The Nikah as a Contract: Offer, Acceptance, Witnesses and Capacity

Muslim personal law treats marriage (nikah) as a civil contract with religious significance. That is why so much of the law of Muslim marriage turns on familiar contractual ideas: a clear proposal, a clear acceptance, parties who are competent to agree, and terms that can be written into the nikahnama.

General information, not legal advice.

Offer and acceptance (ijab and qubool)

A valid nikah requires a proposal (ijab) by or on behalf of one party and an acceptance (qubool) by or on behalf of the other. Under the Hanafi school, which most Sunni Muslims in India follow, the offer and acceptance should be made at the same meeting. The words used should show a present intention to marry, not a promise to marry in future.

Witnesses

The schools differ:

• Hanafi law requires the offer and acceptance to be made in the presence of two adult Muslim male witnesses, or one male and two female witnesses, who are of sound mind.
• Shia (Ithna Ashari) law does not treat witnesses as essential to the validity of the marriage itself, although witnesses are commonly present and useful as proof.

A nikah without required witnesses under Hanafi law is treated as irregular (fasid) rather than void, and the consequences differ from a void marriage.

Capacity and consent

Each party must be of sound mind and must consent. Classical texts linked capacity to puberty, but Indian statute law now sets the minimum age. Under the Prohibition of Child Marriage Act, 2006, a male below 21 and a female below 18 is a child for the purposes of that Act, and child marriages carry legal consequences under it, including that they are voidable at the option of the party who was a child.

Consent obtained by force or fraud affects the validity of the marriage.

Mahr

Mahr is an obligation that arises with the marriage. It may be specified in the nikahnama, and if no amount is fixed, the wife is entitled to a proper mahr. Mahr is often divided into prompt and deferred portions.

The nikahnama

The nikahnama records the parties, the guardians where relevant, the witnesses and the mahr, and may contain additional terms such as a delegated right of divorce. Reading and understanding the document before signing is important, since it is often the first piece of evidence produced in any later dispute.

Registration

Registration of Muslim marriages is governed by state laws and rules, which differ. Even where registration is not compulsory, a registered marriage or a properly kept nikahnama is valuable proof for passports, visas, inheritance and maintenance proceedings.

Information about family and divorce law, and Muslim personal law matters in Hyderabad, is on advocatemaryam.com.