Introduction
In the realm of Islamic jurisprudence, Nikah, the sacred institution of marriage, stands as a divine covenant that nurtures harmonious and tranquil family bonds. It transcends mere physical intimacy, encapsulating profound spiritual and emotional dimensions.

The Quran (30:21) underscores this sacred bond, illustrating that spouses are created from the same essence, destined to find solace in each other's presence. Love and compassion are divinely woven into the hearts of partners, signifying the beauty of matrimonial unity.

Islam envisions Nikah as both a spiritual sacrament and a civil contract, bridging the sacred and the practical aspects of union.

Abdullah ibn Mas'ud (may Allah be pleased with him) narrated that the Messenger of Allah (peace be upon him) addressed a group of young men, saying: "O young men, those among you who have the means to support a wife should get married, for marriage serves as a means to restrain your eyes from casting evil glances and guards you against immorality. However, if someone is unable to bear the financial responsibilities of marriage, then let them observe fasting, as fasting aids in controlling one's sexual desires."

In this insightful narration, the Prophet Muhammad (peace be upon him) emphasizes the importance of marriage as a means of maintaining chastity and guarding against immoral behaviour. He addresses the young men in his audience, recognizing their natural inclinations and desires. The Prophet's words reflect his deep understanding of human nature and his concern for the well-being of the youth.

The Prophet's wisdom is further mirrored in his guidance on the consent of women. He emphasized that a matron should not be wed without her consent, and a virgin's marriage should only proceed with her approval. Her silence in this matter would signify her agreement (Sahih al-Bukhari 5136).

Qur'an 24:33 illuminates a profound principle for believers, regardless of their economic status - marriage stands as a shield against immorality. The preceding verse, 24:32, reinforces that marriage is a legitimate channel to fulfil sexual desires, underlining Islam's recognition of the sanctity of sex and companionship. This recognition underscores marriage's pivotal role in forming the bedrock of families and in channelling the fulfilment of fundamental human needs.

Resonating with this perspective, Prophet Muhammad's saying highlights that marriage is esteemed as a pivotal component of faith, constituting half of one's religious commitment. Scholars' deliberations have yielded a consensus that marriage is "mustahabb" (preferred) for those possessing the means and the capability to uphold marital responsibilities without mistreatment or unlawful conduct.

Marriage's significance transcends the ages, serving as a social institution intertwined with human existence itself. Defined as a legal and customary bond between a man and a woman, it encompasses rights and duties. It achieves two essential functions: regulating interactions between genders and determining a child's affiliation within society.

Islam embraces this institution while purging it of negativity that might have seeped in. Islam elevates marriage beyond mere gratification of physical desires, recognizing it as a profound social contract laden with multifaceted responsibilities. A woman, in Islam, is not just an object of pleasure for a man, but a moral and spiritual being entrusted through a sacred covenant, witnessed by Allah. This bond goes beyond sensory delight; it involves cooperation in creating meaningful family and human experiences.

The Qur'an accentuates marriage's diverse dimensions in various verses. It asserts the equality of man and woman, originating from the same divine essence. The essence of marriage lies in uniting these souls, naturally meant to be together. Islam establishes the sanctity of marital relations by prohibiting all forms of extramarital connections.

Islam urges marriage as the virtuous path, protecting believers from immorality and emotional suppression. The union between the sexes finds purity within the confines of matrimony. The Qur'an calls upon individuals to seek companionship and tranquillity through marriage, recognizing it to enrich life's tapestry and foster holistic development.

In Islam, the institution of marriage stands as an emblem of spiritual connection and social responsibility, enshrined in love, cooperation, and sanctity. The Holy Qur'an eloquently states, "They (your wives) are as a garment to you, and you are as a garment to them" (2:187), portraying the exquisite beauty of the husband-wife relationship. This analogy mirrors their interdependence, where spouses provide mutual support, comfort, and protection, much like garments fitting perfectly together.

This divine text underscores that this union is not fleeting; rather, it is an enduring bond. The husband and wife are called upon to harmoniously navigate life's journey and fulfil the profound responsibilities bestowed upon them by this sacred covenant.

The Holy Qur'an deepens this understanding by revealing that marital intimacy serves a higher purpose beyond the satisfaction of physical desires. It illustrates, "Your women are tilth for you, so go into your tilth as ye like, and provide beforehand for your souls, and fear Allah and know that you are going to meet Him" (2:223). This metaphor likens wives to fertile land cultivated for sowing and reaping the bountiful produce of offspring, emphasizing the elevated purpose of conjugal relations.

The verse's conclusion delves even deeper, highlighting the necessity to uphold moral and spiritual responsibilities during the zenith of physical pleasure. It calls for a heightened awareness of one's spiritual journey during moments of physical intimacy, acknowledging the propensity for spiritual mindfulness to wane amidst carnal delight.

Islam staunchly advocates for marriage, rejecting celibacy as seen in Roman Catholicism. A hadith of the Prophet emphasizes this point, declaring the absence of celibacy in Islam. Marriage is endorsed to fulfil sexual needs while preventing enslavement to desires. It addresses a societal requirement, laying the foundation for families, the cornerstone of our social fabric. Moreover, it is the sole halal or permissible avenue for intimacy between genders.

While Islamic marriage permits polygamy under specific conditions, it unequivocally forbids polyandry. Despite the Prophet Mohammed introducing conditions to guard against misuse of polygamy, contemporary adherence to these stipulations by Muslims varies.

In essence, the Quranic perspective on marriage emphasizes the holistic union of souls, the purposeful direction of sexual desires, and the ethical fulfilment of roles and responsibilities. It underscores the sanctity of marriage as a harmonious partnership that nurtures both spiritual growth and the foundations of society.

Pre-Islamic Position of Marriage
Before the dawn of Islam, Arabian society was steeped in various customs, some morally questionable:

• The sale of girls by parents for a monetary sum.
• Temporary marriages.
• Concurrent marriages to two real sisters.
• Fickleness in abandoning and re-accepting women.

These norms called for change, and Islam ushered in a paradigm shift in the understanding of marriage.

Definition of Nikah
Understanding whether Muslim marriage resembles the Hindu sacrament sheds light on various definitions:

Hedaya: Marriage is a legal process ensuring lawful union, procreation, and legitimation of offspring.

Bailies Digest: Nikah is a civil contract legalizing sexual relations and legitimate progeny.

Ameer Ali: Marriage safeguards society, protecting it from moral decay.

Abdur Rahim: Marriage blends aspects of devotional acts (Ibadat) and human interaction (Muamlat).

Mahmood J.: Marriage according to the Mohammedan law is not a sacrament but a civil contract.

Muslim Women (Protection of Rights on Divorce) Act, 1986: Marriage is a 'Solemn Pact' between companions, legally a contract.

While defining it as purely a contract or an Ibadat & Muamlat remains unresolved, one thing is clear: marriage bridges emotions and thoughts, more than just a contract.

Sir Shah Sulaiman states that in Islam, marriage is both a civil contract and a sacrament. This definition presents the best picture of Nikah or Marriage.

Difference of Nikah from Civil Contract
Muslim marriage diverges from a civil contract due to:

• Non-contingent nature, unlike future-based contracts.
• Lack of time limitation (except Muta Marriage).

Purpose of Nikah
In the Qur'an, Zawj signifies a pair or mate. Marriage's primary aim is companionship, procreation, and harmonious living aligned with Allah's directives. It addresses emotional and sexual gratification, reducing tensions.

Is Nikah Mandatory?
Imams hold diverse views: Abu Hanifa, Ahmad ibn Hanbal & Malik ibn Anas find marriage commendable, even obligatory for some. Imam Shafi deems it preferable or Nafl. Generally, if abstinence might lead to fornication, marriage becomes obligatory. However, marrying is not advised without means to support a family or if religious obligations are compromised.

Prophet Muhammad's Words Highlight the Essence
"Marriage is a fulfilment of half of a man's faith. Let him, then, fear Allah concerning the other half."

This emphasizes marriage's significance in Islam, suggesting its inherent importance.

Different Types of Nikah

1. Valid (Sahih) Nikah
   valid marriage under Muslim law adheres to the prescribed essential conditions. It confers upon the wife rights such as dower, maintenance, residence, fidelity, obedience, sexual intimacy, and observance of Iddat.
    
2. Irregular (Fasid) Nikah
   Irregular marriages result from parties failing to fulfil prerequisites. These marriages are ineffective before consummation. Either party in an irregular marriage can terminate it at any time, pre or post consummation, by expressing an intention to do so. They result from:
   • (a) Marriage without witnesses (not under Shia Law).
   • (b) Marriage with a fifth wife.
   • (c) Marriage with a woman undergoing Iddat.
   • (d) Marriage with a fire-worshipper.
   • (e) Marriage barred by unlawful conjunction.
   Before consummation an irregular marriage holds no legal effect; however, upon consummation, it gives rise to rights and obligations.
    
3. Void (Batil) Nikah

Void marriages are unlawful from the outset, lacking civil rights or obligations. Offspring from a void marriage are considered illegitimate. They arise from:

1. Marriage through forced consent.
2. Plurality of husbands.
3. Marriage prohibited due to consanguinity.
4. Marriage prohibited due to affinity.
5. Marriage prohibited due to fosterage.

Effects of Valid Nikah

1. Legitimized mutual intercourse and legitimate children.
2. Wife's entitlement to 'Mahr'.
3. Wife's entitlement to maintenance.
4. Husband's right to guide and restrict wife's movement for valid reasons.
5. Development of the right of succession.
6. Prohibition of marriage due to affinity.
7. Woman's obligation to complete Iddat period and refrain from marrying during Iddat after divorce or husband's death.

Essentials of a Nikah
Proposal and Acceptance
In a Muslim Marriage, proposal ('ijab') and acceptance ('qubul') are paramount. Both should transpire in the same meeting for the marriage to be valid. Splitting them across meetings renders the marriage invalid.

Competency of Parties

• Major: Puberty marks majority. After attaining puberty, no guardian's consent is needed.
• Soundness of Mind: Both parties must be mentally sound at the time of marriage.
• Muslim: Parties must be Muslims, irrespective of their sect.

Free Consent
Genuine marriage mandates free consent. Coercion, fraud, or factual mistakes render the marriage invalid. The court's stance, as in the case of Mohiuddin v. Khatijabibi, asserts the importance of free consent in validating a marriage.

Dower
Referred to as 'mahr,' dower signifies the sum of money or property a groom provides to the bride upon marriage. Its purpose is to bestow financial security upon the bride during and after marriage. Notably, in the Nasra Begum v. Rizwan Ali case, the Allahabad High Court established that the right to mahr arises even before cohabitation. The court underscored that if the wife is a minor, her guardians can withhold her from her husband until the dower is paid; if she is under her husband's custody, she can be brought back under the same condition.

Prohibitions in Nikah
Under Muslim law, marriage is restricted under certain conditions. These restrictions can be divided into three categories:

Absolute Prohibition
A Muslim marriage is void if the parties share a blood relationship or a prohibited degree of relationship, rendering it void. The absolute prohibited degrees include:

Consanguinity
This pertains to blood relations, forbidding a man from marrying specific females:

• Mother or grandmother (irrespective of degree).
• Daughter or granddaughter (irrespective of degree).
• Sister (irrespective of blood relation).
• Niece or great-niece (irrespective of degree).
• Paternal or maternal aunt or great-aunt (irrespective of degree).
• A marriage with a woman prohibited under consanguinity is void, and any children born are illegitimate.

Affinity
Prohibits marriage with certain close relatives, including:

• Wife's mother or grandmother (irrespective of degree).
• Wife's daughter or granddaughter (irrespective of degree).
• Father's wife or paternal grandfather's wife (irrespective of degree).
• Son's wife or son's son's wife or daughter's son's wife (irrespective of degree).
• A marriage with a woman prohibited under affinity is void.

Fosterage
Refers to milk relationships; if a woman other than the mother breastfeeds a child under two, she becomes the child's foster mother.
A man is prohibited from marrying the following:

• Foster mother or foster grandmother (irrespective of degree).
• Daughter of the foster mother (foster sister).
• The Sunni law has exceptions, but Shia law treats consanguinity and fosterage similarly and rejects these exceptions.

Relative Prohibition
Certain prohibitions are relative, not absolute. Marriages in violation of these are irregular, not void, and become valid upon removing the irregularities. These include:

Unlawful Conjunction
Marrying two related wives simultaneously (consanguinity, affinity, or fosterage) that could not legally intermarry is prohibited. It is irregular under Sunni law and void under Shia law.

Polygamy
Polygamy is allowed but limited to four wives. A fifth marriage is irregular (not void), permissible only after the death or termination of a previous wife. Shia law deems the fifth marriage void. Second marriages are restricted under The Special Marriage Act, 1954, if the first marriage is registered.

Requirement of Witnesses
Marriage must be witnessed by competent individuals. Sunni law requires at least two male or one male and two female witnesses, while Shia law does not mandate witnesses. Under Shia law, marriage is conducted by the parties or guardians, while Sunni law necessitates witnesses for validity.

Interfaith Marriages
Within Sunni law, a Muslim man can marry a woman who reveres the same scriptures, like Christians, Parsis, and Jews. However, marrying an idol or fire worshipper is irregular. Conversely, a Muslim woman is prohibited from marrying a non-Muslim man, and if she does, it is considered irregular.

In Shia law, marrying a non-Muslim is considered void. While Fyzee contends it is void, Mulla suggests it is irregular.

Marriage During Iddat
Iddat, a waiting period after a husband's death or marriage termination, bars a wife from remarrying. Iddat clears paternity doubts if pregnancy arises. A divorced woman observes it for three months; a widow does for four lunar months and ten days, extending to childbirth if pregnant. Sunni law deems marriage during Iddat irregular, while Shia law considers it void.

Miscellaneous Prohibitions
Marriage during pilgrimage is void in Shia law.
Re-marriage between divorced couples follows specific steps: a valid marriage, voluntary divorce, Iddat, and remarriage. Deviating renders marriage irregular.

Polyandry, a woman having multiple husbands, is void in Muslim law.

Registration and Validity
Though not essential, registration offers authentic proof. In the case of Seema v. Ashwani Kumar, the Supreme Court ruled that all Indian citizens, irrespective of religion, should register marriages where solemnized. While registration is not mandatory under Muslim personal law, it is not prohibited either (M. Jainoon v. Amanullah Khan).

Nikah Over Phone
Marriage contracts can be made over phone or internet, provided identities are verified, witnesses hear the proposal and acceptance, and phone tampering risks are minimal.

Validity of Different Forms of Nikah

• One party deaf and dumb: Valid, as understanding can be facilitated through writing or gestures.
• Marriage involving a boy under 15: Valid, but he can repudiate upon attaining majority.
• Marriage without religious ceremony: Valid, as ceremonies are not necessary.
• Proposal and acceptance obtained via telephone: Valid, given witnesses hear clearly and tampering risks are low.
• Marriage with a non-Muslim (Non-Kitabia): Invalid.
• Marriage with another man's wife: Invalid.

References:

1. http://www.quranreading.com/blog/marriage-in-islam-according-to-the-quran-sunnah//
2. https://www.iium.edu.my/deed/hadith/muslim/008_smt.html
3. https://sunnah.com/bukhari:5136
4. https://salafieventsnigeria.wordpress.com/2022/01/22/choosing-a-righteous-spouse/
5. https://wajibad.wordpress.com/2013/03/07/sahih-muslim-the-book-of-marriage-kitab-an-nikah/
6. https://www.thesciencefaith.com/the-concept-of-marriage-in-islam-part-2/
7. https://www.legalserviceindia.com/article/l162-Concept-of-Marriage-in-Muslim-Law.html
8. https://www.shareyouressays.com/knowledge/what-is-fasid-irregular-marriage-under-muslim-law/117681/
9. https://www.studocu.com/in/document/mahatma-gandhi-university/family-law-i/muslim-marriage-notes-65a31fa0f5279092-b17b961872-efe22d/43849510
10. https://www.legalserviceindia.com/legal/article-4648-essentials-and-types-of-muslim-marriages.html#:~:
11. https://www.studocu.com/in/document/christ-deemed-to-be-university/family-law-i/origin-of-muslim-law/21906457
12. https://www.scribd.com/document/637206222/Module-3-Muslim-law-3/
13. https://mylegalwriting.blogspot.com/p/prohibition-in-case-of-muslim-marriage.html
14. https://theindianlaw.in/essentials-conditions-of-muslim-marriages/

Written By: Md. Imran Wahab, IPS, IGP, Provisioning, West Bengal
Email: [email protected], Ph no: 9836576565