1. Definition of Marriage
Marriage can be defined as “a civil contract between two persons of opposite sex which has for its object the procreation and the legalizing of children”. Marriage, according to Islamic Law, is not a sacrament.
2. Capacity for Marriage
i. Every Muslim of sound mind, who has attained puberty, may enter into a contract of marriage.
ii. Lunatics and minors who have not attained puberty may be validly contracted in marriage by their respective guardians.
iii. The marriage of a Muslim, who is of sound mind and has attained puberty, is void, if it is brought about without his consent.
3. Essentials of a valid Marriage
It is essential to the validity of a marriage that there should be proposal made by or on behalf of one of the parties to the marriage, and an acceptance of the proposal by or on behalf of the other, in the presence and hearing of two make or one make and two female witnesses, who must be sane and adult Muslims. The proposal and acceptance must both be expressed at one meeting. A proposal made at one meeting and an acceptance made at another meeting does not constitute a valid marriage. Neither writing nor any religious ceremony is essential.
A Muslim male may have as many as four wives at the same time, but no more. If he marries a fifth wife when he has already four, the marriage is not void, but merely irregular.
It is not lawful for a Muslim woman to have more than one husband at the same time. A marriage with a woman, who has her husband alive and who has not been divorced by him, is void.
4. Essentials of Male
A Muslim male may contract a valid marriage not only with a Muslim woman, but also with a Kitabi, that is a Christian or a Jew. But a marriage with a non-Kitabi is irregular, not valid.
5. Essentials of female
A Muslim woman cannot contract a valid marriage except with a Muslim.
Shia Law: Under Shia Law witnesses are not necessary at the time of marriage. They are required at the time of the dissolution of marriage.
6. Different Kinds of probation to a valid Marriage
Islamic Law prohibits the following three kinds of marriages and the infringement of the rule will make a marriage void and the offspring of such a union shall be turned as illegitimate.
Prohibition on the ground of consanguinity
A man is prohibited from marrying…
a. His mother or his grandmother how high soever;
b. His daughter or grand-daughter howlowsoever;
c. His sister whether full, consanguine or uterine;
d. His niece or great-niece howlowsoever;
e. His aunt or great-aunt howhighsoever, whether paternal or maternal.
A marriage with a woman prohibited by reasons of consanguinity is void.
Prohibition on the ground of affinity
A man is prohibited from marrying:
a. His wife’s mother or grand-mother howhighsoever;
b. His wife’s daughter or grand-daughter howlosoever;
c. The wife of his father or paternal grand-father howhighsoever;
d. The wife of his son, or his son’s son or daughter’s son howlowsoever.
A marriage with a woman prohibited by reason of affinity is void.
Prohibition on the ground of fosterage
Whoever is prohibited by consanguinity or affinity is prohibited by reason of fosterage except foster relations, such as sister’s foster-mother, or foster-sister’s mother, or foster-son’s sister, or foster-brother’s sister, with any of whom a valid marriage may be contracted.
A marriage prohibited by reason of fosterage is void.
Moreover, a man cannot have at the same time two wives who are so related to each other by consanguinity, affinity or fosterage that if either of them had been a male, they could not have lawfully inter-married.
The bar of unlawful conjunction renders a marriage irregular, not void.
