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					Nature of Marriage in Islam:

  A CIVIL CONTRACT OR A SACROSANCT?
           Nature of Marriage in Islam

 Distortion of Islamic Law at the hands of Anglo-
  Indian Judges and some authors
 ‘Marriage among the Muhammadans is not a
  sacrament, but purely a civil contract’. Mahmood J.
  in (Abdul Kadar v. Salima 1886)
 ‘marriage is a contract which has for its design or
  object the right of enjoyment and the procreation of
  children. But it was also instituted for the solace of
  life, and is one of the prime or original necessities of
  man’.
            Distortion of Islamic Law

 Mulla considers this as the definition of marriage in
  Islam (‘marriage is a contract which has for its
  design or object the right of enjoyment and the
  procreation of children). S.250 of Mulla’s Principles
  of Mahomedan Law
 Mahmood J. was mentioning where the suit for
  restoration of conjugal rights lay & what was the aim
  and Purpose of a Muslim marriage
            Distortion of Islamic Law

 Mulla’s book was published in 1906
 There are 19 editions
 Has arbitrarily codified decisions given by Anglo-
  Indian judges
 Mulla has a very poor knowledge of Islamic law
 Is followed by judges and lawyers in the
  subcontinent although it is text book
 Courts in India have applied Maxwell’s Principles of
  Interpretation to Mulla’s book
            Distortion of Islamic Law

 In the subcontinent Mulla’s view that ‘marriage is a
  civil contract’ is repeated by every lawyer and judge
 ‘No Mahomedan marriage, either among Sunnis or
  Shias, is permanent in the sense in which a
  Christian or a Parsi marriage is, for the husband
  may divorce the wife at any time he likes’.
 ‘a marriage, however, (of Mahomedan man) with an
  idolatress or a fire-worshiper, is not void (batil), but
  merely irregular (fasid)’
         Sanctity of Marriage in Islam

 Allah has described marriage as ‘mithaq ghalizah (a
  sacred covenant) (al-Nissa 4:21)
 Marriage creates the deepest love between the couple
  (wa ja‘la bainakum mawadata wa rahmah) (al-
  Rome 30:22)
 Hunna libas lakum wa antum libas lahunna (they
  are apparel for you, & you are apparel for them) (al-
  Baqara 2:187)
       The Nature of Marriage in Islam

 According to Daryabadi “The metaphor is of exquisite
 beauty, expressive of close intimacy, identity of
 interest, mutual comfort and confidence, mutual
 upholding of each other’s reputation and credit,
 mutual respect of one another’s secrets, mutual
 affection, and mutual consolation in misfortune. The
 whole character of the one becomes an open book to
 the other. The wedded pair ceases to belong to
 themselves; they now belong to each other, sharing
 each other’s joys, sorrows, glories and shames’.
        The nature of Marriage in Islam

 Married men & women enter the ‘protective fortress’
  of marriage
 The Arabic term hisan originally signifies a fortress
  & muhsanat means women of unblemished
  reputation, chaste, pure woman; woman who are
  fortified or fenced in by husbands b/z of the
  marriage
     The Importance of Marriage in Islam

 The Prophet has described marriage as his Sunnah
 Marriage is religious duty, rather than a contract for
  material gains
 According to Muslim fuqaha ‘every Muslim who has
  the physical, mental & financial ability must get
  married & that marriage is mandatory for such a
  Muslim
 Since restraint from illicit sexual relations is
  mandatory therefore, marriage becomes mandatory
        The Nature of Marriage in Islam

 The Prophet has given a stern warning to those
  Muslim youth who have the capabilities to marry but
  don’t marry
 The Prophet said: ‘He who marries completes half of
  his religion; it now rests with him to complete the
  other half in leading a virtuous life in constant fear of
  God’
 Allah has undertaken to help a person who marries
  with a view to secure his chastity
                The Nature of Marriage

 One of the fundamental objectives of Shari‘ah is to
    protect progeny
   It is promoted through the institution of marriage,
    while penalties are imposed for those who would
    corrupt it
   Thus in God’s scheme marriage occupies a sacred
    place for continuation of humanity
   It shall NOT be called a ‘purely civil contract’
   Unfortunately some jurists put emphasis on
    ‘legalizing sex & fulfillment of the natural lust & urge’
           Nature of Muslim Marriage

 Thus marriage is for the protection of progeny;
  continuation of human race; mercy & solace for each
  other; it being an act of devotion, rather than a civil
  contract
 It is a solemn contract between a man and a woman
  soliciting each other’s life companionship.
      Judicial Interpretation of Marriage

 ‘the procreation and legalizing of children’ cann’t be
  a definition of marriage b/z a Muslim marriage
  continues beyond the period of procreation and no
  one can question its validity
 In the subcontinent there are countless cases in
  which judges regarded marriage as a civil contract
       Judicial Interpretation of Marriage

 ‘It is a settled proposition of law that marriage under the
  Christian Marriage Act 1872 is a sacrament unlike Muslim
  marriages which are purely civil contracts between the
  spouses’. Mrs. Fakhar-un-Nisa J. in Rafaqat Masih v.
  Maqssod Bibi; & Muhammad Aslam v. Mst. Suraya
 There are many other reported cases in which this so
  called ‘settled proposition of law’ notion is quoted as
  a ‘sacred precedent’
      Judicial Interpretation of Marriage

 There are some good cases in which the true Islamic
  concept of marriage is highlighted
 ‘marriage [in Islam] is not regarded as a mere civil
  contract, but a religious sacrament’. Suleman C.J. in
  Anis Begam v. Mohammad Istefa
 marriage is descried as a ‘sacrosanct contract’
  Murtaza Fazal Ali of the Indian S C & Khurshid Khan
  J of the A J & K S C
        Judicial Interpretation of Marriage

 Shahida Parveen v. Samiullah Malik damages for defamation
  & special damages were claimed on the basis of the idea that
  ‘marriage is a civil contract’
 ‘although the marriage bond between the two Muslims is in the
  nature of a civil contract, but it shall be a grave misconception to
  equate it with the ordinary contracts of sale purchase, the
  property transactions or for those to provide personal services
  etc., entered into between the parties under the Contract Laws.
  Rather such a contract has its genesis in the social norms of the
  Muslim society and is structured upon the commands of Allah
  Almighty and the Sunnah of the Prophet. This contract is
  blended with the human emotions and the sentiments, such as
  the love, affection, likes, dislikes, tolerance, aversions, and the
  equation/compatibility of two personalities and the minds’
      Judicial Interpretation of Marriage

 Refused to apply Ss. 73 & 74 of the Contract Act,
  1872
 ‘Any expenses incurred by either party in connection with
  the marriage ceremonies, or the gifts exchanged by the
  bride and the bridegroom or given to them by the relatives
  of the either side including the Salamis, cannot be
  recovered through the process of law.’
 Dowry, dower, maintenance cost are recoverable
  through the process of law
   end


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