Muslim Marriages

and Divorce in India | BareLaw

Authored By – Kanika Arora

Muslim Marriages

and Divorce

Introduction

Muslim legal conceptions of marriage and divorce are derived from historical viewpoints as well as from ancient ideas. These personal laws have their roots in the Quran (the sacred book of Muslims), the Sunna (a precedent), the Ijma (consensus), and the Kiyas (analogical deductions). Of these four sources, the Quran is the main one. Muslims believe it to remain unchangeable because they regard it as essential and holy. Muslim law views marriage as a legal contract, but Hindu law views it as a sacrament. It is required for the formation of a family, which is regarded as the cornerstone of society.

Muslim law only recognizes marriage as the halal, or legitimate, path to an intimate partnership between a man and a woman, as well as the validity of offspring. It is a social requirement that establishes rights and obligations that

both spouses must uphold to manage a social life.

Muslim law on marriage

The two main Muslim sects are the Shia and the Sunni, and

There are four schools of thought recognized by Islamic law:

• Hanafi,
• Maliki,
• Shafi, and
• Hamabil.

In India, the Hanafi school is the most prominent of these four. In Muslim society, various weddings and divorces are acceptable because of these various sects and schools of thought. There are various kinds of marriages, including Muta marriages, Sahih (lawful) marriages, and Batil (void) marriages.

Islamic philosopher and political and social reformer Ameer Alicontends that marriage is essential to society’s defense. It is an organization that guards against immorality and filth in society.

Indian jurist Abdur Rahim claims that marriage is an institution that incorporates aspects of business among men (Mumlat) and spiritual arts (ibadat). Therefore, marriage is recognized by Muslim law as a solemn agreement that validates close relationships between men and women and grants legal status to offspring born into such unions.

Nature of Marriages

In Islamic law, marriage is considered a sacred and solemn contract between a man and a woman, intended to fulfill both religious and social obligations. The nature of marriage under Muslim law is governed primarily by the Quran, the Hadith (sayings and actions of Prophet Muhammad), and the consensus of Islamic scholars (ijma) derived from these sources.

Key aspects of marriage under Muslim law include:

• Contractual Nature: Marriage is viewed as a contractual relationship, where both parties freely consent to enter into the marriage contract. Consent is a fundamental requirement, and the marriage contract is typically established through an offer (ijab) from one party and acceptance (qabul) from the other.
• Purpose and Objectives: The primary objectives of marriage in Islam include companionship, mutual love and support, procreation, and the preservation of lineage. Marriage is also seen as a means of fulfilling one’s religious obligations and achieving spiritual growth.
• Rights and Responsibilities: Both spouses have rights and responsibilities towards each other as outlined in Islamic law. These include financial support (nafaqah) provided by the husband, maintenance of the marital home, fidelity, and mutual respect.
• Polygamy: Islamic law permits polygamy under certain conditions, although it is subject to strict regulations. A man may marry up to four wives, provided he can treat them all equally and fairly. However, many Muslim-majority countries have imposed restrictions or regulations on polygamy.
• Dissolution of Marriage: Marriage under Muslim law can be dissolved through various means, including divorce (talaq), annulment (faskh), or the death of one of the spouses. Divorce is recognized but discouraged, and specific procedures must be followed to ensure fairness and justice, particularly regarding the rights of the wife.
• Legal Framework: Different Muslim-majority countries may have their legal frameworks governing marriage, which may incorporate elements of Islamic law into their civil codes. However, in many cases, individuals may choose to formalize their marriage through both religious and civil ceremonies.

Overall, marriage under Muslim law is characterized by its emphasis on mutual consent, rights and responsibilities, and the fulfillment of both religious and social objectives. It is regarded as a sacred institution that forms the foundation of family life and community cohesion within Islamic societies.

Essentials of Muslim marriage

In Islamic law, the essentials of a valid Muslim marriage are outlined based on principles derived from the Quran, the Hadith, and the consensus of Islamic scholars. These essentials include:

• Offer and Acceptance (Ijaband Qabul): Like any contract in Islam, marriage requires a proposal (ijab) from one party and acceptance (qabul) from the other. Both parties must willingly agree to the marriage without any coercion or undue influence.
• Consent: Consent is an essential element of marriage in Islam. Both the bride and groom must freely consent to the marriage without any coercion or pressure from others. Without valid consent, the marriage is not considered valid.
• Witnesses: It is recommended in Islamic law to have witnesses present during the marriage contract. The presence of witnesses ensures the validity and authenticity of the marriage agreement. Traditionally, two male witnesses or one male and two female witnesses are required.
• Mahr (Dowry): Mahr refers to the bridal gift or dowry that the groom gives to the bride as part of the marriage contract. It is a symbol of the husband’s commitment to provide for his wife and is considered her exclusive property. The amount and nature of the mahr are agreed upon by the bride and groom before the marriage contract is finalized.
• Legal Capacity: Both parties must have the legal capacity to enter into a marriage contract. This includes being of sound mind and reaching the age of maturity (puberty). In some cases, parental consent may be required, especially for individuals who have not reached the age of majority.
• Guardian (Wali): In most interpretations of Islamic law, a woman’s marriage requires the presence and consent of her guardian (Wali), typically her father or male relative. The guardian’s role is to ensure that the marriage contract is entered into with the best interests of the woman in mind.
• Solemnization: The marriage contract must be solemnized by Islamic principles. This typically involves the recitation of specific formulae, such as the proposal and acceptance, in the presence of witnesses and an officiant, such as an Imam or religious authority.

These essentials constitute the core elements necessary for a valid Muslim marriage. Observing these principles ensures that the marriage is conducted by Islamic teachings and is recognized as valid within the Muslim community.

Types of Marriage in Muslim Law

• Nikah (Valid Marriage): Nikah is the most common and widely practiced form of marriage in Islam. It is a solemn contract between a man and a woman, established through mutual consent and by Islamic law. Nikah involves the essentials of marriage, such as offer and acceptance, consent of both parties, witnesses, a mahr (dowry), and solemnization. A valid nikah creates a lawful and recognized marital relationship between the husband and wife, with all associated rights and responsibilities.
• Muta’a (Temporary Marriage): Mutais a temporary form of marriage recognized in Shia Islam but rejected by Sunni Muslims. In a mutamarriage, the duration of the marriage and the amount of mahr are agreed upon by the parties in advance. Unlike nikah, which is intended to be a permanent and lifelong commitment, muta marriages have a specified duration after which they automatically terminate without the need for divorce. While temporary marriage has historical and doctrinal roots, its practice varies significantly across different Shia communities, and it is not universally accepted.
• Sahih (Valid) Marriage:A marriage between two people is referred to as Sahih (legitimate) when all legal requirements have been met. Both Sunni and Shia groups approve of this kind of union.
  
  
• Batil (void) Marriage:The term “Batil” (void) marriage is still used when there is a breach of absolute or relative obstacles during the marriage ceremony. Even when both parties have fulfilled the legal requirements for marriage, it is still referred to as marriage. This kind of marriage is null and void because neither party has the legal power to marry the other, nor is there any provision in Muslim law that could make the marriage lawful. Both Sunni and Shia sects accept this kind of marriage.
• Fasid (Irregular) Marriage:Fasid, or irregular, marriage is defined as one that is consummated outside of relative hindrance. Although it can be made valid by getting rid of the relative obstacle (irregularity), the marriage is neither void nor valid. Both the Shia and Sunni sects approve of this kind of union, except for the Shia sect’s Itna Asari school.

Divorce Under Muslim Law

A husband can file for divorce in one of four ways
Talaq-ul-Sunnat

This type of divorce is founded in the personal laws of Islam. It is separated even

further into the subsequent groups:

Ahsan

• When the wife is free of the menstrual cycle, Ahsan Husband must announce the divorce in a single statement.
• Following a divorce, women must observe Iddat for a set amount of time, during which the husband is prohibited from having any kind of sexual relations. Should he do so, the talaq becomes implicitly reversible; if not, it becomes irreversible.
• Even if the wife is menstruating, this kind of talaq can be delivered, but the marriage cannot be completed between the parties.
• It is the talaq that is most widely accepted.

Hasan

• It is Talaq Ahasan in a less favored form.
• A clause for revocation of divorce exists.
• It is necessary to pronounce the word “talaq” three times at once.
• If the wife has not yet reached menstrual age, three announcements should be made in the three states of purity.
• If the spouse is past the menstrual age, a declaration must be made at the 30-day mark between each subsequent declaration.
• There should be no sexual activity during the three proclamations; if it occurs, the divorce is withdrawn.
• This sort of divorce is finalized when the iddat period has passed.

Talaq-ul-Biddat

• It is this forbidden/immoral method of divorcing.
• Also referred to as triple talaq, it is irreversible as soon as it is said three times.
• Only Sunni law recognizes this type of divorce; Shia and Maliki law do not.
• Parties are only permitted to get married again once the female partner completes nikah halala, which requires her to wed another guy and then file for divorce from him.
• The Supreme Court’s ruling in Shayara Bano v. Union of India and Others declares that this kind of divorce is unlawful in India.

Ila

• Under some circumstances, the husband may declare that he will not have sex with his wife during the divorce process.
• After making this declaration, the wife must follow iddat.
• The Ila is canceled if the husband and wife live together during this time.
• After the iddat period ends, a divorce cannot be undone.
• In India, this kind of divorce is not common.

Zihar

• Like Ila, it is likewise a constructive divorce.
• In this type of divorce, the husband declares that his wife is similar to a woman who falls under a certain category of forbidden relationships, such as his mother, sister, etc.
• The husband must be above the age of eighteen and of sound mind in order to accomplish this.
• The woman cannot request a judicial divorce, but she is free to pursue other legal remedies including cohabitation and the restoration of marital privileges.
• A husband can undo this kind of divorce by fasting for two months, providing food for sixty people, and releasing a slave.
  Divorces of this kind are no longer common.

Divorce By Wife

Talaq-e-Tafweez’s 

• Another name for it is delegated divorce.
• The husband, who must be above the age of eighteen and in good mental health,may assign such authority to the wife.
• This kind of talaq, which can be made between the parties before or after marriage, is also known as an agreement.
• The woman may file for divorce if the provisions of the agreement are not met.
• It is the exclusive method available to women to get a divorce.
  The husband is still able to file for divorce from his wife; this does not take away from his authority to do so.

Separation with approval from both parties

Khula

• It refers to a “laying down” process in which the husband cedes control of his spouse.
• This is accomplished by the husband and wife agreeing to this in writing, with the wife giving her possessions as payment to the husband in exchange for her release.
• For her husband’s advantage, the wife gives up Mehr and other rights.
• So, a lady can buy a divorce from her spouse.
• The wife makes a proposal, which the husband accepts.
• Following Khula, women must observe iddat.

Mubarat

• Its meaning is “release,” as it absolves parties of their marital rights.
  To separate from one another, parties must mutually consent to a divorce.
• Similar to Khula, it involves an offer from one side and an acceptance from another.
• It is mandatory for women to observe Iddat.

Conclusion

Muslim marriage is based on a contractual agreement with defined rights and responsibilities for both spouses. Divorce is permitted but discouraged, with methods including khula (initiated by the wife), faskh (judicial divorce), or talaq (initiated by the husband). Islamic law provides guidelines, but the specifics of marriage and divorce procedures can vary based on cultural, regional, and legal interpretations.