PROHIBITIONS/IMPEDIMENTS ON MARRIAGES:

There are certain prohibitions in the violation of which marriage is performed shall be considered irregular and void.

These prohibitions can be categorised into three kinds:

1. Permanent or Absolute prohibitions
2. Temporary or relative prohibition
3. Directory prohibitions:

 

1. PERMANENT OR ABSOLUTE PROHIBITIONS

Absolute prohibitions may arise from:

 

1. Consanguinity (Qurabat):

A Muslim male is prohibited from marrying the following blood relations:

1. His mother or grandmother, how highsoever;
2. His daughter or granddaughter, how highsoever;
3. His sister whether full, consanguine or uterine;
4. His niece or great-niece how lowsoevr; and
5. His anut (fathers sister and mother sister) or great anunt, how highsoevr, whether paternal or maternal.

A marriage with a woman prohibited by reason of consanguinity is void, and issues from such marriage are illegitimate.

1. Affinity: (Mushaarat)

A Muslim is prohibited from marrying certain relationships with whom they arise on account of marriage. valid or invalid.

His wifes mother or grandmother, how highsoever;

His wifes daughter or granddaughter, how highsoever, etc.

A marriage with a woman prohibited by reason of affinity is void.

According to Hedeya, “ Actual consumation with wife is necessary to invalidate  the marriage  with a wifes descendent.”

 

1. Fosterage: (Riza)

When the child under the age of two years has been suckled by a woman other than its own mother, the woman becomes the foster mother of the child.

According to Hedeya: “ A marriage prohibited by fosterage is void.”

However, under Sunni Law, there are few exceptions to the general rule and a valid marriage may be contracted with;

• Sisters foster-mother; or
• Fosters-sisters mother;or
• Foster-son sister;or
• Foster-brother sister

 

1. TEMPORARY or Relatable Prohibition:

It differs from the case of absolute incapacity, where the marriage is void ab initio and can never become valid. Relative prohibition or incapcity renders the marriage irregular, and the bar is of recommendatory or moral nature. The following are the cases of relative prohibition.

 

1. Unlawful Conjunction:

A Muslim may not have, at the same time, two wifes who are related to each other by consangninity, affinity or fosterage. The marriage by unlawful conjunction is irregular and not void.

U/shia Law:  A valid marriage may be contracted with wife’s anut but he cannot marry his wife’s niece without her permission of his wife.

 

1. Poloygamy:

The maximum number of wives that a Muslim can have at a time is four. Marriage with fifth wife is irregular but the irregularity may be removed by divorcing and death one of them.

  Under shia law: Marriage with the fifth wife in the presence of four is not merely irregular but void.

   Section 6 of MFLO 1961: provides the procedure to solemnize the second marriage in the presence of previous wife or wife’s.

 

1. Diffrence of Relegion:

A muslim male may contract a valid marriage with Kitabia, but not with a idolatress or a fire-worshipper.

U/Sunni Law: Marriage of asuuni male with a kitabia is valid; but with non-muslim or non-kitabia is irregular

U/Shia Law: Shia male can marriage only with a muslim female and marriage with non-muslim is void.

 

1. Absense of  Proper Witness:

The sunni insists that atleast two witnesses must be present to testify that the contract of marriage was properly entered into between the parties. Absence would affcet its contractual completeness.such marriahe is is invalid but not void.

In shia, a marriage can be performed even in secrecy by the sposes themselves or their guardian and it would be quite valid and witness are not required.

 

1. Woman undergoing iddat:

A marriage with a woman undregoing iddat of her previous marriage is irregular but not void under suuni law but under shia law such marriage is void.

 

1. PROHIBITIVE PROHIBITION:

 

1. Polyandry:

Polyandry means tha fact of having more than one husband. A married woman cannot contract a second marriage during the life time of the husband.

A muslim woman marrying in contavention of this rule shall be liable to punished under section 494, PPC and the issues from such marriage will be illegitimate.

 

1. Marriage with a non-muslim:

A marriage of  a muslim female with a non-muslim mae whether he be a christian, or a Jew or an idolater or a fire worshipper is irregular under Sunni Law and void under Shia Law.

 

1. DIRECTORY PROHIBITIONS:

 

1. Marraying a Woman “Enciente”-

It is unlawful to marry a woman who is already pregnant by her former husband. But if theperson has himself caused the pregnancy and marries her, the consequenses of opinion is that such a marriage is valid.

 

1. Prohibition by Divorce:

the muslim law prohibits marriage between a Muslim male and a muslim female after the pronouncement of divorce three times; but this impediement can be overcome by “Halala”.

 

1. Marriage during Pilgrimage:

Under shia Law if perons marry themselves within the scared precients of Mecca while on pilgrimage, the marriage is void but under Hanfi regards such marriage to be legal as expressed in Falwai Alamgiri.

 

1. Prohinition by Doctrine of Equality:

According to this doctrine the husband must be equal of the woman in social status. Equality between two parties is necessary for marriage.

In Hanfi law the following factors must be considered for determining equality;

• Islam
• Profession
• Freedom
• Goog chracter and
• Mean.