A Dictionary of Islam / Being a cyclopedia of the doctrines, rites, ceremonies, and customs, together with the technical and theological terms, of the Muhammadan religion.

by Thomas Patrick Hughes

Mr. Syed Ameer Ali says:—

“The validity of a marriage under the Muhammadan law depends on two conditions: first, on the capacity of the parties to marry each other; secondly, on the celebration of the marriage according to the forms prescribed in the place where the marriage is celebrated, or which are recognised as legal by the customary law of the Mussulmans. It is a recognised principle that the capacity of each of the parties to a marriage is to be judged of by their respective lex domicilii. ‘If they are each, whether belonging to the same country or to different countries, capable according to their lex domicilii of marriage with the other, they have the capacity required by the rule under consideration. In short, as in other contracts, so in that of marriage, personal capacity must depend on the law of domicil.’

“The capacity of a Mussalman domiciled in England will be regulated by the English law, but the capacity of one who is domiciled in the Belâd-ul-Islâm (i.e. a Muhammadan country), by the provisions of the Mussalman law. It is, therefore, important to consider what the requisite conditions are to vest in an individual the capacity to enter into a valid contract of marriage. As a general rule, it may be remarked, that under the Islâmic law, the capacity to contract a valid marriage rests on the same basis as the capacity to enter into any other contract. ‘Among the conditions which are requisite for the validity of a contract of marriage (says the Fatâwa-i-Alamgîrî, p. 377), are understanding, puberty, and freedom, in the contracting parties, with this difference, that whilst the first requisite is essentially necessary for the validity of the marriage, as a marriage cannot be contracted by a majnûn (non compos mentis), or a boy without understanding, the other two conditions are required only to give operation to the contract, as the marriage contracted by a (minor) boy (possessed) of understanding is dependent for its operation on the consent of his guardian.’ Puberty and discretion constitute, accordingly, the essential conditions of the capacity to enter into a valid contract of marriage. A person who is an infant in the eye of the law is disqualified from entering into any legal transactions (tassarufât-i-shariyeh—taṣarrufāt-i-sharīʿah), and is consequently incompetent to contract a marriage. Like the English common law, however, the Muhammadan law makes a distinction between a contract made by a minor possessed of discretion or understanding and one made by a child who does not possess understanding. A marriage contracted by a minor who has not arrived at the age of discretion, or who does not possess understanding, or who cannot comprehend the consequences of the act, is a mere nullity.

“The Muhammadan law fixes no particular age when discretion should be presumed. Under the English law, however, the age of seven marks the difference between want of understanding in children and capacity to comprehend the legal effects of particular acts. The Indian Penal Code also has fixed the age of seven as the period when the liability for offences should commence. It may be assumed, perhaps not without some reason, that the same principle ought to govern cases under the Muhammadan law, that is, when a contract of marriage is entered into by a child under the age of seven, it will be regarded as a nullity. It is otherwise, however, in the case of a marriage contracted by a person of understanding. ‘It is valid,’ says the Fatâwa, ‘though dependent for its operation on the consent of the guardian.’

“A contract entered into by a person who is insane is null and void, unless it is made during a lucid interval. A slave cannot enter into a contract of marriage without the consent of his master. The Mussalman lawyers, therefore, add freedom (hurriyet) as one of the conditions to the capacity for marriage.

“Majority is presumed, among the Hanafis and the Shiahs, on the completion of the fifteenth year, in the case of both males and females, unless there is any evidence to show that puberty was attained earlier.

“Besides puberty and discretion, the capacity to marry requires that there should be no legal disability or bar to the union of the parties; that in fact they should not be within the prohibited degrees, or so related to or connected with each other as to make their union unlawful.” (See Syed Ameer Ali’s Personal Law of the Muhammadans, p. 216.)

With regard to the consent of the woman, Mr. Syed Ameer Ali remarks:—

“No contract can be said to be complete unless the contracting parties understand its nature and mutually consent to it. A contract of marriage also implies mutual consent, and when the parties see one another, and of their own accord agree to bind themselves, both having the capacity to do so, there is no doubt as to the validity of the marriage. Owing, however, to the privacy in which Eastern women generally live, and the difficulties under which they labour in the exercise of their own choice in matrimonial matters, the Mohammadan law, with somewhat wearying particularity, lays down the principle by which they may not only protect themselves from the cupidity of their natural guardians, but may also have a certain scope in the selection of their husbands.

“For example, when a marriage is contracted on behalf of an adult person of either sex, it is an essential condition to its validity that such person should consent thereto, or, in other words, marriage contracted without his or her authority or consent is null, by whomsoever it may have been entered into.