Muslim Marriage As A Civil Contract:
Nikah is an Arabic word or term used for marriage which means union of the series and
carries a civil contract for the purpose of legalizing sexual intercourse and legitimate
procreation of children.
The Quran specifically refers to marriage as Mithaqun Ghalithun which means A
Strong Agreement.
Views:
Ameer Ali: Marriage is an organization for the protection of the society. This is to protect the
society from foulness and unchastity.
Wilson: He defines Muslim Marriage as a contract for the purpose of legalizing sexual
intercourse and procreation of children.
Justice Mahmood: In The case Abdul Rahim Vs Salima ( ILR 1886 8 ALL 149)
Justice Mahmood commented on the nature of Muslim marriage that Muslim Marriage is a civil
contract and not a sacrament.
Why Muslim Marriage is a Civil Contract:
The essentials of a civil contract are:
Proposal
Acceptance
Consideration
Free Consent
Lawful Object
Competency of The Parties
Similarly, essentials of Muslim marriage are:
Ijab ( Proposal)
Qubool (Acceptance)
Dower ( Consideration)
Free Consent
Competency Of The Parties
Comparing both it seems the same conditions for both, thus we can
say that marriage under Muslim is a civil contract.
The object of civil contract:
1. Legalizing the sexual intercourse
2. Procreation of children
Muslim marriage as Sacrament view
Prophet’s Saying:
When a man marries he has fulfilled half of the religion, so let him fear Allah
regarding the remaining half.
When a husband and wife look at each other with love, Allah look at them with mercy.”-
Sahi Bukhari 6:19 Tirmidhi
The most perfect believer in faith is the one whose character is finest and who is kindest
to his wife”. - Ahmad 5/282 Tirmidhi
Definitions:
Abdur Rahim: The Mohammadan priests regard the institution of marriage as per taking both
the nature of Ibadat ( or devotional arts) and Muamlat ( or dealing among person).
Justice Suleman: in a case: Anis Begum vs Mohammad Istafa Wali Khan (air 1933 all 634)
In the above case, he has said that in Islam, marriage is not only a civil contract but also a
sacrament.
Muslim marriage can also be differentiated from a civil contract on the basis of following
points:
It cannot be done on the basis of future happening unlike the contingent contract.
Unlike the civil contract it cannot be done for a fixed period of time. ( Muta marriage being
an exception)
Conclusion:
It is a matter of query still existing whether Muslim Marriage is only a civil contract or an Ibadat
and Muamlat. While unleashing the various definitions it is quite a big problem to say which one
is the most appropriate.
In my opinion although the essentials of a contract is fulfilled yet marriage can never be said to
be a contract because marriage can never be bondage between the emotions and thinking of
two persons.
