Concept of Marriage in Muslim Law

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  • Topic: Marriage, Wedding, Marriage in Islam
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  • Published : December 7, 2012
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Concept of Marriage in Muslim Law
Islam, unlike other religions is a strong advocate of marriage. There is no place of celibacy in Islam like the Roman Catholic priests & nuns. The Prophet has said “There is no Celibacy in Islam”.

Marriage acts as an outlet for sexual needs & regulates it so one doesn’t become slave to his/her desires. It is a social need because through marriage, families are established and the families are the fundamental entity of our society. Furthermore marriage is the only legitimate or halal way to indulge in intimacy between a man and woman.

Islamic marriage although permits polygamy but it completely prohibits polyandry. Polygamy though permitted was guarded by several conditions by Prophet but these conditions are not obeyed by the Muslims in toto.

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.

It’s a matter of query still existing whether Muslim marriage is only a civil contract or an Ibadat & Muamlat. While unleashing the various definitions it’s 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.)

Purpose of Marriage
The word “Zawj” is used in the Quran to mean a pair or a mate. The general purpose of marriage is that the sexes can provide company to one another, procreate legitimate children & live in peace & tranquility to the commandments of Allah. Marriage serves as a mean to emotional & sexual gratification and as a mean of tension reduction.

Marriage compulsory or not ?
According to Imams Abu Hanifa, Ahmad ibn Hanbal & Malik ibn Anas, marriage in Islam is recommendatory, however in certain individuals it becomes Wajib or obligatory. Imam Shafi...
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