In Muslim law marriages are of the nature of civil contract and there are three kinds of marriages
–sahih i.e. valid,
–fasid i.e. Irregular and
–batil i.e. void.
There are certain conditions to be followed for the marriage to be valid like free consent, presence of witnesses, competence of parties etc. If such conditions are not followed the marriage is either void or irregular which respectively entail their own specific conditions. A void marriage is unlawful from its beginning and thus it does not create any rights or obligations between the parties. The concept of voidable marriages does not exist in Muslim law. There also exists a temporary form of marriage in Shia sect of muslim law i.e. Muta marriage.
Void, Valid and Irregular Marriages
Muslim law does not lay down any form of marriage. However through the years, Muslims in some country have themselves adopted various forms in which they can marry. For a Muslim marriage to be valid it has to comply with the formalities laid down by Muslim law although it is a contract. On performance of nikah a marital status arises between the parties.
A marriage can be legally performed between the parties possessing full capacity to marry. The general essentials for marriage under Islam are as follows:-
a) Every Mahomedan possessing a sound mind and who has attained puberty can marry. The general age of puberty is considered to be 15 years if no proof or evidence of puberty exists.
b) A minor and insane (lunatic) who have not attained puberty can be validly contracted in marriage but only by their respective guardians.
c) Consent of party necessary. A marriage of a Mahomedan who is of sound mind and has attained puberty, is considered void, if there exists no valid consent or free will.
Due to performing of all the necessary formalities a marriage is a valid marriage and legal consequences of a valid marriage follow which includes legal sexual intercourse, legitimate children, inheritance rights etc. The essentials of a valid marriage are that there should be a proposal made by or on behalf of either of the parties to the marriage, and an acceptance of the proposal by the other party. Thus a Muslim marriage requires proposal Ijab from one party and acceptance Qubul from the other side. The proposal and acceptance must both be put forth at once meeting. The acceptance must be subsequent to what is being offered. The marriage must be effected immediately. The parties must be competent i.e. they must be sane and adult. Mahomedan, present during the marriage proposal and acceptance. (Not needed in Shia Law) The women must not be from the forbidden class. Neither writing nor any religious ceremony is needed but the consent given must be free consent. Under Muslim law wife’s sect or school does not undergo a change on marriage.
When a marriage is performed in violation of absolute impediments or perpetual impediments under Sunni law and of all impediments under shia law, the marriage is batil ie. Null and void- ab initio. Neither can it confer the status of husband and wife on the parties nor the status of legitimacy on the children. No mutual rights and obligations arise from such marriage. Such marriages are outcome of forced consent, plurality (keeping of more than one wife) of husband and also includes marriages that are prohibited on the ground of consanguinity.
Consanguinity means blood relationship and bars a man from marrying:
1. His mother or grandmother no matter how high in lineage.
2. His daughter or grand-daughter no matter how low in lineage.
3. His sister whether full, consanguine or uterine,
4. His niece or great niece no matter how low in lineage.
5. His aunt (fathers sister, mothers sister) or great aunt, no matter how high in lineage ( can be both paternal or maternal).A marriage with a woman which was prohibited by reason of consanguinity is void. Children from such marriage are considered illegitimate.
(d) Marriage prohibited on the ground of affinity.
Affinity lays down prohibition in the following cases:
1. His wife’s mother or grand-mother no matter how high in lineage.
2. His wife’s daughter or grand-daughter no matter how low in lineage.
3. Wife of his father or paternal grand-father no matter how high in lineage.
4. Wife of his son or son’s son or daughter’s son no matter how low in lineage. A marriage with a woman prohibited by reason of affinity is void.
(e) Marriage prohibited on the ground of fosterage
Fosterage means when a woman other than its own mother has suckled a child under the age of two years, the woman becomes the foster-mother of the child. A man thus cannot marry his foster-mother or her daughter, or for that matter his foster sister.
There is no process recognized or prescribed in law whereby such marriage can be validated. These marriages are void ab initio and no ceremony can validate it. Thus the parties are free to go their own way. Third person can take a stand and say that the marriage is void even when the marriage has not been terminated formally.Although no legal action is necessary for the declaration of such marriages as null and void, any person who is interested in getting such a declaration can file a declaratory suit under section 9 of CPC, 1908.
Irregular is not the same as voidable under English law or Hindu law. A voidable marriage is perfectly valid till it is avoided by either party. A voidable marriage has on its annulment practically the same consequences as void marriage. Irregular marriage is not a valid marriage nor is it a void marriage. It is not a valid marriage to begin with but can be fully validated by removing the impediment. Thus when a person marries his wife’s sister the marriage is irregular but can be made valid by pronouncing Talak on his wife.
An irregular marriage is totally ineffective marriage if not for consummation. Either party has the right to terminate it either before or after consummation by just expressing an intention to do so. The bar of unlawful conjunction thus renders the marriage irregular and not void. If marriage has been consummated it will be considered, the wife has to undergo idda of three courses as she would have done on occasion of dissolution of marriage, either by death or divorce. A marriage under Muslim law is irregular under case such as when a Sunni marriage is performed without witnesses, a marriage performed with a woman undergoing iddat, a marriage prohibited on account of difference of religion, a marriage with fifth wife and a marriage performed in violation of the rule against unlawful conjugation. Shia law does not recognize irregular marriage.
The issue in a case was whether marriage of Muhammadan male with Muhammadan female pregnant through some unknown person was valid, void or irregular. Held, proved facts that at time of marriage, woman was having illicit pregnancy. Marriage in this case had to be treated as if it had never been in force .Result was that in law there was no marriage.
Comparision of Void Marriages Under all Personal Laws
Under Hindu law the conditions for void marriage are prescribed in section 11 of the Hindu marriage act, 1955. The first ground is when either party has a spouse living. Under this the second marriage will be void only if the first marriage is valid. If the first marriage is void, the second marriage will be valid. In one such case complainant failed to prove that there was valid marriage according to Hindu Law. Second marriage under Hindu Law and Muslim law was found to be not valid. Thus they were not liable for offence under Section 494 of IPC. This holds true even in Christian law and Parsi law where bigamy is a punishable offence under section 494 of Indian Penal code, 1860 as in Hindu law. But under Muslim law limited polygamy is permitted (up to four wives) and marriage with fifth wife is illegal and in order to remove the impediment one of the four wives should be divorced. Polyandry is prohibited under Muslim law.
Under Hindu law the marriage is void even when the parties are sapindas to each other unless such a marriage is permitted by custom and the parties are within prohibited degrees of relationships. Even Christian law prescribes the marriages which are which are within prohibited degrees of consanguinity or affinity as void. This clause holds true even for Parsi law. Under muslim law as well the marriage is void when it is performed in violation of conditions of consanguinity, affinity and fosterage.
Under Christian law the marriage is void when either party was idiot or lunatic at the time of marriage. The marriage is void in both Christian law and Parsi law when either party to the marriage was impotent in case of Parsi law and when respondent was impotent at the time of marriage and at the time of institution of suit in case of Christian law. Such marriage is voidable under Hindu law.There is no such condition of void marriage under Muslim law.
Under Parsi law the marriage is void if the necessary formalities of marriage have not been performed. Under Christian law the marriage can be declared null and void on ground of non performance of requisite formalities of marriage or if it was performed within six months of confirmation of decree of resolution of the former marriage. A Sunni marriage is irregular under Muslim law if it is performed without the presence of witnesses. Under Hindu marriage act the marriage is void ab initio if proper ceremonies are not performed such as saptapadi etc.
Under parsi law the marriage is void if any party is below requisite age of marriage. Under Hindu law marriages before requisite age are neither void nor voidable but punishable under Indian penal code. The age of marriage is attainment of puberty under Muslim law but a marriage is violation of this clause is not void. Muslim girl who has attained puberty can marry and such a marriage would not be a void marriage. Though same marriage can be declared a void marriage at time of her attaining age of majority. There is no such condition specified under Christian law.
Consent is an integral part of marriages under Christian law, Muslim law and Hindu law and when such consent is obtained through fraud or duress the marriage is void under Christian law and Muslim law and voidable under Hindu law.There is no mention of consent under Parsi law.
Marriage is a religious duty of every Muslim and it is considered to be a moral safeguard and a social need. Unlike Hindu where the marriage is a sacrament, marriages in Muslims have a nature of civil contract. When the marriage is done in accordance to the prescribed norms it creates various rights and obligations on both the parties.
The irregular and void marriages have different consequences in Muslim law and differ greatly. They cannot be considered on the same footing. The ground for void marriages under Muslim law are very narrow and generally focus on prohibited relationships. The concept of irregular marriage is unique to Muslim law and does not exist in other laws. The grounds for void marriage are wider in other laws as compared to Muslim law and include impotency, idiocity, performance of ceremonies, age bar etc. which are not essential elements in Muslim law.