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Q 12: What are the Different Kinds of Marriage. Distinguish between them?
A: DIFFERENT KINDS OF MARRIAGE: A marriage in Islamic Law may be either:
1. Valid (Sahih)
2. Void (Batil)
3. Irregular (Fasid)
1. VALID MARIRAGE: A marriage which confirms in all respects with law is termed as Sahih meaning thereby correct in regard to legal there should be no prohibitions effecting the parties. The prohibitions may be either perpetual or temporary. If the prohibition is perpetual, the marriage is void; if temporary, the marriage is irregular.
2. VOID (BATIL) MARRIAGE: A marriage which has no legal results is termed as Batil or void marriage. This situation resembles marriage without any reality. A void marriage is an unlawful connection which produces no mutual rights and obligations between the parties. The following are the void marriages:
Marriage in Islam, is religious, social and legal institution and divine institution because it is given in Quran. The illegally of such unions commences from the date when the contracts are entered into and the marriage is considered as totally non existing in fact as well as law.
3. IRREGULAR (FASID) MARRIAGE: A union between a man and a woman may either be lawful or unlawful. Unlawfulness may be either absolute or relative. If the unlawfulness is absolute, the marriage will be Fasid or Irregular, such as:
1. A marriage without witnesses
2. A marriage with a woman undergoing Iddat
3. A marriage prohibited by reason of difference of religion.
4. A marriage to two sisters
5. A marriage with a fifth wife
DISTINCTION BETWEEN BATIL AND FASID MARRIAGES: According to Fatwa-I-Almagiri, prohibited marriages may be broadly divided into two categories, the Batil and Fasid marriages,. Batil mean those which have no legs to stand are void ab origine: the English term unanimously employed by different commentators is “void”. In this category come those that are perpetually prohibited such as marriage with one’s full sister. Under Fasid marriages are grouped those that suffer from a temporary bar, such as:
A void marriage is one which is unlawful in itself, the prohibition being perpetual and absolute.
Thus the marriage with a woman prohibited by (a) consanguinity, (b) affinity, or (c) fosterage is void.
An irregular marriage is one which is not unlawful in itself but where the irregularity arises from accidental circumstances such as the absence of two witnesses, the prohibition is temporary. Thus the following are irregular marriages:
1. A marriage contracted without witnesses.
2. A marriage with fifth wife by a person having four wives, for this objection can be removed by a man divorcing his own wife.
3. A marriage with a woman undergoing iddat, for the impediment ceases on the expiration of the period of iddat.
4. A marriage prohibited by reason of difference of religion. This objection can be removed by the wife becoming a convert to Muslim, Christian or Jewish religion or the husband embracing Islam.
5. A marriage with a woman prohibited by unlawful conjunction. This can be removed by the man divorcing the wife who constitutes the obstacle.
The word ‘Fasid’ seems to have been derived from the word ‘Fasid’ which has been used in the Holy Quran several items and which means disruption or disturbance of an by God. Allam Yusuf Ali has used the Engloish term ‘mischief’. A fasid marriage would, therefore, mean neither strictly an irregular marriage nor an invalid one but a marriage that is disruptive or distributive of the orderly society as ordained in the matter by God.
TERMINATION OF IRREGULAR MARRIAGE: According to the case of Mohammad Maskin v. Nasim Akhtar, 1979 CLC 55 either of the parties can avoid such a marriage by adopting one of the following modes:
1. The husband can repudiate his wife
2. Either of them can sue to avoid it
3. the court can itself move for its cancellation, if the matter is brought to its notice, by any pro bono publico
4. Either of them can, on his or her own, terminate the marriage by a simple declaration to that effect.
It means that the women also has, apart from the right of suing remained un-enjoyed, it can be done even behind the back of the husband but in case of consummation, he has to be informed. The idea is that the husband or wife, as the case may be, ought to know where they stand in relation to each other.
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