The
solemnization of any Muslim marriage requires the adherence of certain forms
and
formulas which are actually termed as essentials of Muslim marriage. If any
of these requirements is not fulfilled, the marriage becomes either void or
irregular, as the case may be. The essentials are as follows :-
(a) Proposal and acceptance –
Marriage like any other civil contract is constituted by two living parties and
there must be an offer (ijab) of marriage, usually from the bridegroom and such
offer of marriage should be accepted (qabool)
by her or her guardian or by other party on her behalf as the case may be. In Mst. Ghulam Kubra Vs. Mohammad
Shafi
Mahmood J. said that a man or someone on his behalf or a woman or
someone on her behalf should agree to marriage at one meeting and the agreement
should be witnessed by two adult witnesses. Under Shia law, witnesses are even
not necessary at the time of marriage. It was also held in Mst. Zainaba Vs. Abdul Rahman,
that there is no particular form in which the proposal and acceptance
should be made. The offer(Ijab) and acceptance(Qabool) may be either oral or in writing. The parties
contracting a marriage must be acting under their free will and consent. Though according to the Hanafi
law, contracts of marriage even under compulsion or the offer and the
acceptance even if pronounced without any intention to effect marriage, are
valid.
(b) Competent Parties - The
parties to a marriage must have the capacity of entering into a contract. For
this purpose every Muslim (whether man or woman) must be (1) of sound mind (2)
adult (3) have attained puberty. If a person attains the age of 15 years, it is
presumed that he has attainmed puberty. As per Hedaya, the age of majority for
a boy is 12 years and for girls 9 years. In the case of Nawab Shadiq Ali Khan Vs. Jai
Kishori
, Privy Council held that as per Shiatis, the age of majority for a girl is 9
years. It should be noted that marriage of a minor without the consent of the
guardian is invalid unless it is ratified after attainment of majority.
(c) Legal Disability – Legal
disability means the existence of certain circumstances under which marriage is
not permitted. These prohibitions have been classified into four classes as
follows :-
(i)
Absolute incapacity or prohibition which
arises due to Consanguinity, affinity or fosterage;
(ii)
Relative incapacity or prohibition like
unlawful conjuction, Polygamy or marrying with a fifth wife and absence of
proper witness, differences of religion and finally for woman undergoing iddat.
Relative incapacity render the marriage
invalid only so long as the cause which creates the bar exist.
(iii)
Prohibitory incapacity or prohibition like
Polyandry and a Muslim marrying a non-Muslim; and
(iv)
Directory incapacity or prohibition like
marrying a woman ‘enciente’, prohibition of divorce and marrying during
pilgrimage or marrying a sick man.
No disturbance - There
should not be any social, moral or legal disturbance in the way of a valid
marriage. The reason is that there are certain prohibitions on account of which
a marriage legally solemnized can become invalid as in the cases mentioned
above.
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