MUSLIM MARRIAGE: NOT PURELY A CIVIL CONTRACT
A COMPARATIVE ANALYSIS
Hooghly Mohsin College
There are differences of opinion with regard to the nature of Muslim marriage. Some jurists are of the opinion that Muslim marriage is purely a civil contract while others say it is a religious sacrament in nature. A curious student of Muslim Law must examine all the aspects of Muslim marriage because without studying all the aspects of Muslim marriage its true nature can not be understood.
I. CONTRACTUAL ASPECT: Legally, a Muslim marriage is considered as a contract because the elements which constitute a marriage and the manner in which it is completed, are almost similar to that of a civil contract. The contractual nature of a Muslim marriage can be explained through the following facts:-
1. Like a contract, marriage is not complete without offer and acceptance i.e. ‘ijab’ and ‘qabool’ in case of marriage.
2. Like a contract, there can be no marriage without the free consent of the parties or of the guardians.
3. Like a contract, parties to the marriage must also be competent.
4. Just as in the case of a contract entered into by a guardian, on attaining majority, can be set aside or ratified, in the same way, a Muslim marriage contracted by a guardian during minority, can be set aside, or ratified on attaining majority under the principle of ‘OPTION OF PUBERTY’.
COMMENTS OF JURISTS ON CONTRACTUAL ASPECT:-
1. JUSTICE MAHMOOD in Abdul Kadir v. Salima,(1886) 8 All 149 observed that- Marriage among Muhammedans is not a sacrament but purely a civil contract.
2. JUSTICE MITTER in Subrunnisa Case, AIR 1934 Cal. 603 observed that- Marriage under Muslim Law is a civil contract and is like a contract of sale. The sale is the transfer property for a price. In a contract of marriage the wife is the property and dower is the price.
II. SOCIAL ASPECT: Nikah i.e. the valid form of Muslim marriage is a social institution by which a definite and dignified status is conferred upon the women. Through the concept of nikah in Islam Prophet Muhammad [PBUH] brought about a reform in the society. No social reform was possible without giving equal status to females. With this object in mind Prophet Muhammad [PBUH] introduced nikah through which females could be placed on almost an equal footing with males. A Muslim marriage is not simply a contract but also a social institution. This can be explained through the following points;-
1. In every Muslim marriage dower must be given or promised to be given by husband to wife as a mark of respect towards her.
2. There is limited polygamy under Muslim Law and a person is not allowed to marry with more than four wives at a time. In civil contracts, one may enter into as many as contracts at a time as he likes.
3. There is prohibition in marriages between certain close relatives. If marriage was purely a civil contract, then question of relation between the parties would not have become a relevant factor. A brother cannot marry his real sister but he can very well make a contract with her real sister selling his properties.
COMMENTS ON SOCIAL ASPECT:-
It is clear from the above mentioned lines that marriage under Muslim Law is not an ordinary contract; more truly, it is a powerful social institution for the upliftment of women and promotes the development of a healthy society, free from evils.
III. RELIGIOUS ASPECT: Taking religious aspects into consideration, Muslim marriage is a devotional act. The Holy Quran, which is the collection of words of ALLAH directs every Muslim to marry a suitable woman. It is therefore, a religious duty of every Muslim to contract a marriage according to the rules of Islam. Religious aspects of Muslim marriage can be explained through the following points:-
1. Prophet Muhammad [PBUH] is reported to have said – Marriage is my Sunnah and those who do not follow this way life are not my followers.
2. Another Tradition says- He who marries completes half of his religion it now it rests with him to complete the other half by leading a virtuous life in constant fear of ALLAH.
3. Prophet Muhammad [PBUH] is reported to have said- There is no act of worship except marriage and faith, which has continued from the days of Adam and which will continue in Paradise as well.
COMMENTS OF JURISTS ON RELIGIOUS ASPECT:-
1. ABDUR RAHIM observes that- the Muhammedan jurists regard the institution of marriage as partaking both of the nature of ‘ibadat’ or devotional acts and ‘muamalat’ or dealings among men.
2. SULAIMAN, C.J., in Anis Begum v. Mohd. Istafa, (1933) 55 APP 743 has pointed out that apart from being a contract, a Muslim marriage is also a religious sacrament.
ANSWER TO JUSTICE MITTER’S OPINION:-
JUSTICE MITTER in Subrunnisa Case, AIR 1934 Cal.603 observed that Muslim marriage is like a contract of sale, here wife is the property and dower is the price.
Criticizing the above view, it can be said the contract of sale of goods may be cancelled by an unpaid seller, he may re-sell the goods by rescinding such contract, whereas in a marriage the wife is not entitled to divorce her husband or to remain with a third party if the dower is unpaid.
Another point is that, there are buyer and seller in a contract of sale and the subject-matter is goods, whereas in a contract of marriage, the wife herself is to receive dower and not her parents, then who is the seller and what has been sold.
CONCLUSION: After considering all the three aspects of Muslim marriage and different different opinions of various jurists, it may be concluded that – so far as the nature of a Muslim marriage is concerned in form and appearance it is contractual but in essence its nature is undoubtedly socio-religious.
A Muslim marriage……..
1. creates the rights and obligations of the husband and wife,
2. confers a definite social status upon them,
3. is also a religious duty.
It is believed in Islam that marriage is ‘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 a sin.
1. Muslim Law by Aqil Ahmad; Revised by Dr. I.A. Khan, 20th Edn. 2001 Reprint 2003, published by Central Law Agency
2. Muslim Law by Syed Khalid Rashid; 4th End.Revisrd by VP Bharatiya, 2004, published by Eastern Book Company
3. Muslim Law [as applied in India] by Dr. RK Sinha; 6th End. 2006, published by Central Law Agency