WHAT IS DIFFERENCE BETWEEN MUSLIM MARRIAGE AND OTHER MARRIAGES ?

Everyone has a question in their mind how  Muslim marriage is different from other marriage ? and the answer is here.

Lets go...........

A Muslim marriage being essentially a contract, differs from a Hindu marriage, which is regarded as a sacrament and to which great religious sanctity is attached. Under the old Hindu Law, is the last of the ten sacraments or purifying ceremonies. According to Hindu Law marriage is a "union of flesh with flesh and bone with bone". A wife in Hindu Law is declared to be "half the body of her husband. A Muslim marriage on the other hand, is not a sacrament but a civil contract although it is solemnized, generally with recitation of certain verses from the Quran.

A Muslim marriage differs from a marriage under English Law. A marriage under English Law in no doubt also a civil contract but it differs from a Muslim marriage in that it is essentially a monogamous institution.

Marriage is a contract under Muslim Law under Hindu Law marriage is a sacrament.  If the wife wants to seek a matrimonial relief  qua foreign marriage which took place in the year 1966 as per the provisions of British Marriage Act, she has no remedy available under the Mohammedan Law. So far as she is concerned, law available is obviously Foreign Marriage Act. This position becomes further  clear from Section 29 of the Foreign Marriage Act by which the provisions of Special Marriage Act, 1954 stand amended. This is further clear from the statements of Objects and Reasons as well as the Law Commission's report. Therefore, it is not possible to accept the contention that in view of the provisions of sub-section (4) of Sections 18 and 18(1) of the Foreign Marriage Act is not applicable to the present case. 

A Muslim marriage is treated on the very lines of a contract which can be made and broken by mere offer and acceptance. Thus;

1. Muslim marriage is a civil contract, whereas a Hindu marriage is a sacrament.
2. Payment of consideration in any form is not essential in Hindu Law unlike Muslim marriages.
3. According to Muslim Law, a woman does not by marriage merge her existence into that of her husband but retains her separate legal status unlike the Hindu wife. Amongst Hindus, on marriage the wife passes from the gotra of family of her father into that of her husband. A Hindu wife becomes her husband's helpmate not only in all worldly affairs but also in the performances of regular sacrifices. 
4. The Hindu conception of marriage is that it creates an indissoluble tie between the husband and the wife. But section 13 of the Hindu Marriage Act, 1955 introduces a vital change. It gives to both husband and wife the right to petition the Court for divorce on certain grounds enumerated in the section. A Muslim marriage on the other hand is dissoluble. A Muslim husband may terminate the marriage by pronouncing a Talaq. Marriage under Mohammedan Law is also terminated on death or divorce. 
5.  Under Mohammedand Law a husband can have as many as four wives at a time, but section 5 of the Hindu Marriage Act, 1955, prohibits polygamy which was permitted under old Hindu Law. 

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QURANIC INJUNCTIONS REGARDING MARRIAGES

 

In the first place it would be appropriate to mention what Quran has to say in connection with marriages because Quran is the supreme and basic source of Islamic Law:

"There is no blame on you that you make them an offer of marriage..... But do not make a secret contract except in terms honourable, nor resolve on the tie of marrige till the term prescribed is fulfilled".        (Sura 2-Ayat -235)

(i) To whom marriage is permissible- " Lawful unto in marriage are only chaste women who are believers, but chaste women among the people of the Book revealed before your time- When you give them their due dowers and desire chastity not lewdness nor secret intrigues "   ( Sura 5-Ayat 6)

"If any of you have the means wherewith to marry free believing women, they may wed believing maidens; marry them with the permission of their people and give them their due, they being chaste and not fornicating and not receiving paramours." ( Sura 4-Ayat 25-29)

"We have made lawful to thee thy wives to whom thou hast paid their dowers;.. and daughters of thy paternal uncles and aunts, and daughters of thy maternal uncles and aunts, and any believing woman......."   (Sura 33 -Ayat 50)

 (ii) Modesty and chastity- "Say to the believing men that they should lower their gaze and guard their modesty; that would make greater purity for them (30). And say to the believing women that the should lower their gaze and guard their modesty; they should not display their beauty and ornaments except those which are outside; they should draw their veils over their bosoms and not display their beauty except to their husbands, their fathers, their husband's fathers, their sons, their husbands's sons, their brothers's and their brother's sons or their sister's sons, or other women,or the slaves whom their right hand possess, or make servants free of physical needs, or small children who have no sense of shame of sex; and they should not strike their feet in order to draw attention to their hidden ornaments (31)   (Sura 24-Ayat 30 and 31)
(iii) The prohibited class- " Do not marry unbelieving women until they believe.... Nor marry your girls to unbeliever until they believe."  (Sura 2-Ayat 221)

"Any marry not women whom your fathers married, -Except what is past; it was shameful and odious, an abominable custom indeed (22). Prohibited to you are -your mothers, daughters, sisters, father's sister, brohter's daughters, sister's daughters; foster mothers ( who gave you suck) foster sister; your wives mothers, your ste-daughters under your guardianship, born of your wives to whom ye have gone in, no prohibition if you have not gone in , wives of your sons proceeding from your lions; and two sisters in wedlock at one and the same time, except for what is past (23). Also prohibited are women already married..... Except for these all your are lawful provided you seek them ( in marriage) with gifts from your property, desiring chastity, not lust give them their dowers as prescribed.. (24)  Sura 4-Ayat 22 to 24)

"Let no man guilty of adultery or fornication marry any but a woman similarly guilty.. To the believers such a thing is forbidden"   (Sura 24-Ayat 3)

(iv)  Marriage to poor encouraged -"Marry those among you who are single, the virtuous ones among yours slaves, male or female; if they are in poverty God will give them means, out of His grace. (Sura 24- Ayat 32)

(v) Nikahanama as a contract, - O ye who believe! when yet deal with each other,in transactions involving future obligations, reduce them to writing, let a scribe write down faithfully as between the parties; let him who incurs the liability dictate, but let him fear Lord God and not diminish aught of  what he owes. If the party liable is mentally deficient or weak, or unable himself to dictate, let his guardian dictate faithfully, and get two witnesses out of your own men, and if there are not two men, then a man and two women, such as you choose for witnesses; it is juster in the sight of God more suitable as evidence and more convenient to prevent doubts among yourselves .." (Sura 2-Ayat 282)

(vi) Number of wives- If ye fear that ye shall not be able to deal justly with the orphans  ( orphan wives and their property); marry woman of your choice, two or three or four; But if you fear that ye shall not be able to deal justly (with them) then only one... that would be more suitable to prevent you from doing injustice.." 
(Sura 4-Ayat 3)

The Apex Court has held that Muslim Law permits but does not mandate 45 marriages. No religion in India mandates as an obligation to enter into bigamy or polygamy.
(vii) Obligation of husbands - " Men are protectors and maintainer of women".  (Sura 4-Ayat 35)
(viii) General behavior with women-" O ye who believe ! you are forbidden to inherit women against their will. Nor shall you treat them with harshness.... On the contrary live with them on a footing of kindness and equity. If ye take a dislike to them it may be that ye dislike  ( only ) one thing and God brings about through it a great deal of good."  (Sura 4-Ayat 19) 

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SUNNI LAW OF INHERITANCE

When a Mohammedan dies, the following there questions arise for consideration about the succession to his estate;

1. Who are his possible heirs and successor?
2. Who among he possible heirs and successors are entitled to inherit, i.e., who are his actual heirs?
3. What shares are to be allotted to the actual heirs?

For this purpose the persons entitled to inherit or succeed are divided into:

(i) Relations by marriage and blood- These are gain sub-divided into three classes:

(a) Shares- There are twelve relations who have got certain prescribed shares.

(b) Residuaries- They are all male agnates (descendants, ascendants and collaterals) and only four females who are sharers but are converted into residuaries in some cases.

(c) Distant kindred- This class covers all other blood relations.

(ii) Unrelated  successors- They are the (a) acknowledged kinsman, and (b) universal legatee.

 Actual heirs or successors-

All possible heirs cannot succeed at one and the same time. Some have to be excluded by others. This results in the determination of what is called the "order of succession"These are:

(i) those by which some classes are first excluded by others(e.g., shares exclude residuaries, if their shares exhaust the estate, otherwise they together exclude distant kindred);

(a) Shares- Some sharers are excluded by other heirs and some are converted into residuaries.

(b) Residuaries- These are two sets of rules of exclusion-

(i) those which divide the residuaries into four classes and provide for exclusion of some classes by others.

(ii) those which determine preference within each class.

(c) Distant kindred- There are two sets of rules for them also-

(i) those which divide them into four classes and provide for exclusion of some classes by others:

(ii) those which determine preference within each class.

Sharers-

Sharers under Mohammedand Law are those relations whose shsares have been specifically fixed by Quran, that is to say, those relatives who get a fixed share of estate of the deceased.Fixing the shares of this class is the main contribution of Mohammedan Law to the pre-Islamic customary laws of inheritance in Arabia. In pre-Islamic days the shares of those relatives were either totally excluded or their shares were not fixed. Islam recognisign the preferential claim of this class, changed the old law and alotted fixed shares  to each of these.

The first step in the distribution of  the estate of a deceased Mohammedan after payment  of his funeral expenses, debts and legacies, is to allot their respective shares to such of the relations as belong to the class of shares and are entitled to a share. The next step is to divide the residue (if any) among such of the residuries as are entitled to the residue. If there are no shares, the residuaries will succeed to the whole inheritance. If there be neither sharers nor residuaries, the inheritance will be divided among such of the distant kindred as are entitled to succeed thereto. The distant kindred are not entitled to succeed so long as there is any heir belonging to the class of sharers or residuaries. But there is one case in which the distant kindred will inherit with a sharer, and that is where the sharer is the wife or husband of the deceased. Thus, if a Mohammedan dies leaving a widow and distant kindred,the wife as sharer will take her share which is 1/4 and the remaining 3/4 will go to the distant kindred. And if a Mohammedan female dies leaving a husband and distant kindred, the husband as sharer will take his share 1/2 and the other 1/2 will go to the distant kindred. 

The relations belonging to the class of sharers, Residuaries or distant kindred, are entitled to succeed to the inheritance, depending on the  circumstances of each case. In the lifetime of a father, the father's father will get nothing , the father alone will succeed to the whole inheritance, though both of them belong to the class of sharers. In case the surviving relations be a son and a son's son, the son alone will inherit the property, to the entire exclusion of the son's son, though both of them belong to the class of residuaries. If the surviving relation belong to the class of distant kindred e.e., a daughter's son and a daughter's son's son, the daughter's son will succeed to the whole inheritance. It is a rule of succession that the nearer relations exclude the more remote. 

For this purpose there are tow sets of rules. Those which provide what shares are to be allotted to the various claimants. There are different rules for this purpose for each class separately. 

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