1. What is valid and void marriage?
Valid (Sahih) marriage – A marriage which is neither void nor invalid is
valid. In order words a marriage which conforms in all respects with the
legal requirements is a valid marriage.
A marriage to valid must satisfy the following requirements:-
1. There must be been a proposal by one party and its acceptance by the
others.
2. The consent of parties is free.
3. Proposal and acceptance must have been taken place at one meeting and
before two witnesses. They must be major and of sound mind. Under Shia
law no witness is necessary.
4. The parties must have capacity to contract marriage. i.e. they should be
(a) of sound mind, (b) major, (c) capable to give free consent. If they are
minor or lunatic, it should be done through their guardians.
5. There should be no impediment to marriage.
Void (Batil) Marriage – A marriage which has no legal results is called a
Void marriage. A marriage contracted by parties suffering from absolute
incapacity, i.e. prohibition on the grounds of consanguinity, affinity or
fosterage is void. Similarly marriage with a woman who is wife of another,
or remarriage with a divorced wife, when the legal bar still exists will be
void.
Following marriages are void in nature:-
1. Marriage in violation of absolute incapacity.
2. Marriage with the wife of another person, whose marriage is still
subsisting
3. Remarriage with one’s own divorced wife, when there is a legal bar.
4. Marriage prohibited by reason of unlawful conjuction
5. Marriage with the fifth wife.
6. Marriage during pilgrimage.
7. Marriage with any non-muslim.
8. Marriage with women undergoing iddat
2. What is ijma and qiya?
Ijma (Consensus of opinion) has been defined by Sir Abdul Rahim as
“Agreement of the jurists among the followers of Prophet Mohammad in
a particular age on a particular question of law”.
According to the classical theory, failing Quran and traditions, the
consensus of opinion amongst the companions of the Prophet is
recognized as the best guide of law. Thus it is the third source of law,
both in time and importance.
Qiyas (Analogical Deductions) this is the last primary source of Muslim
law. Qiyas means reasoning by analogy from three sources, i.e. the
Quran, the Sunnat, the Ijma. In Qiyas rules are deduced by the exercise
of reasons.
Thus, Qiyas may be defined as a process of deduction by which the law
of the text is applied to cases, which though not covered by the
language are governed by reason of the text. Thus it should be noted
that Qiyas does not purport to create new law, but merely to apply old
established principles to new circumstances.
3. What is muta marriage?
Muta marriage is a kind of “temporary marriage” recognized only in
Shia School of Muslim law. The term “Muta” implies “enjoyment” or
‘use’. Muta marriage is a marriage for temporary but fixed period after
specifying dower.
It is not recognized in Sunni law because under it a marriage
specifically decalred for a limited period is void. Hence, muta marriage
is void under the Sunni Law but valid under Shia law. The specified
period may be a day, a month, or a year or a term of years.
A male Shia muslim may contact muta marriage with a muslim,
Christian, jewish or a fire worshiping woman but not with the follower
of any other religion. Muta marriage with a hindu woman is void. A
female Shia is not free to contract muta with non -muslim.
4. Guardianship in Marriage
As stated in the chapter of Marriage, it is one of the essentials of a
valid marriage that the parties are competent to enter into marriage
contract, i.e. among other things they must have attained the age of
puberty. However, this general rule admits one exception i.e. where the
marriage is contracted on behalf of the minors by the guardian. This
exception is the most distinguishing feature of Islamic jurisprudence
because it empowers a father to impose status of marriage on his
minor children. This power of imposition is called (jabar), the abstract
right of guardianship (wilayat) and the guardian so empowered is
known as Wali. Thus under the Muslim law of all schools, the father
has the power to give his children of both sexes in marriage without
their consent, until they reach the age of puberty known as Bulugh.
Persons entitled – the following list of persons who can act as guardians
in the marriage of a minor, in the order of enumeration.
1. Father
2. The father’s father how highsoever
3. Full brother from father’s side
4. Mother
5. Maternal relations within prohibited degree
6. The Qazi or the court
Shia law recognizes only the father and failing him the father’s father
how highsoever.
1. School of Law (6 Marks)
