Prohibition in case of Muslim Marriage

Prohibitions are of two types:

a) Absolute Prohibition
b) Related or Limited Prohibition

Absolute Prohibition

Absolute prohibition may arise because of consanguinity, affinity or fosterage in the following ways: 

(a) Consanguinity : Consanguinity means blood relationship and a prohibits a man from marrying the following females

1. His mother or grandmother (however high so ever)
2. His daughter or granddaughter (how low so ever)
3. His sister whether full blood half blood or uterine blood
4. His niece or great niece (how low so ever)
5. His aunt (father’s sister or mother’s sister)or great aunt (how high so ever)

A marriage with a woman within the relationship of consanguinity is absolutely void. Children born out of that wed-lock are illegitimate.

 

(b) Affinity : A man is prohibited from marrying certain female relatives due to nearness of relationship. A man is prohibited from marrying

             1. His wife's mother grandmother (however high so ever)
            2. His wife's daughter or granddaughter (how low so ever)
            3. His father's wife or paternal grandfather's wife (how high so ever)
            4. Wife of one's own son or son's son or daughter's son (how low so ever)

A marriage with a woman within the relationship by affinity is void.

(c) Fosterage:  When a child is breast-fed/suckled by a woman other than its own mother, she becomes the foster mother of the child. A man is prohibited from marrying certain persons having foster relationship. Generally a man is prohibited from marrying:
             1. His foster-mother or grand mother (however high so ever)
             2. His foster-sister (daughter of foster mother

  Such marriage is also void.

Limited Prohibition

There are certain prohibitions which are not absolute but only relative and marriage in violation of such relative prohibitions will only be irregular (fasid) and not void according to Sunni School.  When the irregularity is removed, the marriage becomes valid. The following are the relative prohibitions:

1   1)    Unlawful conjunction:
A man is prohibited from marrying two wives at the same time if they are related to each other by consanguinity, affinity or fosterage, which they could not have lawfully intermarried with each other if they had been of different sexes.

 

So, a Muslim man cannot marry two sisters at the same time. But he can marry the wife’s sister after the death or divorce of his wife. Marriage with two such wives is an Unlawful conjunction. Under sunni law a marriage in violation of the rule of unlawful conjunction is not void (batil) but only irregular(fasid). However under Shia law, a marriage in violation of the rule of unlawful conjunction is void(batil).  

1   2)  Marrying a fifth wife (Polygamy) 

Muslim law permits polygamy (Marrying more than one wife) with a restriction of maximum four wives. So a Muslim man can have four wives at the same time. If he marries a fifth wife when he has already four, the marriage is not void, but merely irregular. But the fifth marriage can be made valid after the death or divorce of any one of the four wives of his earlier marriages. Under the shia law marriage with the fifth wife is void.

3) Absence of proper witnesses

A marriage must be contracted within the presence of proper and competent witnesses. Under the Sunni law at least two male or one male and two female witnesses must be present at the time of marriage. A marriage without witnesses is irregular. Under the Shia law the presence of witnesses is not necessary at the time of marriage. 

4) Differences of religion (Marriage with non-muslim)

Under Sunni law a male can marry a Muslim female or a Kitabi i.e. a jews or christian female.  But he cannot marry an idolatress or a fire-worshiper. A marriage, with an idolatress or a fire worshiper is merely irregular and not void.

          

 A Muslim woman cannot marry a Kitabia or non-Muslim man. A marriage of a Muslim female

with a non-Muslim male, whether he is a Christian, or a Jew or an idolator or a Fire-Worshiper is not void but irregular. According to Mulla, a marriage between a Muslim woman and Non-Muslim male is irregular. But according to Fyzee, such a marriage is totally void.

 Under Shia Law a marriage with a non-muslim is void. Both the spouses are required to be

Muslims. The marriage of Sunni male with a Shia female is void. A marriage of a Muslim female

with a non-Muslim male, whether he be a Christian, or a Jew or an idolator or a Fire-Worshiper

is void under Shia Law.

A marriage between a Muslim and a non-Muslim can only take place under The Special Marriage Act, 1872.

 

5) Marriage during IDDAT 

Under Muslim law, a woman who is undergoing iddat is prohibited from marrying during that period.

Iddat is the period during which it is incumbent upon a woman, whose marriage has been dissolved by divorce or death of her husband to remain in seculasion, and to abstain from marrying another husband. The purpose behind that is to ascertain whether she is pregnant by earlier husband, so as to avoid confusion of the parentage of the child.

The period of Iddat is prescribed as under:

a. In case termination marriage by divorce- three lunar months or three menstrual courses

b. In case of widow- 4 months and 10 days

c. In case the woman is pregnant - till the delivery

If husband dies, iddat must be followed whether there is consumation or not.

Iddat shall be counted from the day at which husband died or talal becomes effective.

Under Sunni Law a marriage with a woman undergoing Iddat is irregular and not void. Under Shia law a marriage with a woman who is undergoing Iddat is void.