became sixth Imam of this majority group. Upon the death of
sadiq there took place the second split in the Shia community. He had two sons
Ismail and Musa Kazim. Here again, one group recognised Ismail(the elder son)
as the seventh Imam but to the majority of them the younger son Musa Kazim was
the seventh. Followers of Ismail were called Ismails and constituted the second
school of Shia sect. In the other section of Shia community headed by Musa
Kazim there had been other Imams through secession. The twelfth Imam in this
line of succession was Askri’s son who is said to have disappeared from the
world and is awaited in the near future. The twelfth imam called Muhammad
Asharia. In this manner we seen that mainly it was the dispute over leadership
of the Shia community in various stages of its development which caused the
formation of the three schools.
3.23 ITHANA ASHARIA SCHOOL
This
school is also called as Imamia School. Majority of Shias are ithna asharia.
The followers of this school believed that starting from
Ali there had been twelve Imams who possessed spiritual powers. Everything that
comes from imam is taken to be law. It is believed that the twelfth imam who
disappeared when he was still a child, would reappear in future. A characterise
feature of ithna ashria school is that this is the only school in the Muslim world
which recognise Muta or temporary marriage. This school is further
divide into sub sects 1)Akhbari and 2)Usuli.
Akhbari are very orthodox because they follow rigidly the traditions of
Imam. Usuli on the other hand interpret the texts of Quran with reference to
the practical problems of day to day life. The ithna Ashirias are found in
Iran, Iraq, lebnon, Pakistan , India.Shari-ul-Islam.ia an authoritative book of
this school.
3.24 ISMAILIA SCHOOL
For
some reasons Jafar Sadiq disinherited, his eldest Ismail. The majority of
Shias, therefore did not accept him as their Imam. But there were some Shias,
although in majority, who acknowledge Ismail as the seventh Imam. The followers
of Ismail called Ismailias or the Seveners because according to them there had
been only seven Imams the Seventh being Ismail. They believe that from him
(Ismail) descended a series of concealed Imams whose secret emissaries constantly
on the watch for a chance of striking at some weak point in the large
ill-cemented empire of orthodox Islam. The Ismailias therefor, hold that imams
subsequent to Ismail are still alive but they have concealed their existence.
In India, they consist of two main groups Khojas and Bohras. Khojas were
originally Hindus, Bohras are also Ismailias and they separated from the other
groups during the Fatimid regime.
3.25 ZYADIS SCHOOL
The
founder of this school was Zyad, one of the sons of the fourth Imam. The Zyadis
were first to defect from the general body Shia Muslims. One of the peculiar
features of this school is that its doctrines incorporates some of the Sunni principle as well.
3.26 SHIA VS SUNNI
A
notable segment of the non-Muslim world may see Shias and Sunnis as pretty much
the equivalent. In any case, these are two unmistakable organizations of
Muslims and ought not be mistaken for one another. Every has a one of a kind
arrangement of traditions, conventions and even functions. The manner in which
that a Shia and Sunni marriage is solemnized contrasts incredibly. There are
not many between group relational unions because of the clear contrasts. Shia
and Sunni relational unions comprise of altogether different wedding
capacities. In a Sunni wedding capacity, it is imperative to have two grown-up
consenting guys present for the whole length of the function as observers. Such
observers are not required according to the tenets of Sunni separate. It tends
to be done within the sight of just the spouse and the wife. The instance of a
Shia wedding is totally unique as for this situation where the observers are
commanded to be available on account of a separation and not when the wedding
happens. Another prominent distinction between a Shia and Sunni wedding is that
in a Shia nikah function, a sum of six sections must be conveyed openly. This
factor is absent in a Sunni wedding service. A Sunni nikah function in this way
has a shorter period of time. On account of a Shia wedding, there is a one of a
kind shower related function that the lady of the hour and man of the hour
partake in. There is no such impulse in a Sunni wedding. This service generally
happens before the real wedding. A noteworthy purpose of distinction between
these two groups is that Shias have faith in a transitory course of action of
marriage. As indicated by such a game plan, it is legitimate for the lady of
the hour and lucky man to go into a marriage for a pre-concurred time span.
After this time has passed, the marriage consequently reaches an end except if
the lady and man of the hour need to in any case stay in the marriage. This
arrangement is absent in a Sunni marriage. Sunnis have faith in going into a
lasting type of marriage as it were. A separation isn't required when Shias go into
a momentary marriage understanding. The date when the settlement will arrive at
an end is obviously referenced on the papers relating to the marriage that is
occurring[3].
3.27 THE
MUSLIM PERSONAL LAW (SHARIAT) APPLICATION ACT, 1937
It
has been the cherished desire of the Muslim of British India that customary Law
should in no case take the place of Muslim Personal Law. The matter was
agitated in the press as well as on the platform. The status of Muslim women
under the so called Customary Law as it disgraceful. All the Muslim women
Organisation condemned the customary law as it adversely affected their rights.
They demanded that the Muslim Personal law (shariat) Bill no.39 of 1935 was
introduced in the legislative assembly on 26th September, 1935. The
bill was referred to select committee. Incorporating the recommendation of the
select committee the bill was re-introduced in the legislative assembly. For
several years past It has been cherished desire of the Muslim of British India that customary law should in
no case take the place of Muslim Personal law. The matter has been repeatedly
agitated in the press in the press as well as on the platform. The
jamiat-ul-Ulema-i-Hind, the greatest Moslem religious body has supported the demand
and invited the attention of all concerned too the urgent necessity of
introducing a measure to this effect. Customary Law is a misnomer in as much as
it has not any sound basis to stand upon and is very much liable to frequent
changes and cannot be expected to attain at any time in the future that certainty and definiteness which must
be the characteristic of all laws. The status of Muslim women under so-called
Customary law is simple disgraceful. The Muslim Personal law automatically
raise them to the position to which they are naturally entitled. In addition to
present measure, if enacted would have very salutary effect on society because
it would ensure certainty and definiteness
in the mutual rights and obligation of the public. Muslim Personal laws
(Shariat) exists in the form of a veritable code and is to well known to admit
of any doubt or to entail any great labour in the shape of research, which is
the chief feature of Customary law. [4]
3.28 CONCEPT OF MARRIAGE UNDER MUSLIM
LAW
Marriage,
that is, Nikah in pre-Islamic Arabia, implied diverse types of sex connection
between a man and a lady set up on specific terms, In pre-Islamic days, ladies
were treated as belongings, and were not given any privilege of legacy and were
totally needy. It was Prophet Mohammad who realized a total change in the
situation of ladies. The improvement was immense and striking and their
position is presently special as respects their lawful status. Prophet Mohammad
set ladies on a balance of practically ideal balance of men in the activity of
every lawful power and capacities, which remain in hold help when contrasted
and the condition of law among the old Arabs of the pre-Islamic days. Under the
Muslim Law marriage is considered as common contract. After marriage, a lady
does not lose her singularity. She remains a particular individual from the
network; her reality of identity isn't converged into that of her significant
other. The agreement of marriage gives no capacity to anybody over her
individual or property in any capacity she satisfies with no unessential
control of her better half. She can go into restricting contracts with her
better half and continue against him in law courts, if essential. The lady
appreciates this situation through the directive of the Quran.
According to Ronal Wilson, “Muslim
marriage is an agreement to legalize sexual; intercourse and the reproduction
of kids. As indicated by fyzee the primary point of the Muslim marriage is to
shield the general public from indecency and un-modesty[5].
In the words of M.A. Quareshi the
primary object of marriage is the advancement of everyday family life and the
authorization of youngsters" Thus fulfilment of sex want, shared love,
multiplication and legitimization of kids are the principle points of the Muslim
marriage. Since Muslim marriage is a common contract, it must satisfy certain
basic conditions so as to be legitimate.[6]
Justice Sulaiman has said ” n Islam, marriage isn't just a common
contract yet in addition a ceremony " Abdul Rahim's definition is the most
adjusted one. By utilizing two keen words "Ibadat" and
"Muamlat" he has outlined the entire the idea of Muslim marriage in
one sentence.[7]
At
the end of 6th Century the Arabian society was full of vices like ignorance,
superstitions and barbarism. The ancient paganism or heathenism was not a fixed
system. At that time the “Prophet
Mohammed was born on 29th August, 570 A.D at Mecca[8].
He received his first revelation from God at the age of forty and he had laid
down the foundation of a new faith and the messages delivered by the Prophet
have been contained in the Holy Book of Allah, called “the Koran”. The religion propounded by the Prophet
“Islam” and the persons who follow Islam are “Muslims”[9].
Pre-Islamic Arabia, customs regulated the sexual- relations and there
flourished four types of sexual connexions, out of which one was prevailing in
the regular form known as Marriage. At that time, the position of women was
weak, which was later on improved by the Prophet Mohammad. Group Marriage,
Marriages by barter, flag marriages or prostitution and the sending of a wife
to a famous man for intercourse, all these types of loose sexual unions were
forbidden by the Prophet. He also forbade the temporary or Muta Marriages. In
Paganism, the idea of sale of the woman was connected with the marriage and
Islam also adopted this concept and reformed it by making the woman the
principal contracting party as well as the object of the contract, hence the
present form of Mohammedan Marriage came into force. Nika is an Arabic term
used for marriage. It means “contract”. The Quran specifically refers to
marriage as “Mithaqun Ghalithun”, which means a strong agreement. The original
means of the word Nikah is the physical relationship between man and woman. It
is also used secondarily to refer to the contract of marriage which makes that
relationship lawful. “A contract that result in the man and woman living with
each other and supporting each other within the limits of what has been laid
down for them in terms of rights and obligations”. It is a mutual contract
between a man and a woman whose goal is for each to enjoy the other, become a
pious family and a sound society.
“Nikah” amongst Muslims has been
considered for the most part pious act. In „Radd-ul-Mukhtar? it has been
mentioned as “there is no act of devotion that has remained prescribed for us,
since the time of Adam, upon him be peace, up to his moment, and which is to be
continued in paradise except Nikah (marriage) and Imaan (faith)[10]”.
The
meaning of marriage is wedlock or the mutual relation of husband and wife or
the institution whereby a man and a woman are joined in a special kind of
social and legal relationship for the purpose of making a family. In Muslim
Law, Nikah is a contract for the legalization of intercourse and the
procreation of children. Hence Nikah means union of sexes. There is also some
object behind this union, which confers the status of husband and wife on a man
and woman to marriage and the status of legitimacy on the children born out of
such union. Marriage is recognized as the basis of society. Marriage as an
institution leads to the uplift of man and is a means for the continuance of
the human race. Spouses are strictly enjoined to honour and love each other.
The Prophet was determined to raise the status of woman. He asked the people to
see their brides before marrying them; and thought that nobility of character
is the best reason for marrying a woman. It is a contract for the legalization
of intercourse and procreation of children.
3.29 THE OBJECTIVES OF MARRIAGE ARE:
i).
to provide legal validity to the sexual relationship of husband and wife.
ii).
to legalize the children. There is no valid contract of marriage, the
intercourse between a man and woman is unlawful. Marriage legalizes the
children born out of that marriage. Children born out of any union other than a
valid marriage are illegitimate.
Legally
speaking, Muslim marriage is a civil contract. Therefore, its legal nature is
contractual. Besides being a civil contract, Muslim marriage is also a social
and religious institution.
3.30
LEGAL ASPECT
Legally,
a Muslim marriage is considered as a contract; because the elements which
constitution a marriage and the manner in which it is completed, is almost
similar to that of a civil contract. The contractual nature of a Muslim
marriage is explained to the basis of the following elements.
i).
The parties to the marriage also must be competent.
ii)
The marriage is not complete without offer, acceptance and free consent of the
parties or guardians.
iii)
The terms of marriage contract within legal limits may be settled by the
parties themselves.
iv)
Just as there are rules for regulating the rights and duties of the parties
upon the breach of a contract, there are also provisions for respective rights
and duties of husband and wife on divorce or dissolution of marriage. The
nature of Muslim marriage is similar to that of a civil contract but it is not
so in its essence. It is evidence from the following arguments, its social
aspect is also very important.
Abdul Kadir vs. Salima In this
case, Justice Mahmood held that marriage among Muhammedans is not a sacrament,
but purely a civil contract; and though it is solemnized generally with a
recitation of certain verses from the Quran, yet the Muhammedan law does not
positively prescribe any service particular to the occasion. That it is a civil
contract is manifest from the various ways and circumstances in and under which
marriages are contracted or presumed to have been contracted. And though a
civil contract, it is not positively prescribed to be reduced to writing, but
the validity and operation of the whole are made to depend upon the declaration
or proposal of the one, and the
acceptance of consent of the other contracting parties, or of their natural and
legal guardian before competent and sufficient witnesses; as also upon the
restrictions imposed, and certain of the conditions to the peculiarity of the
case[11].
3.31 SOCIAL ASPECT
The
social aspect of Nikah should also be studied to understand its real nature.
Nikah is a social institution by which, a definite and dignified status has
been conferred upon the women. The Prophet brought about a reform in the
society. No social reform was possible without giving equal status to the
women. Therefore, a definite institution or an established law was required to
give equality and freedom to the women. In that object in mind, the Prohpet
introduced Nikah through which, the women could be placed on equal footing with
men. It is therefore, submitted that Nikah is a well-established social
institution which gives to the women, a separate and dignified status in the
society. The social institution may be explained on the basis of the following
arguments.
1)
There is limited polygamy under Muslim Law and a person is not allowed to marry
more than four wives at a time. In civil contracts, one may enter into many
contracts at a time as he likes.
2)
In every Muslim marriage, dower must be given or promised to be given by the
husband to the wife as a mark of respect towards her.
In
civil contracts, the general rule is that, there is no liability to pay
consideration if it has not been specified or referred in the contract. But in
a Muslim marriage, even if the amount of dower has not been specified, the
husband should pay proper dower to his wife as mark of respect towards her.
3)
There is prohibition in the marriage between certain close relatives. A brother
cannot marry his sister. But he can legally enter into a valid contract with
his sister.
4)
There are certain circumstances in which the Muslim disapproves the contract of
marriage. For example, a Shaia Muslim is not allowed to marry during a
religious journey (Haj). Similarly there are other circumstances which are
called the relative prohibitions in marriage. There are no such prohibitions in
the civil contracts. But a marriage during Haj is void under Shia law.
Therefore, it is clear that marriage among Muslims is not an ordinary contract.
It is a powerful social institution for the uplift of women and promotes the
development of a healthy society free from evils.
3.32 RELIGIOUS ASPECT
Apart
from the Legal and Social aspects, Quran, which is a collection of the words of
God, directs every Muslims to marry a suitable woman of his choice. It is
therefore, a religious duty of every Muslim to contract a marriage according to
the rules of Islam. A person who remains bachelor without any reasonable excuse
disobeys the words of God. Moreover, marriage is also the tradition (Sunnat) of
the Prophet. It is believed that marriage is a Sunnat Muwakkidah. This means
that it is an act of such a nature that, if a person does it, he gets religious
benefits. If he abstains from doing it, then he commits sin. Abdul Rahim
observes that “the Mohammedan jurists therefore, regard the institution of
marriage as partaking both of the nature of Ibadat? or devotional act and
Muammalat or dealings among men”.
In
Islam, marriage is recognized as the basis of society. It is a contract but it
is 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 the society from filth and un-chastity.
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
contamination.
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”. Therefore, according to Muslim Law,
marriage is a contract for the purpose of legalizing sexual intercourse and the
procreation and legitimating children and the regulation of social life in the
interest of society by creating the rights and duties between the parties themselves
and children born from the union.
3.33 FORMS OF MARRIAGE UNDER MUSLIM LAW
As
we have seen in earlier chapter of Hindu Personal Law, that as per the Hindu
personal Law the Muslim personal law also have some approved form of marriages
as well as unapproved marriages. As we known that the Muslim law have the Shia
and Sunni Sect under which the Marriages have been divided between them. A
Muslim Marriage according to muslim law may be ‘VALID (Sahih), VOID (Batil),
IRREGULAR (Fasid). But under the shia law, Marriage may be either Valid or
Void.
3.33.1 VALID (Sahih)Marriage
A
marriage which is neither void nor irregular is valid. A marriage which
conforms in all respects with the legal requirements is a valid marriage. A
marriage to be valid must satisfy the following requirements.
·
There must be a proposal by any of the party
and its acceptance by the other party.
·
The parties must have capacity to contract
marriage i.e they should be
a.
Of sound mind.
b.
Major
c.
Capable to give consent
·
The consent of parties is free.
·
Proposal and acceptance must have taken place
at one meeting and before two witness. But under Shia law witness is not a
necessary requirement.
3.33.2 VOID (Batil)Marriage
A void marriage is an unlawful connection which creates no mutual rights
and obligation between the parties. It is semblance of marriage without the
reality of no legal results. A marriage contracted by parties suffering from
absolute incapacity, i.e prohibition on the grounds of of consanguinity,
affinity or fosterage, is void. Similarly marriage with a woman who is wife of
another, or remarriage with divorced wife, without observing the strict rules
set for this occasion is void.
But under Shia law marriages
which violates absolute incapacity are void, marriage with the wife of another
person, whose marriage is still subsisting, remarriage with one’s own wife,
when there is legal bar, marriage with fifth wife, Marriage with a woman
undergoing iddat.
3.33.3 IDDAT
Iddat is an Arabic word and its literal meaning is “counting”. Counting
here means of counting the days of possible conception to ascertain whether a
woman is pregnant or not. Under muslim law, it is period during which a woman
is prohibited form remarrying after her dissolution of her marriage. During
this period the widow or a divorced wife is required to live a pure and simple
life. The object of iddat period is to ascertain the paternity of a possible
conception by her former husband. After divorced or death of the husband, if
the woman re-marries immediately and child is born within normal course, then
there is every likelihood that he conception ‘could be by the former husband
and not by the present. It would be difficult, therefore, the establish as to
who may be regarded as father of such child. To overcome this difficulty,
Muslim law provides that where a marriage
is dissolved (by divorce or death of the husband )the woman cannot
re-marry before the expiry of a specified period called Iddat. After this
period the possible conception by the former husband would naturally become
apparent and visible. Under both the sect marriage will be said as void and
irregular.
3.33.4 IRREGULAR or INVALID( Fasid) Marriage
Irregular marriages are recognised
only under 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 violation of any of the
relative prohibition are merely temporary which may be removed afterwards.
Following marriages as regarded as irregular marriages.
·
Marriage against rule of unlawful
conjunction.
·
Marriage with fifth wife.
·
Marriage without incompetent witness.
·
Marriage with two sister with the same time.
3.33.5 MUTA MARRIAGES
The
word “Muta” literally ‘enjoyment’ and in its legal context it may be rendered,
according to Heffening as Marriage for pleasure. Muta may be defined as a
temporary union of male and female for specified duration, on payment of some
consideration. It is temporary marriage for a fixed period for a certain reward
paid to the woman. The specified period may be a day, a month, a year, or a
year or a term of years. Muta marriage also known as Nikah al-Mutah .[12]
The act of Muta marriage is just perceived by the Ithna School of Shia Law
while Zaidi Shia, Ismaeli Shia and Sunni Muslims don't allow Nikah Mutah. Such
Marriage are void according to Sunni law. It is an private contract which might
be oral, verbal or written declaration. And it is intent to marry to the woman
as the requirement followed in Nikah Muslim marriage. In the earlier days of
islam, when the arabs has to live away from their homes for a considerably long
period either on account of wars or on trade- journeys thye used to satisfy
their sex desires through prostitutes . In order to avoid the development of
prostitution in the society and to confer legitimacy upon children of such
unions, temporary marriages was recognised and permitted by the prophet for
sometimes. The institution of Muta was fairly common in Arabia both before or
at the time of prophet. But later on, when he felt that this concession was
being exploited, he prohibited it absolutely.
Shoharat Singh vs Musammat
Jafri (1915)
17 BOMLR 13
Bibi
the issue under the steady gaze of the court was whether Muhammad Kazim ever
married to Achchhi Bibi, and assuming this is the case, when, and were there
any offspring of the marriage.[13]
In the case of Mahomed Abid
Ali Kumar Kadar vs Ludden (1887)
ILR 14 Cal 276 Sahiba, Minor, the court held that in spite of the
fact that at the season of contracting muta marriage, a dower is fixed; the
spouse may deduct a bit of the lady's dower if the marriage isn't fulfilled.
She is qualified for full dower just if the marriage is culminated, regardless
of whether they keep on co-habiting or not. In the event that the dwelling
together stops through any issue of the lady, at that point she is qualified
for just 50% of the dower yet the spouse, having paid the dower will undoubtedly
live together with the lady. The lady has no privilege to support after the
disintegration of a muta marriage. The court mentioned this objective fact in
the wake of thinking about over the announcement made by Sharaya-ul-Islam,
"if the spouse were to make the lady an endowment of the term before
coition, he would be obligated for a large portion of the dower, and if coition
ought to have occurred, she is entitled entire dower on state of her keeping
the term, and in the event that she has avoided him, he is qualified for deduct
a proportionate piece of the dower.[14]
"
3.34
NATURE OF MUSLIM MARRIAGE:
Some
jurists are opined that Muslim marriage is purely a civil contract while others
say that, it is a religious sacrament in nature. According to some text writers
and jurists opined that the Muslim marriage is treated as a mere civil contract
and not a sacrament. For instance:
i)
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 consent should not be obtained by means of fraud, coercion or undue
influence.
ii)
Just as in case of contract entered into by a guardian, on attaining majority
be set aside by a minor, so a marriage contract in Muslim Law, be set aside by
a minor on attaining the age of puberty.
iii)
The parties to a Muslim marriage may enter into any ante-nuptial or
post-nuptial agreements which are enforceable by law provided it is reasonable
and not opposed to the policy of Islam.
iv)
Like any other contract, there is also provision for the breach of marriage
contract.
Justice
Mahmood in a observed that “Marriage
among Mohammedans is not a sacrament, but purely a civil contract and though it
is solemnized generally with recitation of certain verses from the Quran, yet
the Mohammedan law does not possibly prescribe any service peculiar to the
occasion”. Nikah is considered obligatory to every Muslim, because of its being
continued to be performed by the Prophet Mohammad, and on account of his
rejecting from his followers, one who has no liking for it amongst Muslims,
there is a tradition “Nikah is my Sunnat and one who dislikes my Sunnat is not
mine”. According to the approved opinions, one commits sin by not marrying, and
does a meritorious act for which, he will be rewarded in after life, because by
marriage, he protects himself and the bride from committing adultery, and
procreation of children in modern condition.
According to Hedaya: “Marriage (Nikah)
implies a particular contract used for the purpose of legalizing children
(generations)”[15].
In
Muslims Nikah is a ceremony through which, a man is united with a woman with
the idea of enjoying life together and to produce children. Though a Muslim
marriage is performed through a ceremony in which Qazi reads the fatiha and
other Quranic verses, yet non-performance of the ceremony is no fatal to the
validity of the marriage.
According to Dr Jang “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”[16].
There
is a consensus of Muslim jurists that marriage under Muslim Law is Sunnat
Muwakkida i.e., “the person, who complies with it is rewarded in the next
world, and he who does not commits a sin”. Fitzgerald observes, “Although a
religious duty, marriage is emphatically not a sacrament, there are no
sacraments in Islam, nor it is covertures”. The social conditions of the
ancient Arab women in Pre-Islamic Arabia were no better than that of animals.
They had no legal rights. In youth, they were the goods and chattels of the
father. After marriage, the husband became their lord and master. Polygamy was
universal. Female slavery and concubine were common. The prohibited degrees of
relationship were very narrow and were confined only to close degrees existing
at the time when the Islamic laws came into vogue. Abdur Rahim citing the
“Kashfu-i-Ghumm”, tells us of four types of
Arabian
marriages.
i) Regular form of marriage:
A
Form of marriage is similar to that sanctioned by Islam. A man would be as the
father or guardian of the girl to give the hand of his daughter or ward and
then would marry her by giving her, dower.
ii) Sexual intercourse for procuring noble
child:
There
was a custom that when a man was willing to have a noble child, he would ask
his wife to send for a noble and famous man and have intercourse with him. The
husband would stay away from his wife until the conception by that noble man
and been taken place. He would only return to her when the pregnancy had been
confirmed.
iii) Invitation by a woman to have
sexual intercourse:
Less
than ten men would be called by a woman to have sexual relations with her. If
conception had taken place and a child was delivered, she had the right to
summon all the men and they were bound to come. She would then say, “O so and
so this is your son”. This established paternity conclusively and the man had
no right to disclaim it.
iv) Prostitution:
Prostitutes
were also common. They used to fix at the doors of their tents, a flag as a
sign of their calling. A huge number of men used to visit those prostitutes. If
a woman of this class conceived, those men who frequently used to visit her
would be assembled and the physiognomists would decide to whom the child
belonged. Hence promiscuity was the rule and the sexual unions were loose which
resulted into frequent divorces. Some of the conjugal relations described above
can be called marriages in the modern acceptation of the term. It is more
appropriate today to consider them as forms of legalized prostitution or of
tribal sexual behaviour recognized by custom.”
[3] Family law-1 Singhal Publication
[4]
MUSLIM MARRIAGE ACT 1939
[8] The principles of Mohammedan Law
by Dr Nishipurohit
[9] The principles of Mohammedan Law
by Dr Nishipurohit
[10] Radd-ul-Mukhtar, Vol.2 at page 280
(Hizri); cited in Dr Mohammad Nazmi –Mohammadan Law,
2nd
edn. 2008, p.32, Central Law Publications, Allahabad.
[11] International Journal Of
Socio-Legal Analysis And Rural Development
Volume
2 Issue Ii(madhumita acharjee & fakhrul Islam choudury
department
of law assam university silchar) Abdul
Kadir vs. Salima
[13] http://ijlljs.in/wp-content/uploads/2016/02/18.pdf Shoharat
Singh vs Musammat Jafri (1915) 17 BOMLR 13
[14] http://ijlljs.in/wp-content/uploads/2016/02/18.pdfMahomed Abid
Ali Kumar Kadar vs Ludden (1887) ILR 14 Cal 276
[15] Dr R.K. Sinha Muslim Law, 5th edn.
2003, P.40; Central Law Agency, Allahabad.
[16] Dr M.U.S. Jang –„Dissertation on
the Development of Muslim Law in British India, PP.1,2; cited
in
Aquil Ahmad – Mohammedan Law, 21st edn. 2004, P.108 Central Law Agency,
Allahabad.
Article Information
MARRIAGE UNDER PERSONAL LAWS; AS COMPARETIVE STUDY
Authors: RUHBAN RAFIQUE, DR. MEENU SHARMA
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/19
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
All research articles published in International Journal for Legal Research and Analysis are open access and available to read, download and share, subject to proper citation of the original work.
Disclaimer: The opinions expressed in this publication are those of the authors and do not necessarily reflect the views of International Journal for Legal Research and Analysis.