Tuesday, June 18, 2024

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PROHIBITION IN MARRIAGE

Discuss the relative prohibitions given under Muslim law.

Or
What does โ€œRelative Prohibitionโ€ means and how its presence affects the Muslim marriage?

Muslim marriage, under Muslim law, is contractual in procedure and if parties want to perform a valid marriage then they have to fulfil certain conditions which are also required to be fulfilled to make a valid and binding contract. But according to Muslim law, it is not sufficient to fulfil these conditions to perform a valid marriage under Muslim religion. It is also essential that there should not be any legal disability which has been prescribed by Muslim religion.
According to Muslim law, legal disability means presence of certain circumstances under which marriage is not permitted. If any of the legal disability is present, then in such a situation, Muslim law does not permit the performance of a valid marriage. Because of these legal disabilities, marriage may either be void or irregular in Muslim religion. These disabilities can be classified into four classes:-

  1. Absolute Prohibition
  2. Relative Prohibition
  3. Prohibitory Prohibition
  4. Directory Prohibition

According to Muslim Law, in case of absolute prohibition the marriage is void ab initio but on the other hand, relative prohibition is that prohibition the compliance of which is not mandatory but their presence is deemed to be unjust and these prohibitions render a marriage either a irregular or void or does not affect its validity at all. Such prohibitions are of temporary nature and an irregular marriage can become a valid marriage after the removal of these prohibitions. The relative prohibitions can be classified into following classes:-

  1. Unlawful conjunction:- According to Muslim law, a male cannot simultaneously marry two women who are related to each other by consanguinity, affinity or fosterage and if any of the two were male then they could not marry with each other. Basically, it means a Muslim male cannot marry two sisters. According to Sunni law, such marriage is an irregular marriage and if any male simultaneously marries with two sisters but any of the sisters dies after the marriage then the marriage with another sister will be considered valid and such irregular marriage will be converted into valid marriage.
  2. Marrying a fifth wife:- According to Muslim law, a Muslim male can marry with only four wives during his lifetime but if he marries with fifth wife then under Sunni law, such marriage is an irregular marriage and under Shia law, that is a void marriage. But if he gives divorce to any of four wives or any of the wife dies then in such a situation, his fifth marriage will be considered valid marriage under Sunni law.
  3. Absence of proper witnesses:- According to Sunni law, if two parties want to solemnize a valid marriage then it is essential that offer and acceptance must be in presence of two male witnesses or one male witness and two female witnesses and they all must be of sound mind, major and Muslim. But if the witnesses are not present at that time then according to Sunni law, such marriage is not a void marriage but that will be considered an irregular marriage.
  4. Difference of religion:- According to Sunni law, a Sunni male can marry a Muslim female of any sect or a Kitabia. But, if he marries with non- Kitabia i.e. idolatress or fire- worshipper, such marriage is irregular in Sunni law but void in Shia law.
  5. Woman undergoing iddat:- According to Muslim law, a male cannot marry with a woman undergoing iddat. If he marries with such a woman, then according to Sunni law such marriage is an irregular marriage but according to Shia law such marriage is a void marriage.

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