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DEFINITION, OBJECT, AND NATURE OF NIKAH (MUSLIM MARRIAGE)

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This article is written by Mahak Jain of Dharmashastra National Law University, Jabalpur, an intern under Legal Vidhiya

Abstract

This article delves into the essence and significance of Nikah, the Islamic marriage contract, within the context of Muslim societies. It begins by exploring the definition of Nikah, emphasizing its religious and legal dimensions as a sacred covenant between a man and a woman. The eligibility criteria for marriage are examined, highlighting the prerequisites for individuals to enter into this union. The objectives of Nikah are elucidated, focusing on its role in procreation, family formation, social cohesion, and moral development. Various types of marriages, including temporary and permanent, are discussed along with their legal implications. The essentials of Muslim marriage, such as mutual consent, witnesses, and registration, are outlined to underscore the contractual nature of Nikah. Furthermore, the article delves into the nature of Nikah, emphasizing its character as a spiritual commitment, social celebration, and legal obligation. Case laws pertaining to Muslim marriage and divorce are analyzed to provide legal context, including recent legislative reforms regarding triple talaq. In conclusion, the article emphasizes the sanctity of Nikah as a cornerstone of Muslim marriage, fostering love, commitment, and mutual respect within families and communities.

Keywords

Nikah, Muslim Marriage, Family, Divorce, Muslim Law.

Introduction

Shias and Sunnis are the two main Muslim sects that are frequently separated. Four schools of thought are recognised by Sunni Muslim law: Maliki, Shafi, Hanafi, and Hanbali.

The Hanafi school is the most widely accepted of these four in India. He is considered to be among the most significant individuals in Islamic law. In Muslim society, customs around marriage and divorce differ depending on the sect and school of thought. Marriages can be classified as Sahih (lawful), Batil (void), Fasid (irregular), or Muta.

Marriage is a sacred institution in Islam[1], embodying profound spiritual, social, and legal significance. Nikah, the Islamic marriage contract, is a pivotal component of Muslim matrimonial practices. This article explores the definition, objectives, and nature of Nikah, shedding light on its significance in Islamic culture and society.

Definition of Nikah

Derived from the Arabic term “nikaah,” “nikah” denotes the Islamic marriage contract between a man and a woman. It literally denotes the uniting of the sexes, and in law it refers to’marriage’. It is a covenant established under the principles of Islamic law, known as Shariah, and is considered a fundamental pillar of the faith. Nikah encompasses both religious and legal dimensions, binding the couple in a union recognized by both God and society.

According to Baillie’s Digest, marriage is “a contract for the purpose of legalising sexual intercourse and the procreation of children.”

According to Hedaya (12th-century legal text, considered one of the most significant compendiums), nikah in its most basic form refers to carnal union.

Ameer Ali[2] defined Marriage as a social protection organisation. This is to defend society against immorality and unchastity.

According to Wilson, a Muslim marriage is a contract that permits having children and engaging in sexual activity.

Justice Mehmood also defined marriage as civil contract not a sacrament in the case Abdul Rahim vs. Salima (ILR 1886 8 ALL 149)

Eligibility Criteria to Marry

The following individuals can contract a Nikah:

  1. A person of sound mind.
  2. Persons who are not in the banned degrees of relationship. (Examples: granddaughter, sister, niece, wife’s sister).
  3. Anyone who has reached puberty.
  4. Lunatics and those who have not reached puberty (under the age of 15) can be legally married by their guardians.

Objectives of Nikah

Abdur Rahim claims that in order to protect the human species, fix descent, keep men from engaging in immoral behaviour, promote chastity, and foster love and unity between the husband and wife as well as reciprocal assistance in making ends meet, the institution of marriage was created. The main goal of marriage in Islam is to procreate, or have children, and give them a secure and supportive environment in which to grow up. People also feel that marriage can provide spiritual happiness and bring a person closer to God.

The institution of Nikah serves several crucial objectives within the framework of Islamic teachings:

  1. Establishing a Sacred Bond: Nikah aims to create a sacred and permanent bond between a husband and wife, based on mutual love, respect, and commitment. It is seen as a means of attaining spiritual fulfillment and companionship, as highlighted in the Quranic verse: “And of His signs is that He created for you from yourselves mates that you may find tranquility in them; and He placed between you affection and mercy” (Quran 30:21).
  2. Procreation and Family Formation: Nikah facilitates the creation of families, serving as the foundation for procreation and the continuation of the human race. In Islam, marriage is encouraged as a means of fulfilling the divine command to “multiply and populate the Earth,” fostering the upbringing of righteous offspring within a nurturing family environment.
  3. Social Cohesion and Stability: Nikah promotes social cohesion and stability by formalizing relationships and fostering mutual rights and responsibilities between spouses. It offers a structure for handling inheritance, settling conflicts, and protecting women’s and children’s rights inside the family. Marriage also creates relationships that are stronger between communities and families, which promotes collaboration and solidarity.
  4. Moral and Ethical Development: Nikah is viewed as a means of cultivating moral and ethical virtues, such as patience, compassion, and selflessness, within the marital relationship. By adhering to the principles of Islamic ethics and conduct, couples strive to uphold the sanctity of their union and fulfill their duties towards each other and society at large.

Types of Marriage[3]

  1. Temporary marriage (muta): Muta Marriage is a marriage that lasts for a set period of time solely for sexual pleasure. Muta Marriage is recognised under Muslim law in the Shia sect (Athna Asharia school).
  2. Permanent marriages: The various characteristics of permanent marriages are as follows:
  3. Sahih (valid) marriage – When all of the necessary elements of a Muslim marriage are met, it is known as a sahih nikah, or valid marriage.
  4. Batil (void) marriages are defined as those that violate the regulations. Batil marriages include those that violate affinity, fosterage, and other requirements.
  5. Fasid (irregular) marriage – A marriage that is not deemed valid because it has temporary barriers and prohibitions that can be corrected and eliminated in order to validate the marriage is referred to as irregular or fasid.

Essentials of Muslim Marriage[4]

A Muslim nikah generally needs the following:

  1. The parties involved must be able to get married.
  2. Ijab: proposal; Qabool: acceptance.
  3. Both parties have freely given their consent.
  4. A consideration (Mehr).
  5. There are no legal impediments.
  6. Witnesses (Sunni: Two male witnesses, or one male and two female witnesses, who must be sane, mature, and Muslims, must witness the proposal and acceptance; Shia: Witnesses are not needed at the moment of marriage.)

Marriage registration Under Muslim Law[5]

Marriage registration is mandatory for Muslims because it is considered a civil contract. According to Section 3[6] of the Muslim Marriages Registration Act of 1981, “Every marriage contracted between Muslims after the commencement of this Act, shall be registered as hereinafter provided, within thirty days of the completion of the Nikah Ceremony.”
Nikah Nama is a legal document used in Muslim marriages that covers the marriage’s fundamental requirements and facts.

Nature of Nikah[7]

Islamic law recognises Muslim marriage, commonly referred to as Nikah, as a sacred and legally binding union between a man and a woman. It is comparable to a civil deal. It’s a voluntary engagement on both sides. In that there is an offer and acceptance between the parties, giving husband and wife the equal rights, it also has the form of a contract. However, because of the patriarchal attitude that men are physically and intellectually superior to women, the husband is allowed more rights than the wife upon the dissolution of the marriage.

A religious and social institution[8] called nikah is intended to strengthen ties between individuals based on love, respect, and understanding. The nature of Nikah is characterized by several key elements that define its essence and significance:

  1. Contractual Agreement: Nikah is based on the principles of contract law, wherein both parties freely consent to enter into the marriage agreement. The consent of the bride and groom, along with the presence of witnesses, is essential for the validity of Nikah. This contractual nature ensures that the rights and obligations of both spouses are clearly defined and respected.
  2. Spiritual Commitment: Nikah is imbued with spiritual significance, symbolizing the couple’s commitment to building a life together in accordance with Islamic principles. It is conducted with prayers and blessings, invoking divine guidance and blessings upon the newlyweds as they embark on their journey of marital bliss.
  3. Social Celebration: Nikah is often celebrated as a joyous occasion, marked by festivities, feasting, and communal gatherings. It serves as an opportunity for families and friends to come together, offer blessings to the couple, and share in their happiness. Through rituals and traditions, Nikah reinforces cultural and religious identity, enriching the fabric of Muslim society.
  4. Legal Obligations: Nikah confers certain legal rights and responsibilities upon the spouses, including financial support, inheritance rights, and marital obligations. Islamic law dictates the rights of both parties in areas such as maintenance, custody of children, and property ownership, ensuring equitable treatment and protection under the law.

Case Law

In the case of Abdul Kadir v. Salima (1886)[9], A marriage under Muslim law requires an offer (Ijab) from one party and an acceptance (Qubul) from the other; both must be made freely, without coercion, undue influence, or fraud on the part of either party. It was noted that the nature of a Muslim marriage is similar to that of a civil contract. As in a contractual partnership, when both partners are minors, they have the right, as adults, to either renounce or uphold the terms of the marriage.

In the case of Mohammed Husham v. State of Chattisgarh through Mahila Thana Raipur, District Raipur[10], The Chattisgarh High Court rejects the man’s second plea, claiming that he gave his wife the Triple Talaq, or “talaq-e-biddat,” in order to annul their marriage.
The Muslim Women (Protection of Rights on Marriage) Act, 2019, Section 4, which lays out penalties for pronouncing triple talaq, is where the complaint was filed.

Dissolution of Marriage

There are two types of divorce under Muslim law:

Judicial & Extra-Judicial

The extra-judicial manner of divorce can be divided into three subdivisions:

Divorce falls into two categories:

Talaaq-i-Sunnat

It can be categorised into two categories:

i) Talaq-i-Ahsan: A single divorce order is granted during the time of tuhr (purity between two menstrual cycles), and this is followed by a period of iddat, or not having sex. Before the completion of iddat, divorces can be annulled at any time, preventing hasty and unnecessary separations.

ii) Talaaq-i-hasan: In three successive tuhrs, a husband is supposed to recite a Talaaq formula three times. Declarations must be made whenever there is no sexual activity during any tuhr period. Regardless of the duration of iddat, the marriage is irreversibly dissolved.

Talaaq-i-Biddat[11]

This is an instantaneous form of divorce in Islam. By speaking the phrase “Talaaq” three times, a Muslim man can legally divorce his wife. This can be done verbally, in writing, or, more recently, electronically. Muslims in India, especially those who practise the Hanafi branch of Islam, are prone to this. This is also known as “Triple Talaaq” and has generated debate and disagreement.

In Shayara Bano v. Union of India and others[12]

It was stated that:

“Numerous eminent academics have stated that the practice of talaq-e-biddat, or unilateral triple-talaq, effectively treats women as property and is incompatible with both modern notions of gender equality and human rights as well as being a fundamental part of the Islamic faith. Muslim women suffer from such heinous mistreatment that treats them like property and violates the fundamental rights protected by the Constitution’s Articles 14[13], 15[14], 21[15], and 25[16]. Numerous divorced women and their children suffer from the practice as well, especially those from lower socioeconomic backgrounds.

The Supreme Court and high courts have ruled on multiple occasions that the instantaneous triple talaq is unlawful.”

In Shamim Ara v. State of Uttar Pradesh[17], the court observed that:

According to the Holy Quran, the proper law of talaaq is as follows: • The divorce must have a good reason; • Two arbitrators must try to make the husband and wife happy before the divorce can proceed. The divorce will be finalised only if the attempts are unsuccessful.
The Supreme Court declared Triple Talaq to be “unconstitutional” in August 2017. The Muslim Women (Protection of Rights on Marriage) Bill, 2017[18] was presented in Parliament by the Modi administration, and on December 28, 2017, the Lok Sabha approved it.

The act makes moment threefold (talaq-e-biddat) unlawful and void, punishable by up to three years in prison for the husband, whether it is uttered, documented in paper copy, or conveyed electronically by email, SMS, or WhatsApp.

However, the designation of a common offence as a cognisable and non-bailable offence has always been a primary point of contention with the proposed legislation.

Conclusion

Nikah, as the cornerstone of Muslim marriage, encapsulates the spiritual, social, and legal dimensions of marital union in Islam. It embodies the principles of love, commitment, and mutual respect, fostering harmony and stability within families and communities. By understanding the definition, objectives, and nature of Nikah, Muslims can uphold the sanctity of marriage as ordained by Allah and contribute to the flourishing of Islamic values and traditions in society.

References

  1. Muslim Women (Protection of Rights on Marriage) Bill, 2017.
  2. Constitution of India, 1950.
  3. Translation of Sahih Muslim, Book: 8, Kitab Al-Nikah (The Book of Marriage), https://www.iium.edu.my/deed/hadith/muslim/008_smt.html
  4. Rashmi Dubey, Muslim Marriage, March 06, 2018, https://www.slideshare.net/RashmiDubey21/muslim-marriages-89740704
  5. Different types of Marriage in Islam, https://www.ucis.pitt.edu/global/sites/default/files/curriculum_materials/contributed/DifferentTypesofMarriageinIslam.pdf.
  6. Shreya Roushan, Handbook on Marriage and Divorce under Muslim Law, https://blog.ipleaders.in/handbook-marriage-divorce-muslim-law/.
  7. Drishti Judiciary, Marriage (Nikah),  https://www.drishtijudiciary.com/to-the-point/ttp-muslim-law/marriage-nikah#:~:text=Definition%20of%20Marriage%20(Nikah)%20%2D,%2C%20and%20procreation%20of%20children%22.
  8. Indrasish Majumder, Marriage under Muslim Law, April 08, 2023, https://lawctopus.com/clatalogue/clat-pg/marriage-under-muslim-law-in-india/
  9. Sajad Ahmad Padday, Family as a Social Institution in Islam, https://tameerefikr.com/family-as-a-social-institution-in-islam%E2%80%8B/.
  10. Abdul Kadir v. Salima, 1886 SCC OnLine All 3, https://www.scconline.com/Members/SearchResult.aspx
  11. Mohammed Husham v. State of Chattisgarh through Mahila Thana Raipur, District Raipur, https://www.livelaw.in/pdf_upload/mohammed-husham-v-state-of-chhattisgarh-16-june-2023-478682.pdf
  12. Hemlata Singh, Triple Talaq or Talaq-e-Biddat, https://www.legalserviceindia.com/legal/article-5199-triple-talaq-or-talaq-e-biddat.html
  13. Shayara Bano v. Union of India, (2017) 9 SCC 1, https://www.scconline.com/Members/SearchResult.aspx.
  14. Shamim Ara v. State of U.P., (2002) 7 SCC 518, https://www.scconline.com/Members/SearchResult.aspx.

[1] Translation of Sahih Muslim, Book: 8, Kitab Al-Nikah (The Book of Marriage), https://www.iium.edu.my/deed/hadith/muslim/008_smt.html

[2] Rashmi Dubey, Muslim Marriage, March 06, 2018, https://www.slideshare.net/RashmiDubey21/muslim-marriages-89740704

[3] Different types of Marriage in Islam, https://www.ucis.pitt.edu/global/sites/default/files/curriculum_materials/contributed/DifferentTypesofMarriageinIslam.pdf, Last viewed on 22nd February 2024.

[4] Shreya Roushan, Handbook on Marriage and Divorce under Muslim Law, August 03, 2021, https://blog.ipleaders.in/handbook-marriage-divorce-muslim-law/

[5] Drishti Judiciary, Marriage (Nikah), 14 Sep 2023, https://www.drishtijudiciary.com/to-the-point/ttp-muslim-law/marriage-nikah#:~:text=Definition%20of%20Marriage%20(Nikah)%20%2D,%2C%20and%20procreation%20of%20children%22.

[6] Muslim Marriages Registration Act, Act No. XXII of 1981, muslim_marriages_registration_act,_1981.pdf (indiacode.nic.in)

[7] Indrasish Majumder, Marriage under Muslim Law, April 08, 2023, https://lawctopus.com/clatalogue/clat-pg/marriage-under-muslim-law-in-india/

[8] Sajad Ahmad Padday, Family as a Social Institution in Islam, https://tameerefikr.com/family-as-a-social-institution-in-islam%E2%80%8B/, Last viewed on 22nd February 2024.

[9] Abdul Kadir v. Salima, 1886 SCC OnLine All 3, https://www.scconline.com/Members/SearchResult.aspx

[10] Mohammed Husham v. State of Chattisgarh through Mahila Thana Raipur, District Raipur, https://www.livelaw.in/pdf_upload/mohammed-husham-v-state-of-chhattisgarh-16-june-2023-478682.pdf

[11] Hemlata Singh, Triple Talaq or Talaq-e-Biddat, https://www.legalserviceindia.com/legal/article-5199-triple-talaq-or-talaq-e-biddat.html

[12] Shayara Bano v. Union of India, (2017) 9 SCC 1, https://www.scconline.com/Members/SearchResult.aspx

[13] Constitution of India, Art.14.

[14] Constitution of India, Art.15.

[15] Constitution of India, Art.21.

[16] Constitution of India, Art.25.

[17] Shamim Ara v. State of U.P., (2002) 7 SCC 518, https://www.scconline.com/Members/SearchResult.aspx

[18] Muslim Women (Protection of Rights on Marriage) Bill, 2017.

Disclaimer: The materials provided herein are intended solely for informational purposes. Accessing or using the site or the materials does not establish an attorney-client relationship. The information presented on this site is not to be construed as legal or professional advice, and it should not be relied upon for such purposes or used as a substitute for advice from a licensed attorney in your state. Additionally, the viewpoint presented by the author is of a personal nature.

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