Вы находитесь на странице: 1из 12

Aim & Object of Nikah Like anything a Muslim does, marriage should only be undertaken after gaining an understanding

of all that Allah has prescribed in terms of rights and obligations as well as gaining an understanding of the wisdom behind this institution. Nearly all peoples and all societies practice marriage in some form, just as they practice business (buying and selling). Umar ibn Al-Khattab used to expel people from the marketplace in Madina who were not knowledgeable of the fiqh of buying and selling. Likewise, a Muslim should not engage in something as important as marriage without having understanding of the purpose of marriage in Islam as well as a comprehensive understanding of the rights and obligations which it brings about. One of the principles of Islamic Jurisprudence says that: "The default state of all things is lawfulness until some evidence shows otherwise." Based on this, if new foods are discovered, they are considered lawful, unless there is some specific reason or attribute which would make it forbidden for example if it is causes intoxication. Relations between men and women do not follow this general principle and in fact are opposite to it. The principle is that: "Relations between men and women are forbidden until some evidence shows otherwise."

The legal contract between a bride and bridegroom as part of an Islamic marriage; the contract of Islamic marriage; Islamic marriage in general. Nikah is an Arabic term used for marriage. It means "contract". The Quran specifically refers to marriage as "mithaqun Ghalithun,". Which means "a strong agreement". The original meaning of the work 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." Ibn Uthaimeen takes an even more comprehensive view of the institution of marriage in his definition of it as: "It is a mutual contract between a man and a woman whose goal is for each to enjoy the other, become a pious family and a sound society.

Marriage:-Pre Islamic Position

Before the birth of Islam there were several traditions in Arab. These traditions were having several unethical processes like:(i) Buying of girl from parents by paying a sum of money. (ii) Temporary marriages. (iii) Marriage with two real sisters simultaneously. (iv) Freeness of giving up and again accepting women. These unethical traditions of the society needed to be abolished; Islam did it and brought a drastic change in the concept of marriage. Marriage Defined It is quiet relevant to know whether the Muslim marriage is a sacrament like the Hindu marriage, for this let us get acquainted with some of the definitions of Muslim marriage. (a) Hedaya 1: - Marriage is a legal process by which the several process and procreation and legitimation of children between man and women is perfectly lawful and valid. (b) Bailies Digest 2:- A Nikah in Arabic means Union of the series and carries a civil contract for the purposes of legalizing sexual intercourse and legitimate procreation of children. (c) Ameer Ali 3:- Marriage is an organization for the protection of the society. This is made to protect the society from foulness and unchestity. (d) Abdur Rahim 4:- The Mahomedan priests regard the institution of marriage as par taking both the nature of Ibadat or devotional arts and Muamlat or dealings among men. (e) Mahmood J. 5:- Marriage according to the Mahomedan law is not a sacrament but a civil contract. (f) Under Section 2 of Muslim Women (Protection of Rights on Divorce) Act, 1986 Marriage or Nikah among Muslims is a Solemn Pact or Mithaq-e-ghalid between a man & a woman, soliciting each others life companionship, which in law takes the form of a contract or aqd.

Its a matter of query still existing whether Muslim marriage is only a civil contract or an Ibadat & Muamlat. While unleashing the various definitions its quite a big problem to say which one is the most appropriate, in my opinion although the essentials of a contract is fulfilled yet marriage can never be said to be a contract because marriage always creates a bondage between the emotions and thinking of two person. J Sarsah Sulaiman6 has said In Islam , marriage is not only a civil contract but also a sacrament. Muslim marriage can also be differentiated from a civil contract on the basis of following points:(a) It cannot be done on the basis of future happenings unlike the contingent contracts. (b) Unlike the civil contract it cannot be done for a fixed period of time. (Muta Marriage being an exception.) Judicial Interpretation in Muslim Marriage In Abdul Kadir Vs. Salima This case was argued before the Full Bench, Mr. Justice Mahmood said thatIn this view of the case the reference cannot, in my opinion be satisfactorily answered without considering, first, the exact nature and effect of marriage under the Muhammadan law upon the contracting parties; secondly, the exact nature of the liability of the husband to pay the dower; thirdly, the matrimonial rights of the parties as to conjugal cohabitation; and fourthly, the rules of the general law as to the decree of Court in such cases. In Anis begum Vs Mohd. Istafa Apart from being a contract Muslim Marriage is also a religious and sacrament. In Nawab Sadiq Ali Khan vs. Jai Kishori In the case of a shia female, the age of puberty begins with menstruation, it has been held by the privy council in shia case that the age of the majority in the case of the girl is attained at the age of nine years.

In Pooja Arya vs. State of UP Where a Muslim girl married a Hindu boy, which created a furore in local communities, in cases like this law authorities buy peace at the cost of constitutional rights and privileges. Essential Condition of Nikah Nikah is based on few conditions. When these conditions are fulfilled, then a man and a woman are proclaimed as husband and wife and can live together and carry on their marital duties. These are: Essentials of Marriage The essentials of a valid marriage are as follows:(i) 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. (ii) The proposal and acceptance must both be expressed at once meeting. The acceptance must be corresponding to what is being offered. The marriage must be effectively immediate. If the Wali says I will marry her to you after two months, there is no marriage. (iii) The parties must be competent. The two parties must be legally competent; i.e. they must be sane and adult. (iv) There must be two male or one male & two female witnesses, who must be sane and adult Muslim present & hearing during the marriage proposal and acceptance. (Not needed in Shia Law) (v) Neither writing nor any religious ceremony is needed. Procreation (Children)

One of the most important purposes of marriage is to continue and increase the population of the Muslims. Clearly, this goal could be achieved without marriage, but when actions are undertaken in disobedience to Allah, they do not receive the blessing of Allah and the whole society is corrupted. The Prophet said: "Marry, for I will outnumber the other nations by you on Qiyama." It should be stressed that the goal is not simply to produce any child that will live in the next generation. It is to produce righteous children who will be obedient to Allah and who will be a source of reward for their parents after they die. The Prophet will NOT be boasting before the other nations on the day of Qiyama with children of Muslim parents who left the path of Islam. Thus it is the responsibility of Muslim parents to seek the means of giving their children the training and education they need not just to grow, but to succeed as Muslims worshipping and obeying Allah. This obligation may include migration, establishing of Muslim communities and schools and other obligations. As the scholars have said in another principle of fiqh: "That without which an obligation cannot be fulfilled is itself obligatory." Pleasure Islam is the religion of the fitrah - the religion which is consistent with the natural instincts and needs of mankind. It is not like the man-made (of modified) religions which set unnatural constraints on people whether self-inflicted prohibition of marriage (nuns and monks, etc.), prohibition of divorce or monogamy. Men are inclined toward women and women are inclined toward men. Marriage is the institution which fulfills this desire and channels it in ways pleasing to Allah Most High. Allah mentions this attraction: The love of the desires for women, sons, ... has been made attractive to people. The Messenger of Allah himself made clear that the attraction between the sexes is something natural and not something to be denied or suppressed - only channelled in the ways pleasing to Allah Most High, saying: "Women and perfume have been made beloved to me of this world of yours and my peace of mind is in the prayer." The desire of men and women for each other is an urge which needs to be fulfilled. If it is left unfulfilled, it will be a source of discord and disruption in society. For this reason, the Prophet ordered all men who are capable of meeting the responsibilities of marriage to do it: "Whichever of you is capable should marry for it will aid him in lowering his gaze and guarding his body (from sin). As for the one who is not capable, fasting is his protection." Nature of Muslim Marriage

The Prophet emphasised the necessity of marriage saying-"To live in marriage is to observe my way. He who turns away from this way is not of me". Rights & Duties Mutual Rights and Obligations: Marriage is a union for life having mutually inclusive benefits and fulfillment for the contracting parties including the following: # Preservation of chastity and security of gaze # Companionship inside and outside home # Emotional and sexual gratification # Procreation and raising of any children by mutual consultation # Agreement to live together in a mutually agreed country and establish their matrimonial home therein # Working collectively towards the socio-economic welfare and stability of the family # Maintaining their individual property rights but contributing to the welfare of the family according to their capacity # Maintaining social contacts with family and friends mutually beneficial for the family # Managing their individual activities/roles inside and outside the home by mutual consultation Obligations of the husband: In addition to the mutual duties and obligations, the husband undertakes not to:

# abuse his wife/child(ren) verbally, emotionally, physically, or sexually # desert/be absent from the marital home for more than 60 days unless by mutual agreement # withhold economic contribution towards his wife/family # sexually transmit disease or other transmissible diseases # misuse /interfere with the wifes property Obligations of the Wife: In addition to the mutual duties and obligations the wife undertakes not to: # abuse her husband/child(ren) verbally, emotionally, physically, or sexually # desert/be absent from the marital home for more than 60 days unless by mutual agreement # sexually transmit disease or other transmissible diseases

# misuse/interfere with the husbands property Composites of Marriage in Islam WitnessesAccording to Islamic law, a witness should be sane, adult and reliable. This requirement is gender/faith neutral. Hence, the Muslim Marriage Certificate requires to be witnessed by two adult witnesses of good character. # TWO men can be the witness # ONE man and TWO women can be the witness # ONLY women can not be the witness

INSANE and MINOR cannot be the witness Legal Disability It means the existence of certain circumstances under which marriage is not permitted. These Absolute Incapacity There is absolute prohibition of marriage in case or relationship of consanguinity. In this case the situation is such that the relationship has grown up of the person through his/her father or mother on the ascending side, or through his or her own on the descending side. Marriage among the persons associated by affinity, such as through the wife it is not permitted. Marriage with foster mother and other related through such foster mother is also not permitted. Consanguinity (qurabat)-it means blood relationships and bars a man from marryingMother or grandmother, Sister, aunt, niece etc. Affinity (mushaarat)- A man is prohibited from marryingmother-in-law, step-grandmother, danghter-in-law, step-granddaughter, etc. Fosterage (riza)- when a child under the age of two years has been suckled by a woman other than his or her mother,the woman bocomes his foster mother,a man may not marry his foster mother or her daughter or foster sister A man cannot marry his foster mother, nor foster sister, unless the foster brother and sister were nursed by the same mother at intervals widely separated. But a man may marry the mother of his foster sister, or the foster mother of his sister. Exception# Sisters foster mother # Foster-sisters mother # Foster-sons sister # Foster-brothers sister

Relative Incapacity Relative incapacity springs from case which render the marriage irregular only so long as the cause which creaes the bar exist,the moment it is removed,the incapacity ends and the marriage becomes valid and binding. Unlawful union # Marrying a fifth wife # Marrying a woman undergoing iddat # Marrying a non-Muslim # Absence of proper witnesses # Woman going for a second marriage even after the existence of the first marriage. # Marrying pregnant women # Marrying during pilgrimage # Marrying own divorced wife Prohibitory Incapacity It arises in the following cases: (a) Polyandry- it means the fact of having more than one husband.it is forbidden in the muslim system and a married women cannot marry second time so long as the first marriage subsists. (b) Muslim woman marrying a non-muslim- a marriage of a muslim female with a non muslim male made whether he be Christian or jew or an idolater or a fire worshipper is irregular in nature under sunni law and void under shia law.

Directory Incapacity # This may arise out of: Marrying a woman enciente # Prohibition of divorce # Marriage during pilgrimage # Marriage with a sick man Aspects of Marriage Valid Marriage (Sahih) Under the Muslim law, a valid marriage is that which has been constituted in accordance with the essential conditioned prescribed earlier. It confers upon the wife; the right of dower, maintenance and residence, imposes on her obligation to be faithful and obedient to her husband, admit sexual intercourse with him & observe Iddat. Irregular Marriage (Fasid) Those marriages which are outcome of failures on part of parties in non fulfillment of prerequisites but then also are marriages; to be terminated by one of the party is termed to be Irregular marriages. They are outcome of(a) A marriage without witness (Not under Shia Law) (b) Marriage with fifth wife. (c) Marriage with a women undergoing Iddat. (d) Marriage with a fire-worshipper. (e) Marriage outcome of bar of unlawful conjunction.

An irregular marriage has no legal effect before consummation but when consummated give rise to several rights & obligations. Void Marriage (Batil) A marriage which is unlawful from its beginning. It does not create any civil rights or obligations between the parties. The offspring of a void marriage is illegitimate. They are outcome of(a) Marriage through forced consent. (b) Plurality of husband. (c) Marriage prohibited on the ground of consanguinity. (d) Marriage prohibited on the ground of affinity. (e) Marriage prohibited on the ground of fosterage

Conclusion After analyzing thoroughly the system of Islamic marriage a reasonable and prudent way of thinking would always conclude that the Islamic personal law with regards to marriage and divorce need to be changed a lot so to maintain its status in modern society. 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. Marriage is necessary for the legitimization of a child. When the marriage is done in accordance to the prescribed norms it creates various rights and obligations on both the parties. It appears that Islamic law of marriage and divorce is not identical to the man made laws which are changed by man himself moment after moment. It is evident that the position of man and woman in the social set up of the community, is equal in every respect, but keeping in view the mindset of both the genders, Islam segregates the

rights, duties and functions of both the gender and then declares their status with regard to family matters. If it is asked that are man and woman equal in Islamic way of life? There would not be simple positive or negative way of answer rather, one must scrutinize, examine and inspect closely and thoroughly their respective rights, duties and functions. And then placing a complete picture in front, it may be possible to answer the above question. In other societies of the world, the state of affairs is not in concurrence to Islamic way of life. Those other societies always try to claim that man and woman are equal in every respect which is not a natural phenomenon.

Похожие интересы