INTRODUCTION
Marriages in Islam are contractual or civil, unlike sacrosanct in Sanatan Dharma. Sharia or Islamic or Muslim law consists of different types of marriages, from Nikah, a permanent marriage, to Muta, a temporary contract, to Batil and Fasid, unlawful marriages. Each marriage has its own set of principles, rituals and implications. It also discusses the sources and different schools of thought, which lead to these classifications of marriages. The study is concluded with the personal opinion of the author.
SOURCES
The sources to know about the varied kinds of marriages under Muslim law are[1]–
- Quran:
The word ‘Quran’ originates from an Arabic word, ‘the recitation.’ It is regarded as ‘God’s book’ by Muslims all over the world as it is believed that the Quran was unveiled by God and transmitted through an angel Gabriel to the Prophet Muhammad. Within the Islamic faith, the Quran is the ultimate authority, serving as the bedrock of belief and offering guidance along the righteous path.[2]
- Sunna:
The literal meaning is practice, the conduct of life or behaviour. It indicates the denotes of practice or behaviour in Islam.[3]The prophet was an ideal; continuously and progressively interpreting his life examples is called Sunnah.[4]
- Ijma:
The word’s literal meaning is determination, agreement and resolution upon something.[5]The agreement by the entire Muslim community in a specific generation will serve as a consensus of the whole community. The community will hold this as it will lead to public interest, which is subjective and dynamic.[6]
- Qiyas:
The reasoning and analogy are applied to deduce juridical principles from the Quran and the Sunnah.[7]
SCHOOLS OF THOUGHT
There are two sub-divisions within the Muslims: Sunni and Shia. Shias believe that Ali and his descendants follow a lineage and are part of a divine order, whereas Sunnis are opposed to the political succession of Mohammed’s bloodline.[8]
There are different schools of thought under the Islamic laws, namely-
- Hanafi:
It is the largest of the world’s four schools of Islamic jurisprudence, as around 30 per cent of Sunnis practice it worldwide. It originated in the 8th Century B.C. by Abu Hanifa.[9]
- Hanbali:
The school was founded by Ahmad B. Hanbal, who was adamant that his opinions should not be recorded or distributed as a source of law. Thus, the majority of his literature has not survived after his death. However, it is derived from his statements as general principles.[10]
- Maliki:
It is a strict school that is believed to have been unchanged since the era of Muhammad.[11]
- Shafi:
It confirmed the authority of divine legislation and human reasoning concerning law.[12]
MARRIAGES
Due to the different schools of thought as discussed, marriage as an institution has two types- Temporary and Permanent.
TEMPORARY MARRIAGE
Muta (Mutah) or temporary marriage is practised among the people of Itna Asharia Shias, while other Shias and Sunnis discard the practice. As the name itself implies, the word Mutah means ‘enjoyment’; this marriage is merely for pleasure.[13]
There is no limitation on the number of Mutah wives, but they must have reached the age of puberty as minors cannot be contracted by Mutah. There is no concept of divorce under such marriages, as they are only temporary. To prevent children from any future abuse or shame, they are legitimate and have the right to inherit property from both mother and father. The wife cannot demand maintenance under Islamic Law.[14][15]
PERMANENT MARRIAGE
There are three sub-classifications of these marriages-
- Sahih Marriage:
It is also called a valid marriage or Nikah and is acknowledged by both Shias and Sunnis. It is the most common form of marriage under Islamic law. It is practised with the mutual consent of both parties; both intend to live together as wife and husband their whole life.[16]
As marriages under Islamic law are contractual, there must be a proposal from one party and acceptance from the other, and they must be sound, major and capable of giving their free and conscious consent.[17]
- Batil Marriage:
Batil or void marriage is an unlawful type of marriage. According to Hidayatullah Mulla’s Principles, “Batil is illegal in itself; the prohibition against the marriage is perpetual and absolute.”[18]
As the contractual marriage demands, considerations and two contracting parties, if there is a prohibition rendered, either consideration unlawfully or if either party is ineligible to act, for instance- they are minor or insane, so the very essence of the contract is tainted, and this marriage, due to its devoid effect of legality, is akin to a no-agreement situation between the parties and is deemed as void or Batil marriage.[19]
The marriage does not create any obligations on any of the parties as it is no marriage at all; due to this, even the children from such marriages are not legitimate.[20]
- Fasid Marriage:
Fasid or irregular marriage arises from an accidental circumstance. For instance, a marriage without witnesses, a wedding with a woman in her iddah (iddat), or the waiting period. Unlike Batil marriages, the legal consequences are not waived if the marriage is consummated. As a result, the offspring are legitimate.[21]
If the prohibition impacted only one of its attributes, then the contract is said to have remained valid, albeit tainted by an extraneous element. In such cases, it is not entirely void but instead deemed irregular to certain extents.[22]
POLYGAMY
The usual practice of Islamic marriages suggests monogamy, having one wife. But the Quran does permit men to perform polygamy (under Quran 4:3). It is so to protect the sick or old wife from the divorce of the husband. There is a limit of four wives in permanent marriages; however, Polyandry, having multiple husbands, is not allowed in Islam. It is a requisite to treat all wives equally- financially, emotionally, and sexually, and if a man cannot do so, he should not marry more than one in the first place.[23]
CONCLUSION
The types of marriages made in the early centuries might have been the requisite. In the present scenario, they seem misused most of the time.
Muta marriages lead to a lot of injustices for women in Muta as they neither have the right to demand maintenance from their husbands nor any divorce procedure to end their relationship formally. Batil marriages, too, do not create any legal obligation on parties; thus, the wife is not allowed to seek any remedy for maintenance from the Sharia law. The children are considered illegitimate and not given the prestige in the society. Fasid marriages have no legal effect until it is consummated. After consummation, the wife is bound to observe iddat, only after which the children become legitimate and gain the right of inheritance.
Polygamy in that era might have been arguably justified in the social conditions and life. However, it no longer impacts the society in the same manner as it used to. It is also discriminatory and biased on the part of women, as only men are allowed to perform polygamy.
Author(s) Name: Priyal Bansal (Dr. Ram Manohar Lohiya National Law University , Lucknow)
Reference(s):
[1]Shreya Roushan, ‘Handbook on marriage and divorce under Muslim Law’ (iPleaders, 3 August 2021) <https://blog.ipleaders.in/handbook-marriage-divorce-muslim-law/> accessed 26 December 2023
[2] Ray Madson, ‘What is the Quran?’ (Explore God) <https://www.exploregod.com/articles/what-is-the-quran> accessed 26 December 2023
[3] Ahmad Hasan, ‘The Sunnah- Its early concept and development’ (1968) 7 (1) Islamic Studies <http://www.jstor.org/stable/20832904> accessed 26 December 2023
[4] Fazlur Rahman, ‘Sunnah and Hadith’ (1962) 1 (2) Islamic Studies <http://www.jstor.org/stable/20832629> accessed 26 December 2023
[5]Abdullah bin Hamid Ali, ‘Scholarly consensus: Ijma’: between use and misuse’ (2011) 12 (2) <https://www.tandfonline.com/doi/full/10.1080/1528817X.2010.574391> accessed 26 December 2023
[6] Khoiruddin Nasution, ‘The Concept of Ijma in the Modern Age with particular reference to Muhammad’ Abduh’s Theory’ (1994) 56 Al-Jami’ah <https://aljamiah.or.id/index.php/AJIS/article/download/3206/629> accessed 26 December 2023
[7] The Editors of Encyclopaedia, ‘Qiyas’ (Britannica, 2 Nov 2016) <https://www.britannica.com/topic/qiyas> accessed 26 December 2023
[8] Mohammed Aly Sergie, ‘The Sunni-Shia Divide’ (Council of Foreign Relations, 27 April 2023) <https://www.cfr.org/article/sunni-shia-divide#:~:text=Shias%2C%20a%20term%20that%20stems,succession%20based%20on%20Mohammed’s%20bloodline> accessed 26 December 2023
[9] Mushtaq Ahmad, ‘The Hanafi Legal Theory: some significant issues’ (2019) 8 (2) Peshawar Islamicus <https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID3389677_code2022743.pdf?abstractid=3389677&mirid=1&type=2> accessed 26 December 2023
[10] Harith Bin Ramli, The Sunna and its Status in Islamic Law (Adis Duderija, 2015) 163-194
[11] Ikenga K.E. Oraegbunam, ‘Maliki Jurisprudence and Boko Haram Ideology versus Nigerian Nation Building: Need for pluralism in Islamic praxis’ (2016) 12 AJO <https://www.ajol.info/index.php/og/article/view/141233/130966> accessed 26 December 2023
[12] The Editors of Encyclopaedia, ‘Shafi’ (Britannica, 10 April 2018) <https://www.britannica.com/topic/Shafiiyah> accessed 26 December 2023
[13] Shreya Roushan, ‘Handbook on marriage and divorce under Muslim Law’ (iPleaders, 3 August 2021) <https://blog.ipleaders.in/handbook-marriage-divorce-muslim-law/> accessed 26 December 2023
[14] Raj Krishna, ‘Mutah marriage: A conceptual discussion’ (The Times of India, 28 October 2022) <https://timesofindia.indiatimes.com/readersblog/my-tryst-with-law/mutah-marriage-a-conceptual-discussion-46082/> accessed 26 December 2023
[15] Astu Khandelwal & Shashwat Patwa, ‘Muta Marriage’ (2018) 1 (2) IJLMH <https://www.ijlmh.com/wp-content/uploads/2019/03/Muta-Marriage.pdf> accessed 26 December 2023
[16]‘Types of Muslim Marriage’ (LawBhoomi, 1 May 2023) <https://lawbhoomi.com/types-of-muslim-marriage/>accessed 26 December 2023
[17] Nargis Ansari, ‘Types of Muslim Marriages’ (Legal Service India) https://www.legalserviceindia.com/legal/article-12836-types-of-muslim-marriages.html#:~:text=There%20are%20four%20kinds%20of%20marriages%20as%20per%20Muslim%20law,forth%20by%20each%20muslim%20sect> accessed 26 December 2023
[18] Muhammad Tabiu, ‘Unlawful Marriages and their effect in Islamic Law of the Maliki school’ (1992) 31 (3) Islamic Studies <https://www.jstor.org/stable/20840083> accessed 26 December 2023
[19] J.N.D. Anderson, ‘Invalid and Void Marriages in Hanafi Law’ (1950) 13 (2) BSOAS <https://www.jstor.org/stable/609279> accessed 26 December 2023
[20] Muhammad Tabiu, ‘Unlawful Marriages and their effect in Islamic Law of the Maliki school’ (1992) 31 (3) Islamic Studies <https://www.jstor.org/stable/20840083> accessed 26 December 2023
[21]Muhammad Tabiu, ‘Unlawful Marriages and their effect in Islamic Law of the Maliki school’ (1992) 31 (3) Islamic Studies <https://www.jstor.org/stable/20840083> accessed 26 December 2023
[22] J.N.D. Anderson, ‘Invalid and Void Marriages in Hanafi Law’ (1950) 13 (2) BSOAS <https://www.jstor.org/stable/609279> accessed 26 December 2023
[23] Imani Jaafar-Mohammad & Charlie Lehmann, ‘Women’s Rights in Islam regarding marriage and divorce’ (2011) 4 (3) JLAP <http://open.mitchellhamline.edu/lawandpractice/vol4/iss1/3?utm_source=open.mitchellhamline.edu%2Flawandpractice%2Fvol4%2Fiss1%2F3&utm_medium=PDF&utm_campaign=PDFCoverPages> accessed 26 December 2023
