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Bars to Muslim Marriage in India


Bars to Muslim Marriage
Bars to Muslim Marriage

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Merely having the capacity to marry and fulfilling all the essentials of a Muslim marriage does not automatically make it valid. There must be no legal impediment. These impediments can be of two types: absolute and relative.  Violation of absolute and perpetual bars renders the marriage void under all schools of Muslim law. On the other hand, violation of relative and temporary bars results in different consequences: the marriage is considered irregular under Sunni law and either void or valid under Shia law.



Absolute Bars (Void Marriage)  


There is an absolute prohibition for a Muslim to marry someone within his or her 'prohibited relationship.' Two individuals are considered within a prohibited relationship if they are related by:


(1) consanguinity,

(2) affinity, or

(3) fosterage.



Prohibition on the Ground of Consanguinity:

A Muslim male is prohibited from marrying the following blood relations:


- Mother, grandmother (regardless of how far back the lineage goes).


- Daughter, granddaughter (regardless of how many generations down).


- Sister (whether full, half, or uterine).


- Niece (brother's or sister's daughter) or grandniece (brother's or sister's granddaughter).


- Aunt or great aunt (whether paternal or maternal, such as father's sister or mother's sister).



The expressions ‘how high so ever’ and ‘how low so ever’ refer to any degree of ascendants and descendants, respectively. Unlike Hindu law, there is no prohibition in Muslim law against the marriage of two cousins (both parallel and cross-cousins).



For example, a brother's daughter can marry a sister's son, or a brother's daughter can marry a brother's son. Additionally, there is no prohibition against marrying the wife of one's paternal or maternal uncle, meaning a man can lawfully marry his divorced or widowed aunt (Chachi or Mami).



Prohibition on the Ground of Affinity:

Affinity refers to relationships created through marriage. A Muslim is prohibited from marrying certain individuals whose relationship arises due to marriage, whether valid or invalid:


- Ascendants of his wife (e.g., wife's mother, grandmother).


- Descendants of his wife (e.g., wife's daughter, granddaughter).


- Wife of any ascendant (e.g., father's wife, grandfather's wife). This includes a stepmother, which means other wives of his father besides his biological mother.


- Wife of any descendant (e.g., son's wife, grandson's wife).



These prohibitions apply to any degree of ascendants and descendants. The same rule applies to women, who cannot marry their daughter's husband, granddaughter's husband, etc. Notably, the prohibited relationship with a wife's daughter or granddaughter arises only if the marriage with the wife has been consummated.



Therefore, a man can marry the descendants of his wife (such as her daughter from a previous marriage) if his marriage to her has not been consummated. In all other cases, the prohibition due to affinity arises regardless of consummation.



Prohibition on the Ground of Fosterage:

When a child under the age of two years has been nursed from a woman other than his own mother, that woman becomes the 'foster mother' of the child. Under Muslim law, anyone who is prohibited from marriage due to consanguinity or affinity is similarly prohibited by reason of fosterage.



For instance, a Muslim male cannot marry his foster mother, foster sister, or the daughter of his foster mother. However, a Sunni Muslim may validly marry his sister's foster mother, his foster sister's mother, his foster son's sister, or his foster brother's sister.



This prohibition due to fosterage has become almost obsolete in contemporary Indian Muslim families, as this type of relationship is rarely practiced nowadays.



Plurality of Husbands / Marrying Another's Wife:

A marriage with a woman who already has a living husband from whom she has not been divorced is void, constituting bigamy on the part of the wife. Even if she has a valid ground for divorce under the Dissolution of Muslim Marriages Act, 1939, she must prove this ground and obtain a court decree before marrying another man.

 
 

Relative Bars (Irregular/Void Marriage)


Relative prohibitions in Muslim law are those that are not strictly mandatory but whose violation is deemed unjust. These prohibitions render a marriage irregular or void, or may not affect its validity at all, depending on the nature of the prohibition, which is often recommendatory, directory, or moral.



These bars are temporary and can be overcome, allowing an irregular marriage to become valid at the volition of the person. The relative prohibitions include:



Unlawful Conjunction

A man cannot have at the same time two wives who are related to each other by consanguinity, affinity, or fosterage in such a way that if one were a male, they could not lawfully intermarry.



For instance, a man is prohibited from marrying the sister of his wife because, if one were male, they would be brother and sister and could not marry. Thus, a person cannot marry two sisters or an aunt and her niece.



In Shia law, a man may marry his wife’s aunt, but he cannot marry his wife’s niece without his wife's permission. A man may not marry his wife's sister during his wife’s lifetime, but he can marry his wife's sister after his wife's death or divorce.



Marrying the Fifth Wife

Muslim law permits a limited polygamy of up to four wives. A Muslim male can only have four wives at one time. He can marry a fifth wife only after divorcing one of the four. Notably, Muslim law does not permit polyandry for a Muslim female.



Absence of Proper (Two Competent) Witnesses (Only Under Sunni Law)

For a marriage to be valid under Sunni law, the presence of two competent witnesses is necessary.



Marriage of a Muslim Major Without His/Her Consent

A valid marriage requires the consent of the parties involved. If a Muslim major is married without his or her consent, the marriage is not considered valid.



These relative prohibitions highlight the flexible and contextual nature of marriage regulations in Muslim law, allowing for rectification and validation under certain conditions.

Difference of Religion in Muslim Marriages


  1. Sunni Law:

  • Valid Marriages: A Sunni male can validly marry a "kitabia" (a Jewess or Christian) but not an idolatress (idol worshipper, e.g., a Hindu) or a fire-worshipper. A marriage with an idolatress or fire-worshipper is merely irregular.


  • Definition of Kitabia: The term "kitabia" refers to someone who believes in a holy book containing revelations, such as Muslims, Christians, and Jews, but not Sikhs.


  • Sunni Females: A Sunni female cannot marry a non-Muslim, whether kitabia or non-kitabia. While Mulla holds that such a marriage is merely irregular, Prof. Fyzee considers it void.



  1. Shia Law:

  • General Rule: No Muslim, male or female, can marry a non-Muslim.


  • Exception: A Muslim male may contract a valid temporary (mut'a) marriage with a kitabia.


  • Inter-Sect Marriages: A Sunni male/female may contract a valid marriage with a Shia female/male, and such marriages are not considered irregular.



  1. Legal Considerations:

  • Christian Marriages: If a Muslim male marries a Christian woman, it must be under the Indian Christian Marriage Act, 1872, making it a Christian marriage unless Muslim formalities are also observed. The Indian Divorce Act, 1869, applies, prohibiting dissolution by pronouncing talaq.


  • Special Marriage Act, 1954: A Muslim, male or female, can perform a valid marriage with a non-Muslim under this act, but it will be a civil marriage, not a Muslim marriage.



Marriage During Iddat


Definition

A period of seclusion and abstinence from remarriage for a woman whose marriage has been dissolved by divorce or death, to ascertain if she is pregnant by her former husband and avoid confusion of parentage.



Purpose:

  • To establish the paternity of a possible conception by the former husband. Immediate remarriage after divorce or death could lead to confusion about the child's paternity if born within the normal gestation period.



Duration:

  • Divorce: If the woman menstruates, the iddat period is three menstrual cycles. If she does not menstruate, it is three lunar months.


  • Pregnancy: The iddat lasts until the delivery of the child or the termination of the pregnancy, whichever is earlier, as per the Muslim Women (Protection of Rights on Divorce) Act, 1986.

 
 

Iddat Following Dissolution of Marriage


When a marriage is dissolved by death, the iddat period is four months and ten days or until delivery if the woman is pregnant, whichever is longer. If a woman is pregnant from an extramarital affair, she must also observe iddat.



In the case of a husband's death, iddat is required whether or not the marriage was consummated. For divorce, if there was no consummation, no iddat is required, and she can remarry immediately.



The iddat period begins from the date of marriage dissolution, not from when the woman learns of the divorce or death. If the wife is unaware of the divorce or death until after the iddat period, she is not required to observe iddat.



If a divorced woman is in iddat for three months and her husband dies before its completion, she must observe a new iddat of four months and ten days from the husband's death. During iddat, the woman cannot remarry, and her husband also cannot remarry while she is undergoing iddat. The husband must provide maintenance during this period.



Under Shia law, marrying a woman in iddat is void. However, it is generally accepted among Shias that iddat is not required if the woman is past childbearing age, has not reached puberty, or has irregular or absent menstruation.



Rules on Pilgrimage

If a person in ihram (pilgrim dress) marries while on pilgrimage, the marriage is invalid under the Shia and Shafei schools but valid under Sunni law.



Marriage with a Divorced Woman

A man cannot remarry a woman he divorced via triple talaq unless she marries another man, consummates that marriage, and is subsequently divorced by him. Marrying a woman in violation of this rule is invalid.

 
 



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