About this topic
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These notes cover marriage (nikah) under Muslim law: its nature as a civil contract, the essentials of a valid nikah, capacity to marry, the Sunni classification of marriages into valid, void and irregular, the prohibited relationships, the five irregular marriages, two Supreme Court decisions on irregular marriages, and the legal effects of each type of marriage. Three problems frame the topic; their answers are given at the end.
Problem 1. Prince and Zoya sit in a small room with two friends, both sane, adult Muslim men. There is no cleric, no written document and no celebration. Prince asks Zoya to marry him, and she says yes, right there. Are they married?
Problem 2. Farhan is married to Neha. While she is still his wife, he also marries her niece, Hansa, the daughter of Neha's brother. Is the second marriage valid, void, or something in between?
Problem 3. A Sunni Muslim man marries a woman who worships idols, and she never changes her religion. After his death, their son claims a share in his property. Will the son succeed?
Nature of Muslim marriage: a civil contract
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Muslim law gives marriage great religious value, but legally a Muslim marriage, or nikah, is built like a contract.
Abdul Kadir v. Salima (1886), Full Bench of the Allahabad High Court: a husband sued his wife for restitution of conjugal rights, and her defence was that her prompt dower had not been paid. Justice Mahmood, whose opinion the Full Bench adopted, explained that marriage among Muslims is not a sacrament but purely a civil contract; verses of the Quran are usually recited, but no particular religious service is required. Held: the right of cohabitation and the right to dower arise together, from the contract itself. Principle: a Muslim marriage is a civil contract, and the rights of the spouses flow from that contract.
Because nikah is a contract:
- the law demands no ceremony and no writing;
- a written nikahnama is useful proof of the marriage, but it does not create the marriage.
What creates a nikah is a simple formula: two voices, two witnesses, one sitting.
Essentials of a valid nikah
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1. Two voices: offer (ijab) and acceptance (qabul)
- The offer is called ijab; the acceptance is called qabul.
- Either may be spoken by the party, or by an agent or guardian on the party's behalf.
- Under the Hanafi school, which most Sunni Muslims in India follow, an adult woman of sound mind can give her own consent without a guardian.
- The words must express a clear and present agreement to marry. A promise about the future is not ijab.
At an engagement dinner, the boy's father says, "We will hold the nikah once he gets a job." This is only a promise about the future, not ijab.
2. Two witnesses
Under Sunni law, witnesses are required. The offer and acceptance must be made in the presence and hearing of:
- two male witnesses, or
- one male and two female witnesses.
The witnesses must be sane and adult Muslims.
Shia law does not require witnesses for a marriage at all.
| Point | Sunni law | Shia law |
|---|---|---|
| Witnesses to nikah | Required: two males, or one male and two females; sane and adult Muslims | Not required at all |
3. One sitting
Offer and acceptance must be exchanged at the same meeting. An offer at one meeting and an acceptance at another do not join to form a marriage; the offer and acceptance must be exchanged again, in one sitting.
A proposal is made at a Saturday dinner, and a yes is given at an Eid lunch two weeks later. There is no marriage. The offer and acceptance must be exchanged again, in one sitting.
Capacity to marry
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Capacity can be understood through two filters: (1) mind and maturity, and (2) faith.
First filter: mind and maturity
- Every Muslim of sound mind who has attained puberty can contract a marriage.
- In the absence of evidence, puberty is presumed on completion of 15 years.
- A minor below puberty, or a person of unsound mind, may still be given in marriage by a guardian, because the guardian supplies the consent.
Option of puberty
Muslim law balances the guardian's power with the option of puberty, which in certain cases allows a person married in childhood to reject that marriage on growing up. For women, this protection now also has a statutory form in the seventh ground of Section 2 of the Dissolution of Muslim Marriages Act, 1939:
"that she, having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years: Provided that the marriage has not been consummated".
Conditions of the statutory option of puberty (Section 2, ground 7, Dissolution of Muslim Marriages Act, 1939): (1) she was given in marriage by her father or other guardian; (2) before she attained 15 years; (3) she repudiated the marriage before attaining 18 years; (4) the marriage has not been consummated.
Renu was married by her uncle when she was 14. At 17, before the marriage is consummated, she rejects it. Section 2 (ground 7) of the Dissolution of Muslim Marriages Act, 1939 allows her to obtain a decree of dissolution.
Prohibition of Child Marriage Act, 2006
The rules on puberty must today be read with the Prohibition of Child Marriage Act, 2006.
- Section 2: a "child" means a male who has not completed 21 years of age, or a female who has not completed 18 years of age.
- Section 3: a child marriage is voidable at the option of the contracting party who was a child at the time of the marriage. That party may petition at any time before completing two years after attaining majority.
- The Act also punishes:
- a male adult above 18 who marries a child;
- those who perform, conduct, direct or abet a child marriage;
- those who promote or permit a child marriage.
High Courts have differed on how far this Act overrides the personal-law rule of puberty. The criminal law, however, is plain. Exception 2 to Section 63 of the B.N.S. says:
"Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape."
Second filter: faith
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Here men and women are treated differently.
- Muslim woman: can validly marry only a Muslim man. If she wants to marry a non-Muslim, she may use the Special Marriage Act, 1954, and the marriage is then governed by that Act rather than by Muslim law.
- Sunni man: has a wider choice. Besides a Muslim woman, he may validly marry a Kitabia, meaning a woman whose faith rests on a revealed scripture, such as a Jewish or a Christian woman. His marriage with an idol-worshipper or a fire-worshipper, however, is not valid.
- Shia man: cannot contract a permanent marriage even with a Kitabia.
In each of these situations, if the other person embraces Islam before the marriage, the bar disappears.
| Party | Can validly marry | Cannot validly marry |
|---|---|---|
| Muslim woman | Only a Muslim man (a marriage with a non-Muslim may be made under the Special Marriage Act, 1954, and is then governed by that Act) | A non-Muslim man under Muslim law |
| Sunni man | A Muslim woman or a Kitabia (for example, a Jewish or Christian woman) | An idol-worshipper or a fire-worshipper |
| Shia man | A Muslim woman | A Kitabia, by way of permanent marriage |
The bar of difference of religion disappears if the other person embraces Islam before the marriage.
Classification: valid, void and irregular marriages
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When something stands in the way of a nikah, Sunni law uses three labels:
- Sahih: a fully valid marriage.
- Batil: a void marriage.
- Fasid: an irregular marriage.
The difference can be pictured as a wall and a locked gate.
| Point | Void (batil): the wall | Irregular (fasid): the locked gate |
|---|---|---|
| Nature of the obstacle | Unlawful in itself | Only temporary or accidental |
| Status | No marriage at all | Becomes regular once the obstacle is removed ("the right key is used") |
| Rights between the parties | Creates no civil rights or obligations | Depends on consummation (see Legal effects) |
| Children | Illegitimate | Legitimate (after consummation) |
| School | Known to Sunni and Shia law | Exists only in Sunni law |
The irregular (fasid) marriage exists only in Sunni law. Shia law knows only valid and void marriages.
Void marriages: prohibited relationships
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Three "walls" make a marriage void. They can be remembered as blood, marriage and milk: consanguinity, affinity and fosterage.
1. Blood: consanguinity
A man cannot marry:
- his mother or grandmother, however high;
- his daughter or granddaughter, however low;
- his sister, whether a full sister, a consanguine sister (sharing only the father) or a uterine sister (sharing only the mother);
- his niece or great niece, however low;
- his aunt or great aunt, however high, whether paternal or maternal.
Corresponding rules apply to a woman.
Cousins are not on the list of prohibited blood relations, so Muslim law allows cousins to marry.
2. Marriage: affinity
Affinity is the relationship created through a spouse.
- On the nikah itself, the wife's mother and grandmother become forbidden to the husband.
- The wife's daughter becomes forbidden only if the marriage with the wife is consummated.
- A man can never marry the wife of his father or of any other ascendant.
- A man can never marry the wife of his son or of any other lineal descendant.
Aadil marries Zoya, a widow who has a daughter from her first marriage. The moment the nikah takes place, Zoya's mother and grandmother become forbidden to Aadil. Zoya's daughter, however, becomes forbidden to Aadil only if his marriage with Zoya is consummated.
3. Milk: fosterage
A woman other than the mother who breastfeeds a child during infancy (generally taken as the first two years of life) becomes its foster-mother. Broadly, relatives through fosterage are forbidden in the same way as relatives by blood.
A newborn's mother falls seriously ill, and a neighbour, Renu, nurses the baby for several months. That boy can never marry Renu, and Renu's daughter becomes his foster-sister.
The three walls of blood, marriage (affinity) and milk (fosterage) are perpetual and absolute. A marriage against them is void.
4. Marriage of a woman whose earlier marriage subsists
A woman whose marriage with a living husband still subsists cannot marry another man. Such a marriage is void, and it is also a crime.
Section 82(1) of the B.N.S. punishes "Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife", with imprisonment of either description up to 7 years, and fine.
The Exception to the Section covers two persons:
- a person whose earlier marriage has been declared void by a competent court;
- a person whose spouse has been continually absent for 7 years without being heard of as alive, provided the new partner is told the real facts.
Section 82(2) of the B.N.S.: concealing the former marriage from the new partner raises the punishment to imprisonment up to 10 years, and fine.
Where Muslim personal law governs, a man's second, third or fourth marriage is valid, so Section 82 of the B.N.S. does not reach it.
Irregular marriages under Sunni law
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Under Sunni law there are five irregular marriages. Each can be remembered by the "key" that opens its gate.
| Key | Irregular marriage | How it becomes regular |
|---|---|---|
| 1. Time | Marriage with a woman undergoing iddat | Expiry of the iddat |
| 2. End of an earlier marriage | A fifth marriage while four wives subsist | One of the earlier marriages ends, by divorce or death |
| 2. End of an earlier marriage | Unlawful conjunction | The marriage with the first wife ends |
| 3. A fresh act | Marriage without witnesses | Offer and acceptance exchanged again before proper witnesses |
| 3. A fresh act | Marriage forbidden by difference of religion (Sunni man with an idol-worshipper or fire-worshipper) | The wife becomes a Muslim, a Christian or a Jew |
First key: time — marriage with a woman undergoing iddat
A marriage with a woman undergoing iddat is irregular. Iddat is the waiting period that a woman must observe after her marriage ends by divorce or by her husband's death, mainly so that the paternity of any child is never in doubt. Once the iddat expires, the obstacle is gone.
Second key: the end of an earlier marriage
(a) Fifth wife
A Muslim man may have up to four wives at one time. A fifth marriage while the other four subsist is irregular. It becomes regular when one of the earlier marriages ends, by divorce or death.
This, however, is personal law, and a State statute can change it. In Uttarakhand, the Uniform Civil Code, in force since January 2025, prohibits polygamy for people of every religion, except members of Scheduled Tribes.
(b) Unlawful conjunction
A man cannot keep two wives at the same time who are so related that, if either of them were a male, they could not lawfully marry each other. A marriage in breach of this rule is irregular and becomes lawful if the marriage with the first wife ends.
Test for unlawful conjunction: imagine either of the two women as a male. If they could not then lawfully marry each other, the man cannot hold both as wives together.
Problem 2: Farhan is married to Neha and also marries Hansa, the daughter of Neha's brother. Turn Hansa into a boy, and he would be Neha's nephew, whom she could never marry. So Farhan cannot hold Neha and Hansa as wives together, and his marriage with Hansa is irregular. It becomes lawful if his marriage with Neha ends.
Apply the same test to Neha's cousin. If the cousin were a man, he could marry Neha, because cousins may marry. So a wife's cousin is not caught by the rule of unlawful conjunction.
Chand Patel v. Bismillah Begum
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Chand Patel v. Bismillah Begum (Supreme Court, decided on 14 March 2008): Bismillah Begum sought maintenance for herself and her minor daughter. She said that Chand Patel, already married to her elder sister, had married her with the first wife's consent, and had later neglected them. He denied the marriage, and argued that a marriage with a living wife's sister is void anyway. Held: such a marriage is irregular, not void, because the prohibition is temporary, and it subsists until it is terminated in accordance with law. The wife and the child were therefore entitled to maintenance under Section 125 of the Code of Criminal Procedure. Principle: unlawful conjunction produces only an irregular marriage.
That remedy now lies in Section 144 of the B.N.S.S., which covers a wife unable to maintain herself, and a legitimate or illegitimate child, whether married or not, unable to maintain itself.
Third key: a fresh act
(a) Marriage without witnesses
A marriage without witnesses is irregular, because the defect is only an accidental omission. The parties can cure it by exchanging offer and acceptance again before proper witnesses.
(b) Marriage forbidden by difference of religion
A marriage forbidden by difference of religion, such as a Sunni man's marriage with an idol-worshipper or a fire-worshipper, is also irregular. Its key is the wife becoming a Muslim, a Christian or a Jew.
Mohammed Salim v. Shamsudeen
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Mohammed Salim v. Shamsudeen (Supreme Court, decided on 22 January 2019): Mohammed Ilias, a Muslim, had married Valliamma, who was a Hindu at the time of the marriage. Their son, Shamsudeen, claimed a share in his father's property. The other relatives argued that Valliamma had not converted, so the marriage was void and the son had no right. Held: a Muslim man's marriage with an idol-worshipper or a fire-worshipper is neither valid nor void, but irregular; the Court treated the marriage of a Muslim man with a Hindu woman as falling in this category. The son was therefore legitimate and could inherit from his father, although a wife in such a marriage does not inherit from her husband. Principle: the child of an irregular marriage is legitimate and inherits from the father.
Legal effects of each type of marriage
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Once the label is known, the consequences follow. Ask four questions: what happens to the children, to dower, to iddat, and to inheritance?
Valid marriage
- The children are legitimate.
- The wife is entitled to dower, called mahr.
- She must ordinarily observe iddat when the marriage ends.
- Husband and wife inherit from each other.
Irregular marriage
In an irregular marriage, everything depends on consummation.
- Before consummation: it has no legal effect at all.
- After consummation:
- the children are legitimate;
- the wife gets the specified dower or the proper dower, whichever is less. Proper dower means the amount customary for women of her father's family;
- she must observe iddat of three menstrual courses, whether the marriage ends by separation or by death;
- but even after consummation, husband and wife do not inherit from each other.
- Termination: either party may end an irregular marriage at any time, before or after consummation, by words showing an intention to separate, such as "I have relinquished you."
Void marriage
A void marriage, being no marriage at all, creates no civil rights or obligations between the parties. So there is no inheritance between them, and the children are illegitimate.
| Effect | Valid (sahih) | Irregular (fasid) | Void (batil) |
|---|---|---|---|
| Children | Legitimate | No effect before consummation; legitimate after consummation | Illegitimate |
| Dower | Wife entitled to mahr | After consummation: specified or proper dower, whichever is less | No civil rights or obligations |
| Iddat | Ordinarily to be observed when the marriage ends | After consummation: three menstrual courses, whether ended by separation or death | No civil rights or obligations |
| Mutual inheritance | Husband and wife inherit from each other | No, even after consummation | No |
Further effects of a valid marriage
- Sexual relations between the spouses become lawful.
- The wife becomes entitled to maintenance.
- The bars of affinity begin to operate.
Yet the wife keeps her separate legal identity:
- she remains subject to the school of Muslim law she followed before marriage;
- by reason of the marriage alone, neither spouse acquires any interest in the other's property during their lifetime. Her property remains her own.
Answers to the opening problems
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- Problem 1: Under Hanafi law, Prince and Zoya are validly married, provided both have capacity and no bar applies, because a nikah needs two voices, two witnesses and one sitting, not a ceremony.
- Problem 2: Under Sunni law, Farhan's marriage with Hansa is irregular (unlawful conjunction), not void, and it becomes lawful if his marriage with Neha ends.
- Problem 3: The son succeeds, because his parents' marriage was irregular, and the children of an irregular marriage are legitimate.
Quick revision
- Two voices, two witnesses and one sitting: ijab and qabul, two witnesses (under Sunni law), exchanged at one meeting, make a nikah; no ceremony or writing is needed.
- Walls of blood, marriage and milk: consanguinity, affinity and fosterage are perpetual and absolute bars that make a marriage void.
- Gates with three keys: time (iddat), the end of an earlier marriage (fifth wife, unlawful conjunction) and a fresh act (marriage without witnesses, difference of religion) open the five irregular marriages of Sunni law.
