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    Thursday, 27 October 2016

    Void (batil), Irregular (Fasid) and Muta Marriage

    A marriage which is not valid may be either void or irregular

    Void Marriage

    A void marriage is one which is unlawful in itself, the prohibition against the marriage being perpetual and absolute. Thus a marriage with a woman prohibited by reason of consanguinity, affinity or fosterage, is void, the prohibition against a marriage with such a woman being perpetual and absolute.

    Effective of a void marriage

    A void marriage is not marriage at all. It does create any civil rights or obligations between the parties. The offspring of a valid marriage are illegitimate.

    Irregular Marriage

    An irregular marriage is one which is not unlawful in itself, but unlawful ‘for something else’, as where the prohibition is temporary or relative, or when the irregularity arisen from an accidental circumstances, such as the absence of witnesses. Thus the following marriages are irregular, namely:-

    a. a marriage contracted without witnesses;
    b. a marriage with a fifth wife by a person having four wives;
    c. a marriage with a woman undergoing iddat;
    d. a marriage prohibited by reason of difference of religion;
    e. a marriage with a woman so related to the wife that if one of them had, been a male, they could not have lawfully intermarried.

    Effects of an irregular marriage

    An irregular marriage can be terminated by either party, either before or after consummation. An irregular marriage has no legal effect before consummation. If consummation has taken place;
    1. The wife is entitled to dower, proper or specified whichever is less;
    2. She is bound to observe Iddat;
    3. The issue of the marriage is legitimate
    4. An irregular marriage, though consummated, does not create mutual rights of inheritance between husband and wife.

    Shia Law
    The Shia law does not recognize the distinction between irregular and void marriage. According to that law, marriage is either valid or void. Marriages that are irregular under the Sunni Law are void under the Shia Law.

    Muta Marriage

    The Shia Law recognizes two kinds to marriage namely (i) permanent, and (ii) muta or temporary

    Sunni Law about Muta Marriage

    The Sunni law does not recognize muta marriage with a woman professing the Islamic, Christian or Jewish religion, or even with a woman who is free-worshipper, but not with a woman following another religion. But a Shia woman may not contract a muta marriage with a non-Muslim.

    Essential of the validity

    It is essential to the validity of muta marriage that (i) the period of co-habitation should be fixed, and this may be a day, a month, a year or a term of years, and that (ii) some dower should be specified.
    A muta marriage is dissolved ipos facto by the expiry of the term. No right of divorce is recognized in the case of a muta marriage, but the husband may at his will put an end to the contract of marriage by ‘making a gift of the term’ to the wife even before the expiration of the fixed term.

    Effect of Muta marriage

    a. A muta marriage does not create mutual rights of inheritance between the parties, but children conceived during its existence are legitimate and capable of inheriting from both parents.
    b. If a muta marriage is not consummated, the woman is entitled to half the dower. But in case the marriage is consummated, she is entitled to full dower.
    c. The woman in muta marriage is not entitled to maintenance.

    Legal ingredient

    Muta is a temporary union, and recognized among the Shias and never among Sunnis. Divorce is not recognized in Muta. There is no minimum time for duration of Muta marriage, and no limit as the number of muta wives. The husband is not bound to provide residence to wife.
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    Item Reviewed: Void (batil), Irregular (Fasid) and Muta Marriage Rating: 5 Reviewed By: Usman Ali
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