Legal Impediments on Muslim Marriage

Introduction

Unlike the rather ceremonious Hindu Marriages, their counterparts in Islam only require observance of certain rules and norms—also, known as the ‘essentials of a valid marriage’. One such requirement is the absence of any legal disability which might render the marriage void or irregular. Broadly classified under four heads, legal impediments refers to the events and conditions under which a valid Muslim marriage is not permitted. These incapacities are as explained below:

1)     ‘Absolute Incapacity’

Marriages contracted in contravention of absolute prohibitions are deemed void ab inito under every ‘school of Muslim Law’. Such bars may arise from:

a)     ‘Consanguinity or blood relations’: Also, known as Qurabat—wherein, marrying a woman forbidden by consanguineous relations is ‘void’, and the issues, are ‘illegitimate’. This restricts a man from performing nikah with:

  1. ‘His lineal maternal ascendants, how high so ever’
  2. ‘His lineal female descendants, how low so ever’
  • ‘His female siblings’
  1. ‘His niece/ great-niece, how low so ever’
  2. ‘His aunt (father’s/mother’s sister) or great aunt— whether paternal or maternal—how high so ever’.
  1. ‘Affinity or marital relations’: Otherwise, known as Mushaarat. It prohibits a man from contracting a marriage with:
    1. ‘The lineal maternal ascendants of his wife, how high so ever’
    2. ‘The lineal female descendants of his wife, how low so ever’
      • Note: This prohibition only comes into existence upon the consummation of marriage with wife, and not otherwise.
  • ‘Any woman lawfully wedded to his father/ paternal grandfather, how high so ever’
  1. ‘Any woman lawfully wedded to his son/ son’s son/ daughter’s son, how high so ever’
  1. ‘Fosterage’: Also, called Riza; it is a relationship established once a child ‘under two years of age’—has been ‘breast-fed by any other female than his own biological mother’. Such a lady is deemed to be his ‘foster mother’ and a man is, thus, barred from marrying her and a few particular women related to her.
    1. Sunni Law: Recognises limited exceptions to the general rule of such prohibitions. A Sunni male may, if he wishes, contract a marriage with:
      • ‘Foster mother of his female siblings’
      • ‘Mother of his foster sister’
      • ‘Female sibling of his foster son’
      • ‘Female sibling of his foster brother’
    2. Shia law: The eminent jurists of this school of Muslim law view fosterage and consanguinity equivocally and have unequivocally refused to accept the exceptions allowed by the Sunni Law.

2)     ‘Relative Incapacity’

Springing from causes that render the marriage ‘invalid/irregular’ (fasid)—until regularised, by removal of the reason that is creating bar—such incapacity ends the moment the bar is removed The marriage, thereupon, becomes ‘valid and binding’ (sahih).

  1. ‘Unlawful Conjunctions’: This prohibition was created to avoid the confusion of ‘kindred relationships. It refers to marrying two such women, simultaneously, who are so related to each other (by any absolute bonds), that they would have not been able to contract a lawful marriage with each other, had they been of opposite genders. In Islam, a man is, for instance, forbidden from marrying ‘two sisters’, ‘an aunt, and her niece’, etc. This bar can very well be removed by divorcing the first wife or upon her death.  Any Muslim man may marry is free to be legally wedded to his wife’s aunt but not her niece, without her permission. Such marriages are considered fasid under Sunni Law while batil under Shia Law.
  2. ‘Polygamy’: Polygamy refers to the plurality of spouses. It is unlawful for a Muslim woman to have more than one husband. Upon doing so she becomes liable to Section 494 of IPC. The issues of such marriage shall be considered illegitimate. Although, a Muslim man can contract four marriages simultaneously. He is interdicted from marrying the 5th one as long as he is a party to four valid marriages which are yet to be dissolved. Such marriage shall be called void under Shia law but is only held invalid under Sunni law. This irregularity can be removed by dissolving one of his prior four marriages. No Muslim marrying/registering under the ‘Special Marriage Act, 1954’ can marry another woman at least during his spouse’s lifetime.
  3. ‘Absence of proper witness’: Sunni law, unlike the Shias, requires 2 witnesses even at the time of marriage. The witnesses are required to be sane, adult, and Muslim by religion. In case two such male witnesses cannot be arranged, a marriage can be solemnized in the presence of 1 such male and 2 competent females as witnesses.

In absence of proper witnesses, a Sunni marriage is held invalid. However, in the Shia law, witnesses are immaterial.

  1. ‘Lack of shared beliefs’: A Muslim male from the Sunni school of Muslim Law can contract marriage with any female from the same religion, irrespective of her sect. Marriage with a female who is an ardent believer of any religion based on a Holy Book, as in Islam itself. However, he is prohibited from marrying any idol/fire-worshipping woman. Although, such marriage would only be considered irregular. A Muslim female must not marry ‘any man who isn’t a Muslim, not even a Kitabi’. Mulla believes such marriage to be irregular, but Fyzee considers it void and against the dictates of the Holy Quran. Under Shia Law, no Muslim— be it a man or a woman— is allowed to contract a ‘Nikah’ with a non-Muslim. A Shia man can, of course, bind himself in ‘Muta marriage’ with a non-Muslim female be it a Kitabia or even a fire-worshipper, but not an Idolatress like a Hindu female’. Muslims belonging to different sects may intermarry.
  2. ‘Woman undergoing Iddat’:Iddat” is the term, if observed properly, confirms the legality of a marriage, upon its completion. When her marriage is dissolved, either by death or by divorce, a Muslim female is expected to retain her chastity and maintain a vehement refusal of contracting another marriage until the end of this term. The marriage with a female observing Iddat is rendered void in Shias but only invalid in Sunnis.

3)     ‘Prohibitive Impediment’

This kind of prohibition arises in certain marriages involving Muslim females:

  1. ‘Polyandry’: The term refers to marriage with more than one husband, at a time, and is forbidden in the Muslim system. As long as her first marriage subsists, a married woman cannot remarry. Contravention of this rule exposes her to the punishment prescribed under section 494 of the Indian Penal Code. All the issues from such marriage will be illegitimate.
  2. ‘Muslim female’s marriage with a non-Muslim’: Marriages contracted between a Muslim female and a man from any other religion other than Islam is considered fasid by the Sunnis but batil by Shias.
  • ‘Directory Impediment’

Such incapacities might develop from:

  1. ‘Marrying a woman ‘enceinte’: It is not lawful to marry a female who has been impregnated by her former husband
  2. ‘Prohibition of divorce’: When a matrimonial relationship is disbanded via triple pronouncement of talaq, the reunion of the same couple is prohibited unless the woman marries another man—only to be divorced by the latter, post-consummation.

In light of the Muslim Women (Protection of Rights on Marriage) Act, 2019, this rule has now become obsolete.

  1. ‘Marriage during pilgrimage’: This type of marriage is void under Shia law. Every other sect of Sunni law, except the Hanafis, considers such marriage invalid. The latter, regard marriage under the state of ihram to be lawful.
  2. ‘Marriage with a Sickman’: Marrying a fatally ill man, is irregular. Although, the marriage stands validated once he recovers and consummates the marriage.

Conclusion

Overall, it is pretty understandable that for a marriage to be considered valid, it must not have impediments of any kind. An absolute impediment renders the marriage void under all circumstances. Other prohibitions, being temporary, only invalidate the marriage under Sunni law. There is a scope of removal of any such irregularity. However, the Shia law recognizes only two types of marriages: Valid (Sahih) and Void (Batil). Almost all irregular marriages (Fasid) fall under the ambit of void or Batil marriage. However, it must be noted that the requirement of two witnesses to solemnize marriage does not exist under the Shia Law. Ergo, marriages that are contracted in absence of any proper witness, are still valid under the latter; and that particular relative incapacity does not apply in that case.

Author(s) Name: Shalini Goswami (Deen Dayal Upadhyay Gorakhpur University,Gorakhpur)