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But this does not itself seem to be a safe test. For instance a
marriage with a woman whose husband is alive is, according to
all authorities void although the prohibition against it is only
temporary and not perpetual and may be removed by the
dissolution of that marriage.
Shia Law:
s 1986, Cr.L.R.(Cal.)222
In the Ata Mohd. V. Saiqul Bibi6 7, Justice
8 karamat Husain
has held that where a marriage is not certainly prohibited then
alone it is irregular. If however the marriage is certainly
prohibited then it would be void if the person had knowledge of
the fact but if there was ignorance of its unlawfulness in fact and
not in law then the marriage would be irregular and the children
would be legitimate.
*7
Dr. Jung observes that it is a safe rule that if a marriage is
contracted with the knowledge of its illegality on the part of the
parties, it is batil, null and void ab initio but otherwise it is only
fasid and issue are regarded as legitimate. Amir Ali also agrees
with this view and according to him marriage even with
perpetually prohibited relations and with wife of another person
Q
would be only irregular if there was no knowledge.
Classification of marriages:
Relative in capacity:
1. Valid (Sahih) or
2. Void (batil)
There is nothing like invalid marriage under Shia law and
hence marriages that are not valid are void. Those marriages
which are irregular under Sunni law are void under Shia law.
Marriage contracted without witnesses is valid it is not void.
I. Unlawful conjunction:
A Muslim male can not have at the same time two wives
who are related with each other by consanguinity, fosterage and
affinity9 as two sisters or niece and her aunt. But man may marry
other sister or other relation after death or divorce.10
14 Chandra Pal V/s Keshav Deo 1990(1) civil LJ 790 at P.793 (All).
15 Mr.Zubaida Begum V. Sardar Shah AIR Aitaf Ali 46 Col.259.
16 Habibur Rahman V. Aitaf Ali 46 Cal.259
Mohammedan man can not have more than four wife at a
time. But if the marries a fifth wife, in presence of four, such
17
marriage is irregular under the Sunni law.
1 o
Shia Law:
Qualification of witnesses:
Shafei Law:
29 Hed.26
30 Bail 1,7
31 Bail 1,7; Minhaj 283
32 Ameer Ali, n, 315 Submitted not correctly.
33 Bail 1,6-7.
34 Bail, 7; Durr 9
35 Ammer Ali, II, 310
Guardian as witness:
Drunk witnesses:
Non-Muslim witnesses:
43 BaO 1,7
44 Mst Shamul V. Dost Mohd., 1933 Sind 317.
45 Ihsan v Panna Lai AIR 1928.19 at p.21
to marriage between non Muslim male and Muslim female there
v
is a difference of opinions among the original text-writers. Some
of the authorities have held that such marriage is void and
amounts to zina while other hold such marriage would be
invalid.46 Prohibition not being perpetual, such marriage would
47 Ishar v. Panna Lai (1928)7 Pat.6, Ameer Ali Hnd Ed.54 Fyzee 94-96
4818th Ed., pp.287,290. 291
The Shia law however does not recognize the distinction
between irregular and void marriages. According to that law a
marriage is either valid or void marriage that are irregular under
the Sunni law are void under the Shia law.
51 Durr.275
52 Fyzee: out line of Mohammedan Law. 3rd Ed. P.102
(ii) A marriage prohibited on the ground of iddat is irregular
according to the Sunni law, but under the Shia law it is
void.
Object of iddat:
Period of Iddat
By Taiak By Death
1 For valid marriage 1 4 month 10 days
(a) if she is subject to
menstruation- 3 M.C.
(b) If she is not
subject of M.C.-3
Lunar month
2 If pregnant tie 2 If pregnant ties
delivery delivery
Muta Contract - 45 3 Muta contract 45
3 days days
56 Bail, 335.
57 Bail 11.162
Where iddat is necessary a Mohammedan wife shall
observe it during the following period;
58 Mohd. Hayt V. Mohd. Nawaz AIR 1935 Lah. 262, the Hedaya 128-129., Baillie
138,151,352-358
39 Mohd. Shaft V. Raunaq Ali AIR 1928 oudh 231.
60 Abdul Gani V. Azizul Haq. I.L.R. 39 Cal. 409
61 Mst. Bakh Bibi V. Qaim Din AIR 1934 Lah 907
mere absence of a formal dissolution. The parties must be
separated and the parties can enter into a fresh contract of
marriage but the children would be legitimate.62
Shia Law:
(a) If it is consummated; or
66 Bail I, 85
67 BaU 1,352
68 Bail II, 4; Rahiman Bibi V. Mohboob Bibi ILR1938 Mad. 141.
69 Mohd. Sharif V. Khuda Bux 1936 Lah 683
(c) the children of the marriage are legitimate.
wife, both wives would become separated from the man. In Shia
rise to a prohibition.81
Shia Law:
illicit intercourse with the mother of the wife) would not have
husband.82
79 Bail 1,178-79
80 Bail II, 18-19
81 Durr 276
82 Bail II, 23
C- IRREGULAR MARRIAGES AND ITS SOCIAL
IMPLICATIONS
As to separation:
As to consummation:
As to inheritance:
High Court held that at one time a marriage with a woman before
completion of her iddat was regarded as void but the later view is
that such a marriage is only irregular and the children are
legitimate.
that where the parties are governed by Mohammadan law and the
marriage between the parties was performed during the iddat
period the marriage was irregular. If the marriage was
consummated after the expiry of the iddat period the husband
cannot be held to be entitled to any decree for restitution of
conjugal rights.
•kick
94
AIR 1934 Lah. 907