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What are the Legal Effects of a Valid (Sahih) Marriage under Muslim Law?

January 18, 2019 0 Comment

(1) The cohabitation between the husband and the wife becomes lawful.

(2) The children born out of a valid marriage are legitimate and they have right to inherit their parent’s properties.

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(3) Mutual rights of inheritance between husband and the wife are established. That is to say, after the death of the husband, the wife is entitled to inherit the husband’s properties and after the wife’s death, husband may also inherit her properties.

(4) Prohibited relationship for purposes of marriage is created between the husband and wife and each of them is prohibited to marry the relations of the other within prohibited degrees.

(5) The wife’s right to claim dower is fully established just after the completion of marriage.

(6) The marriage gives to the wife also the right of maintenance from her husband with immediate effect.

(7) After the dissolution of the marriage, the widow or the divorced wife is under an obligation to observe the Iddat, during which she cannot re-marry.

(8) Marriage under Muslim law does not change the legal status of the woman. The English concept of coverture is not recognised in Islam. Her personality is not merged with that of the husband. Even after the marriage, a wife continues to belong to the same school of law to which she belonged before her marriage.

That is to say, if Shia woman marries a Sunni, she continues to be a Shia and is governed by Shia law after her marriage. The husband and wife have independent right to acquire and dispose of their properties.

A Muslim wife has a right to transfer her properties without the consent of her husband. But at the same time, she is not entitled to deal with the properties of her husband without his consent. In R. v. Khato Bai, it was held by the court that a wife may be convicted for the theft of her husband’s properties. Similarly, the husband too cannot deal with the properties of the wife without her consent.

(9) The husband has a marital right to guide and control the movements of his wife in a reasonable manner. But, he is not entitled to restrain her from visiting her parent’s place or other near relatives. The wife is under an obligation to allow the husband to cohabit with her if there is no reasonable excuse for the same.

(10) Marriage Agreements:

If there is any marriage-agreement between the parties, the agreement comes into force on the completion of the marriage provided such agreement is not illegal. At the time of the marriage, or on a subsequent date, the husband and wife may enter into an agreement for regulating their marital relations. Where the parties’ are not competent, the agreement may be made on their behalf, by their respective guardians. Such an agreement is binding although the husband and wife are not parties to it.

If the agreement contains conditions which are against the principles of Islam Or are unreasonable, the agreement is illegal. An illegal agreement does not affect the validity of the marriage, but the condition itself is void and inoperative. Such agreements cannot be enforced because they contain un- Islamic conditions. Following conditions in marriage-agreements are illegal:

(i) That the wife is not entitled to claim her dower.

(ii) That wife shall not claim maintenance from her husband.

(iii) That husband and wife shall have no mutual rights of inheritance.

(iv) That husband and wife would be free to live separately in future without any reasonable cause. On the other hand, if the conditions in a marriage-agreement are not against the principles of Islam, the agreement is legal and is binding upon the parties.

The following conditions have been regarded as legal conditions and the agreements are binding:

(i) The condition that husband shall not contract a second marriage during the continuance of the first.

(ii) That, the husband shall not remove the wife from conjugal domicile without her consent.

(iii) That, the husband shall not be absent from the conjugal home beyond a specified period.

(iv) That, a husband and wife shall live in a specified place (matrimonial home).

(v) That, husband shall pay a fixed maintenance allowance to the wife.

(vi) That, a certain portion of the dower shall be paid at once and the remainder on the dissolution of marriage.

(vii) That, the husband shall maintain the children of the wife by a former husband.

(viii) That, the husband shall not prevent the wife from receiving the visits of her relation whenever she likes.

A contract between the parties that wife shall generally be at liberty to live with her parents, has been held illegal by the Bombay High Court. But in Nizamul Haque v. Begum Noorjahan, the Calcutta High Court held that husband would live in the wife’s house and would not compel the wife to live with him or with his other relations, was valid.

In Jammu & Kashmir, there is a well established custom of Khanadamad under which after the marriage, the husband lives with the wife’s parents. The High Court of J. & K„ accordingly, held that an agreement under which the husband was required to live with the wife’s parents was valid.

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