SOLEMNIZATION AND REGISTRATION OF MUSLIM MARRIAGES
BMMA spent 8 years to prepare this draft law. Today onwards we will see the various provisions of the draft law. Starting with marriage today.
What are the conditions for the solemnization of Muslim marriage according to BMMA's draft law?
- A marriage between any two Muslims may be solemnized under this draft law [DL], if at the time of the marriage the following conditions are fulfilled, namely:
- Every marriage solemnized under this DL shall include payment of Mehr at the time of the solemnization of marriage which is the groom’s annual income.
- Express and unambiguous consent of both parties is necessary before a marriage contract becomes valid. This consent must have been obtained without undue influence, coercion and fraud.
- The bridegroom has completed the age of twenty- one years and the bride has completed the age of eighteen years authenticated from reliable proofs or records of the date of birth.
- The parties are not within the degrees of prohibited relationship
- In the subsistence of one marriage a man cannot marry another woman.
What is the procedure for solemnization of a Muslim marriage?
- For the solemnization of the marriage, the parties have to approach a qazi
- The parties have to send a letter of application to a qazi 30 days before the date of solemnization where either bride or groom is residing for the last 30 days.
- The procedure of solemnization would include ijaab [proposal of the marriage] and qubool [acceptance of the proposal]. Both the proceedings of ijaab and qubool must happen in the same sitting in the presence of witnesses and the qazi.
- Nikaahnama must be filled up and original, true copies of the same is to be provided to both the parties.
What are the responsibilities of the Qazi?
- Must take separate application from both the parties
- Must ensure that both parties have fulfilled conditions linked to solemnization of marriage as given above
- Must demand from both parties' authentic proofs pertaining to dates of birth and their place of residence and retain copies of the same after having them personally authenticated
- Must ensure that the bride consents to the marriage without pressure or coercion
- Must ensure that the bride knows and consents to marry the bridegroom if his previous wife has been divorced or deceased and has children from the said marriage
- Qazi must solemnize marriage by filling up the nikaahnama which must be signed by her/him, the contracting parties and two witnesses from each party present at the time of marriage
- 2 original copies of the certified nikaahnama must be given to both the parties
- Qazi must maintain a proper record of the marriage in its centre.
- Qazi can act as an Arbitrator if it is also registered under this DL as an Arbitrator
- Qazi must ensure that the parties submit the divorce papers of previous marriage if divorced and death certificate in case of the death of the previous spouse. In case where the party is marrying for the first time, it must submit to the qazi affidavit stating that it is his/her first marriage.
- Qazi must meet the parties to the marriage separately as well as together to ensure that the parties know about each other's background and also to ensure their willful and free consent to the said marriage.
What should be an ideal mehr amount which the bride should get at the time of marriage?
- The minimum amount of mehr shall not be less than his one full annual income which could be his income from property, business, agricultural or commercial land and salary. It can be given either in cash/gold/kind.
- If income/salary cannot be determined then the mehr can be fixed based on the minimum wages of his occupation where he is residing.
- The mehr must be prompt and must be paid to the bride at the time of the marriage.
- The mehr is the wife's exclusive property to be used by her at her absolute discretion without any manner of interference from parents and relatives of both parties.
- The wife cannot be forced or compelled or emotionally pressurized to forego/return the mehr anytime during the subsistence of marriage or after divorce or widowhood.
- The groom/husband and his family cannot demand dowry nor can they casually and innocently express their desire for dowry before or during the subsistence of marriage.
Where and how should a Muslim marriage be registered?
- Immediately on solemnization of the marriage the signed nikaahnama should be registered by the parties at the local state bodies like the Panchayat, Block Office, District office, Ward Office or Marriage Registrar Office under the relevant marriage registration Act.
- The parties must ensure that they each have true, original copies of the registration certificate.
- The qazi may take additional responsibility of registration of the said marriage if the parties wish so.
What is the responsibilities of the witnesses to the marriage?
The witnesses must sign the relevant documents and ensure that the party to which they are supporting as witness must have the relevant documents, which is;
- Death certificate if the spouse of the party has died
- Divorce papers if the party has been divorced
- Whether the party they are supporting is previously married
- Whether the parties are violating any law of the land
When does a marriage become irregular or Fasid?
A marriage solemnized shall be considered irregular:
- If two adult witnesses are not present at the time of nikaah.
- If the marriage has been solemnized during the period of iddat
- If the marriage has been solemnized without the qazi
- If the marriage is not registered as mentioned in this Act
- If the amount of mehr is not paid
How can this irregular marriage be regularized?
All marriages termed irregular in this DL can be regularized. The rights of women and children accruing from the said marriage are not affected if the marriage is not regularized. The regularization process would include:
- Approaching a qazi along with witnesses and attaching affidavits from all witnesses affirming the said marriage.
- Approaching a qazi after which the parties will give an affidavit stating that the period of iddat is over deeming their marital status legal under this Act.
- Approaching a qazi and resolemnise the marriage with a fresh nikhanama
- The parties themselves should take their filled up nikhanama along with an affidavit and register it with the authority as specified in this Act.
- Payment of mehr as promised.
When do we consider a marriage as invalid?
Any marriage solemnized under this Act shall be an invalid marriage:
- If the consent of either party to the marriage contract has been obtained by force, coercion, undue influence or fraud.
- If the bride and groom are within the prohibited degrees
- If the bride and groom have not completed 18 and 21 years of age respectively
- If the husband has entered into another marital contract in the subsistence of a marriage contract, the second marriage will be an invalid marriage.
What will happen if an invalid marriage is solemnized?
- In case of underage marriage the provisions of The Prohibition of Child Marriage Act, 2006 will apply.
- In any of the above four incidents of invalid marriage the qazi who has solemnized the said marriage will be penalized.
- The rights of women in any of the above four incidents of invalid marriage must be protected.
- In case of polygamy by the husband, under this DL it should be punishable by punishment or fine or both or alternative 494 IPC must apply.