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COMPETENT PARTIES & LEGAL DISABILITY
The Parties
to a marriage must have the capacity of entering into a contract.
They must be competent to marry. Muslim who is of sound mind and
who has attained puberty may enter into a contract of marriage.
The parties must be able to understand the nature of their act.
LEGAL
DISABILITY
Means
the existence of certain circumstances under which marriage is not
permitted. These prohibitions have been classified into four classes:
-
-
Absolute
incapacity or prohibition
-
Relative incapacity or prohibition
-
Prohibitive incapacity
-
Directory incapacity
1.
ABSOLUTE INCAPACITY OR PROHIBITION: arises from:
(a)
Consanguinity
(b) Affinity
(c) Fosterage
a) Consanguinity
means blood relationship and bars a man from marrying:
-
His mother or grandmother how highsoever,
-
His daughter or grand-daughter how lowsoever,
-
His sister whether full, consanguine or uterine,
-
His niece or great niece how lowsoever,
-
His aunt (fathers sister, mothers sister) or great aunt, how
highsoever, whether paternal or maternal A marriage with a woman
prohibited by reason of consanguinity is void. Issues from such
marriage are illegitimate.
b) Affinity
prohibits a man from marrying:
-
His wife's mother or grand-mother how highsoever
-
His wife's daughter or grand-daughter how lowsoever
-
Wife of his father or paternal grand-father how highsoever
-
Wife of his son or son's son or daughter's son how lowsoever
A marriage with a woman prohibited by reason of affinity is
void.
c) Fosterage
means when a woman other than its own mother has suckled a child
under the age of two years, the woman becomes the foster-mother
of the child. A man may not, for instance, marry his foster-mother
or her daughter, or his foster sister.
EXCEPTIONS
Under
the Sunni law, there are a few exceptions to the general rule of
prohibition on the ground of fosterage and a valid marriage may
be contracted with:
-
Sister's foster mother, or
-
Foster's sisters mother, or
-
Foster's sons sister, or
-
Foster brother's sister.
The
Shia jurists place fosterage and consanguinity on the same footing
and refuse to recognize the exception permitted by the Sunnis. The
above mentioned prohibitions on account of 'consanguinity', 'affinity'
or 'Fosterage' are absolute and the marriages contracted in contravention
of these rules are void.
2.
RELATIVE INCAPACITY OR PROHIBITION: Springs from cases which
render the marriage invalid only so long as the cause which creates
the bar exist. The moment it is removed, the incapacity ends and
the marriage become valid and binding. The following are the cases:
a) Unlawful
conjunction,
b) Polygamy,
or marrying a fifth wife.
c) Absence
of proper witnesses
d) Differences
of religion
e) Woman
undergoing IDDAT
a) Unlawful
conjunction: means contemporaneously marrying two women so related
to each other by consanguinity, affinity or fosterage, which they
could not have lawfully intermarried with each other if they had
been of different sexes. Thus a Muslim cannot marry two sisters,
or an aunt and her niece.
Under
the Shia Law, a Muslim may marry his wife's aunt, but he cannot
marry his wife's niece without her permission. Marriage prohibited
by reason of unlawful conjunction is void under Shia Law.
b) Polygamy
or marrying a fifth wife: means plurality of wives, i.e. marrying
a fifth wife. It is unlawful for a Mohammedan to have more wives
than four.
A Muslim
woman cannot marry more than one husband. If a woman marries a second
husband, she is liable for bigamy under Sec.494, Indian Penal Code
and the issues of such a marriage are illegitimate.
In India
no Muslim marrying under or getting his marriage registered under
The Special Marriage
Act, 1954,can marry a second wife during the lifetime of his
spouse.
c) Absence
of proper witnesses: It is essential amongst the Sunnis that at
least two male witnesses or one male or two female witnesses must
be present to testify that the contract was properly entered into
between the parties. The witnesses must be of sound mind, adult
and Muslim.
In Shia
Law, a marriage contracted by the spouses themselves or their guardians
in private are held valid. Presence of witnesses is not necessary.
d) Differences
of religion: A Sunni male can marry a Muslim female (Of any sect)
or a Kitabia. Marriage with the Kitabia, i.e. a woman who believes
in a revealed religion possessing a Divine Book viz Islam, Christianity
and Judaism is valid under the Sunni Law. But he cannot marry an
idolatress or a fire-worshiper. A marriage, however with a idolatress
or a fire worshiper is merely irregular in Sunni Law, but void in
Shia Law. A Muslim woman cannot marry any man who is not a Muslim,
whether he is Kitabia (i.e. man believing in a revealed religion
possessing a divine book) or not . According to Mulla, a marriage
between a Muslim woman and Non-Muslim male is irregular. But according
to Fyzee, such a marriage is totally void
Under
Shia Law, no Muslim, whether male or female can marry a non-Muslim
in the Nikah form.
Thus
a marriage between a Muslim and a non-Muslim can only take place
under The
Special Marriage Act, 1954.
e) Woman
undergoing Iddat: Iddat is a period during which it is incumbent
upon a woman, whose marriage has been dissolved by divorce or death
of her husband to remain in seclusion and to abstain from marrying
another husband
Under
Sunni Law marriage with a woman undergoing Iddat is irregular and
not void. But under Shia law marriage with a woman who is undergoing
Iddat is void.
3. PROHIBITIVE
INCAPACITY:
It arises
in the following cases:
a) Polyandry
b) A
Muslim woman marrying a non-Muslim
a) Polyandry:
means the fact of having more than one husband. Polyandry is forbidden
in the Muslim system and a married woman cannot marry second time
so long as the first marriage subsists.
b) Muslim
woman marrying a Non -Muslim: A marriage of a Muslim female with
a non-Muslim male, whether he be a Christian, or a Jew or an idolator
or a Fire-Worshiper is irregular under Sunni Law and void under
Shia Law.
4.
DIRECTORY INCAPACITY:
This
may arise from:
a) Marrying
a woman 'enceinte': It is unlawful to marry a woman who is already
pregnant by her former husband.
b) Prohibition
of divorce: When the marriage is dissolved by the pronouncements
of divorce three times, re-union is prohibited except after the
lawful marriage of the woman with another man and then its being
dissolved after consummation.
c) Marriage
during pilgrimage: Under Shia Law, Marriage during pilgrimage is
void.
d)Marriage
with a sick man: Marriage with a sick man suffering from disease
which is likely to be fatal is invalid. If however, he recovers
and the marriage is consummated, it is valid.
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