Types of Marriages under Muslim Law

By Harish Khan 13 Minutes Read

Muslim Marriage (Nikah): A Social and Legal Contract

In Islamic tradition, Nikah, or Muslim marriage, is regarded as a legal and civil contract between a man and a woman. The essence of this contract lies in the mutual consent, known as Ijab-o-Qubool, which forms the foundation of the marriage. Ijab represents the proposal made by one party, and Qubool is the acceptance of the offer by the other. This mutual agreement, conducted in the presence of witnesses (in Sunni law), is crucial to the validity of the marriage under Sharia law.

The Nature of Nikah

Nikah is considered a religiously sanctioned and legally binding contract that legitimizes the relationship between a man and a woman. It grants both parties the right to engage in conjugal relations and bear children. However, unlike in some other legal systems, this contract is not considered permanent; it can be dissolved by either the husband or the wife through divorce (Talaq), or other mechanisms recognized under Islamic law, such as Khula (divorce initiated by the wife). Therefore, Nikah reflects the flexibility and conditional nature of marriage in Islam, distinguishing it from religious sacraments found in other cultures.

Marriage: A Social Necessity

In Islam, marriage has always been seen as more than just a religious obligation; it is regarded as a social necessity. It provides a structured and lawful means for men and women to live together, raise children, and create family units, which form the bedrock of the Islamic social structure. This societal function of marriage is why Nikah is often arranged between families, with considerations for social harmony and support beyond the two individuals involved.

Mehr (Dower) – A Key Component

A central aspect of the Muslim marriage contract is the Mehr (dower). The Mehr is a financial sum paid by the husband or his family to the wife at the time of the marriage. It is a mandatory part of the contract and represents both a form of security for the wife and a symbol of her rights within the marriage. The amount and terms of Mehr are negotiated before the marriage and can vary depending on the financial status of the groom’s family. It serves as a protection for the wife, ensuring her well-being in case of divorce or other eventualities.

Classification of Muslim Marriage

Muslim marriages can be categorized into three types:

1. valid (sahih)
2. void (batil)
3. irregular (fasid)

A valid marriage is one that adheres to all legal requirements, while a void marriage is unlawful from the outset due to permanent prohibitions. An irregular marriage, on the other hand, is initially unlawful due to temporary or remediable issues. Notably, under Shia law, there is no distinction between irregular and void marriages; a marriage is either valid or void.

Effects of a Valid Marriage (Sahih)

A valid marriage is one where both parties have full legal capacity and have completed all necessary formalities. The legal effects include:

1. Status of Husband and Wife: The marriage confers the status of husband and wife. However, the wife remains subject to her pre-marital school of law.
2. Legitimacy of Children: The children born from the marriage are considered legitimate.
3. Mutual Inheritance Rights: Both parties acquire mutual rights of inheritance, though this does not extend to ownership or control of each other’s property.
4. Husband’s Authority: The husband is entitled to reasonably restrict the movements of his wife.
5. Wife’s Rights: The wife is entitled to maintenance, dower, and residence.
6. Wife’s Obligations: The wife is obliged to allow conjugal relations, obey her husband’s commands, and observe iddat after divorce or death.
7. Prohibited Degrees of Relation: The marriage establishes prohibited degrees of relations between the parties.
8. Additional Rights and Obligations: As stipulated in the marriage contract.

Effects of a Void Marriage (Batil)

A void marriage is unlawful from its inception due to perpetual prohibitions, such as consanguinity, affinity, or fosterage. It is not legally recognized, and no rights or obligations arise from it. For example, there are no entitlements to dower or iddat, and children born from such a union are considered illegitimate. A void marriage does not require legal action to be declared void; since it is void ab initio, both parties are free to go their own ways.

If the void marriage is consummated, the wife may be entitled to a customary dower, but no further legal consequences follow.

Effects of an Irregular Marriage (fasid)

An irregular marriage is not inherently unlawful but contains temporary or correctable irregularities. These irregularities may arise from circumstances such as the absence of witnesses, or temporary prohibitions like marrying a fifth wife while still married to four others. Under Sunni law, irregular marriages can become valid by remedying the issue causing the irregularity, such as a spouse’s conversion to Islam or the expiration of the iddat period.

An irregular marriage may be terminated by either party through divorce, court intervention, or mutual consent. Before consummation, an irregular marriage has no legal effects. However, if consummation occurs, the wife is entitled to dower and is required to observe iddat. Children from the union are considered legitimate, but there are no mutual inheritance rights between the spouses.

Muta Marriage: A Unique Concept in Shia Law

In the Shia Ithna Ashari (Twelver) school of thought, marriage is recognized in two forms: permanent marriage and temporary marriage, known as Muta (literally meaning “enjoyment” or “use”). The key difference between the two lies in the duration of the marriage. In a permanent marriage, no specific time frame is set, whereas in Muta, the marriage has a fixed term. This practice has historical roots in Arab customs and is still recognized under Shia law, but it is not acknowledged in Sunni law.

Who Can Enter into a Muta Marriage?

A Muta marriage is permissible only for Shia men. They can contract this type of marriage with women of the Kitabia faiths, which include Muslims, Christians, and Jews, or even with fire-worshippers. However, it is prohibited for a Shia male to marry women of any other religion, such as Hindus, under this arrangement. Shia women, however, are not allowed to enter into a Muta marriage with non-Muslim men.

Conditions and Requirements for Muta Marriage

For a Muta marriage to be valid, certain conditions must be met:

1. Fixed Duration: The period of cohabitation must be explicitly stated, whether it is for a day, a month, or even several years. If the duration is not specified, the marriage will be considered permanent.
2. Dower (Mehr): A specified dower, or Mehr, must be agreed upon and given to the woman. If this condition is not fulfilled, the marriage is void.

A Shia male can engage in multiple Muta marriages simultaneously, as the limit of four wives, applicable to permanent marriages, does not apply here.

In the case of Shoharat Singh v. Jafri Bibi[1], the court held that when cohabitation in a Muta marriage begins without a specified term, and no evidence exists to the contrary, the marriage is presumed to continue for the entire period of cohabitation. Thus, even children born from such unions are considered legitimate.

Characteristics of Muta Marriage

• Inheritance: No mutual inheritance rights exist between the spouses, but any children born from the union are legitimate and can inherit from both parents. This key feature distinguishes Muta from prostitution, reinforcing that it is not a marriage for convenience but a legally recognized form of union.
• Maintenance: The wife in a Muta marriage is generally not entitled to maintenance unless explicitly stated in the agreement. However, she may claim maintenance under Section 125 of the Code of Criminal Procedure (Cr.P.C.) as a legal wife.[2]
• Dower Rights: If the marriage is consummated, the wife is entitled to the full dower. If not consummated, she is entitled to half of the agreed-upon dower.
• Iddat (Waiting Period): After the termination of the marriage, if consummated, the wife must observe a waiting period (Iddat) of three menstrual cycles. If the marriage has not been consummated, there is no need for Iddat.
• Procreation and Rights: The husband retains the right to refuse procreation (Izl), and he is not obliged to provide housing for the Muta wife.

Termination of the Marriage

A Muta marriage ends upon the expiration of the term, unless extended. It can also be terminated by mutual consent or the death of either party.

The husband cannot divorce the Muta wife but has the option to terminate the marriage earlier by making a “gift of the term,” in which case the wife is entitled to the full dower.

If the wife decides to leave before the end of the agreed term, the husband can deduct a proportionate part of the dower for the unexpired period.

[1] (1915) 17 BOMLR 13.

[2] The Code of Criminal Procedure, 1973, s. 125.

Harish Khan

This is Harish Khan, Enrolled as an Advocate with the Bar Council of Delhi. Currently, working as Legal Manager at Blackbull Law House. Pursued B.B.A. LL.B (Hons) Specialised in Business Laws from Himachal Pradesh National Law University, Shimla [H.P]. completed LL.M Specialised in Business Laws from Amity University, Lucknow [U.P].