The institution of marriage is considered one of the most important institutions
in society. This institution traces its history in the clouds of the past where
only hypotheses can be formed about its origin. Different religions, different
cultures have different practices but the aim of marriage always has been the
creation of a family.
These practices are necessary to hold any marriage valid.
The law of the present time even does not interfere much in these practices and
their necessity unless they are derogatory to the natural rights. Nowadays, the
legal cases related to marriage makes a major chunk in the lower courts of
India. The issues which come in court ranges from the validity of marriage to
divorce, restitution of conjugal rights to judicial separation, etc.
One important issue among these cases which is the validity of marriage in
Muslim law is the topic of this article. This would be analyzed by putting the
case law Mt.Ghulam Kubra Bibi v. Mohd. Shafi Mohd. Din and Ors
Peshawar) at the centre point.
Facts Of The Case
Mt. Ghulam Kubra Bibi filed an appeal in the High Court against the decree of
the district court. The district court issued the decree allowing Mohd. Shafi
for the restitution of conjugal rights. The district court gave this decree on
the lines of a judgment given by the trial court. Mt. Ghulam Kubra Bibi's Nikah
was done at the instance of her grandfather. Her consent was not sought for this
marriage. It was proved that she was of 17 years when her marriage was
Contention Of Both The Parties
Ghulam Kubra Bibi's main contention was that she was never married to Mohd.
. Mohd. Shafi's contention was for the restitution of conjugal rights. He
also wanted the injunction against the interference by the parents of Mt. Ghulam
Kubra in their marital relationship.
Muslim Law: Marriage
Now before moving toward the judgment, let's have a look at Muslim law regarding
this matter. In Muslim law, marriage has been considered a more civil contract
rather than a sacrament. Some Muslim jurists or authors call Nikah a purely
contract and some call it a sacrament (Rashid, 2020).
The Shias and Sunnis have different essentials for a valid marriage and one such
essential is witness
During the Nikah, the presence of two competent witnesses is required under the
Sunni law whereas it is not a requirement under the Shias law.
Essentials for a valid marriage under Muslim law (Saxena, 2021):
- Capacity of the parties
- Proposal and Acceptance
- Witnesses; and
In this case, the essential capacity of the parties, proposal and acceptance and
witnesses were under the test of scrutiny by the court.
Capacity Of The Parties & Proposal And Acceptance
Ghulam Kubra Bibi was of 17 years according to the records. In Muslim law, the
parties who have attained the age of puberty is competent for Nikah. The
definite age cannot be determined in this case as it will be different ages of
puberty for different people. So, it has been presumed that one who reaches the
age of puberty when he/she has completed the age of 15.
If the party is not
competent for marriage or has not reached the age of puberty then the legal
guardian is competent to give a proposal and acceptance. It means that any
Muslim can be married before the age of puberty. But, the scenario is different
due to the enactment of the Prohibition of Child Marriage Act, 2006.
In this case, the court correctly analyzed the facts. The court opined that the
parties were under the impression that the age of marriage is 18, which is under
the general law. It is because that Ghulam Kubra Bibi was not consent before the
marriage and her grandfather gave her away.
The court observed that since the age Ghulam Kubra was 17 and was major
according to Muslim law and her consent also becomes a necessary part of this
ceremony (Saxena, 2021).
It seems that it is against the rights when the parties are married by their
legal guardian without their consent and still it is legal. The courts have
cleared that after attaining the age of majority, the party can decide to
continue the marital relationship or not if the marriage is not solemnized
(Rashid, 2020). And as it has already been mentioned that the court does not
approve child marriage under the Prohibition of Child Marriage Act, 2006 which
is applicable to every sect and religion.
Another essential element in question was the witness. The witnesses provided by
the respondent were: Mohammad Ramzan and Mohammad Din. They both presented
before the court that they witnessed the Nikah of the parties.
What is the general practice in Nikah is that marriage proposal and acceptance
should be done in one meeting only. During the Nikah, the bridegroom will offer
Mahr/Dower and one of the relatives of the bride will go to the bride and tell
about Mahr. The bride will give her consent and this person will tell Mullah
about the consent of the bride. In this process, two witnesses are required to
be present with that present and the consent of the bride should be in front of
them. The Mullah can enquire from these two witnesses in case of any doubt.
The Mullah presented, in this case, informed the court that there was no one who
took consent from the bride and this marriage was done on the insistence of her
grandfather. The witnesses only witnessed the Nikah not the consent of the bride
or the grandfather.
This became the conclusive fact before the court that Ghulam Kubra Bibi's
marriage was not a valid marriage and thus the appellant cannot be provided with
the restitution of conjugal rights.
Restitution Of Conjugal Rights
This right has been conferred to all married couples irrespective of their
religion. When any partner is left to cohabit with the other partner then that
partner can sue in court for the restitution of conjugal rights. The
pre-requisite of this right is that the marriage should be valid and the partner
is not living with the other partner without any valid reason. In this case, the
marriage was not valid and thus no restitution of conjugal right.
The stance of the court was very correct in this case. The practice of two
witnesses in the marriage of Sunnis has been considered a necessary element.
Marriage in Muslim law is a civil contract and fulfilment of all the conditions
is to be necessary. The Muslim law is un-codified and there is no specific act
under which marriage can be governed.
But then also there are some secular laws
under which Muslims can marry and one of such acts is the Special Marriage Act,
1954. So, customs being followed in a particular community becomes the governing
laws unless they are contrary to natural rights.
The practise of child marriage
is not promoted and after the application of the Prohibition of Child Marriage
Act, 2006 the courts also have given the judgments against child marriage to
uphold the objectives of the Act, which is to promote the health and status of
the girl child. Like in the Shia community witnesses during the marriage is not
the requirement but it becomes necessary during talaq. So, the interpretation by
the courts becomes law in one kind of manner.
- Saxena, P.P. (2021). FAMILY LAW 1 (1st ed.). Lexis Nexis.
- Rashid, S.K. (2020). Muslim Law (6th ed.). EBC.