PROHIBITIONS/IMPEDIMENTS ON MARRIAGES:

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 prohibitions

3. Directory prohibitions

1. PERMANENT OR ABSOLUTE PROHIBITIONS
Absolute prohibitions may arise from:

(A) 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 lowsoever

5. His aunt (father’s sister and mother’s sister) or great aunt, how highsoever, whether paternal or maternal
   A marriage with a woman prohibited by reason of consanguinity is void, and issues from such marriage are illegitimate.

(B) Affinity (Mushaarat)
A Muslim is prohibited from marrying certain relationships which arise on account of marriage, valid or invalid:

1. His wife’s mother or grandmother, how highsoever

2. His wife’s daughter or granddaughter, how highsoever, etc.
   A marriage with a woman prohibited by reason of affinity is void.
   According to Hedeya, “Actual consummation with wife is necessary to invalidate the marriage with a wife’s descendant.”

(C) Fosterage (Riza)
When a 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:

1. Sister’s foster-mother

2. Foster-sister’s mother

3. Foster-son’s sister

4. Foster-brother’s sister

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

(A) Unlawful Conjunction
A Muslim may not have, at the same time, two wives who are related to each other by consanguinity, affinity or fosterage. The marriage by unlawful conjunction is irregular and not void.
Under Shia Law: A valid marriage may be contracted with wife’s aunt, but he cannot marry his wife’s niece without her permission.

(B) Polygamy
The maximum number of wives that a Muslim can have at a time is four. Marriage with a fifth wife is irregular, but the irregularity may be removed by divorcing or death of 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 the previous wife or wives.

(C) Difference of Religion
A Muslim male may contract a valid marriage with a Kitabia, but not with an idolatress or a fire-worshipper.
Under Sunni Law: Marriage of a Sunni male with a Kitabia is valid, but with a non-Muslim or non-Kitabia is irregular.
Under Shia Law: A Shia male can marry only a Muslim female and marriage with a non-Muslim is void.

(D) Absence of Proper Witness
The Sunni insists that at least two witnesses must be present to testify that the contract of marriage was properly entered into between the parties. Absence would affect its contractual completeness; such marriage is invalid but not void.
In Shia Law: A marriage can be performed even in secrecy by the spouses themselves or their guardian, and it would be valid without witnesses.

(E) Woman Undergoing Iddat
A marriage with a woman undergoing iddat of her previous marriage is irregular but not void under Sunni Law, but under Shia Law such marriage is void.

3. PROHIBITIVE PROHIBITIONS

(A) Polyandry
Polyandry means the fact of having more than one husband. A married woman cannot contract a second marriage during the lifetime of her husband. A Muslim woman marrying in contravention of this rule shall be liable to punishment under section 494, PPC and the issues from such marriage will be illegitimate.

(B) Marriage with a Non-Muslim
A marriage of a Muslim female with a non-Muslim male, whether he be a Christian, a Jew, an idolater or a fire-worshipper, is irregular under Sunni Law and void under Shia Law.

4. DIRECTORY PROHIBITIONS

(A) Marrying a Woman “Enciente”
It is unlawful to marry a woman who is already pregnant by her former husband. But if the person has himself caused the pregnancy and marries her, the consensus of opinion is that such a marriage is valid.

(B) Prohibition by Divorce
Muslim law prohibits marriage between a Muslim male and a Muslim female after the pronouncement of divorce three times; but this impediment can be overcome by “Halala.”

(C) Marriage during Pilgrimage
Under Shia Law, if persons marry themselves within the sacred precincts of Mecca while on pilgrimage, the marriage is void. Under Hanafi Law, such marriage is legal as expressed in Fatawa Alamgiri.

(D) Prohibition by Doctrine of Equality
According to this doctrine, the husband must be the equal of the woman in social status. Equality between two parties is necessary for marriage.
In Hanafi Law the following factors must be considered for determining equality:

1. Islam

2. Profession

3. Freedom

4. Good character

5. Means