Civil Law

Marriage in Shia & Sunni Law- An Basic Outline

By Joysree Das

INTRODUCTION

There are two main schools of Muslim law, namely- Sunnis and Shias. Both are further divided into number of schools but it is considered that majority of Muslims are sunnis and hence, in every suit, it is presumed that the parties are sunnis unless otherwise provided.[1]

Shias and Sunnis got divided in the dispute concerning the question of Imamat (spiritual leader of Islam), immediately after the death of the Prophet. The Shias had put forward that the office should go according to family succession. The Sunnis on the other hand, supported the election system i.e. election by the Jammat (or the universality of the people) and ultimately chose the Caliph by means of votes. This dispute gave a characteristic complexion to the judicial doctrine of the two schools and hence the difference between the two lies in political events, rather in  law or jurisprudence.

Since then, there has been difference in beliefs and practices of both the schools in respect to many points namely- marriage, dower, divorce, maternity, guardianship, maintenance etc. In this project, we will focus on the difference between both the schools in respect to marriage.

MARRIAGE (NIKAH)

Definition

Marriage (nikah) literally means the union of the sexes and in law, it is defined to be a contract for the purpose of legalizing sexual intercourse and procreation of children. In Hedaya, Nikah means carnal conjunction. Ashabah says: marriage is a contract underlying a permanent relationship based on mutual consent on the part of a man and woman. Dr. Jang describes marriage as a devotional act besides being a contract; its objects are rights of enjoyment and procreation of children and regulation of social life in interest of society. In Shoharat Singh v. Jafri Begum (1978), the Privy Council said that nikah under muslim law is a religious ceremony. Similarly according to Justice Mahmood, “marriage among Mohammedan is not a sacrament, but purely a civil contract.”[2]

Thus, according to Muslim Law, is a contract for the purpose of legalization of intercourse, procreation of children and regulation of social life in the interest of society by creating-

  • The rights and duties between the parties themselves and
  • Between each of them and the children born out from the union.

Objects

According to the Tarmizi, five objects of marriage are-

  1. Restraint of sexual passion
  2. Ordering of domestic life
  3. Upbringing of virtuous children
  4. Increase of family
  5. Care and responsibility of wife and children

According to Hedaya, there are three ends of marriage-

  1. Cohabitation
  2. Society
  3. Equal friendship

DISTINCTION BETWEEN SUNNI AND SHIA LAW OF MARRIAGE

SUNNI LAWSHIA LAW
No specific way to perform ijab (proposal) and Qubul (acceptance).Proposal and acceptace needs to be in the terms of tafweez of Nikah.
Marriage without consent is acceptable if made for suitable dower.Consent is a necessary requirement in marriage under shia law.
Two male witnesses are necessary for making the marriage valid.There is no requirement of witness according to shia law.
A Muslim man can marry a non-muslim woman only if she is a Kitabia girl.No Muslim man or woman can marry a non-muslim even if the girl is a kitabia girl (except for muta marriage).
Muta marriage(temporary marriage) is not allowed here.Muta marriage is acceptable under Shia law.
Iddat is for 3 courses in case of a menstruating woman and 3 lunar months in case of a non-menstruating woman.3 tuhrs in case of a menstruating woman and 78 days in case of a non-menstruating woman.
Iddat extends till delivery even if she is pregnant by Zina.If pregnancy is by Zina and talaq is pronounced, Iddat remains only for 3 months.
Marriage during pilgrimage (ihram) to Mecca is valid.Marriage during pilgrimage when the pilgrim is in dress (ihram) is not valid.  
Marriage with a woman undergoing iddat is allowed.Cohabitation cannot be done during iddat, with the knowledge of prohibition.
Fresh iddat must be observed on death of husband when wife is observing iddat for irrevocable talaq.Not necessary to obsrve fresh iddat while observing an irrevocable talaq.
Marriage contracted by a minor who has attained discretion is just irregular.All acts done before puberty and without discretion are void.
Valid retirement amounts to consummation for many purposes.Valid retirement is not a substituted for consummation.
The doctrine of kufa (equality)is applicable under sunni law with few factors necessary to determine so-FamilyIslamProfessionFreedomGood characterMeansAccording to Shia law, equality is meant only by two things- Equality in respect to IslamAbility to support the wife
There is a long list of guardians for marriage according to Sunni law.Only the father and the grandfather are considered to be guardian according to shia law.
Longest period for gestation is 2 years according to Sunni law.Longest period of gestation is 10 months according to Shia law.
Children born within 2 years of gestation are the only ones considered to be legitimate.Children born within 10 months of gestation are the only ones considered to be legitimate.

CONCLUSION

Thus, from the above table, we can easily point out the differences between the Shia and the Sunni sect of Muslim community with respect to their practices and rituals. Although both of them belong to the same religion, they have differences in ideologies and beliefs not only in respect to marriage, but also other aspects like dower, divorce, maternity, guardianship, maintenance etc. There is no bath ceremony in the case of a Sunni wedding. This ritual is not observed in Sunni weddings.

The society has shunned the idea of a Shia marrying a Sunni (and vice versa) not because of the religious difference, but because of “what will we tell the society?” The matter has become less of a religious debate, but more of a societal symbol, which then leads to two individuals being punished for choosing each other. Each has a unique set of customs, traditions and even ceremonies. The way that a Shia and Sunni.marrige is solemnized differs greatly. There are very few inter-sect marriages due to the glaring differences.

A Sunni wedding ceremony lasts a shorter length of time than a Shia wedding. There is no stipulation for entering into a fixed length marriage in the case of Sunnis which is present in a Shia marriage. There are no witnesses required for a wedding ceremony between Shias which is vital for a Sunni wedding.

REFERENCES

Websites referred-

Books referred-

  1. Aqil Ahmad Mohammedan Law
  2. Paras Diwan, Law of marriage 4th edition.

[1] Bafatun v. Bilati Khanun (1903)

[2] Abdul Kadir v. Salima (1886)

Categories: Civil Law, Family Law

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