Of the four major schools of Muslim law in India, this ancient Arabian custom of muta marriage is not recognised by three schools, namely the Hanafi, the Shafei and the Ismaili schools. It is only Ithna Ashari (Shia) school that recognises such a type of marriage.
The followers of this school constitute very small section of Muslims in India, and even amongst them, the institution is almost obsolete, with the result that muta is now acceptable to a very microscopic minority of Muslims in India.
Under the Sunni law, a marriage contract should not be restricted Muta in its duration, and the words used at the time of proposal and acceptance must denote an immediate and permanent union. But the Ithna Ashari (Shia) law recognises two kinds of marriages, one permanent, and the other temporary or muta.
A muta marriage may be for a day, a month, a year or a number of years. But it is essential to the validity of a muta marriage that (1) the period for which the relationship is to last should be fixed at the time when the muta marriage is contracted; and (2) some dower should be specified in the contract.
If the term of cohabitation is not specified, but the dower is fixed, the contract would be void as a muta, although it may operate as a permanent marriage; but in the converse case, that is, if the term is specified, but the dower is not fixed, the contract would be void.
A Shia male may contract a muta marriage with a woman professing the Muslim, the Christian or the Jewish religion, or even with a fire-worshipper, but not with a woman following any other religion. A Shia female can contract a muta marriage only with a Muslim.
The important characteristics of a muta marriage are:
1. The period of cohabitation must be fixed; if it is not fixed, the contract would be valid as a permanent marriage, but void as a muta marriage. The contract comes to an end at the termination of the fixed period, unless it is renewed by the consent of both the parties.
2. Some dower must be fixed; if it is not fixed, the contract is void.
3. A Shia male can contract a muta marriage with a kitabia or with a fire-worshipper. But a Shia woman cannot contract a muta marriage with a non-Muslim.
The legal incidents of a muta marriage are as follows:
1. It does not confer on the wife or husband, mutual rights of inheritance; but children conceived, while it exists, are legitimate and capable of inheriting from both the parents. (Shoharat v. Jafri Bibi, 17 Bom. L. R. 13 PC.)
2. Where cohabitation originates in a muta marriage, but there is no evidence as to the original term for which the muta marriage was conrtacted, or the cohabitation continues after the fixed period expires, the proper inference is that the muta marriage continued during the whole period of cohabitation, and the children conceived during such period are legitimate.
3. If the muta marriage is not consummated [i.e., completed by sexual intercourse] the wife is entitled to half the dower.
4. If the marriage is consummated the wife is entitled to full dower, even if the husband puts an end to the marriage before the expiry of the fixed term by “making a gift of the term” to her.
5. If the wife leaves the husband before the expiry of the fixed term, she is entitled to proportionate dower only.
6. A muta marriage does not entitle the wife to maintenance under her personal (Shia Muhammadan) law. But, it has been held that she is entitled to maintenance as a wife under the provisions of the Criminal Procedure Code: Luddun v. Mirza, (1882) I.L.R. Cal. 736. [This decision is of doubtful authority in as much as a Sharaya-ul-lslam says – the name of a wife does not, in reality, apply to a woman contracted in Muta: Bail lie, II, 344.]
7. The number of wives is net restricted to four, as in the case of a permanent marriage (nikah). Thus, a Shia male may contract muta marriage with any number of women.
8. A muta marriage is dissolved ipso facto by the expiry of the fixed term. It may be noted that no right of divorce is recognised in the case of such a marriage, although as stated earlier, the husband can, at his will put an end to the marriage, even before the expiry of the fixed term, by “making a gift of the term” to her.
A muta marriage is dissoved—
(a) Automatically by the expiry of the fixed term; or
(b) At any time, by the husband “making a gift of the term” (hiba- i-muddat) to the wife, even before the expiry of the fixed term.
2. Breach of a Promise to Marry:
According to Muhammadan law, unless the contract of marriage is completed, no rights and obligations arise. Therefore, a suit to recover damages for breach of promise of marriage is strictly impossible. The only relief that can be asked for, if an engagement is broken, is merely the return of presents, money, ornaments, clothes and other things. (Abdul Razak v. Mohammed, (1918) I.L.R. 42 Bom. 499)
3. Jactitation of Marriage:
Jactitation means a false pretence of being married to another, According to Muhammadan law; a suit will lie between Muslims for jactitation of a marriage. When a woman falsely pretends to be the wife of a man, the man has a right to silence her through a suit in a Civil Court.
As the Allahabad High Court once observed, “There can be no doubt that unless a man is entitled, by means of the Civil Courts, to put to silence, a woman who falsely claims to be his wife, the man and others may suffer considerable hardship, and his heirs may be harassed by false claims after his death.” (Mir Azmat Ali v. Mahmud- ul-nissa. 1897 20 All. 96)
4. Concubinage under Muhammadan Law:
Under Muhammadan law, concubinage was regarded as unlawful. But marriage may be inferred from circustances like long, continued cohabitation between the parties, which will raise a presumption of marriage.
Mere cohabitation will not be sufficient to raise a presumption of marriage, unless (a) it has been a cohabitation as husband and wife; and (b) there has been conduct amounting to acknowledgement of the legitimacy of the child born after cohabitation. As a mere concubine, a woman has no status in Muhammadan law.
5. Presumption of Marriage under Muhammadan Law:
In the absence of a direct proof, a marriage will be presumed in the following three cases:
(a) When there is a prolonged and continuous cohabitation between the parties as husband and wife.
(b) When a man acknowledges:
(i) The paternity of a child born to the woman, provided all conditions of a valid acknowledgement are fulfilled; or
(ii) The woman as his wife.
(c) A marriage without direct proof may also be inferred from circumstances. Mere cohabitation will not be sufficient for such a presumption. Rather, —
(i) The cohabitation must be as husband and wife; and
(ii) The man must have treated the woman as his wife, and recognised her as such, with the intention and knowledge of giving her the status of his wife.
The presumption of marriage does not apply if the conduct of the parties is inconsistent with the relation of husband and wife (Abdul Razak v. Aga Mahomed, (1893) 21 I.A. 56), or if the woman was admittedly a prostitute before she was brought to the man’s house. (Ghazanfar v. Kaniz Fatima, (1910) 37 I.A. 105)
However, the mere fact that the woman did not live behind purda, as the other admitted wives of the man did, is not sufficient to rebut the presumption of marriage. (Mohabat Ali v. Mohamed Ibrahim, (1929) 56 I.B. 201)
6. Suit for Restitution of Conjugal Rights:
If, without any lawful cause, a wife ceases to cohabit with her husband, he may sue her for restitution of conjugal rights. However, a husband is not entitled to a decree of restitution, if the marriage, though consummated, was an irregular marriage during the period of iddat, or if the marriage took place during the minority of the wife and has been validly repudiated by her.
It has also been held that it is a valid defence to such a suit to plead cruelty on the part of the husband, if the cruelty is of such a nature as to render it unsafe for the wife to return to her husband. (Moonshee Buzloor Ruheem v. Shumsoonisa Begum, (1867) 11 M.I.A. 551)
Further, an agreement entered into before marriage, by which it is provided that the wife would be at liberty to live with her parents after marriage is viod, and does not afford an answer to a suit for restitution of conjugal rights. (Abdul v. Hussenbi, 1904, 6 B.L.R. 728)
However, an agreement to allow a second wife to live in a separate house and to give her a maintenance allowance is not void, and can be enforced. (Mt. Sakina Faruq v. Samshad Khan, 1936, 165 I.C. 937)
It has also been held that a false charge of adultery by a husband against his wife is a good ground for refusing a decree for restitution of conjugal rights. (Musammat Maqboolan v. Ramzan, (1927) 2 Luck. 482) The position, however, is different if the charge is true, and is made at a time when the wife is actually living in adultery. In the latter case, it is not a ground for refusing a decree for restitution of conjugal rights.
The Bombay High Court has held that if the husband has been expelled from the caste, the wife is not bound to live with him, and a decree for restitution of conjugal rights will not be granted to the husband. (Bai Jina v. Kharwa Jina, (1907) 31 Bom. 366)
7. Suit for Enticing Away a Wife:
A Muhammadan husband can successfully file a suit for damages against a person who persuades or entices his wife to live apart from him. (Muhammad Ibrahim v. Gulam Ahmed, 1864, 1 Bom. H.C.R. 236)
8. The Kazi — His Functions and Powers:
Originally, the Kazi was a judge and a very high judicial officer in the State. With the advent of the British rule, the Kazis lost their judicial status and became religious priests. In modern times, the main function of the Kazi is to officiate at marriages and supervise talaks.
The word Kazi is etymologically derived from a word meaning “to decree, ordain or judge.” According to the Muslim conception, Kazis were persons to whom the function of administering justice was especially entrusted.
During the early days, the East India Company retained these Kazis as legal advisers on questions involving Muhammadan law, in the same manner as they had appointed Pundits on questions involving Hindu law. Subsequent enactments restricted the functions of a Kazi to preparation and attestation of deeds and to officiate at marriage ceremonies.
“There are at present day no precise functions to be performed by a person calling himself, or generally called, Kazi in India,” says Tyabjee, “but a community or jamat may, by its own customs, usages or religious tenets, recognise some persons as being primarily, or even exclusively, entitled to perform ceremonies usual or considered necessary at the solemnisation of marriage, or on pronouncing divorce.”
For some time immediately after the introduction of the British rule in India, Kazis were appointed as legal advisers to Indian Courts. A Kazi’s place is now taken by the Civil Courts, and a Kazi now means a religious officer, and not a judge. The office of a Kazi is not hereditary.
Thus, to-day, the Kazi is not a judge appointed by the State. His judicial functions have been taken up by the Civil Courts. Again, even with respect to marriages, although it is usual for a Mulla or a Kazi to officiate at such functions, the presence of a Mulla or a Kazi is not absolutely necessary at the celebration of any ceremony, and a valid marriage may be performed even without his presence.
9. The “Model Nikahnama”:
In May 2005, the All India Muslim Personal Law Board adopted a “model Nikahnama” at its meet in Bhopal.
The Bhopal Declaration, as it is sometimes called, laid down a set of Guidelines to define marriage and crystalise the rights and responsibilities of both the parties to a Muslim marriage. The model Nikahnama advises against dowry and any demand for a feast or gifts at the time of marriage. It suggests that a Muslim marriage should be as simple an affair as possible.
The Declaration clarifies that it is the duty of the husband, not only to feed his wife, but also to provide a house and medical treatment for her. He is enjoined to take care of his wife’s material needs, no matter how prosperous she may be in her own right.
The wife should also be allowed to meet her parents and siblings, and there should be no atrocities on her. Under the Guidelines, it is specifically stated that “her rights and justice be considered”. It seeks to give the wife more protection in respect of her property and maintenance.
The Board has also come down on the triple talak, which is practised, perhaps, only in India in its most literal form. It has “advised” Muslim husbands to “avoid talak in one sitting”.
However, all these Guidelines are voluntary in nature, and the provisions set out by the Board have no legal force. Many jurists, therefore, look at the Bhopal Declaration with skeptical eyes, observing that this is only a feeble attempt at reform.
It is felt that the Board would have done better by coming out with credible reforms, rather than “half-baked reform measures which are out of tune with the needs and aspirations” of the Muslim community.