This Article is written by Naman Jain of BBALLB of Galgotias University, Intern under Legal Vidhiya
Abstract
The Arabic word Nikah is used to translate nikah as “union of the sexes”, and in this Arabic term, it is the Islamic marriage intended by the Prophet of Islam, which became a civil contract by law. Since then, this institution has become one of the most sacred social institutions known to man, while offering equal importance and equal rights to men and women.
Chastity is forbidden in the Muslim community and is considered degrading. By creating rights and obligations between the parties of this social contract and their children, marriage legislates the regulations of sexual intercourse, the birth of children and social life for the benefit of society. of the aforementioned union. It can be done by the parties who have reached the age of majority (the majority intending to marry) or the parents of the parties involved. Even a madman can be married by a guardian. However, unlike civil contracts, marriage contracts cannot be limited in duration. But from the perspective of Islam, this is a great sacrifice, the interweaving of two souls to achieve the spiritual goal of continuing the male lineage.
Introduction
In pre-Islamic Arabia, laws favored men and discriminated against women. Polygamy should be considered in a very small number of kinship relationships, such as marriages to biological mothers and sisters. There were different types of marriage and divorce was easy and simple for men. Women were deprived of basic rights because men were always considered superior. Women were treated as chattels, were not given inheritance rights and were completely dependent. It was the Prophet of Islam who changed the position of women.
The Prophet of Islam made women almost equal to men in exercising all legal powers and duties. According to Muslims, legal marriage is considered a civil contract. After marriage, women do not lose their individuality. He is still a distinguished member of society.
The Arabic word “Nikah” means “joining a man and a woman” and from the Shari’s point of view, it means “marriage”. The term nikah is used for marriage in Islamic law. “Nika” literally means “to tie together”. This means a special contract to legalize the production. Nikah in the primitive sense means exploitation of carnal desires. It is both a marriage contract and a system that gives women a special and high place in society. Nika was supposed to ensure marital stability, as both partners were to be bound indefinitely and the woman was to be granted a snake.
Unlike other religions, Islam strongly supports marriage. Islam has no place for celibacy like Roman Catholic priests and nuns. The Prophet said: There is no celibacy in Islam.
Definition of Marriage
Marriage (nikah) is defined as a contract with the purpose of reproduction and legalization of children.
Marriage: According to Mahommedan law, marriage is not a marriage but a civil marriage. All the rights and obligations it creates are created immediately and are not dependent on history such as payment of dowry from husband to wife.
Ashba says: The sanctity of the institution of marriage in the Islamic system cannot be understood and appreciated by outsiders. Marriage is recognized as the foundation of society in Islam. It is a covenant, but it is also a holy covenant. Marriage as an institution is a means for human development and survival of humanity. The main purpose of the institution of marriage is to protect society from impurity and betrayal. It has also been said that marriage is a very sacred ceremony and, in this world, it is an act of worship or worship.
Therefore, according to Sharia, marriage is a contract with the purpose of legalizing sex, giving birth to children and regulating social life for the benefit of society and creating:
- rights and obligations between the parties themselves; And
- between each of them and the children of the union.
Nature of Muslim Marriage
There is disagreement about the nature of Muslim marriage. Some legal scholars are of the opinion that Muslim marriage is a purely civil contract, while others say it is primarily a religious ceremony. Nikah is an Arabic word or term that is used for marriage and it means a set of bonds and civil contracts for the purpose of legalization and legitimate reproduction of children, and it is called Mithaqoon Ghalithoon. According to Amir Ali, marriage is an organization to protect society. This is to protect society from corruption and betrayal. Wilson defines Muslim marriage as a contract to legalize sex and the reproduction of children.
Nikah in Islamic law has the same characteristics as marriage. For example:
- Since marriage requires proposal from one side (request) and acceptance from the other side (before), marriage is also required. Furthermore, marriage is not possible without free consent and such consent must not be obtained by fraud, coercion or undue influence.
- As in the case of contracts signed by guardians who have reached the age of majority, the marriage contract in Islamic Sharia is also void when a minor reaches the age of majority.
- Parties to a Muslim marriage can enter into prenuptial or postnuptial agreements that are enforceable by law, provided they are reasonable and not against Islamic policy. The same contract
- The terms of the marriage contract may also be changed within legal limits to suit individual cases.
- Although discouraged by both the Holy Quran and the Hadiths, like any other covenant, there are provisions for breaking the marriage covenant.
Origin of Nikah
Much has been said about the origin of marriage, but few people understand its roots. Before the 7th century, women were often married against their will. Their wedding may have taken place during capture or as part of an inheritance. But everything changed with the Prophet of Islam and the parts of the Qur’an that he revealed in the study of Islam. With his declaration, hereditary marriage was no longer allowed and the bride had to join him with her future partner. This was a major change in the Islamic tradition. At least two male witnesses must be present at the ceremony to ensure that the bride has indeed consented to the marriage. At the time of marriage, the bride price was given to the father in exchange for his daughter’s marriage, which is available now.
Difference between Marriage and Nikah
Nikah is a religious ceremony that unites a man and his wife. A Muslim woman and her partner are officially married at the end of the Nikah ceremony.
Marriage is a partnership that Muslim couples enter into, but Nikah is a ceremony that formalizes it. After this ceremony, the request for divorce is much more complicated in terms of sharia, a legal contract that the bride agrees to when she gets married.
Classification of Marriage
Sunni Muslims and Shia Muslims are two groups of Muslims who are separated by their views and practices around the world. Since marriage is performed in different ways in both sects and has different ceremonies and customs, Islamic law recognizes different types of marriage. In addition, as mentioned earlier, Islamic marriage is a social contract that legally binds the parties. Islamic law is derived from several codified and non-codified sources, such as the Qur’an, Izima, Kia, customs, wolves, lessons, Insaaf and various laws. Hanifa, Hanbali, Maliki and Shafa’i are the four main Sunni schools. These four schools recognize each other’s legitimacy and have been engaged in legal debates for decades. In India, the Hanifa sect of Islamic Sharia is the most common. A woman cannot conceive or give birth without God’s knowledge. No one is given an increase in age (i.e., heavy) or a decrease in age unless it is written in a book. It should be easy for God. “The Holy Qur’an
Classification of marriage in Muslim law:
Sahih Nikah (Valid Marriage)- The correct term for the Urdu word is “truth” or “truth” and Nika means “marriage” as mentioned above. Sahih Nikah or legal marriage occurs when all the basic conditions of Muslim marriage are fulfilled. This means that if two Muslims (one male and one female) enter into a contract with each other in the form of request and acceptance and the groom pays the bride price, the marriage is legal. The partners are legally married and can legally enter into a union. Inheritance rights arise for properties that can be inherited through marriage. But in case of divorce, the wife is not entitled to alimony, because according to Shari’a, the lawsuit at the time of marriage is assumed to be sufficient for her happiness. Despite this, the Supreme Court has declared that the wife is entitled to alimony and alimony for her child and her children after the legal marriage, and in addition, the right to alimony is a separate right. Husband and wife should respect and obey each other. On the other hand, Muslim men are allowed to have multiple wives. Muslim women are not allowed to polygamy.
- • Batil Nikah (Void Marriage) – A legally void unenforceable contract under the Indian Contract Act, 1872.An annulment is one in which the prospective bride and groom do not meet any of the requirements of a Muslim marriage, and any marriage that goes ahead. A void contract is known as void marriage or batil nikah. When marriage is between two people who are totally incapable of cohabitation. When a man marries the wife of another man while the lady’s marriage is still going well. Being married to more than four wives. In this case, the fifth and subsequent marriages are null and void. Getting Married to a Non-Muslim.
- Fasid Nikah (Irregular Marriage)- Informality and the existence of surmountable obstacles make marriage irregular. But this disorder is not permanent and can be fixed. As a result, the marriage itself is not illegal. When injustices are eliminated, they can be considered legitimate. Marriages in such cases or subsequent limited marriages are called “fashid”. According to Atta Muhammad v. Sayeq Bibi, when a marriage is temporarily prohibited, but not necessarily restricted, it is merely irregular or corrupt and not void. Irregular marriages only happen among Sunni Muslims, but irregular marriages are invalid under Shia law. Irregular marriages are generally voidable rather than annulled at the outset. If the illegitimate marriage is recognized as legitimate, the marriage becomes valid. Therefore, if a Sunni Muslim man marries a Jewish woman and converts her to Islam, the marriage is legal. The social and legal consequences of irregular marriages depend on whether the marriage took place or not.
- Muta Marriage-Nikah Mutah is the marriage of a Shia Muslim man with a Muslim, Jewish or Christian woman for a certain period of time in exchange for paying a certain sum of money at the time of termination of the marriage, for a temporary marriage. The bride is also told about the duration and prayer and must agree. Mutah marriage is the fourth type of Muslim marriage that is found only among Shia Muslims and not among Sunni Muslims. To understand that, we need to consider the history of this marriage. Shiite Muslims are popular in most Arab countries, including Abu Dhabi. People known as sheikhs worked in the oil, mining, processing and export industries. Business contracts forced them to fly farther and stay for days or months. During this period, sheikhs were expected to satisfy their sexual needs and desires, but Islam forbids them from living with women other than their wives. This phrase translates to “happy marriage”. Muta-kon is a temporary agreement between two people for a certain period of time. There is no specified minimum or maximum duration. You can specify the day, month or year. The marriage ends when the agreed date expires. However, if such a deadline is specified or not specified, the contract is considered permanent. Sunni Muslims do not approve of this type of marriage because they consider it immoral. As a result, sheikhs would marry women in the city for a limited time, divorce them after leaving, and pray for their marriage compensation. known as marriage drill.
- Conclusion
The idea of Muta marriage is also evident in our country. Temporary marriage is not recognized in India, but a small number of muta marriages are performed, but such marriages are not enforceable in court, this is the focus of a procedure that can be initiated in a short period of time. In the case of Hyderabad, it was found that there is no difference between indefinite term of muta and life. Permanent marriage can also be concluded by using the word Mutah. Determining the duration of matkun contract alone will be a temporary contract for a certain period.
Temporary “muta” marriages are common in modern times and are often arranged by imams and other Islamic leaders in Europe, America (the Shiite area of Dearborn, Michigan), and the Middle East. Most of them are widows and poor. Orphaned girls in temporary marriages who are often sold to old men. This is an extreme means of paying rent and providing for himself and his children. As a result, the arrangement has been widely criticized by various countries for implicitly encouraging the legalization of prostitution.
Conflicts over minority women’s rights are best resolved by creating new representative institutions with special provisions to ensure women’s full participation. In Shah Bano’s case, this meant creating a new mechanism to enforce Muslim personal law, rather than recognizing the Muslim Personal Law Commission as the legal representative of the Muslim community. Creating a new mechanism is more sensitive to the political realities of Indian Muslims. That is, they consist of scattered groups that are characterized by great differences. It also provides Muslim women access to the institutions that establish the rules governing their lives.
Reference
https://www.lawctopus.com/academike/marriage-under-muslim-law/
http://kanwarn.wordpress.com/2010/11/25/marriage-under-muslim-law/
http://www.scribd.com/doc/22273999/Nature-of-Muslim-Marriage
http://www.legalserviceindia.com/article/l162-Concept-of-Marriage-in-Muslim-Law.html
https://www.lawyersclubindia.com/articles/marriage-under-muslim-law-13977.asp
https://www.salams.app/muslim-terms/what-is-nikah
