Marriage is a civil contract between two persons of opposite sex which has for its object the procreation and the legalizing of children. Islamic personal law lays down some prohibition to a valid marriage on different grounds. A Muslim can marry a person with whom marriage is allowed under Shariat Law. So there must be complete absence of impediments for a valid marriage.
MEANING OF IMPEDIMENT : Impediment to a valid marriage means to stop a person to marry a woman or a women to marry a man on the grounds of consanguinity, affinity, or fosterage.
KINDS OF PROHIBITIONS/IMPEDIMENTS : These are the restrictions imposed by Islamic Law, which make a marriage either void or irregular depending upon the nature of restriction. These impediments may be classified in to these broad heads :
- a) Permanent Impediments,
- b) Temporary Impediments.
1)PERMANENT IMPEDIMENTS : These are the impediments which make the marriage void ab-initio and the marriage is not allowed in any case. These include following : i. Consanguinity (Blood Relations), ii. Affinity (Relationship Due To Marriage), iii. Fosterage (Relationship Due To Sucking Of Milk), iv. Polyandry (A Woman Marrying More Than One Man At The Same Time).
i)CONSANGUINITY : It is permanently Haram for a muslim to marry a woman who belongs to one of the following categories : a) The fathers wife, whether divorced or widowed. b) The mother, including the grand mothers on both sides. c) The sister, including the half, and step-sisters. d) The daughter, including the grand daughters from the son or daughter. e) The paternal aunt, whether she is the real, half or step-sister of the father. f) The maternal aunt, whether she is the real, half or step-sister of the mother. g) The brothers daughter, i.e, his niece. h) The sisters daughter, i.e, his niece. All these female blood relations are a mans Muharramat and he is Mahrem to his corresponding female relatives. Marriage to any Mahrem whomsoever is permanently prohibited. The reasons for this prohibition are as follows : A)Entertaining any sexual thoughts concerninig such close relatives as one’s mother, sister and daughter is instinctively abhorrent to human nature; there are even certain animals which avoid mating with such closely related animals. The respect a man feels for his aunt’s is like the respect he has for his mother , and likewise uncle’s are regarded as father’s. B)Since the family must live together in intimacy and privacy but without incestuous relations, the Shari’ah intends to cut at the roots of any sexual attraction among such close relatives. C)Since there is natural love and affection among such close blood relatives, the intent of the Shari’ah is to expand the circle of love and kinship by prohibiting incest and thereby directing the man’s search for women outside the family. Thus each marriage extends the sphere of love, bringing new people within this ever-expanding network of affection ; “ And HE has put love and mercy between you. “ (30:21) D)The natural sentiments of love and affection between a man and the above mentioned female relatives must be kept strong forever. If marriage were permitted between such relatives, it would cause jealousies, dissensions and the disruption of families, destroying the very sentiments of love and affection which give cohesiveness and permanence to the family structure. E)The offspring of marriages to such close blood relatives would most probably be defective and weak. Moreover, if physical or mental defects are present in the members of a family, they would become more pronounced among the children of such marriages. F)The woman needs someone to champion her rights and support her case against her husband, especially when relations between the two of them become strained. If those women who could defend her became rivals, how would this be possible?
ii)IN-LAW RELATIONSHIPS/ AFFINITY : A man is prohibited from marrying with following in-law relationships : a)THE MOTHER-IN-LAW : Marriage to the wife’s mother is permanently prohibited from the time a man enters into marriage contract with a woman, whether he and his wife have engaged in sexual intercourse or not. The act of marriage itself gives the mother-in-law the same status as the mother. b)THE STEP-DAUGHTER : A man cannot marry his step-daughter(his wife’s daughter by a previous marriage) if sexual intercourse has taken place with her mother or not, his wife. c)THE DAUGHTER-IN-LAW : That is, the wife of the real son, not that of the adopted son.
ALLAH TA’ALA Says ; “…Nor has He made your sons by adoption your(real) sons. Those are simply words from your mouths….” (33:4) These three types of female relatives are forbidden in marriage in order that peaceful relationships may be maintained among the In-Laws.
iii)MARRIAGES PROHIBITED BY REASON OF FOSTERAGE : a)THE FOSTER MOTHER : It is Haram for a muslim to marry a woman who has suckled him during his infancy, for suckling makes her like his real mother, since milk has gone into the making of his flesh and bones. b)FOSTER SISTERS : Just as a woman become a mother to a child by virtue of suckling, likewise her daughters become his sisters, her sisters his aunts, and so on. The PROPHET(peace be upon him) Said ; “ What is haram by reason of genealogy is haram by reason of fosterage. “ (Reported by Al-Bukhari and Muslim) Thus the foster-sisters, foster-aunts and foster-nieces are all muharramat and marriage to them is permanently prohibited. EXCEPTIONS : The following relations are exceptions and a valid marriage may be contracted with them : i. Sister’s foster mother. ii. Foster sister’s mother. iii. Foster son’s sister. iv. Foster brother’s sisters. SHIA JURISTS : The Shia jurists place fosterage and consanguinity on the same footing and refuse to recognize the exceptions permitted by the Sunnis.
iv)POLYANDRY/MARRIED WOMAN : A married woman cannot contract a second marriage during the life time of the husband. If she does so, the marriage would be void and she can be punished under section 494 of the Penal Code.
2)TEMPORARY IMPEDIMENTS : These are temporary in nature and as per Hanafi jurists; these make the marriage irregular not void and can be cured. These include following : i. Unlawful Conjunction ii. Polygamy iii. Iddat iv. Difference Of Religion v. Absence Of Witnesses vi. Mushrik/Idolatoress Woman
i)UNLAWFUL CONJUNCTION : As opposed to the practice of the period of jahiliyyah, Islam forbade taking two sisters as co-wives at the same time, because the feeling of love and sisterliness which islam wants to maintain between sisters would be destroyed if one sister became the co-wife of the same husband. The PROPHET(peace be upon him) Said ; “ A man may not be married to a woman and her paternal aunt(at the same time), nor to a woman and her maternal aunt. “ (Reported By Al-Bukhari And Muslim) And He Said ; “ If you do this, you will severe your ties of kinship. “ (Reported By Ibn-e-Hibban) A marriage by unlawful conjunction is irregular but not void. ii)POLYGAMY : The maximum number of wives that a muslim can have at a time is four. If he marries a fifth wife when he has already four, the marriage is not void, but merely irregular. The impediment can be overcome by divorcing one of the previous four wives. iii)IDDAT : A marriage with a woman undergoing iddat of her previous marriage is irregular but not void. iv)DIFFERENCE OF RELIGION : For muslim woman; It is haram for a muslim woman to marry a non-muslim man, regardless of whether he of the people of the book or not. ALLAH Says In His Book ; “ It is not permissible for muslim women to marry non-muslim men.” (2:221) And He Siad Concerning The Immigrant Muslim Women ; “…Then if you know them to be believers, do not send them back to the unbelievers. They are not halal for them(as wives), nor are they halal for them(as husbands).” (60:10) For muslim man; It is however lawful for muslim men to marry chaste women(that is women of virtue and character) from among the Jews and the Christians. ALLAH Says In His Book ; “ (And lawful to you in marriage) are chaste women from those who were given the scripture before you.” (5:5) v)ABSENCE OF WITNESSES : The Sunnis insist that at least two witnesses must be present. While Presence of witnesses not necessary according to Shia Law. If witnesses are not present, the marriage is irregular but not void. vi)MUSHRIK/IDOLATORESS WOMAN : It is also prohibited to marry a woman who is a mushrik that is who worships idols or associates other deities with Allah. ALLAH Says In His Book, The Quran ; “ And do not marry mushrik women until they believe.” (2:221) A marriage, however, with an idolatoress or a fire worshipper is not void but irregular.
EFFECTS OF IMPEDIMENTS : Permanent impediments are those which which can never be avoided. On the other hand, temporary impediments can be cured. EFFECT OF CHILD’S LIGITIMACY : IN PERMANENT IMPEDIMENT, the off-spring of marriage can not be acknowledged as legitimate. IN TEMPORARY IMPEDIMENT, the off-spring of marriage can acknowledged as legitimate. CRITICAL APPRECIATION; The Quran Says ; “ Allah wishes easiness for you, He does not desire for you hardship.” (2:185) Islamic law regarding marriage is easy, practical, rational and in keeping with human nature. Humanity can only benefit by following these regulations in true spirit.
INFORMATIVE NOTE Syed Ameer Ali divides these impediments into four heads in his book MUHAMMADAN LAW, 7th edition, Vol II, Page-249. These are : 1) Absolute Prohibition 2) Relative Prohibition 3) Prohibitive Prohibition 4) Directory Prohibition 1)ABSOLUTE PROHIBITION : a) Consanguinity b) Affinity c) Fosterage 2)RELATIVE PROHIBITION : a) Unlawful Conjunction b) Polygamy c) Woman Undergoing Iddat d) Difference Of Religion e) Absence Of Proper Witnesses 3)PROHIBITIVE PROHIBITION : a) Polyandry b) Marriage With A Non-Muslim 4)DIRECTORY PROHIBITION : a) Marrying A Woman ‘Enciente’ (It is unlawful to marry a woman who is clearly pregnant by former husband.) b) Prohibition By Divorce c) Marriage During Pilgrimage (Under Shia law void but Hanafis regard such marriages to be legal.)
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