INTRODUCTION
The conditions for a void or a voidable marriage under Muslim law are laid down under all personal law statutes. While the breach of some conditions is considered very serious, and the marriage is rendered void, the non-compliance of others renders a marriage voidable only. The basic distinction between a void and voidable marriage is that while in the former there is no legal status conferred on the parties and the marriage is void ab initio, i.e., right from inception, in the latter, all rights and obligations of matrimony subsist until the marriage is annulled by the court. Besides, a void marriage may be declared a nullity at the instance of either party, but in the case of a voidable marriage, the decree of annulment can be made by the court at the instance of the aggrieved party.
LEGITIMACY OF CHILDREN
Muslim law does not recognize legitimation, and a child who is clearly illegitimate under the law cannot be conferred a status of legitimacy. A child can, however, be acknowledged as legitimate in certain situations, viz., where:
- Paternity of the child is either not known or is not established beyond doubt;
- It is not proved that the child is the offspring of illicit intercourse (zina); and
- The circumstances are such that marriage between the acknowledger and the mother is not an impossibility.
This is known as the doctrine of acknowledgment of paternity. A valid acknowledgment is not revocable and gives rights of inheritance to the child. This doctrine of acknowledgment of paternity is, however, different from legitimation as provided under the other personal laws.
MARRIAGE OF MINOR
Under the Muslim law, if a Muslim minor has been married during minority by a guardian, the minor has a right, on attaining majority, to repudiate such marriage. This is known as
Khiyar al-bulugh,
[i] or the option of puberty. Such a minor may be given in marriage either by the father or grandfather or by any other guardian. Thus, unlike Hindu law, this option has been given to both the husband and the wife.
The Dissolution of Muslim Marriages Act, 1939, has made some changes in the older Muslim law. It gives to a woman married under the Muslim law a right to seek dissolution of her marriage on the ground, inter alia, that she, having been given in marriage by her father or other guardian before she attained the age of 15 years, repudiated the marriage before attaining the age of 18, provided that the marriage has not been consummated. It is significant to note that prior to this Act, a marriage contracted by the father or grandfather could not be repudiated unless:
- The father or grandfather acted negligently or wickedly
- The marriage was to the manifest disadvantage of the minor.
The Dissolution of Muslim Marriages Act, 1939, has removed these conditions, and a minor Muslim girl whose marriage has been contracted by the father or grandfather can also exercise her option of repudiation if the following conditions are satisfied, viz.:
- The marriage took place before she was 15 years old;
- She repudiated the marriage before attaining the age of 18 years.
- The marriage has not been consummated.[ii]
The girl would, however, not lose her right if the marriage is consummated before she attains the age of 15 years.
[iii] In the case of
Shabnam v. Mohd. Shabir, the wife claimed that she was married in 1991 before attaining puberty and the marriage was not consummated. The fact that she was a minor at the time of marriage was established. The court held that even if she had stayed with her husband and the marriage was not consummated when she was a minor, this would not end her right to repudiate the marriage after attaining puberty. There was no evidence that the marriage was consummated after she had attained puberty; also, the husband had already married again and was not living with her. The marriage between the parties was, accordingly, dissolved under Section 2(vii) of the Dissolution of Muslim Marriages Act, 1939.
The repudiation by an adult of a marriage contracted during minority does not ipso facto dissolve it but renders it the duty of a civil judge to decree its dissolution on proper application being made. In the meantime, the parties remain married, and if either of them dies, the other will inherit to him or her in the capacity of spouse,
[iv] and sexual intercourse between the parties is not unlawful, though the fact of the woman willingly permitting it will have the effect of cancelling a repudiation already declared and only awaiting confirmation.
[v]
It is significant to note that in the case of the husband, there is no statutory period of time provided within which he can exercise his option. All that is required is that on his attaining majority, he may exercise his option. A husband who pays dower or cohabits after attaining majority would lose his right to opt out because payment of dower or cohabitation implies ratification.
CONCLUSION
In conclusion, Muslim family law provides a complex framework for understanding the validity of marriages, the legitimacy of children, and the rights of minors. The distinction between void and voidable marriages is crucial, as it impacts the legal status of the parties involved. The principle of acknowledgment of paternity offers a pathway for illegitimate children to gain rights under specific conditions, highlighting the unique considerations within Muslim law. Additionally, the option of repudiation, or
Khiyar al-bulugh, empowers minors to make choices about marriages contracted on their behalf, reflecting a progressive shift in the legal landscape through the Dissolution of Muslim Marriages Act, 1939. This Act facilitates greater autonomy for women and minors by removing previous conditions that restricted their rights.
The legal framework ensures that while marriages contracted in minority can be repudiated, the parties retain certain rights and responsibilities until a formal dissolution is granted. Overall, these provisions underscore the dynamic nature of Muslim family law, balancing traditional practices with the need for modern legal protections and individual rights, ultimately fostering a more equitable approach to marriage and family matters within the Muslim community.
[i]Fyzee, Outlines of Mohammedan Law, 1974.
[ii] Ghulam Sakina v. Falak Sher, AIR 1950 Law 45.
[iii] Behram Khan v. Akhtar Begum, 1957 PLD (WP) Lah 651.
[iv] Mulla, Principles of Mohammedan Law, 1972.
[v] AN Saha, Marriage and Divorce (6
th ed., 2002).
