NATURE OF MARRIAGE
Discuss the nature of Muslim Marriage.
In every religion, marriage is one of the most important institution. It unites two persons of opposite sexes for “n” number of years and allows them to live under the same roof. It helps the society in continuation by adding a unit into it.
In every religion, the main objectives of a marriage are same but their nature is different almost in all the religions. In some religions, it is considered as a sacrament whereas in some religions it is considered as a civil contract.
In Muslim religion, marriage is considered as a contractual in nature because to solemnize a valid marriage in Islam parties have to fulfil certain conditions which are also required to make a contract. Like a contract, marriage in Islam is performed through the process of offer and acceptance. Moreover to solemnize a marriage, free consent of parties is required and they should have attained the age of puberty and marriage should not oppose Islamic policies.
So, because of these conditions, it is generally said that marriage is just like a civil contract in Islam. But in reality, it is contractual in procedure but socio- religious in a substance.
The reason being that the main aim of marriage in Muslim religion is to help the society in continuation by adding the unit into it and it is performed in the name of God and at the time of marriage some holy paras from Quran are recited by Kazi.
So, in this way, marriage in Muslim religion is different from contract.
Moreover, there are certain elements of contract which are missing in Muslim marriage:-
• The element of consideration in Muslim marriage is missing. Dower cannot be considered to be a pure consideration for marriage. The dower is only because of marriage but contract is only because of consideration. Without consideration the contract is void. But in Muslim marriage, there is a concept of deferred dower.
• An agreement by a minor or by Guardian of a minor on the behalf of minor is void. But age of marriage is 15 years in Muslim religion and secondly if a minor has got been married by the consent of Guardian then marriage is not void but voidable under the option of puberty.
• The concept of maintenance by implied undertaking is not common to the law of contract whereas it is there in Muslim marriage.
• In Muslim religion, marriage is permanent in nature but contract is temporary in nature.
• There is no concept of contingent marriage whereas there is a provision of contingent contract.
• In case of breach of contract civil, suit can be filed and relief of damages, specific performance, injunction can be demanded whereas in case of breach of marital obligations, an aggrieved party can claim restitution of conjugal rights, maintenance or divorce.
Hence, it can be concluded that in essence marriage is contractual in procedure but socio- religious in substance.