Hearing a petition by a man seeking a judicial order for restitution of his conjugal rights after his wife deserted him under the pressure of her parents,a Delhi court has held that a marriage between two Muslims cannot be considered a civil contract.
Differing from Mullas Principles of Mohammedan Law that defines a nikah as a contract,Additional District Judge (ADJ) Rajender Kumar Shastri said a marriage could not be treated like a contract between two parties since it had several aspects alien to a formal agreement.
The judge reasoned that while a contract maps out specific rights and duties that emanate from the agreement,a marriage will encompass several rights as well as obligations which are not and cannot be mentioned in a nikahnama.
A marriage gives birth to certain rights and liabilities,which are seldom described in the contract of marriage i.e. nikahnama. Right to be maintained and right to inheritance,sharing of joy and sorrow,affection towards each other as alter ego,feeling of joint ownership and of oneness all these are salient features of marriage,which distinguishes it from a civil contract, ADJ Shastri said.
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He said if a Muslim marriage was to be considered a simple contract,it would also prohibit the couple from asserting several kinds of rights against each other in a court of law.
If nikah was an ordinary civil contract,a spouse could not have claimed maintenance or right in property of other spouse,having not been mentioned in nikahnama. In this way,it will not be proper to describe a Mohammedan marriage as a civil contract, ADJ Shastri said.
Adducing a nikahnama,the petitioner claimed that since the marriage under Mohammedan law is a civil contract between two persons,the court had no option but to enforce it specifically by giving a decree of restitution of conjugal rights.
ADJ Shastri,however,was of the opinion that not only was he against the idea of treating marriage as a contract,there was no other evidence to establish that the nikahnama was signed by the woman with her free consent.
Also,several other requirements of a valid nikah were missing in this case.
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