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DR RAM MANOHAR LOHIA

NATIONAL
LAW
UNIVERSITY

FAMILY LAW
FINAL DRAFT
ON
MUSLIM MARRIAGE THROUGH ELECTRONIC
MEDIA
SUBMITTED TO
By:

SUBMITTED

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Samreen Hussain
Suyash
Gupta
DR. RMLNLU (LUCKNOW)
3rd Semester Sec B, Roll No.151

ACKNOWLEDGEMENT
INTRODUCTION
HOW FAR NIKAH THROUGH ELECTRONIC MEDIA IS VALID ?
CONTEMPORARY CASES RELATED TO NIKAH THROUGH ELECTRONIC MEDIA
ACCEPTACE OF MARRIAGES SOLOMONIZED THROUGH ELECTRONIC MEDIA
AROUND THE WORLD

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ACKNOWLEDGEMENT

I take this opportunity to express my profound gratitude and deep

regards to my guide (Mrs. Samreen Hussain) for his exemplary guidance,
monitoring and constant encouragement throughout the course of this
thesis. The blessing, help and guidance given by him time to time shall
carry me a long way in the journey of life on which I am about to
embark.
I would like to express my gratitude towards my parents & members of
Dr. Ram ManoharLohiyaNational Law University for their kind cooperation and encouragement which help me in completion of this
project.
I would like to express my special gratitudeand thanks to all those
people who gave me attention and their invaluable time.
My thanks and appreciations also go to my friend and classmates in
developing the synopsis and people who have willingly helped me out
with their abilities.

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INTRODUCTION
Nikah in pre Islamic Arabia, meant different forms of sex relationship between a man and a
woman established on certain terms, in pre Islamic days, women were treated as chattels, and
were not given any right of inheritance and were absolutely dependent, it was prophet
Mohammad who brought about a complete change in the position of women.
It means the legal contract between a bride and bridegroom as part of an Islamic marriage; the
contract of Islamic marriage; Islamic marriage in general.
It is an Arabic term used for marriage. It means "contract". The Quran specifically refers to
marriage as mithaqunGhalithun, which means a strong agreement.
The original meaning of the word nikah is the physical relationship between man and woman. It
is also used secondarily to refer to the contract of marriage which makes that relationship lawful.
A contract that results in the man and woman living with each other and supporting each other
within the limits of what has been laid down for them in terms of rights and obligations.
The traditional ceremony ofnikah is performed in the physical presence of both bride and
bridegroom with two male witnesses or one male and two female witnesses and the marriage is
solemnised and is said to be legal if it fulfils certain conditions provided in the Quran1. But in the
world of technology people are being married through electronic media i.e. through telephone
and video conferencing.
1Conditions of nikah are-The parties to the marriage i.e. husband and wife, must be
competent; The consent of the parties, or of their guardians, must be a free
consent; The required formalities are duly completed, and there must not be any
prohibition or impediment in contracting the marriage.

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Initially this was started when the males who were in arm forces went away from the their
country, they use to appoint a proxy man in his place for the completion nikah ceremony,
whereas in 21st century that has been changed, due to progress of technology both the parties can
marry by sitting in front of web cam in different countries and their marriage is a legal binding
marriage.
This paper tries to explain the new era of nikah and its validity as per as Muslim laws, with the
help of some real incidents and opinions of various jurists.

HOW FAR NIKAH THROUGH ELECTRONIC MEDIA IS VALID?

Some jurist opines that marriage cant be solemnised through telephone or video call because the
very basic requirement is the physical presence of both bride and groom in the ceremony with at
least two witnesses present to witness the offer and acceptance. They support their argument by
citing There should be a proposal made by or on behalf of one of the parties to the marriage,
and an acceptance of the proposal by or on behalf of the other party. A Muslim marriage
requires proposal Ijab from one party and acceptance Qubul from the other side. This must be
done in one sitting.2
They support another process for that,
First illustration- if A wants to marry B without both being present at one place, he can
authorize anyone of his friends or relatives living at the place where B is to contract his marriage
and appoint him his agent to pronounce offer or acceptance on his behalf. If, for example he
selects C to be his agent for this purpose, he should authorize him in the following words: I
authorize you to contract my marriage with B, daughter of D, on a sum of .... as dower.
Then, at the time of marriage ceremony in presence of at least two male witnesses, the girl may
pronounce her offer saying, I married A, son of E on a sum of .... as dower.
If there is a Qadi or a NikahKhwan duly authorized by the girl, he can also pronounce offer in
the following words: I gave B, daughter of D in marriage with A on the sum of .... as dower.
C, the agent of A, will say in reply, I accepted this marriage on behalf of A.
2Hidaya vol. 2

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Second illustration-The offer can also be initiated by C as an agent of A. In this case he will
address B in the following words:
Being a duly authorized agent of A, I marry A, son of G, to you on a sum of .... as dower.
In this case B will reply, I accepted this marriage.
In both cases, it will be a valid contract between A and B, where after they will be treated as
husband and wife duly wedded to each other according to Shariah3.
Whereas some have the opposite views, according to them as nikah is a contract and parties can
enter into contract through telephone and video conference, them why not a marriage can be
solemnised through electronic media. To make it a valid nikah parties flow certain guidelines for
the same.
The following procedure for the Nikah through electronic media to be valid:

Before the Nikah the parties should fax to each other copies of identity documents or
passports so that both sides are aware of the identities of the parties getting married.

A speaker phone or in case of video conferencing a speaker should be used on both sides
of the conversation so that the two witnesses on either side can hear BOTH the offer and
acceptance.

At the time of the offer and acceptance, the Mahr should also be clearly stipulated.

After the Nikah, arrangements should be made to have the Nikah recorded in a register by
the local Imam. Copies of the certificate should be sent to both spouses.

Another method of telephonic Nikah, which is more preferable, is that the girl appoints a Wakeel
(agent) in her town to marry her to the boy. She must mention his full name and address, as well
as the Mahr she is asking. The Wakeel should be a responsible, elderly person in her family or in
her community. This Wakeel will then telephone someone he knows in the country where the boy
lives, or the Imam in the city where the boy lives, and inform that person that the girl has given
permission for her Nikah to be made to a certain boy (with full details) for a fixed Mahr, which

3Shariah is an integral part of Islam. It is often defined as Islamic law.

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will be specified. This second Wakeel will then go ahead with the Nikah in the area where the
boy lives, in the presence of two or more witnesses.

CONTEMPORARY CASES RELATED TO NIKAH THROUGH

ELECTRONIC MEDIA

Jharkhand H.C inUpasana Bali v. secretariat4 2012, the division bench of Chief Justice P
C Tatia and Justice Jaya Ray observed that law should not be kept in a closed box and
should be analysed considering the modern technology instead. The bench ordered the
state to make arrangements for a video-conference to verify the couple and issue the
certificate, this judgement stood as good precedent for the usage of electronic media in
issuing of marriage certificate.

Delhi H.C in RavinderChanda v. Govt. of NCT Delhi5 2014 ruled that couples can
register their marriages in absentia, Delhi high court has said that these certificates can be
issued via video-conferencing. Justice Manmohan, allowed this to a newly-wed couple
based in Canada, said that the rule mandating physical presence while applying for
registration was framed at a time when technology was nascent.
The court said the family members could take delivery of the marriage certificate once
the couple confirms this through video-conferencing.
Judge added that The law has to adapt to changing times. It also said that developments
that have changed the world and the way we view the world today were "unimaginable"
and perhaps "beyond comprehension of the rule makers.

4W.P (C) 528 of 2012

5W.P (C) 306 of 2014

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Judge cited the words of Justice Bhagwati in the case of National Textile Workers'
Union v. P.R. Ramakrishnan6saidwe cannot allow the dead hand of the past to stifle the
growth of the living present. Law cannot stand still; it must change with the changing
social concepts and values. If the bark that protects the tree fails to grow and expand
along with the tree. It will either choke the tree or if it is a living tree, it will shed that
bark and grow a new living bark for itself. Similarly, if the law fails to respond to the
needs of changing society, then either it will stifle the growth of the society and choke its
progress or if the society is vigorous enough, it will cast away the law which stands in the
way of its growth. Law must therefore constantly be on the more adapting itself to the
fast changing society and not lag behind?
Court in these case took a modern approach and decided the cases in accordance with the current
circumstances.

6(1983) 1 SCC 228

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ACCEPTACE OF MARRIAGES SOLOMONIZED THROUGH

ELECTRONIC MEDIA AROUND THE WORLD

Below are some Muslim marriages solemnised through electronic media i.e. through telephone
and video conferencing:

In year 2003 groom is an MBA from Lucknow University, currently working with a
Dubai-based multi-media company. Bride is from Lucknow's elite Loreto Convent and is
pursuing a course in fashion technology here. Boy in Dubai and girl from lucknow
married through video conferencing and moulvi' declared that the marriage had been
solemnised in Lucknow after the groom said yes. After the moulvi declared the nikah
solemnised, it was followed by mubarakho congratulatory calls from the friends and
relatives gathered at the bride's home.
High priest MaulanaHamidulHasan7 said, This was the first nikah I have performed
through video-conferencing. I am myself impressed by the procedure. It makes the task
so much easier.
He further added that it is a step beyond and better than the telephonic nikah as one is
now able to see the person with whom one is getting married.

7Ayatullah Syed HamidulHasan is a Shia alim of Lucknow

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Pakistan nikah through electronic media in Pakistan is being popularised.in the same
year 2002, Mehwish Hassan, a student of computer science at the Bahria University,
Karachi, and Rashid Ashraf, working as an IT consultant in Virginia, married through a
video-conference.

One of the most popular marriage through telephone is of a Pakistani cricketer Shoaib
Malik, he married his first wife through telephone, which was a controversy when he
planned his second marriage but eventually he divorced his first wife which shows the
validity of his first marriage.

Maryland Court on 2012 delivered a judgement on case Noel Tshiani v. Marie Louise
Tshiani8, the main question before court was that whether a marriage solemnised through
telephone is a valid marriage or not?
A World Bank employee, Tshiani was working in another African country when he and
Marie-Louise Tshiani married in a 1993 ceremony. He answered questions and listened
to the ceremony by telephone, while his cousin stood in his place for the ceremony. The
exchange among families included money, clothes and a goat, and within days, the bride
flew to join her husband. But after 15 years wife asked for divorce and husband
contended that as he himself was not present in the ceremony the same marriage was not
a valid one, therefore he cant be asked for alimony. Court in its judgement said that as
marriage is a contract therefore this is a valid marriage. Court referred to two professors
of Michigan suggested that all states should allow marriage by videoconferencing, given
that other contracts are done electronically when participants are in different locations.
However, the court noted it took no position on whether Maryland would recognize a
Skype marriage.

Cyber marriage, although considered a rare and unusual occurrence, is valid if the syarak
or Islamic laws are adhered to, according to shariah lawyers.
Failure to register with the local Islamic authority, however, is considered an offence.
8NNo. 2655, Sept. Term, 2010

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Referring to the 27-year-old woman who married an Islamic State (IS) member via Skype,
shariah law practitioners said there were five criteria that needed to be fulfilled and clarified
before the marriage was validated.Lawyer Akbardin Abdul Kader the five crucial criteria were
needed for a Muslim marriage to be valid.In this case, it was the participation of bride and
groom, two witnesses and the wali, the brides father.The wali is the most important because
he must agree to marry his daughter to the groom and the marriage can proceed only if the father
agrees to it, he said.If the father does not agree, the bride needs to go to court to get
permission, so it is them who will make the ruling.Akbardin said he believed the marriage could
be valid, although some may argue that the marriage was not valid as both bride and groom were
not at the same place at the same time.In a technology driven world, if a husband can divorce
his wife through a text message, Skype marriages can be valid, he said.
However, the marriage must be registered with the Malaysian Shariah court and the validity will
be determined after checking both parties.
A 27-year-old woman was arrested about two weeks ago at Kuala Lumpur International Airport
for suspected links to the IS.The woman from Negri Sembilan married an IS member of
Moroccan descent, who is based in Syria, via Skype.The virtual marriage took place midDecember, following her getting to know him via Facebook a month.She is also believed to be
the seventh woman arrested in the country in connection with IS.Lawyer Fakhrul Azman Abu
Hasan said it was possible for a marriage to be done virtually if the Islamic law criteria has been
complied with.With modern technology, the wali can perform the marriage through Skype but
the witnesses must be present and they must be able to hear the bride and groom clearly, he
said.However in Malaysia, before the marriage is solemnised, permission is needed by the
religious authorities, otherwise it is considered as an offence.
Fakhrul Azman said religious departments such as the Selangor Islamic Religious Department
would usually request for the marriage details before it took place.Details such as the name of
the wali, witnesses, the place where the marriage would be solemnised and if either party is
single or divorced is usually requested, he said.The wali and the witness also have to sign the
application forms.He also said that in the case of the Skype marriage, it can be declared null and
void if the Shariah requirements were not complied to.Lawyer Datuk Mohd Zaidi Mohd Zain
said the marriage was suspect as it cannot simply be validated over Skype.The marriage has
to be investigated one by one on each criteria, he said.Who was the wali? Was the nikah
performed here or in Syria? Did the wali know about the marriage?He said the couple did not
comply to the marriage rules and procedures.
In order for one to get married over Skype, they would need to get permission from the Islamic
religious department before the marriage, he said.This is a very rare case and it is acceptable if
they fulfil the five criteria but usually, the bride and groom are in the same place.

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CONCLUSION
After analysing the system of Islamic marriage is a religious duty of every Muslim and it is
considered to be a moral safeguard and a social need. The Prophet has also said Marriage is my
tradition whosoever keeps away there from is not from amongst me.
Unlike Hindu where the marriage is a sacrament, marriages in Muslims have a nature of civil
contract.
Nikah through electronic media is a way towards the modern world and should be appreciated,
but it is still a controversial issueregarding its validity as some Muslim law scholars thinks it not
to be a valid marriage and supports a proxy method for the purpose of marriage.

BIBLIOGRAPHY
Muslim marriage law by mulla
http://www.dawn.com/news/813222/the-media-and-the-marriage
http://www.legalserviceindia.com/article/l418-Muslim-Marriage.html
http://timesofindia.indiatimes.com/nri/us-canada-news/Now-get-marriage-registrationcertificate-via-video-conferencing-HC/articleshow/30527802.cms
http://delhihighcourt.nic.in/dhcqrydisp_o.asp?pn=19347&yr=2014
http://indiankanoon.org/doc/171389608/

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