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Q 7: Define MARRIAGE and What are the ESSENTIALS of a Valid Marriage. What are the Legal EFFECT OF VOID and INVALID MARRIAGE?
A: 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.
CAPACITY FOR MARRIGE:
1. Every Muslim of sound mind, who as attained puberty, may enter into a contract of marriage.
2. Lunatics and minors who have not attained puberty may be validly contracted in marriage by their respective guardians.
3. The marriage of a Muslim who is of sound mind and has attained puberty, is void, if it is brought about without his consent.
ESSENTIALS OF A VALID MARRIAGE: It is essential to the validity of a marriage that there should be a proposal made by or on behalf of one of the, and an acceptance of the proposal by or on behalf of the other, in the presence and hearing of two male or one male and two female witnesses, who must be sane and adult Muslims. The proposal and acceptance must both the expressed at one meeting. A proposal made at one meeting and an acceptance made at another meeting do not constitute a valid marriage. Neither writing nor any religious ceremony is essentials.
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.
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 void.
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 marriage.
i. 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:
1. A marriage prohibited on the gound of consanguinity
2. A marriage prohibited on the gound of affinity
3. A marriage prohibited on the ground of fosterage
4. A marriage with the wife of another person
5. A marriage which is brought about by force or fraud would be void.
LEGAL EFFECTS OF VOID/BATIL MARRIAGE: The following are the legal effects of void/Batil marriage:
1. There is no right for dower
2. The death of one of them does not entitle the other to inherit from the deceased.
3. The issues born out such marriage are illegitimate.
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.
ii. 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
LEGAL EFFECTS OF INVALID MARRIAGE: the following are the legal effects of invalid/irregular/fasid marriage:
1. very few rights accrues to the parties, but as regards the issues they are given full status.
2. It is the duty of the Kazi to separate the spouses but the union may also either party at any time, neither divorce nor intervention of the court is required.
3. If the marriage has been consummated, wife is entitled to full dower specified or proper whichever is less, and she must observe iddat.
4. No right of inheritance is created between the husband and the wife by an irregular marriage.
The issues born out of this kind of marriage are treated to be legitimate, and the issues are entitled to share the inheritance.