There are 3 aspects to a marriage under Muslim Law
1. Legal Aspect;
2. Social Aspect;
3. Religious Aspect.
Legally a Muslim marriage is a contract which provides for certain requirements as regards consent and also provides for provisions for its breach. One can enforce a Muslim marriage judicially and it provides for specific terms.
The Social aspect of Muslim marriages is that they normally provide for higher status to women in society and there are also restrictions placed in Muslim marriages on polygamy in that word polygamy is allowed though limited to a certain extent.
Insofar as the religious aspect is concerned, marriage in Muslim law is considered to be a sacred covenant and it is said that the Prophet Mohammed encouraged it.
There are 3 forms of marriages under Muslim Law and the classification is based on their legality.
1. SAHIH MARRIAGE (VALID)
This is basically a marriage which has conformed with all the laid down requirements.
2. BATIL MARRIAGE (VOID)
This is in fact a void marriage either by reason of some blood relationship between the parties or some other incapacity to contract the marriages. There are 2 consequences of this marriage as in children born out of this marriage are considered illegitimate and no mutual rights or obligations arise as between the parties who are married.
3. FASID (IRREGULAR)
This is where either:
1. No witnesses to that marriage.
2. Woman was undergoing the period of Iddat.
3. Marriage is with a person from a different religion.
4. A man purports to marry a fifth wife.
The effect of an irregular marriage is that as between the parties it does not confer any rights; however children born out of this union are considered legitimate.
Under Muslim Law marriages arising out of cohabitation are not permitted. One has to comply with all the requirements of marriage.
CONDITIONS RELATING TO CAPACITY
1. Farties must be biologically a man and a woman;
2. The parties must have reached the age of puberty;
3. Insofar as marital status is concerned, on the part of the man he can be single or married so long as he marries only four wives and even so a man may not marry two wives at the same time and can only marry one wife at a time and if he marries two wives at the same time, the marriage is considered as being irregular. In the case of the woman, she has to be single and single includes widowed or divorced. Where she has been widowed or divorced, she has to wait for a period of about 4 months before she can contract another marriage. This waiting period is what is known as the ‘Iddat’ period and its purpose is to determine whether or not she is expectant before she can contract another marriage.
4. Parties should not be within prohibited degrees of consanguinity and affinity. These are not provided for under the Law and the applicable law is the Mohammedan Law. The Act provides that marriages should be contracted under the Mohammedan Law and scholars on Muslim law have stated that under Islamic law, a man may not marry his mother, grandmother, sister, niece, grandchild, aunt or the ascendants or descendants of the wife. Prohibition is not only on grounds of consanguinity but also of affinity.
Mulla: Principles of Mohamedan Law
5. Consent of the parties is very important and in some instances consent of legal guardians may also be required. Refer to the case of
Ockba v. Ockba (1957) E.A 675
In this particular case the Plaintiff was the father of the Defendant and he sought a declaration that he was entitled to her guardianship and custody until she was married. He also sought an injunction to restrain her from marrying without his consent. The Defendant wished to marry an Ethiopian who was a Christian. It was held that the Plaintiff was entitled to the injunction restraining her from marrying without his consent and that the proposed marriage would not only be invalid for lack of consent of the father but also for the reason of the religion of the proposed bridegroom because a Muslim woman cannot validly marry a non-Muslim man.
Mohammed v. Salim 6 KL.R 91
A woman should marry a man within her station in life or within the same social status and this is because under Muslim law the husband is required to maintain his wife according to the standards she is used to.
Bibi v. Bibi 8 E.A.L.R. 200
In this particular case the petitioner was seeking to have her niece’s marriage on grounds that she had married a man of lower status and bad character without the consent of her guardian. The court granted her those prayers.
There are requirements as to the parties’ religion. Under some Muslim sects a Muslim man may marry a non-muslim woman as long as the woman belongs to a religion which has a divine or holy book. In some other sects marriages between Muslims and none Muslims is not permitted at all however among all Muslim sects a Muslim woman cannot get married to a non-Muslim man.
FORMALITIES TO CONTRACT A MUSLIM MARRIAGE
1. An offer and acceptance must be entered into by the parties or their guardians. The following procedures should be met:
(a) A declaration or offer firstly made by one party and the other party must accept;
(b) The words in the declaration or offer must show a clear intention to contract a marriage;
(c) This declaration and acceptance should be made in the presence of sufficient witnesses;
(d) The declaration and acceptance should be made in one meeting or in the same meeting.
2. The man is required to pay some form of compensation known as ‘Mahir’. This is payable to the wife and becomes part and parcel of her Estate. Unlike dowry in African customary law which is payable to the family Mahir is paid to the wife herself and can be paid either before parties enter into conjugal cohabitation, during the course of the marriage or even after the dissolution of the marriage. The amount payable is not fixed however it will depend on the different Muslim sects and it is normally fixed according to the social status of the wife’s family.
3. Registration: Under Section 9 of Mohamedan Marrriage and Divorce Registration Act it is required that once a Muslim marriage has been contracted, it should be registered within 7 days and this should be done at the office of the registrar of Islamic marriages. The registrar must be satisfied before registering the marriage as to the identity of the parties, the capacity of the parties and that the marriage did actually take place. Once the marriage has been registered the parties and two witnesses who witnessed the marriage are required to sign the register. However Section 24 of the same Act says that the fact that parties omit to register their marriage does not invalidate that marriage and where marriage is invalid, registration will not validate it. Public Trustee v. Terro Vol. K.L.R 129
EFFECTS OF AN ISLAMIC MARRIAGE – RIGHTS & DUTIES WHICH ARE BESTOWED
- Wife is entitled to a dowry and she may choose to recover it if it is not paid in full.
- The husband is under a legal obligation to maintain his wife to the standards that she is used to. Refer to Saliha Binti Baraka v. Tiabit Bin Salim 2 E.A.L.R. 131 Saliha case deals with recovery of dowry and the other one as to maintenance.
- Each spouse has a right to the others consortium and to enforce performance of the other spouses marital duties.
- The husband has the right to restrain the wife’s activities and to exercise marital authority over her and the children.
- Where the man has married more than one wife Muslim Law obligates him to treat each wife with kindness and equality.