Marriage in Islamic Law — A Brief Introduction

AYESHA HASAN Barrister

Due to what appears to be a growing interest in Islamic law as a whole, and in particular the concept of marriage, its form, validity, and peculiarities, it may be useful and interesting to summarise the position.

FORM AND VALIDITY

Marriage is a contract in Islam and is said to take place after there has been a valid offer and acceptance. In a social context it is said to be the setting for the purpose of legalising sexual intercourse and the procreation of children. The word 'marriage' translates into Arabic as 'nikah' which literally means 'union of the sexes'. Neither writing nor a recorded ceremony is necessary to the validity of a marriage contract — this negative proposition is sufficiently proved by the silence of all the authorities; although the presence of either may be important as evidence that the transaction was really intended to be a marriage. The words of proposal (ijab) and acceptance (qubul) must be uttered by the contracting parties or their agents (vakils) in each other's presence and hearing, and in the presence and hearing of two male, or one male and two female, witnesses who must be sane and adult Muslims.

A contract of marriage may be made through agents acting ad hoc on behalf of the bride and bridegroom themselves, or of their guardians, as the case may be. The Holy Quran describes a married person as a garment or protection unto his or her spouse thus screening the condition of the other from doing impure things: 'They are your garments and ye are their garments' (Holy Quran, 2: 187).

MEHR

The second most important thing in the marriage is the 'mehr' or dowry. According to the Holy Quran, the mehr is given as a free gift by the husband to the wife at the time of contracting the marriage. The settling of a dowry on the woman at the time of the marriage is obligatory. It could take the form of money or kind. It is important to remember that Islam does not make or intend to cause hardship on a couple, and the form of mehr should be what the bridegroom can afford. Thus it could be the giving of a copy of the Holy Quran, a sum of money, the payment of the wife's education in the future or, indeed, the giving of certain jewellery.

One can deduce from this that the giving of mehr is by the husband or his relatives, usually his parents on his behalf, to the wife and not the other way round, that is, by the wife to the husband. However, the practice has developed over the years, particularly in some Asian countries such as Pakistan, India, and Bangladesh that, on the agreement of the parties to contract a marriage, the girls' side begins to acquire at great cost and expense to themselves a 'dowry' to endow their daughter with and provide her with some form of status in her betrothed's family's eyes. This collection of a dowry places great strain on some families as some male families 'demand' what they should be given in order for the marriage to take place. It is a practice deplored by the Muslims generally and the Governments of India and Pakistan are doing their best to stop this unseemly practice. It is not unknown to hear about girls committing suicide or young brides being killed, either because their families feel the pressure of providing for them or because their in-laws are not satisfied with the amount of dowries their families have provided.

PUBLICITY

The mutual consent of both parties to live as husband and wife does not constitute a marriage unless that consent is expressed publicly and in the presence of witnesses. An essential feature of the Islamic marriage is therefore the publication of the news by the parties to a gathering, preferably in a public place.

SERMON OR KHUTBAH

The delivery of a sermon before the announcement of the marriage is another factor which helps the publicity of the marriage and at the same time gives it a sacred character. The sermon is usually delivered from someone among the marriage parties or by the Qazi or Imam. The verses from the Holy Quran recited by the Prophet Muhammad (PBUH) on such an occasion were 3:101, 4:1, and 33:70, 71 which lay particular emphasis on the obligations towards women. The sermon concludes with the announcement of the marriage with the necessary formalities such as ijab (offer) and qubul (acceptance) and Mehr.

MARRIAGE FEAST OR VALIMAH

Another factor which encourages the publicity of a marriage is the valimah or marriage feast. This is a party thrown at the husband's house when the bride is initially taken there.

PECULIARITIES OF THE SHIA LAW

The presence of two witnesses is not absolutely necessary to the validity of a marriage (Ali Wilsons Anglo — Mohammedan Law, 5th edn).

PROOF OF MARRIAGE-DEED OF A NIKAH CONTRACT

Under classical Islamic law, the validity of a marriage contract does not in a any way depend on the performance of any recorded ceremony or documentation: mutual consent, capacity to enter into the contract, and witnesses on the occasion being the only requisites necessary to make the contract valid and binding. As already mentioned, the Shia's dispose even of the last provision.

Clearly when dealing with marriages celebrated abroad, and in the absence of any documentation, proof of marriage can be difficult, particularly when seeking to prove that there was such a marriage. It has been argued under Islamic law, in the absence of anything in writing to prove the marriage, or a Qazi's evidence of the marriage being celebrated or witnesses who can give relevant evidence of the marriage, a marriage can be proven by presumption. For instance, where the parties have lived together for a long time as husband and wife or where either party has acknowledged the marriage and that is not disputed by the other party, a valid marriage may be presumed unless there is a legal dispute against the alliance.

However, where there is no legal presumption of the existence of marriage, if it were challenged, it would have to be proven by satisfactory evidence in the
normal way and any written documentation in these circumstances would prove invaluable. In Pakistan theMuslim Family Law Ordinance 1961, Art 5(1) states: 'every marriage solemnised under Muslim law shall be registered in accordance with the provisions of this Ordinance'. In India, however, no law or enactment requires compulsory registration of a Muslim marriage with any government official. Having said that, in the states of Assam, Bengal, Bihar, and Orissa local enactments provide facilities for 'voluntary' registration of Muslim marriages.

One must remember that, when all else fails, the Qazis maintain a register in which details of marriages they have attended are recorded. The record of each marriage so prepared is signed by the parties or their guardians or representatives, the witnesses, and the Qazi himself. Copies of this document commonly called 'Nikahnama' are issued by the Qazi to the parties.

CONCLUSION

It is clear from the above in order to deal with society as it moves from the twentieth century into the twenty-first century that these Asian governments are conscious of the various and potential difficulties associated with Islamic marriages. In dealing with these difficulties, certain laws, enactments or procedures have been passed in order to bring them more in line with some of the formalities more often found when undergoing a form of marriage in a Western country. One hopes that in dealing with these cases the issues that have arisen when attempting to prove an Islamic marriage will soon be a thing of the past.