Muslim marriage: nature, essentials and kinds

1. Definition and object

The Hedaya defines nikah as a contract which has for its object the procreation and the legalising of children. Other definitions add the legalising of sexual intercourse and the regulation of social life. The objects usually listed are: to legalise sexual relations, to legitimate children, to promote family life, and to give the wife rights of dower and maintenance. Marriage is strongly recommended in Islam and is considered a sunna of the Prophet.

2. Nature: contract or sacrament?

In Abdul Kadir v. Salima (1886, Allahabad High Court, Full Bench), Mahmood J. said that marriage among Muhammadans is not a sacrament but purely a civil contract. His reasons, which are the reasons to give in an answer, are:

• it is made by proposal and acceptance, like any contract;
• the parties must have capacity, and consent must be free;
• dower is compared to consideration in a contract;
• the terms may be settled by the parties, including stipulations in a kabin-nama, if they are reasonable and not opposed to the policy of the law;
• the contract can be broken by divorce, and breach of its terms has consequences.

The other side is that nikah is also a religious act. It is enjoined by the Quran and the Sunna, its prohibitions and the rule of iddat are religious, and it creates a status as well as obligations. In Anis Begum v. Muhammad Istafa Wali Khan (1933, Allahabad High Court) Sulaiman C.J. described marriage as not merely a civil contract but also a religious institution. The balanced answer is that nikah is a contract in form and consequence, with a religious character, and is not a sacrament in the Hindu sense of an indissoluble union.

3. Essentials of a valid marriage

• Capacity. Every Muslim of sound mind who has attained puberty may contract a marriage. Puberty is presumed, in the absence of evidence, at fifteen. A minor or a lunatic may be married by a guardian (wali): father, paternal grandfather, then other relations in order. In Hanafi law an adult woman may marry without a wali. The Prohibition of Child Marriage Act, 2006 now has its own effect (see the next note).
• Offer and acceptance. There must be a proposal (ijab) by or on behalf of one party and an acceptance (qubul) by or on behalf of the other, at one meeting. A proposal at one meeting and acceptance at another does not make a valid marriage. No writing or religious ceremony is legally required.
• Free consent. Consent of an adult party must be free. A marriage of an adult woman without her consent is void; consent obtained by force or fraud vitiates it.
• Witnesses. In Sunni law the offer and acceptance must be made before two male, or one male and two female, witnesses who are sane, adult Muslims. Absence of witnesses makes the marriage irregular, not void. Shia law needs no witnesses.
• No prohibition. The parties must not be within the prohibited degrees and no other impediment must exist.

4. Prohibitions

• Absolute (marriage void): consanguinity (mother, daughter, sister, aunt, niece and so on), affinity (wife's mother or daughter, father's or son's wife), and fosterage (relations by suckling, with limited Hanafi exceptions).
• Relative (marriage irregular): unlawful conjunction, as with the wife's sister during the wife's lifetime; a fifth wife while four subsist; marriage without witnesses; marriage with a woman undergoing iddat; and difference of religion (a Sunni male may validly marry a kitabia, that is a Christian or Jewish woman, but marriage with an idolater or fire-worshipper is irregular).
• Prohibitory: marriage with the wife of another person is void, as is remarriage with a divorced wife after a triple divorce until she has validly married another, the marriage has been consummated and dissolved, and she has completed iddat.

The position of a Muslim woman marrying a non-Muslim man is stated differently in the books: Mulla treats it as irregular, other writers as void. Say so if the point arises.

5. Classification and legal effects

Sahih (valid). All conditions met. Effects: cohabitation becomes lawful; children are legitimate; the wife is entitled to dower and maintenance; mutual rights of inheritance arise; prohibitions of affinity arise; the wife must observe iddat on its dissolution.

Batil (void). A marriage in breach of an absolute prohibition, or with another man's wife. It is no marriage at all: no rights or obligations arise, children are illegitimate, there is no inheritance, and no divorce is needed.

Fasid (irregular). A marriage in breach of a relative prohibition, where the defect is temporary or curable. Either party may end it at any time by words showing an intention to separate.

• Before consummation it has no legal effect.
• After consummation: the wife is entitled to dower (proper or specified, whichever is less); she must observe iddat (three courses on separation); children are legitimate and inherit; but the spouses do not inherit from each other.

In Chand Patel v. Bismillah Begum, 2008 INSC 364, (2008) 4 SCC 774, a man married his wife's sister while the first marriage subsisted. The Supreme Court held the bar of unlawful conjunction makes the marriage irregular, not void; it continues until terminated in accordance with law, and the second wife and her daughter could claim maintenance under section 125 of the Code of Criminal Procedure (now section 144 BNSS).

6. Muta marriage

Muta is a marriage for a fixed term, recognised only by the Ithna Ashari Shias. Sunnis and other Shia schools treat it as void.

• The term (a day, months or years) and the dower must both be specified. If the dower is not specified the muta is void; if the term is not specified, it may operate as a permanent marriage.
• An Ithna Ashari male may contract muta with a Muslim, Christian, Jewish or fire-worshipping woman; a Shia woman may contract it only with a Muslim.
• There is no limit to the number of muta wives, no talaq (it ends on expiry of the term or when the husband makes a gift of the unexpired term, hiba-i-muddat), and no mutual inheritance unless stipulated.
• Children are legitimate and inherit from both parents.
• If consummated, the wife observes iddat of two courses on expiry, and four months and ten days on the husband's death.
• Where cohabitation continues beyond the term, the presumption is that the muta was extended for the period of cohabitation: Shoharat Singh v. Jafri Bibi (Privy Council, 1914).

How this is examined

“Explain the essentials of a valid Muslim marriage” appeared in the January 2026 paper and is set regularly for 10 marks. Begin with the definition and Abdul Kadir, then the essentials, then the prohibitions grouped as absolute, relative and prohibitory, and finish with the three kinds of marriage and their effects. Short notes are set on muta, on fasid marriage and on the contract-or-sacrament debate. A typical problem: a Sunni marries a woman during her iddat, or without witnesses, and the question is the status of the marriage and of the child; the answer is irregular marriage, legitimate child, dower due if consummated, no inheritance between the spouses.