NIKAH: A CONTRACTUAL MARRIAGE

INTRODUCTION

Marriage, whether considered as a contract or sacrament, confers the status of husband and wife on the parties to the marriage, of legitimacy on the children of the marriage, and gives rise to certain conjugal reciprocal rights and commitments of spouses.

It was Prophet Muhammad who brought about a complete change in the position of the women. He advocated for almost equal rights for women in the exercise of all legal powers and functions. In pre-Islamic Arabia, women were treated as a moveable position of men, and were not given any right of inheritance, and were dependent upon men. 'Marriage (Nikah) in pre-Islamic Arabia meant different forms of sex relationship between a man and women on certain terms.'

'Marriage though essentially a contract is also a devotional act which has for its object of legalizing sexual intercourse, the procreation, and legalizing of children.' All the rights and obligations it creates arise immediately and are not dependent on any condition precedent. Such as the remission for dower by a husband to a wife. After the wedding ceremony, a woman does not lose her peculiarity. 'She remains a distinct member of the community; the existence of personality is not merged into that of her husband.' The contract of marriage gives no power to anyone over her person or property beyond what law defines. She can enter a binding contract with her husband and proceed against him in the law courts, if necessary.

MARRIAGE

Among the Arabs, nikah (marriage) is a wide term comprising many different forms of sex relationships [1]; but in Muslim law, it has a very definite legal meaning. it is a contract for the legalization of intercourse and the procreation of children. Ameer Ali cites an engine text defining its object as:

"Marriage is an institution ordained for the protection of society, and so that human beings may guard themselves against foulness and unchastity."[2]

The objects, therefore, are the promotion of normal family life and the legalization of children. It is to be distinguished from the modern notion of marriage[3] by the toleration of a modified form of polygamy.

NATURE OF MUSLIM MARRIAGE

Nikah (Muslim marriage) is a civil agreement and not a sacrament. Marriage as a contract is sui generis. Wherever marriage is regarded as a contract, insert, and matters such as consent and form, it resembles an ordinary commercial contract, while in others it does not. it is because marriage is regarded not merely as a contract but also a social institution.

Thus, a nikah (Muslim contract marriage) IS quite contrasting from an ordinary contract in the following matters:

1. capacity to marry,

2. formalities of marriage,

3. grounds of void and voidable marriage,

4. avoidance of marriage (a decree of code is necessary when marriage is voidable, it cannot be avoided by repudiation.),

5. dissolution of marriage (a marriage can be dissolved only by a decree of the court; a contract of marriage cannot be discharged by agreement, frustration, or breach), and last

6. terms of marriage contract (spouses are not free to enter any term of the contract, rather spousal rights and obligations are largely laid down by the law, dose and flexibility are allowed, such as parties may stipulate to release each other from the duty to cohabit. The most cogent example is found in the Muslim law where the wife may stipulate that, for example, in the event of the husband taking a second wife or treating her with cruelty, she can pronounce divorce on herself.)

There is a divergence of opinion regarding the nature of Muslim marriage some jurists believe that Muslim marriage is purely a civil contract while others say that it is a regional sacrament in nature. To better appreciate the nature of Muslim marriage, it would be proper to consider aspects of Muslim marriage.

LEGAL ASPECTS

Juristically, it is a contract and not a sacred covenant. Qua contract has three characteristics:

1. there can be no marriage without free consent,

2. as in a contract, provision is made for its breach, to wit, the various kinds of dissolution by the act of parties or by operation of law.

3. the terms of the marriage contract are within legal limits capable of being altered to suit individual cases.[4]

Mahmood, J in the leading case of Abdul Kadir vs. Salima [5], observed that marriage among Muhammadans is not a sacrament but purely a civil contract; [6] though solemnized generally with the recitation of certain verses from the Quran, yet the Muhammadan law does not positively prescribe any service peculiar to the occasion.

In the case of Anis Begum vs. Mohammad Istafa [7], where C.J. Sir Shah Sulaiman, C has tried to put a more balanced view of Muslim marriage by holding it both civil contract and a religious sacrament.' Though the learned C.J. does not himself say 'that marriage is a sacrament, but from the context in which he said, it is clearly shown that he supported the views of Maulvi Samiullah. Taking religious aspect into account Muslim marriage is ibadat.' If marriage is nothing but a civil contract then keeping traditional view we could say, "He who enters into a civil contract completes have of his religion, but it is entered into marriage completes half of his religion."

In other words, Muslim marriage is something more than a civil contract. Justice Mahmood's observation i.e., marriage is a civil contract that cannot be appreciated only because that up to same exchange marriage resembles whistle contract. Besides some similarities, there are so the basic differences between two, for instance-

a) Unlike a civil contract, it cannot be made in unpredictable future situations.

b) Unlike a contract, it cannot be for a limited duration (muta marriage is an exception).

c) Unlike the contract of sale of goods which may be canceled by an unpaid seller, the wife of a Muslim marriage is not entitled to divorce her husband or to remain with a third person if a part of his bestowal remains unsettled.

SOCIAL ASPECT

In its social aspect, three vital factors must be recollected:

1. Islamic law gives to the woman a definite high social status after marriage,

2. Restrictions are placed upon the unlimited polygamy of pre-Islamic times and controlled polygamy is allowed,

3. The Prophet, both by example and precept, encouraged the status of marriage. He positively enjoined marriage to all those who could afford it, and the well-known sing attribute to the prophet "there is no mockery in Islam" expresses his attitude towards celibacy briefly but adequately. [8]

RELIGIOUS ASPECT

While contemplating the social and legal features, the religious character of the Muslim marriage is often neglected or misunderstood. Marriage is acknowledged in Islam as the basis of society. It is a civil agreement, but it is also sanctified in nature. Temporary marriage is forbidden. Marriage as an institution leads to the enliven of man and as a means the prolongation human race.

In Shoharat Singh v. Jafri Begum [9], the Privy Council said that nikah (marriage) under the Muslim law is a religious ceremony. [10]

Thus, marriage according to Muslim Law is a contract for legislation of intercourse, procreation of children, and regulation of social life in the interest of society by creating:

• the rights and duties between the parties themselves, and;

• between each of them and the children born from the union. [11]

OBJECTIVE OF MARRIAGE

A glossary on TARMIZI set out some vital objects of marriage-

1. The restrain of sexual passion

2. The ordering of domestic life

3. The increase of the family

4. Take the liability of wife and the children, and

5. The upbringing of virtuous children.

CAPACITY FOR MARRIAGE

The party to the marriage must be qualified to enter a contractual marriage and for this, the parties must be able to acknowledge the essence of their act. The following conditions which every Mohammadan must keep up with to be competent for a valid marriage, are as follows:

1. The parties to the contract are of sound mind and have attained puberty.

2. Those certifiable and minors who have not attained juvenescence can enter valid contractual marriage by their respective custodians.

3. And most importantly, there must be free consent by the parties, otherwise the marriage is void.

In Muslim law, the age of maturity is understood with the reference to attaining the age of puberty. Puberty is persuaded, in the absence of evidence on the completion of the age of 15 years. The Indian Majority Act, 1857 does not apply to Muslims in respect of marriage, dower, and divorce.

CONCLUSION

As per Dr. Jung:

"Marriage though essentially a contract is also a devotional act, its objects are rights of enjoyment and procreation of children and regulation of social life in the interest of society." [12]

Based on the juristic opinion, we can conclude that nikah (Muslim marriage) is a civil contract that is contrasting from other ordinary contracts as it fulfills all the imperative elements that are required for a valid contract. But from a pious perspective, it can also be said to be a liturgy. From the above indisputable analysis, it can be said that Nikah is neither purely a civil agreement nor a sacrament as it is the amalgamation of the two.

REFERENCE

I A marriage under Muslim Law, Law octopus, (last visited on 1 st October 2021 at 6 pm) https://www.lawctopus.com/academike/marriage-under-muslim-law/# edn5

2. Dr. Paras Diwan, Family law, 10th edition

3. Tahir Mahmood (edited and revised), Outlines of Muhammadan Law, 5th edition

FOOTNOTES

[1] Robertson Smith, Kinship and Marriage in Early Arabia (London 1907), 87.

[2] Ameer Ali, Student's 7 th edition, 97

[3] (1886) 8 All 149

[4] Outlines of Muhammadan Law, 5 th edition, edited and revised by Tahir Mahmood pg. 69

[5] (1886) 8 All 149

[6] This must be read subject to what has been stated in the preceding discussion.

[7] (1933) 55 All 743, 756

[8] Muhammad Ali, Manual of Hadith (Lahore 1944); AJ Wensink, Handbook of Early Muhammadan Tradition (Leiden, 1927)

[9] Qureshi (MA): Marriage and Matrimonial Remedies, (1978) p.43. [10] A marriage under Muslim Law, Law octopus, (last visited on 1 st October 2021 at 6 pm) https://www.lawctopus.com/academike/marriage-under-muslim-law/# edn5 [11] A marriage under Muslim Law, Law octopus, (last visited on 1 st October 2021 at 6 pm) https://www.lawctopus.com/academike/marriage-under-muslim-law/# edn5 [12] Dr. Jung (M.U.S), "Dissertation on the Development of Muslim Law in British India", pp. 1-2