Marriage

Marriage, like other contracts requires declaration and acceptance for its constitution and both must be expressed in such a manner as to demonstrate the intention, without any sort of ambiguity

The essential requirements of a valid marriage include offer (ijab) and acceptance (qabul), exchanged either directly or through representatives or guardians, along with free and informed consent

These elements align with the statutory requirements for a valid civil contract and marriage is now established under our jurisprudence to be a solemn civil contract ('aqd')

In Pakistan, every marriage solemnized under Muslim law must be registered under the Muslim Family Laws Ordinance, 1961 and the Nikahnama serves as the principal documentary proof.

A Muslim male may validly contract marriage with a Christian woman (being from the Ahl al-Kitab).

There is a presumption of marriage based on continued and prolonged cohabitation unless the same is dislodged by cogent reason.

There is a saying of the Holy Prophet (Peace And Blessings Be Upon Him And His Family) to the effect that "the most detestable of lawful things in Allah's view is divorce"

Similarly, the wife is given the right to ask for khula in cases of extreme incompatibility.

Such a contract undoubtedly has spiritual and moral overtones and undertones but legally, in essence, it remains a contact between the parties which can be the subject of dissolution for good cause.

Doing so requires determining age of minor, which requires recording of evidence, and High Court in its Constitutional jurisdiction cannot undertake such exercise.

Contract of marriage is a contract whereby parties agree to engage in sexual relations, recognized by the State and society as legitimate, for the purpose of procreation

Consideration and object of a marriage contract essentially entails two individuals agreeing to engage in legitimate sexual relations, transforming individuals into a family warranting state protection

Relationship of marriage does not just entail engagement in permissible sexual conduct

Purpose of marriage is to enter into a contract whereby two people agree to become a family and look after one another, and further agree to bring children into this world and are responsible for safety and physical and emotional well being of such offspring.

Presumption of valid marriage can be ascertained from the fact of acknowledgement by a man or woman as husband and wife.

Right to repudiation of marriage is lost, in case of a female, if after attaining puberty and after having been informed of the marriage and of her right to repudiate it, she does not repudiate without reasonable delay.

In the present case, the bride was well educated and more than 27 years of age at the time of Nikah, thus, she was competent enough to enter into Nikah with anybody according to her own whims even without intervention of a third person, in particular a Wakeel.

Such irregularities could not be used to negate the contents of a Nikahnama which being a public document carried presumption of correctness.

Only requirement of the law was presence of two male or one male and two female witnesses at the time of offer and acceptance irrespective of the fact that they were closely related to the parties or not

Furthermore since marriage between the parties in the present case was solemnized against wishes of their families it could not be believed that some immediate family members of the bride would have participated in the said marriage especially when there was great difference between the social/financial status of the parties.

Three ingredients of a valid marriage were proposal, acceptance and presence of two male or one male and two female witnesses.

According to the practice in vogue, Nikah was either arranged in the house of the bride, mosque or any wedding hall where the parties choose to celebrate their wedding, thus, solemnization of Nikah in the house of Nikah Khawan especially in the wake of the fact that it was run-away marriage, could not be disbelieved.

Completion of entries in Nikahnama by a person other than the Nikah Khawan was allowed.

Unlawful conjunction by way of marriage during iddat period renders the marriage irregular and not void and an irregular marriage becomes regular the moment the bottleneck is removed i.e. iddat period expires.

Consent of a woman is necessary; she cannot be compelled to enter into a marriage contract without her free will and consent

If a girl is married to a person who is not of her choice and girl signs the nikahnama unwillingly by force or fear of her guardian, the same cannot be termed as valid marriage, because guardian's consent is no substitute for the girl's consent.

Solemnization of marriage requires Ijab-o-kabul, that there should be a proposal made by or on behalf of one of the parties and an acceptance of the proposal by or on behalf of the other, in the presence of two male or one male and two female witnesses, as the case may be, who must be sane adult

Ijab-o-kabul should be without fear or undue influence or fraud

Marriage without a free consent of both the parties would not be legally valid

Consent obtained by coercion or undue influence from any of the parties would make the marriage invalid.

Requirements of a valid marriage.

Marriage can be presumed in the absence of any direct proof in prolonged and continual cohabitation as husband and wife. [Para. 15 of the judgment]

Furthermore, dower once settled could always be increased subsequently by the husband or by an agreement between the parties

Property mentioned in nikahnama as dower could not be subjected to attachment or sale in execution.

Property mentioned in Nikahnama as dower could not be subjected to attachment or sale in execution proceedings.

Where matter (of restoration of property) came before the court for settlement, court would determine the amount to be returned to the husband and such amount would be accepted by the husband

Disobedience of wife, her role in straining the relations, second marriage of husband and possible destitution of wife after divorce were determining factors for fixing amount of Khula'.

Wife earlier approached Family Court for her claim of dower as well as the inference of condition mentioned in column No. 17 of Nikah Nama

Dower was granted to the wife in the said family suit but for remaining claim she was directed to approach the Civil Court

Validity

Claim of wife made on the basis of condition mentioned in column No.17 of Nikah Nama was actionable claim under the contract

Said claim could be pressed into service through Civil Court

Wife could lawfully stipulate for her divorce under contract and she could also raise any claim based on the said contract apart from dower fixed at the time of contract of Nikah

Any such stipulation could not be termed as against public policy or against Islamic Law

Condition imposed upon right of Talaq could not be enforced through suit before Family Court and Civil Court had exclusive jurisdiction for the same

Revision was dismissed in circum-stances.

Marriage in Islam is in the nature of civil contract entered into between man and Woman and no formal deed, as per Sharia, is necessary to be drawn to prove that a valid marriage has come into being.

Where a lady gets married and agrees to live with her husband in a foreign country in foreign environment, she forsakes a set social and cultural atmosphere to adjust in the new environment which requires a lot of efforts

Total support of the husband in that respect is necessary and he must help her in her adjustment

Husband has to be patient, gentle and understanding

Rashness and impatience generally lead to disputes which ultimately end up in the break-up of the marriage

Penalty for such a break has to be paid by the child.

Muhammadan Law-Marriage-Requirements of form and ceremony, legality and validity of marriage between a Sikh male and a Muslim female such Muslim female treated as a maid-servant, a keep or a mistress as distinguished from a wife-Sons of such woman neither receiving any allowance and privileges allowed to heirs of Sikh male nor acknowledged or recognized by him to be his sons-Held, such factual background disproved existence of a marriage, same having been kept secret, nor such relationship finds recognition in agricultural custom of Punjab-Marriage between such male and female cannot be inferred or presumed on basis of any enacted law, principle of law or presence of an acknowledgment and recognition by spouses concerned or by public generally.-[Muhammadan Law Custom (Punjab)].

Marriage Marriage- (Private International Law)-Validity of "form" of marriage to be judged by lex loci contractus-"Capacity" to enter into marriage bond to be determined according to law of domicile of party concerned-[Brook v. Brook (1861) 9 H L C 1921 and Halsbury's "Laws of England," Vol. 7, p. 91, para. 165, III Edition ref.].

Marriage Marriage-Parties-Jew and a non-Christian Chinese women Modified Chinese form-Valid-(Singapore case).