Mahood J., Observed in Abdul Kadir V. Salima ” Marriage is a civil contract upon the completion of which, by proposal and acceptance, all the rights and obligations which it creates arise immediately and simultaneously”.
Marriage thus is:
(a) a contract,
(b) for the purpose of legalizing sexual intercourse and procreation,
(c) legitimation of children, and
(d) for creating rights and duties between the parties and between each of them and children.
1 Essential of “Nikah” (Marriage)
The essentials of a Nikah are:
(a) Proposal and acceptance;
(b)Competence of Parties;
(c) No matrimonial prohibitions.
Proposal and Acceptance (“Ijab-Wa_Kabul”)
In nikah one party to the marriage makes a proposal to the other party. The Proposal and acceptance must be in the presence of the other party or in the presence of their agents so that the contract is understood before acceptance.
Option of Puberty:- In certain circumstances, a minor contracted in Marriage by the guardian for marriage has the right of repudiating or ratifying the marriage contract on attaining puberty; this right of the minor is known as the option of puberty.
In is a marriages for limited period which may be a term of a year, a month, a day or even a part of a day. It is lawful among shias to enter into Muta Marriages. However, the agreement to marriage has to be accompanied by an amount of dower which is specified. In absence of dower the marriage is void.
Available to husband against wife–
(b) Refusal of Maintenance
(c) Civil suit for restitution of conjugal rights
Available to wife against husband–
(a) Suit for Maintenance
(b) Refusal to Live together
(c) Claim under Section 125 of CrPC
Talaq:- Types of Talaq
There are broadly three types of Talaq
(1) By Death of Parties
(2) By Act of Parties
(3) By Judicial Process
Mode of Talaq
(a) Talaq ul Sunnat:- Talaq which is given in accordance with the traditions of the prophet and carries his approval.
(I) Ahsan (best):- here the talaq is made by a single pronouncement when the woman is in state of purity (Tuhr). For talaq to be complete the husband must abstain from intercourse during the period of Iddat because it remains revocable during that period.
(ii) Hasan:- In this, the husband successively pronounces divorce three times during consecutive period of purity ( Tuhr).
(b) Talaq-ul-biddat: it is an irregular and sinful, though lawful from of talaq where the husband does not follow the approved from of talaq, either pays any attention to the period of purity not to abstention from divorce.
(i) Triple Divorce:- It is where the husband repudiates his wife by three divorces in one sentence, or where he repeats the sentence the sentence separately thrice within a single Tuhr.
(ii) One Irrevocable Talaq:- The Husband may make a single pronouncement an intention to dissolve the marriage irrevocably.