Muslims in India are primarily governed by their personal uncodified laws which derived their authority from Quraan, Sunnah and customary practice among Muslims. Even among Muslim the law is not uniformed and on various matters and practices it differs among Shias and Sunnis.
Marriage among Muslim:
The nature of marriage among Muslims is a Civil Contract after parties (Husband & Wife) entering into it enjoined with rights and obligations immediately and simultaneously.
Parties while solemnization of marriage must signify their proposal and acceptance either in each other’s presence or through their agents and in the presence of two adult muslims male or two adult muslims female witnessess. This whole process must complete at single sitting.
Consent:
Consent in the form of proposal and acceptance in general is one of the essential factors in any agreement sought to be entered into by the parties. The consent of partners to the marriage shall be given out of free will and without undue influence and coercion. Here Consent must be expressed by the girl herself when she is not a virgin or when she is above the age of 15 years but it may either impressed or implied. However there is no particular form in which the consent to be expressed by parties.
Here the question arises that in case of consent is not valid such as consent given under force or by fraud, then what would be the implications and validity of marriage. Under such situation the marriage would be invalid, unless the same has been ratified by parties. Even the consummation would not validate the marriage.
Age of parties to the Marriage:
The age of marriage among Muslims are determined on the basis of parties attaining the age of puberty, thus a Muslim girl belonging to shafei sect can validly contract marriage herself after attaining the age of puberty.
Maher:
Maher is another essential element in Muslim marriage which means an amount or other property such as Gold/Silver etc. groom has to give to bride as consideration of marriage. The object behind concept of maher is to provide a kind of financial security to bride at the time or after marriage.
Presumption of Existence of Marriage:
Existence of marriage can be presumed when the parties have been cohabiting together for a long time as a husband and wife or when husband acknowledge woman as his wife or vice versa.
Void Marriage:
There are three factors which render a marriage contracted under Muslim law void: First, the rule of consanguinity; Second, the rule of affinity; and third, the rule of fosterage.
Thus, by the reason of first rule, a man is prohibited from marrying his mother, grandmother how high so ever, his daughter or granddaughter how low so ever, his sister whether full, consanguine or uterine, his niece or grandniece, his aunt or great aunt.
Further on the rule of affinity which means the relations create by the fact of marriage, a man is prohibited from marrying his wife’s mother or grandmother how high so ever, his wife’s daughter or grand daughter how low so ever, the wife of his father or grandfather how high so ever and the wife of his son or grandson how low so ever.
The last rule i.e. rule of fosterage, though remained not so essential in today’s world as mother’s do not sent or hand over their children to other ladies for breastfeeding which was a prevalent practice in Saudi Arabia at then. But is it essential to note that whatever is prohibited by the above two rules is also prohibited on this account.
Voidable/Irregular Marriage:
The difference between a void marriage and an irregular/voidable marriage is that while the former cannot be rectified or make good by subsequent conduct/act of parties the later can be. There are certain situations where the marriage is not void but only irregular such as a marriage contracted in the absence of witness, marriage solemnized with fifth wife when the marriage with four wives already subsisting, a marriage with a woman who is underjoining iddat, marriage with a woman of different religion and a marriage contracted in defiance of rule of conjunction. However it is noteworthy that such lapses are irregular only in Sunni law and Shia law render the marriage void under the above conditions.
An irregular marriage can be ended through a verbal declaration or through relinquishment and it has no legal effect before consummation. Such irregular or voidable marriage before rectify do not confer any mutual rights of inheritance but the children of such marriage is legitimate.
Other Factors:
In starting, it has been noted that the Muslim in India are governed by their own personal laws in terms of issues relating marriage, divorce, inheritance etc. however having said that they are not immune from the application of law of the land such as Constitution of Indian and other statutory law. There have been numerous occasions where the Courts in India have applied the statutory and constitutional law of secular nature to the Muslims even when such laws were in conflict with the personal laws of the parties. One of such example is that a
Muslim woman under the present law can claim maintenance (Under Section 125 Cr.P.C ) even after divorce and expiry of iddat period which is not in consonance of Islamic law. Furthermore, the apex Court and then the parliament has went ahead recently and nullified the effect of Tripple talaq making it a punishment offence, again this was valid and allowed as per Islamic law among followers of sunni sect.
Therefore, there are many grey areas where the law is still needs to be clarified when it comes of conflict between Islam personal law and statutory law and validity of marriage among Muslims is also affected by the rulings and interpretation of Courts which keep coming from time to time.