1.
Legal Aspect;
2.
Social Aspect;
3.
Religious Aspect.
Legally or under Kenya laws, a Muslim marriage is a
contract which provides for certain requirements as regards consent and also
provides for provisions for its breach. One can enforce a Muslim marriage
judicially and it provides for specific terms.
The Social aspect of Muslim
marriages is that they normally provide for higher status to women in society
and there are also restrictions placed in Muslim marriages on polygamy in that
word polygamy is allowed though limited to a certain extent.
Insofar as the religious aspect
is concerned, marriage in Muslim law is considered to be a sacred covenant and
it is said that the Prophet Mohammed encouraged it.
There are 3 forms of marriages
under Muslim Law and the classification is based on their legality.
1.
SAHIH MARRIAGE (VALID)
This is basically a marriage
which has conformed with all the laid down requirements.
2.
BATIL MARRIAGE (VOID)
This is in fact a void marriage
either by reason of some blood relationship between the parties or some other
incapacity to contract the marriages. There are 2 consequences of this
marriage as in children born out of this marriage are considered illegitimate
and no mutual rights or obligations arise as between the parties who are
married.
3.
FASID (IRREGULAR)
This is where either:
1. No
witnesses to that marriage.
2. Woman
was undergoing the period of Iddat.
3. Marriage
is with a person from a different religion.
4. A
man purports to marry a fifth wife.
The effect of an irregular
marriage is that as between the parties it does not confer any rights; however
children born out of this union are considered legitimate.
Under Muslim Law marriages
arising out of cohabitation are not permitted. One has to comply with all
the requirements of marriage.
CONDITIONS RELATING TO CAPACITY UNDER KENYA LAW
1. Parties must be biologically a man and a woman;
2.
The parties must have reached the age of puberty;
3.
Insofar as marital status is concerned, on the part of the man he can be
single or married so long as he marries only four wives and even so a man may
not marry two wives at the same time and can only marry one wife at a time and
if he marries two wives at the same time, the marriage is considered as being
irregular. In the case of the woman, she has to be single and single
includes widowed or divorced. Where she has been widowed or divorced, she
has to wait for a period of about 4 months before she can contract another
marriage. This waiting period is what is known as the ‘Iddat’ period and
its purpose is to determine whether or not she is expectant before she can
contract another marriage.
4.
Parties should not be within prohibited degrees of consanguinity and
affinity. These are not provided for under the Kenya Law and the applicable law
is the Mohammedan Law. The Act provides that marriages should be
contracted under the Mohammedan Law and scholars on Muslim law have stated that
under Islamic law, a man may not marry his mother, grandmother, sister, niece,
grandchild, aunt or the ascendants or descendants of the wife.
Prohibition is not only on grounds of consanguinity but also of affinity.
Mulla: Principles of
Mohamedan Law
5.
Consent of the parties is very important and in some instances consent
of legal guardians may also be required. Refer to the case of
Ockba v. Ockba (1957) E.A 675
In this particular case the
Plaintiff was the father of the Defendant and he sought a declaration that he
was entitled to her guardianship and custody until she was married. He
also sought an injunction to restrain her from marrying without his consent.
The Defendant wished to marry an Ethiopian who was a Christian. It was
held that the Plaintiff was entitled to the injunction restraining her from
marrying without his consent and that the proposed marriage would not only be
invalid for lack of consent of the father but also for the reason of the
religion of the proposed bridegroom because a Muslim woman cannot validly marry
a non-Muslim man.
Mohammed v. Salim 6 KL.R 91
A woman should marry a man within
her station in life or within the same social status and this is because under
Muslim law the husband is required to maintain his wife according to the
standards she is used to.
Bibi v. Bibi 8 E.A.L.R. 200
In this particular case the
petitioner was seeking to have her niece’s marriage on grounds that she had
married a man of lower status and bad character without the consent of her
guardian. The court granted her those prayers.
There are requirements as to the
parties’ religion. Under some Muslim sects a Muslim man may marry a
non-muslim woman as long as the woman belongs to a religion which has a divine
or holy book. In some other sects marriages between Muslims and none
Muslims is not permitted at all however among all Muslim sects a Muslim woman
cannot get married to a non-Muslim man.
FORMALITIES TO CONTRACT A MUSLIM
MARRIAGE
1.
An offer and acceptance must be entered into by the parties or their
guardians. The following procedures should be met:
(a)
A declaration or offer firstly made by one party and the other party
must accept;
(b)
The words in the declaration or offer must show a clear intention to
contract a marriage;
(c)
This declaration and acceptance should be made in the presence of
sufficient witnesses;
(d)
The declaration and acceptance should be made in one meeting or in the
same meeting.
2.
The man is required to pay some form of compensation known as
‘Mahir’. This is payable to the wife and becomes part and parcel of her
Estate. Unlike dowry in African customary law which is payable to the
family Mahir is paid to the wife herself and can be paid either before parties
enter into conjugal cohabitation, during the course of the marriage or even
after the dissolution of the marriage. The amount payable is not fixed however
it will depend on the different Muslim sects and it is normally fixed according
to the social status of the wife’s family.
3.
Registration: Under Section 9 of Mohamedan Marrriage and Divorce
Registration Act it is required that once a Muslim marriage has been
contracted, it should be registered within 7 days and this should be done at
the office of the registrar of Islamic marriages. The registrar must be
satisfied before registering the marriage as to the identity of the parties,
the capacity of the parties and that the marriage did actually take
place. Once the marriage has been registered the parties and two witnesses
who witnessed the marriage are required to sign the register. However
Section 24 of the same Act says that the fact that parties omit to register
their marriage does not invalidate that marriage and where marriage is invalid,
registration will not validate it. Public Trustee v. Terro Vol.
K.L.R 129
EFFECTS OF AN ISLAMIC MARRIAGE –
RIGHTS & DUTIES WHICH ARE BESTOWED
- Wife is entitled to a dowry and she may choose to recover it if it is not paid in full.
- The husband is under a legal obligation to maintain his wife to the standards that she is used to. Refer to Saliha Binti Baraka v. Tiabit Bin Salim 2 E.A.L.R. 131 Saliha case deals with recovery of dowry and the other one as to maintenance.
- Each spouse has a right to the others consortium and to enforce performance of the other spouses marital duties.
- The husband has the right to restrain the wife’s activities and to exercise marital authority over her and the children.
- Where the man has married more than one wife Muslim Law obligates him to treat each wife with kindness and equality.