Essential requirements of a Muslim marriage

• All Muslims have right to marry, but they have to fulfil the essential of marriage laid down by their personal law for its validity.
• Solemnization of marriage requires adherence to certain firm and formula. They are called essential of valid marriage
• If this requirement is not fulfilling the marriage become either void or irregular.
• Essential of valid marriage

1. Proposal and Acceptance

• Muslim marriage proposal is Ijab and acceptance is Qubul.
• Proposal should be made by one party and accepted by another
• proposal and acceptance should be carried out at same meeting, if done in more than one meeting, then marriage is not considered valid
• Proposal and acceptance shall take place in present of parties.
• Under Sunni law, the proposal and acceptance must be done in presence of witness, which can either be made to 2 male witness or one male witness and 2 female witnesses. Witness must be of sound mind, adult and Muslim.
• Under Shia law, witness not necessary for valid marriage.

2. Competency of parties

• For legally valid marriage. Parties must be competent to enter into contract of marriage.
• Various factors:

A) Major

• Majority not essential for valid marriage
• Minor can marry under condition to be fulfilled. Is that minor have reached the age of puberty
• Consider to have attend puberty the age of 15
• Privacy council in case of Muhammad Ibrahim vs Attik Begum

• Under Indian Majority Act, it is 18 exceptions for determination of marriage among Muslim under Muslim law. Therefore, act does not apply to Muslims.
• If a minor not attend age of 15, consent of Guardian is required to make marriage lawful
• Person recognised as guardian are:
  a) father
  b) grandfather brother
  c) Any male member of father’s family,
  d) mother,
  e) member of maternal relation,
  f) in absence of Guardian, marriage may be contracted by Qazi

B) Soundness of Mind

• At the time of marriage, both parties should be of sound mind
• Person of unsound mind cannot enter contract, as his concern is not considered.
• Unsound is of two type:
  a) Idiocy - Refers to complete abnormal state of mind. Cannot enter contract
  b) Lunacy - Refers to Unstable mental disease can enter contact and interval which he is seen.

C) Muslim

• Parties must be Muslim irrespective of sects marriage between different sects is intersect, but still valid marriage.

3. Free consent

• Free consent of parties is must
• The consent obtains by force, fraud, coercion is considered invalid, and marriage is void.
• If a person getting married, not attend puberty, the marriage will deem invalid, unless consent given by legal guardian.
• Consent can be either express or implied.

4. Degree of prohibited relationship

• Muslim marriage cannot take place if parties are in blood relation or have prohibited degree of relationship with each other and marriage turns out to be void.
• The absolute prohibited degree of relationship is as follows.

a) Consanguinity-

Refer blood relation in which man is barred from marrying the following female. They are as follows.

• i. His mother or grandmother,
• ii. His daughter or granddaughter,
• iii. His sister, full blood, half blood, or uterine blood,
• iv. His Neice or grand Neice,
• v. His aunt or grand aunt

Marriage with women prohibited by consanguinity is void children born out of such marriage is illegitimate.

b) Affinity -

Marriage with certain close relative is also prohibited for Muslim due to closeness of relationship.

• i. His wife’s mother or grandmother
• ii. His wife’s daughter or granddaughter,
• iii. His father’s wife, or paternal grandfather’s wife,
• iv. His son’s wife, Son’s Son’s wife or daughter, Son’s wife

c) Fosterage -

Relationship formed by breastfeeding baby occurs when lady other than child’s mother, breastfeed under age of 2 year. Lady is foster mother. A man is restricted from marrying the people who comes in foster relationship. Restriction are as follows:

• i. His foster mother or foster grandmother.
• ii. Daughter of foster mother
• Under Sunni law, there are certain exception to the prohibition. Allow following:
  i. Sisters foster mother.
  ii. Foster’s sister’s mother
  iii. Foster’s son’s sister.
  iv. Foster’s brother’s sister.
• Shia considered consanguinity and fosters on same footing and deny exception under Sunil Law