Definition and Nature of Muslim Marriage

—Definition:

A. A. Fyzee: “It is a contract for the legalization of intercourse and the procreation of children”

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—Ameer Ali: “Marriage is an institution ordained for the protection of society, and in order that human beings may guard themselves from foulness and unchastity.”

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—Under Muslim law marriage is a holy union between a man and a woman.

Nature:

—It is said that Muslim marriage is a civil contract and not a sacrament.

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—Justice Mahmood observed in Abdul Kadir vs Salima (1886):

   “Marriage among Muhammadans is not a sacrament, but purely a civil contract, and though it is solemnized generally with recitation of certain verses from the Koran, yet the Muhammadan law does not positively prescribe any service peculiar to the occasion.”

Justice Mitter in Saburunnessa vs Sabdu Sheikh AIR 1934, Cal. HC observed:

   “Marriage under Muslim law is a civil contract and is like a contract of sale. Sale is a transfer of property for a price. In contract of marriage the wife is the property and dower is price.”

—So it is a civil contract- because: as like a contract:

                                 1. There is an offer from one party.

                                2. There is an acceptance from other party.

                                3. There is a consideration (dower).

—Though there is a resemblance with contract it is not like other contract (e.g. sale).

—Why?- 1. In a sale the consideration or price must be paid for the conclusion of the contract. Otherwise the contract would be invalid. In Muslim marriage the dower money can be fixed after the marriage. If it is not paid, the marriage does not become invalid.

—            2. In a contract of sale the consideration is the actual price of the goods. Dower is not regarded as a bride price or it is not fixed weighing bride.

—            3. In a sale the consideration is given to the owner of the property. In marriage dower is given to the property (i.e. bride) itself.

—So, the marriage contract can not be said a sale contract. 

—Beside this legal aspect it has also religious aspect.

—Marriage is a vital part of a Muslim’s life. In fact marriage is so important in the religion of Islam that it is declared to be one half of one’s faith.

—All of the scholars are in agreement that marriage is something recommended (mustahab) and called for in Islam. Some took it to the level of obligatory (wajib) for those with the ability based on the Prophet's (sas) statement:

—The Prophet of Allah (PBUH) has clearly forbidden people from celibacy:

—“There is no celibacy in Islam”
Prophet of Allah (PBUH)  said “O young people! Whoever amongst you can marry, should marry, because it helps him lower his gaze and guard his modesty, and whoever is not able to marry, should fast, as fasting is a shield for him (from desires).”

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  —The Prophet Muhammad (PBUH) said,

    ‘A person who possesses the means to marry (i.e. he is able to work etc. to support a wife and children) and does not marry then he is not from amongst us (i.e. the believers).’

—the Prophet Muhammad (PBUH) has been reported to have said,

     ‘Do not delay in three things; 1) The offering of the obligatory prayer. 2) The offering of the funeral prayer when the deceased’s body is present . 3) The marriage of a woman when her couple is found’

— Allah(SWT) says in the Quran, ‘And wed the single among you’. (chapter 24, verse 32) 

—Sir Shah Muhammad Sulaiman CJ observed:

     “… a marriage is not regarded as a mere civil contract, but as a religious sacrament.”

—Abdur Rahim mentions:

   “The Muhammadan jurists regard the institution of marriage as partaking both of the nature of ibadat (worship) and muamalat (worldly affairs).