Professional Documents
Culture Documents
Islamic law
Under Islamic law, as I understand it, a Muslim woman can only marry
a Muslim man. However, a Muslim man can marry a Muslim woman or a
Kitabiyyah. See for example section 10 of the Islamic Family Law
(Federal Territories) Act 1984:-
Kitabiyah means -
Some States do not have this provision at all, instead only allowing
Muslims to marry Muslims. (I recently learnt that Sarawak only permits
a Muslim to marry another Muslim, whether you are a man or a
woman.)
The Malaysian Law Reform (Marriage and Divorce) Act 1976 does not
apply to Muslims (section 3). Hence, in Malaysia there is no means for
a Muslim to marry a non Muslim under the civil law. In fact, the Muslim
who goes through a marriage or even cohabits with a non Muslim runs
the risk of falling foul of a number of offences under State Syariah
criminal law prohibiting fornication (zina) and close proximity
(khalwat).
2
In addition to the protections for religious freedom and equality under
the law, there are specific protections for the human right, in of itself,
to found a family.
It is also interesting that in the USA, the equality clause of the US Bill
of Rights has been held to prohibit the criminalisation of marriages
between difference races: see the US Supreme Court decision of
Richard Perry Loving et. ux v Virginia (1967) 388 US 1, 18 L Ed 2d 1010
(now dramatised in the Hallmark production “Mr & Mrs Loving”). There
does not seem to be any case on interfaith marriages. However, the
current dispute in the US on the legality of same gender marriages and
how it is ultimately resolved will no doubt be of relevance to this issue.
3
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INTRODUCTION
In the pre-Islam Arabia, the laws were favourable towards males and
discriminatory against the women. Polygamy had to be accounted for
in a very few blood relationships like in marriage with one’s real
mother or sister. Marriages were of different kinds and divorce was
simple and easy for the man. With absolute rights vested in men and
no checks led to men denying the women their basic rights.
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Islam brought with it a due status for women and regarded them as
dignified members of the society. ‘Nikah’ literally means ‘to tie up
together’ and referred to the Islamic marriage. It is a matrimonial
contract as well as an institution that gives the women a particular
and high status in the society. Nikah was to ensure stability in a
married life as it bound both the partners together for an indefinite
period and also required the woman to be honoured with the mahr.
Islam allows limited polygamy, i.e. four wives at a time. This was
allowed as during the numerous wars during the Prophet’s time in
Arabia, many Muslim men lost their lives. Thus, the women
outnumbered the men. The war-widows and orphans became destitute
as they had no standing in the society and lead miserable lives. In
order to prevent injustice, Quran allows limited polygamy through the
following Ayat: “marry of the women, who seem good to you, two or
three or four, if you fear that you cannot do justice to so many, then
one.”
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DEFINITION
Hedaya says that “Marriage implies a particular contract used for the
purpose of legalising children.
LEGAL ASPECT
SOCIAL ASPECT
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Marriage is a social institution and a social method to give an equal
status to women. The dower, which is essential for a Muslim marriage,
provides a security net for the woman in case of need. Limited
polygamy helps raise the woman’s standing and dignity in the society.
By placing prohibitions on the marriage, the relationships of families
can be regulated and the ill effects of in breeding are avoide
RELIGIOUS ASPECT
a) Age of Puberty
For marriage, dower and divorce, the age of majority under the Muslim
law is the age of puberty and not 18 years of age. Though Hedaya says
the minimum age of puberty for a boy is 12 years and for a girl it is 9
years; it has been fixed at 15 years of age by the Privy Council in the
year 1916. Thus, a boy or a girl of 15 years of age will be presumed to
have attained the age of puberty unless the contrary is proved.
Minor’s Marriage
i) Father;
A remoter guardian for marriage can not get the minor married off with
out actually following the prescribed order and such a marriage will be
void.
Shia Law says that only the father or the paternal grand-father how
ever high can be the guardians for marriage.
The Child Marriage Restraint Act, 1929 provides that a child marriage
exists and will be valid but the guardians and others who conduct it
can be punished. A child marriage can be prevented by an injunction.
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If the father or the grandfather has contracted marriage fraudulently or
negligently, the minor can repudiate the marriage on attaining the age
of puberty. A wife can exercise the right even if the marriage was
contracted by her father or her grandfather. There can be no
unreasonable delay in the exercise of the option of puberty. The
husband will lose his right to the option of puberty if the marriage has
been consummated. The wife will also lose her right unless the
consummation has taken place when the wife was still a minor and
against her consent.
b) Soundness of Mind
Lunatics can get married during the lucid intervals for they can
understand the consequences. Idiots on the other hand can not do so.
Idiocy refers to an abnormal state of the mind wherein the person can
not understand the consequences of their actions.
The parties can marry any Muslim irrespective of sects or sub sects.
Inter-Religion Marriage
Under Sunni law, a male can marry a Muslim girl of any sect/ sub sect
or even a Kitabia girl. A Kitabia female is one who belongs to a
community that originated in a book revealed by the heavens. Thus,
the Jews and the Christians can be wed to a Sunni male. A marriage
with a non-Muslim or non-Kitabia female, the marriage is merely
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irregular. Under Shia law, a marriage with a non-Muslim or a Kitabia
woman is not permitted. However, a Muta marriage may be contracted
with a Kitabia or Parsi female.
The Special Marriage Act, 1954 allows any man or woman to get
married to each other whether a Muslim or a non-Muslim. The
succession will be governed under the Indian Succession Act, 1925.
If the parties are sane and adults, they can give consent on their own
and the marriage will be a valid one. If the parties or one of them is
either a minor or insane, the consent has to be obtained by the
guardian. The consent will be deemed free when it is made at will and
given voluntarily and not under any coercion or fraud.
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under coercion to be void. The Hanafi School is the only exception. It is
believed in the school that three things can not be undone ever even if
committed as a joke. The three things are marriage, divorce and taking
back.
Mistake of Fact is when the parties agree but not on the same thing.
Consent refers to the meeting of the minds on the same issue. Where
the identity of the bride to be, for example, is mistaken, the marriage
will be void.
Under Muslim law, religious ceremonies are not essential for validating
a marriage. The only essential formalities are that of offer and
acceptance.
It is essential that the offer and acceptance occur at the same sitting.
Thus, simultaneous actions must become a joint whole. For example,
the groom to be has to send the offer through another. The bride must
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accept it in presence of others and then the marriage will be a valid
one.
Presence of Witnesses is not essential under the Shia law. Under the
Sunni law, the offer and acceptance needs to two competent
witnesses. A Muslim male who is of sound mind and has attained the
age of puberty is a competent single witness. Two sane Muslim
females who have reached the age of puberty can also be treated as
competent witnesses. Thus, two Muslim women along with a
competent Muslim male witness will be regarded as competent
witnesses for the marriage. Four females will not be regarded as
competent witness. The term ‘witnesses’ does not refer to any one
specifically asked or invited for this purpose only.
Registration under Muslim law is not essential for the validity of the
marriage. But certain enactments provide for registration in the
matters of marriage as well as divorces. The acts do so because then
there exists a proof of the marriage. But even then the registration is
optional only and not mandatory. It has also been held in a few cases
that if the community custom requires registration, even if it is in a
different format, the marriage has to be registered then. Under the
Indian Christian Marriages Act, 1872, the registration of marriage will
be essential if the marriage is between a Muslim and a Christian.
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freedom to marry a person for they do not stand in a particular
relationship to each other. For example, a father cannot marry his own
daughter.
Absolute Prohibitions
They are mandatory and have to be followed or else the marriage will
be void. If a person is within the prohibited relationship of the other
party, the marriage cannot take place.
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Relative Prohibitions
a) Unlawful Conjunctions
A Muslim can not have two wives at the same time if the wives are
related to each other in a way that would have made their marriage
void if they had been of opposite sex. As per the Sunni law, a marriage
against this condition is irregular. The Shia law will treat violation as a
void marriage. The only exception will be if the marriage is with the
wife’s consent.
If a Muslim man has more than five wives, it is merely irregular with
respect to the fifth wife. If he divorces a wife or a wife dies, the
irregularity will be removed with respect to the fifth wife.
e) Marriage during Iddat is irregular as per the Sunni law and void as
per the Shia law.
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Iddat refers to the period that a woman undergoes after divorce or the
death of her husband. It literally means counting. This period is
essential to ascertain whether the wife/widow is pregnant or not.
During this time, the woman leads a simple and chaste life. The
circumstances where she has to observe Iddat and how are as follows.
If the husband dies during the divorce Iddat, the wife has to start a
fresh Iddat of 4 months and 10 days from the date of death of the
husband.
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4) Commencement of Iddat
The period of Iddat starts from the date of divorce or death and not
from the date of the wife receiving a notice of the same. Thus, if the
wife gets the notice of such an even after the specified period of Iddat
has expired, she does not have to observe Iddat.
Under Shia law, Iddat need not be observed if the wife is past the
childbearing age or if she has not even attained puberty.
Miscellaneous Prohibitions
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a) Marriage during pilgrimage is void as per Shia law only.
KINDS OF MARRIAGE
iv) The wife can claim dower and has a right to maintenance
and simultaneously the obligation to observe Iddat is bestowed upon
her;
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It is an illegal union that exists not in law. Thus, a marriage in violation
of absolute prohibitions or polyandry is a void marriage. Shia law
provides a few additional grounds like marriage during a pilgrimage or
marriage with a non-Muslim or a woman observing Iddat.
The cohabitation is lawful and the children are legitimate and can
inherit the properties of their parents. Mutual rights of inheritance do
not arise. After consummation only, can the wife claim dower. The wife
does not have to observe Iddat if the marriage is not consummated.
19
Temporary marriage or Muta Marriage
Kitabia or Parsi woman but the Muslim woman can contract the same
only with Muslim men. Any number of Muta wives can be contracted
with.
20
the specified time, the husband can deduct a proportionate amount
from her dower.
21
Restitution of conjugal rights refers to giving back the right to one
party to stay with the spouse. As a couple is entitled to stay together
and enjoy each other’s company, if one spouse stays away without
reason, the other can file a suit to move back with the aggrieved party.
The courts have to look into the circumstances of each case and then
decide. A wife can claim defences against her husband’s claim as
given below:
1. Introduction:
Like Judaism and Christianity, (See, Footnotes No. 2,3,4 and 5) Islam
does not provide an explicit prohibition of polygamy (more correctly
polygyny).
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requirements and restraints that amount to the discouragement of
such a practice.
If polygamy is immoral per se, then these and other leading figures in
the Biblical traditions are immoral. In this case, there would be no
sanctity attached to the Bible, its Prophets, or its teaching! No sincere
Jew, Christian, or Muslim would regard God’s chosen Messengers as
immoral persons!
23
Polygamy meets us a fact: e.g. Abraham, Jacob, the Judges, David,
Solomon……In Deuteronomy 17:17, the king is warned not to multiply
wives; later regulations fixed the number at eighteen for a king and
four for an ordinary man. (Dictionary of the Bible (James Hasting
Editor), Revised Edition, Charles Scribner’s Sons, N.Y., 1963, p.624)
The man who owns his wife as a chattel can on the same principle
own as many as he pleases that is to say, as many as he can afford to
buy and keep….The Talmudists formulate the rule that no Jew may
have more than four wives, kings may have at most eighteen.
Encyclopedia Biblica (Rev T.K. Cheyene, and J.S. Black, Editors), The
Macmillan Co., London, 1902, vol.3, p. 2946.)
Among European Jews ploygyny was still practiced during the Middle
ages, and among Jews living in Muhammadan countries it occurs even
to this day. An express prohibition of it was not pronounced until the
convening of the Rabbinical Synod at Worms, in the beginning of the
eleventh century. This prohibition was originally made for the Jews
living in Germany and Northern France, but it was successively
adopted in all European countries. Nevertheless, the Jewish Marriage
Code contained many provisions which originated at a time when
polygyny was still legally in existence.(Westermarck, Edward A., The
History of Marriage, (5th Edition Rewritten), Macmillan and co. Ltd.,
London, 1925, vol. III, pp. 42-43.)
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that clearly prohibits polygamy. This was the understanding of the
early Church Fathers and for several centuries in the Christian era.
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Frankish Kreistag at Nuremberg passed the resolution that thenceforth
every man should be allowed to marry two women. Certain sects of
Christians have even advocated polygyny with much fervor. In 1531 the
Anabaptists openly preached at Munster that he who wants to be a
true Christian must have several wives. And the Mormons, as all the
world knows, regard polygyny as a divine institution.
The verse which allows polygamy “was revealed after the battle of
Uhud in which many Muslims were killed, leaving widows and orphans
for whom due care was incumbent upon the Muslim survivors.(Abd Al-
Ati, Hammuda, Islam in Focus, The Canadian Islamic center, Edmonton
Alberta, Canada, 1963, p.103.)
If you fear that you shall not be able to deal justly with the orphans,
marry women of your choice, two, or three, or four; but if you fear that
you shall not be able to deal justly with them), then (marry) only one….
(Qur’an 4:3)
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“You are never able to be fair and just as between women even if it is
your ardent desire…” (Qur’an
4: 129)
The requirement of justice rules out the fantasy that man can “own as
any as he pleases.” It also rules out the concept of “secondary wife,”
for all wives have exactly the same status and are entitled to identical
rights and claims over their husband. It also implies, according to the
Islamic Law, that should the husband fail to provide enough support for
any of his wives, she can go to the court and ask for a divorce.
The verse says “Marry,” not kidnap, buy, or seduce. What is “marriage”
as understood in Islam? Marriage in Islam is a civil contract which is
not valid unless both contracting parties consent to it. Thus no wife
can be forced or “given” to a husband who is already married.
I is thus a free choice of both parties. As to the first wife:
She may be barren or ill and see in polygamy a better solution than
divorce.
She may divorce him (unilaterally) if he is married to a second wife
provided that the nuptial contract gives her the right of unilateral
divorce (Ismah).
She can go to court and ask for a divorce if there is evidence of
mistreatment or injustice inflicted upon her.
But if polygamy is discouraged and loaded with such constraints,
could it have been better if the Quran simply forbade it? To answer this
question, we may have to raise another one:
a. Individual cases:
1. A man who discovers that his wife is barren, and who at the same
time instinctively aspires to have children and heirs.
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-Suffer the deprivation of fatherhood for life.
-Divorce his barren wife and get married to another woman who is not
barren.
-He may suppress his instinctive sexual needs for the rest of his life.
-He may divorce his sick wife at the time when she needs his
compassion most, and get married to another woman, thus legally
satisfying his instinctive needs.
-Or he could compromise by keeping his sick wife, and secretly take
for himself one or more illicit sex partners.
Let us discuss these alternatives from the point of view of the Islamic
teachings. The first solution is against human nature. Islam recognizes
sex and sexual needs and provides for legitimate means for their
satisfaction. The second solution is clearly less compassionate,
especially where there is love between the two parties. Further more
divorce is described by Prophet Muhammad (P) as the “permitted thing
which is hated most by God.” The last solution is plainly against the
Islamic teachings which forbid illicit sexual relations in any form.
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relationships. In a situation like this, it is doubtful that any solution
would be better than polygamy, which is, after all, an optional solution.
b. Social cases
Both unmarried women and widows are human beings. Unless their
instinctive needs are legitimately satisfied, the temptation is great for
corruption and immorality. But aside from the moral question these
women are also exploited. They are used as tools for men’s pleasure,
yet have no guarantees, no rights or security, financial or emotional.
Should they become pregnant, it is their burden alone. But even if such
women are ready to pay the price for this personally, society also
suffers seriously from such situations. The increasing number of
illegitimate children born today under conditions such as these
provides a potential base for tomorrow’s maladjusted and even
criminals. Further more it is inhuman, humiliating for those children to
grow up without knowing who their fathers were and without enjoying
a lean and normal family life.
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5. WHY NOT POLYANDRY (PLURALITY OF HUSBANDS FOR THE SAME
WOMAN)?
CONCLUSION
30
It is also evident that the general rule in Islam is monogamy and not
polygamy. However, permission to practice limited polygamy is only
consistent with Islam’s realistic view of the nature of man and woman
and of the various social needs, problems, and culture variations.
The question is, however, far more than the inherent flexibility of Islam;
it also is the frank and straightforward approach of Islam in dealing
with practical problems. Rather than requiring hypocritical and
superficial compliance, Islam delves deeper into the problems of
individuals and societies, and provides for legitimate and clean
solutions which are far more beneficial than would be the case if they
were ignored. There is no doubt that the second wife legally married
and treated kindly is better off than a mistress without any legal rights
or security. There is no doubt also that the legitimate child of a
polygamous father, born in the “full light of the day”, and who enjoys all
the rights and privileges of a son or daughter, is far better off than the
wanted or unwanted illegitimate child (especially if it is a girl).
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Man can reject the guidance of God, become his own god, and
establish his own standards of morality. Ultimately, however, he may
discover the mirage that alluded him. A few honest questions finally:
What is the situation in countries which banned polygamy? Do they
really enjoy sincere and faithful “monogamy?” What is the degree of
cohesion of the family? Is there any significant number of mistresses,
“Sweethearts”, and illegitimate children? How observant are married
men and women of the strict “monogamous” relationship? Are infidelity
and secret extramarital sexual relationships more moral than the
legitimate, legally-protected husband-wife relationships, even under
polygamy if there is a pressing need for it? Which of the two situations
is best?
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DISSOLUTION OF MARRIAGE
Divorce (Talaq)
INTRODUCTION
DEFINITION OF TALAQ
FORMALITIES OF TALAQ
Held that Talaq may be pronounced by clear words denoting Talaq and
in this case intention be immaterial.
vii) Presence of Witness
viii) Presence of Wife not required
ix) Communication of Talaq
x) Acknowledgement of Talaq
FORMS OF TALAQ
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Talaq-al-Sunnah Talaq-al-Bidda
A) TALAQ-AL-SUNNAH
Ø Talaq according to sunnat i.e, the tradition of holy Prophet (s.a.w)
Ø In this type of pronouncement of Talaq is revokeable.
i) Talaq Ahsan
This mode of Talaq consist of a single pronouncement of divorce made
during the period of purity and then is waiting time (iddat).
When the ‘iddah’ is passing husband has two alternatives either to
reconcile with her honorably before the end of the iddah or to free her
and part with her in kindness by the end of iddah.
Requirements of Talaq Ahsan
Consummated Marriage
Single pronunciation
Pronouncement must be made during Tuhr
Pronouncement only in oral divorce
No consummation during iddat.
Talaq Hasan
‘Hasan’ means good or proper. This mode of Talaq is consisted of three
pronouncements during three consecutive periods of purity
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B) Talaq-ul-Bida
Biddat means sinful.
Reference Case: Ahmed Giri Vs. Mst. Bigha AIR (1955)
It was held that this is the form of Talaq in which the pronouncement
of Talaq is irrevocable under Islamic Law. This type of Talaq is not good
but valid U/Muhammadan Law.
Lian
Where a husband charging his wife adultery & the charges is false &
the wife is entitled to sue for it & obtain divorce.
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xi) Desire of separation
xii) Consideration
xiii) Acceptance/Consent
xiv) Right of wife
Introduction:
According to Ameer Ali
A valid Mohammedan marriage can be dissolved chiefly through:
Apostasy of either of the spouses; or
By the death of either husband or wife; or
Through divorce initiated by either wife or husband; or
By the exercise of option of puberty.
Condition precedent for Dissolution of Marriage according to Shariah:
“If you fear that the two of you may not be able to keeps the limits
ordered by Allah, there is no blame on either if they redeem
themselves from marriage tie”.
3. JUDICIAL DIVORCE:
a)**** BY WIFE: SEC 2 DMMA 1939
*
*
37
********** He is impotent at the time of marriage & still it persists.
Burden of Proof: If he says that impotency does not persists the onus
to proof lies on him in a year.
*
7. Insanity of Husband: Sec.2 (v)
*
******************* If the husband has gone insane the wife has the
right to demand divorce.
The period of lunacy has to be for the last 2 years, with or without
lucid intervals.
*
8. Leprosy or a Virulent Disease: Sec.2 (vi)
*
******* If the husband is suffering from some dangerous, contagious
i.e., transferring, transmitting venereal disease for a period of last 2
years.
Example: Testicular or Cervical Cancer: The reason could be because
both diseases affect intimacy & result in decreased sexual activity.
The virus that caused cervical cancer could often be transmitted by
sexual contact & could raise suspicions of infidelity.
Sick spouse is seen as socially unacceptable or because an expected
death would obviate the need for a divorce/Khulla.
*
9. Option of Puberty: Sec.2 (vii)
*
******* It can be exercised on the ground that:
i)****** Her father or other guardian gave her in marriage.
ii)**** Before she has attained the age of 16 years.* (MFLO)
iii)** The marriage had not been consummated.
iv)*** She had repudiated the marriage before she attained the age of
majority.
Minor has the right either to ratify the marriage or repudiate after
attaining majority.
*
10. Lia an: Sec.2 (vii-a)
*
(Inserted by the Protection of Woman (Criminal Laws Amendments) Act
2006. 2nd Dec 2006)
Meaning of Lia an: Accusation of Zina by husband to his wife & refusal
by wife to accept as true.
*
Marriage is brought to an end by fourth oath.
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*
11. Cruelty: Sec.2 (Viii)
Treats wife with cruelty:
a) i) Habitually Assaults i.e. Beats her physically. Or
********* ii) Makes her life miserable even if such conduct does not
amount to physical ill treatment.
b)**** i) Association with women of low repute. Or
ii) Leads a notorious life.
c)***** Tries to compel her to lead an immoral life.
d)**** Dispossessing wife of her property or not letting her uses it.
e)**** Hinder her to perform her religious duties.
f)******* Unable to treat equally if he has more than one wives.
(Injunctions of Islam).
*
******* 12. Husband Temperamentally Incompatible: Sec. 2 (ix)
The wife can get divorce on this ground. If the wife is unable to get
along due conflicting, clashing and opposing nature of her husband.
They are not living for a period over a year. Reconciliation efforts have
failed, marriage can come to end on this ground too.
Conclusion:
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