Legal Guide

Legality of Second marriage under Muslim Law

by Nandita Meenakshi · 3 min read

Second marriage under Muslim law

Introduction

Marriage is considered a sacred institution, and the right to marry is a component of the right to life under Article 21 of the Constitution of India. All personal laws lay down some conditions that need to be complied with to enter into or solemnize a legal marriage. The same rule applies in remarriage or second marriage and differs for each religion. Islamic law considers marriage as a civil contract between a man and a woman and is called “Sunnat ‘

Divorce under Muslim Law

The statutory grounds for divorce available to a Muslim wife are provided in the Dissolution of Muslim Marriages Act 1939. A Muslim man does not require any grounds to divorce his wife. Section 2 of the Act states the grounds for divorce as follows:

  1. The husband has not been known or is missing for four years
  2. The husband has neglected or has failed to provide maintenance for two years
  3. The husband has been sentenced to imprisonment for a period of seven years
  4. The husband has failed to perform his marital obligations for a period of three years
  5. The husband has been insane for a period of two years or is suffering from an incurable disease
  6. The husband has treated her with cruelty without consummation of marriage
  7. The husband has attempted to force her to lead an immoral life
  8. The husband has obstructed her observance of her religious profession or practice
  9. The husband has more than one wife; does not treat her equitably in accordance with the injunctions of the Quran

The above-mentioned grounds are legal positions provided for seeking a divorce. Apart from this, where one party files a petition against the other, Muslim law provides for divorce by mutual consent as well.

Second marriage under Muslim Law

Second marriage under Muslim law for men;

  1. A Muslim man can remarry if his wife dies or he has divorced her as per the law and the second marriage will be considered valid.
  2. A muslim can also remarry his wife after divorcing her if the wife follows and observes the iddat period that is prescribed
  3. According to the sharia law, a man can perform second marriage under Muslim direction without divorcing the first wife but must get consent from the first wife.
  4. If a man marries a fifth woman while already married to four, the marriage will be considered irregular but not invalid. However, the fifth marriage becomes lawful upon the death or divorce of any of his four wives.

Second marriage under  Muslim law for Women

The woman can seek divorce if her husband has died or is no longer married to him based on the grounds of divorce, but she must follow certain conditions before marrying another man, which is known as observing ‘iddat.’

  1. The wife cannot have a second marriage under muslim law immediately, and during this period, she must not have sexual intercourse with anyone.
  2. If the husband dies, then she will have to observe an iddat period of 4 months or lunar months and ten days from the date of her husband’s death.
  3. If the husband is divorced but alive, then she will have to follow an iddat period is three months from the date the husband has pronounced talaq or divorce
  4. If the woman is pregnant during divorce; then the period of iddat is to observed after the child is born
  5. If the woman wants to remarry her own divorced husband, then she must marry and get divorced from another man in order to marry her ex- husband again. This practice is called Nikka Halala and is practiced by a small minority of Muslims.

Valid Marriage in Islam

The legitimacy of a marriage contract in traditional Islamic law is not dependent on the performance of any ceremony or documentary evidence: mutual consent, capacity to enter into the contract and witnesses being present on occasion are the only requirements required to make the contract legitimate and enforceable.The same applies in cases of Second marriage under Muslim law.

1. Neither party should have any difficulties that might prohibit the marriage from being legitimate, such as being close relatives or blood relatives.

2. The Musliar or the person acting in his place should make an offer or make a proposal to the groom, and there must be acceptance of this offer

3. The marriage/ second marriage under Muslim law must not fall under Batil( void) or Fasid( irregular)

4. In the case of second marriage under Muslim law, the husband must consent to the first wife before marrying another person.

Polygamy in Islam

According to the marriage laws, a man is allowed to have up to four wives and can marry other women while his current partner is still alive. Second marriage under Muslim law is not taboo or against any morals. The Quran states that four marriages are valid and possible as long as the man treats all his four wives in a fair and just manner by showing equal affection to them.  

As previously said, second marriage under Muslim law is an option, not an obligation. Muslims must follow the regulations if the legislation does not violate their beliefs. There is no punishment for second marriage under Muslim law. In countries where polygamy is legal, the parties can include a clause in their marriage contract forbidding this if they find the practice to be an offence.

The women, on the other hand, are allowed to have only one husband. Even though Islamic teachings favor monogamy, polygamy is still widely practiced by this religious sect and has not been abolished in India. There have been debates about violation of woman’s rights and remarriage for many years, but there have not been any recent developments regarding second marriage under muslim, and it remains arbitrary.

Divorce and Legal Advice

In recent times, it has been observed that a second marriage under Muslim laws has caused increased violence, rape, abduction, and marital disputes regarding the property. It is also a violation of basic human rights and the principles of natural justice. Even though the practice is bound to be eliminated in the near future, it is advised that it is better for a person to get a lawful separation before marrying another person.

It is advisable to get a consultation with an experienced divorce lawyer before getting into the process. Legal experts will have the experience and knowledge needed when it comes to family and matrimonial matters. This would help in avoiding future risks with regard to the share of property finances.

Conclusion

Second marriage under Muslim law is generally allowed and has not been abolished, but having multiple marriages increases the financial burden of maintaining numerous women and children. In India, women’s right to divorce is sometimes significantly less in comparison to men’s. While men can simply divorce their spouses, women face several legal and financial difficulties.

However, individuals advocating more liberal interpretations of Islam are increasingly challenging this sensitive area of Islamic practice and history.

The legality of a second marriage without obtaining a divorce under Muslim law is complex. Connect with a family lawyer for legal advice

Nandita Meenakshi

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Nandita Meenakshi

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