MARRIAGE (NIKAH)

Family starts with marriage, hence the institution of marriage is regarded as the central idea of the breach of Family Law of every community. Before going to elaborate the different laws related to Mohammadan Marriage (Nikah). It is very important to go through the history of the institution of Marriage. Customs regulated the Sex-relations and there flourished four types of sexual connections, out of which one was prevailing in the regular from known as marriage. At that time the position of women was weak which was later on improved by the Prophet Mohammad. Group Marriages, Marriages by barter, flag marriages or prostitution and the sending of a wife to a famous man for intercourse, all these types of loose sexual unions were forbidden by the prophet. He also forbade the temporary or Muta Marriages. In paganism the idea of sale of the woman was connected with the marriage and Islam also adopted this concept and reformed it by making the woman the principal contracting party as well as the object of the contract. Hence came the present form of Mohammadan Marriage.

Marriage, i.e., Niakh in Pr-Islamic Arabia, meant different forms of sex relationships between a man and a woman established on certain terms. Under the Muslim Law it is a civil contract. After marriage, woman does not lose her individuality. She remains a distinct member of the community; her existence of personality is not merged into that of her husband. The contract of marriage gives no power to anyone over  her person or property beyond what the law defines. Woman remains the absolute owner of her individual rights; even after marriage, she can alienate or transfer her property in any way she pleases without any extraneous control of her husband. She can enter into binding contacts with her husband and proceed against him in law Courts, if necessary,. The woman enjoys this position through the injunctions of Quran. In Pre-Islamic days, women were treated as chattels and were not given any right of inheritance and were absolutely dependent. It was Prophet Mohammad who brought about a striking and their position is now unique as regards their legal status. Prophet placed women on a footing of almost perfect equality with men in the exercise of all legal powers and functions which stand in bold relief when compared with the state of law amongst the ancient Arabas of the Pre-Islamic days.

Marriage, according to the Mohammadan Law is not a sacrament like the Hindu conception of marriage but civil contract. All rights and duties in a marriage arise immediately after the marriage is completed. 

Marriage with Non-Muslims

A marriage with an idolater or fire worshiper is forbidden but it is not considered void but only irregular. Under Sunni Law there is a difference of opinion whether a Muslim female could validly marry a non-muslim or even a Kitabiya male. Most of the authorities consider such a marriage as irregular and the children legitimate. Marriage between the Hindu couple does not stand dissolved automatically after a fixed period on conversion of Hindu Wife to Islam. If after death of Hindu husband wife became a Mohammedan and married a Mohammedan husband and child born out of that union they would be legitimate. 

In the instant case the condition that the husband would live with the wife at her house was incorporated in the Kabulnama in special live with the wife at her house was incorporated in the Kabulnama in special circumstances. She has explained that it might not be convenient or comfortable for her to live with her husband's people in her husband's house and that she might be asked by her  husband's people  to observe strict norms which might have been difficult for her to observe. In these circumstances it cannot be said that there is anything in the agreement which is opposed to any law or to public policy or to principles of Mohammedan Law. The wife is certainly entitled to recover maintenance from her husband on the basis of such and agreement. Incidentally it may be observed here that the husband pretended complete ignorance of the aforesaid conditions in the Kabulnama. 

Conversion to Islam not established.  Qazi having no authority to solemnize marriage without prior conversion , marriage is not held to be a valid marriage. The marriage between a Mohammedan male and Non-Mohammedan female will only be irregular and not void. The offspring will not be illegitimate. When a man although not a Christian marries in England a Christian woman according to Christian rites all the rights and obligations springing from the marriage relationship will be governed by the English Law.