Kinds of Marriage: Valid, Void and Irregular

Sunni law classifies marriages as valid (sahih), irregular (fasid) or void (batil) according to whether the impediment is absolute or relative; Shia law recognises only valid and void. An irregular marriage subsists until terminated, so the child is legitimate, though the wife takes dower but does not inherit. Muta, temporary marriage, is recognised only in Shia law.

The classification of a Muslim marriage is not an academic exercise. It decides whether the children are legitimate, whether the wife inherits, whether dower is payable, and whether the union can be regularised. Sunni law recognises three categories; Shia law recognises only two, having no intermediate class. The working test in Sunni law is whether the impediment is absolute, which makes the marriage void, or relative, which makes it irregular.

Legal Framework

Category	Arabic term	Cause	Legal existence
Valid	Sahih	No impediment	Fully effective
Irregular	Fasid	A relative or temporary impediment, capable of being removed	Subsists until terminated
Void	Batil	An absolute or permanent impediment	None at all, from the outset

The Test: Absolute and Relative Impediments

Absolute impediments, making the marriage void (batil)

Impediment	Explanation
Consanguinity	Blood relationship: mother and other ascendants, daughter and other descendants, sister whether full, consanguine or uterine, niece, great niece, aunt and great aunt on either side
Affinity	Relationship by marriage: wife's ascendants, wife's descendants, wife of an ascendant, wife of a descendant
Fosterage	Where a woman other than the mother has suckled the child before the age of two, the foster relations stand in the same prohibited degrees as blood relations, subject to recognised exceptions
Marriage with a woman already married	The subsistence of a prior marriage of the woman is an absolute bar; the second union is void

Why fosterage is the impediment students forget: It is peculiar to Muslim law and has no counterpart in Hindu law, so it is a favourite of examiners. The rule is that suckling creates the same prohibition as blood, subject to certain exceptions recognised in Sunni law, notably the sister's foster mother, the foster sister's mother, the foster son's sister and the foster brother's sister.

Relative impediments, making the marriage irregular (fasid) under Sunni law

Impediment	Explanation
Absence of witnesses	A marriage contracted without the two required adult witnesses is irregular, not void
Marriage with a fifth wife	A man already having four wives who marries a fifth: the fifth marriage is irregular. It becomes valid if one of the four marriages ends
Marriage with a woman undergoing iddat	Irregular, and becomes valid on the expiry of the iddat period
Difference of religion	A marriage with an idolatress or fire worshipper is irregular; the impediment is removed by her conversion
Unlawful conjunction	Marrying two women so related to each other that had one been a male they could not have lawfully married, for example two sisters simultaneously; irregular, and the bar disappears when one union ends

Why the "relative" impediments are so called, and why it matters: Each of them is capable of being removed without altering the identity of the parties. A fifth marriage becomes lawful when a wife dies or is divorced. A marriage during iddat becomes lawful when the iddat expires. An interfaith marriage becomes lawful on conversion. Because the obstacle is temporary and curable, the law does not treat the union as a nullity but as defective, and the defect can be cured, at which point the marriage becomes fully valid. Contrast the absolute impediments: no lapse of time or subsequent event can make a man's sister a lawful wife.

Consequences of Each Classification

Consequence	Valid (sahih)	Irregular (fasid)	Void (batil)
Legal existence	Yes	Yes, until terminated	None
Cohabitation lawful	Yes	Yes while it subsists	No
Children legitimate	Yes	Yes	No
Children inherit from father	Yes	Yes	No
Wife entitled to dower	Yes	Yes	No, save that dower may be payable if the marriage was consummated in good faith
Wife inherits from husband	Yes	No	No
Mutual rights of inheritance	Yes	No	No
Wife bound to observe iddat	Yes	Yes, if consummated	No
Termination	By death, talaq or decree	May be terminated by either party at any time, even by a single word, without any formality of divorce	No termination needed; it never existed
Can be regularised	Not applicable	Yes, on removal of the impediment	No

Why the fasid category is the most heavily examined thing in Unit 1: It produces a counter intuitive split. The child of an irregular marriage is fully legitimate and inherits from the father, while the wife takes her dower but does not inherit. Students routinely give the child and the wife the same treatment, and lose marks for it. The reason for the split is that legitimacy follows from the subsistence of a marriage capable of subsisting, whereas mutual inheritance is a consequence attached only to a fully valid marriage.

**Mohammed Salim (dead) through LRs v Shamsudeen (dead) through LRs (2019)** Supreme Court of India

Facts: Mohammed Ilias, a Muslim, first married Saidat, with no issue. He then married Valliamma, who was a Hindu at the time of the marriage, the marriage taking place in the 1940s and so before the Special Marriage Act 1954 was available. A son was born of that union. The question, coming up through the Kerala High Court, was whether that son was legitimate and entitled to a share in his father's property.

Issue: Whether a marriage between a Muslim man and a Hindu woman is void or irregular, and whether the child of it is legitimate and can inherit.

Held: Such a marriage is neither valid nor void but irregular (fasid). An irregular marriage subsists until terminated in accordance with law. It follows that the child born of it is legitimate exactly as the child of a valid marriage, and is entitled to claim a share in the father's property. The wife is entitled to her dower but does not inherit from the husband. The Kerala High Court's decree was upheld.

Relevance: The leading modern authority on the fasid category, and the single most useful case for the void versus irregular distinction. Note the split treatment of the child and the wife, which is the examinable core of the decision. Note also that the fasid category is a Sunni classification: under Shia law the same marriage would be void and the child illegitimate.

Shia Law: Only Two Categories

Shia law does not recognise the intermediate class. A marriage is either valid or void. Every defect that a Sunni would treat as making the marriage irregular makes it void under Shia law, with the consequence that the children are illegitimate and cannot inherit from the father.

Why the school must be identified before the classification: The same facts produce opposite results. An interfaith marriage, a marriage without witnesses, or a marriage during iddat is irregular under Sunni law, so the child is legitimate; under Shia law it is void, so the child is not. In any problem question involving a defective marriage, the first step is to identify the school, and if the facts do not state it the Indian presumption is Hanafi Sunni, which should be stated.

Muta: Temporary Marriage

Muta is a marriage contracted for a specified period in return for a specified consideration. It is recognised only in Shia (Ithna Ashari) law; Sunni law does not recognise it at all, and a purported muta between Sunnis is either a regular marriage or nothing.

Requirement of a valid muta	Detail
Parties	A Shia male may contract muta with a Muslim, Jewish, Christian or fire worshipping woman; a Shia woman may contract muta only with a Muslim
Period	Must be specified, whether a day, a month or years. If no period is specified the better view is that it operates as a permanent marriage
Consideration	Dower must be specified. If dower is not specified the muta is void
Termination	Ends automatically on expiry of the period, with no need for talaq. May be ended earlier by the husband relinquishing the balance of the term

Consequence of muta	Position
Children	Legitimate, and inherit from both parents
Mutual inheritance between the spouses	None, unless expressly stipulated
Maintenance of the wife	Not entitled to maintenance as a wife under classical law
Iddat	Two menstrual courses, or forty five days, if consummated
Divorce	Not applicable; the marriage simply expires

Why muta is examined despite being of narrow application: It is the cleanest illustration of the Sunni and Shia divergence, and it tests whether a student can hold two propositions at once: that the children of a muta are legitimate and inherit, while the spouses do not inherit from each other. Note also that muta has become practically rare, but the questions continue to be set on it.

Illustrations

Fifth wife. A man having four wives marries a fifth. Under Sunni law the fifth marriage is irregular, not void. If one of the four wives then dies or is divorced, the impediment is removed and the fifth marriage becomes valid. Under Shia law the fifth marriage would be void.
Marriage during iddat. A widow marries during her iddat period. The marriage is irregular under Sunni law and becomes valid on expiry of the iddat. Under Shia law it is void.
Unlawful conjunction. A man marries two sisters at the same time. The second marriage is irregular. If the first marriage ends by death or divorce, the second becomes valid.
Absolute bar, no cure possible. A man marries his brother's daughter. The impediment is consanguinity, an absolute bar, so the marriage is void from the outset, the children are illegitimate, and nothing that happens afterwards can cure it.
Fosterage. A man marries a woman who, as an infant, was suckled by his own mother before the age of two. Fosterage places her in the same prohibited degree as a sister, so the marriage is void.
The split consequence. A Muslim man marries a Hindu woman without her converting, and a child is born. Applying Mohd Salim v Shamsudeen, the marriage is irregular, the child is legitimate and inherits from the father, and the wife takes dower but does not inherit. Give both halves.

Recall Check

State the test that distinguishes a void from an irregular marriage under Sunni law, and give two examples of each impediment.
Set out the consequences of an irregular marriage as regards the child, the wife's dower and the wife's inheritance.
Name the requirements of a valid muta and state the position of the children and of mutual inheritance.

Key Cases

Mohammed Salim v Shamsudeen (2019) Mohd Salim v Shamsudeen 2019
Issue: Whether a marriage between a Muslim man and a Hindu woman is void or irregular, and whether the child is legitimate and can inherit.
Rule: The marriage is irregular (fasid), not void, and subsists until terminated. The child is therefore legitimate and inherits from the father; the wife takes dower but does not inherit.
Held: The child's claim to a share in the father's property was upheld.

Mt Ghulam Kubra Bibi v Mohammad Shafi Mohammad Din (1940) Ghulam Kubra Bibi v Mohd Shafi 1940
Issue: What must be proved to establish a nikah, and the effect of a failure to establish the required witnesses and consent.
Rule: Proposal and acceptance must be at one meeting before two adult witnesses, and the whole procedure must be affirmatively proved.
Held: No valid marriage was established and the suit for restitution failed. Relevant here because absence of the required witnesses is the standard example of a relative impediment producing an irregular marriage.

Distinctions

Basis	Void (batil)	Irregular (fasid)
Nature of impediment	Absolute and permanent	Relative and curable
Legal existence	None from the outset	Subsists until terminated
Children	Illegitimate	Legitimate, and inherit from the father
Dower	Not payable as of right	Payable
Wife's inheritance	None	None
Cohabitation	Unlawful	Lawful while it subsists
Can be cured	No	Yes, on removal of the impediment
Recognised in Shia law	Yes	No

Basis	Irregular marriage	Muta
Recognised by	Sunni law only, Shia law having no such category	Shia (Ithna Ashari) law only
Duration	Indefinite, but terminable at will	Fixed and specified at the outset
Dower	Payable	Must be specified, failing which the muta is void
Children	Legitimate, inherit from the father	Legitimate, inherit from both parents
Spouses inherit from each other	No	No, unless expressly stipulated
Termination	By either party at any time without formality	Automatically on expiry of the period

Basis	Sunni classification	Shia classification
Number of categories	Three: sahih, fasid, batil	Two: valid and void
Marriage without witnesses	Irregular	Valid, witnesses not being essential
Marriage with an idolatress	Irregular	Void
Marriage during iddat	Irregular	Void
Fifth marriage	Irregular	Void
Consequence for children of a defective marriage	Often legitimate, the marriage being merely irregular	Illegitimate, the marriage being void

Flashcards

Name the three categories of marriage under Sunni law with their Arabic terms.

Valid (sahih), irregular (fasid) and void (batil).

How many categories does Shia law recognise?

Two only, valid and void. There is no irregular category.

What is the test distinguishing a void from an irregular marriage?

Whether the impediment is absolute and permanent, making the marriage void, or relative and curable, making it irregular.

Name the four absolute impediments.

Consanguinity, affinity, fosterage, and the subsistence of a prior marriage of the woman.

Name five relative impediments.

Absence of witnesses, marriage with a fifth wife, marriage with a woman undergoing iddat, difference of religion, and unlawful conjunction.

What is the status of the child of an irregular marriage?

Legitimate, exactly as the child of a valid marriage, and entitled to inherit from the father: Mohd Salim v Shamsudeen (2019).

Does the wife of an irregular marriage inherit from her husband?

No. She is entitled to dower but does not inherit. This is the split that distinguishes her position from the child's.

How may an irregular marriage be terminated?

By either party at any time, even by a single word, without any formality of divorce.

What is fosterage as an impediment?

Where a woman other than the mother has suckled the child before the age of two, the foster relations fall within the same prohibited degrees as blood relations, subject to recognised exceptions.

What is muta and which school recognises it?

A marriage for a specified period in return for specified consideration, recognised only in Shia (Ithna Ashari) law.

What happens if dower is not specified in a muta?

The muta is void. Contrast a permanent marriage, where failure to specify dower does not invalidate and proper dower is implied.

Do the children of a muta inherit?

Yes, from both parents. But the spouses do not inherit from each other unless expressly stipulated.

Exam Scenario

Problem: Salim, a Hanafi Sunni, already has four wives. In January he marries Nadia, a Hindu who does not convert, in the presence of two witnesses. In March one of his four existing wives dies. In June Nadia gives birth to a son. In August Salim marries Rehana, who is at the time undergoing iddat following her husband's death, and no witnesses are present. Rehana's iddat expires in September. Salim dies in December, leaving Nadia, Rehana, the son born in June, and his three surviving wives. Classify each of the two marriages at each stage and advise on the son's legitimacy and on the succession rights of Nadia and Rehana.

Step 1: Fix the school and the method

Salim is Hanafi Sunni, so the three category classification applies and the test is whether each impediment is absolute or relative.

Work through the marriages stage by stage, because the classification changes over time and that is precisely what the problem is testing:

Identify every impediment operating at the date of the marriage.
Ask of each whether it is absolute, making the marriage void, or relative, making it irregular.
Re-test the position at each later date on which an impediment is removed.
Only then apply the consequences to legitimacy, dower and inheritance.

Step 2: Classify each marriage at each stage

Stage	Impediments in play	Classification
January, Nadia	Fifth wife, and idolatress, being a Hindu who has not converted. Both relative, not absolute. Two witnesses were present, so no objection on that score	Irregular (fasid), not void
March, Nadia	One of the four existing wives having died, the fifth wife impediment is removed. The difference of religion impediment remains, Nadia not having converted	Still irregular, on the surviving ground alone
August, Rehana	Iddat, and no witnesses. She is also a fifth wife, Salim having three surviving wives plus Nadia. All three relative	Irregular, not void
September, Rehana	Iddat expires, removing that impediment. Absence of witnesses is a defect in the formation of the contract and is not cured by the passage of time; the fifth wife problem persists so long as four other marriages subsist	Still irregular

Step 3: The son born in June

The marriage to Nadia being irregular and not void, and an irregular marriage subsisting until terminated, the son is legitimate and entitled to inherit from Salim: Mohd Salim v Shamsudeen (2019).

Under Shia law the result would be the opposite: there is no fasid category, the marriage would be void, and the son illegitimate.

Step 4: Work out the succession

Apply the split consequence consistently.

Claimant	Dower	Inheritance from Salim
Nadia, wife of an irregular marriage	Entitled, as a debt of the estate	None
Rehana, wife of an irregular marriage	Entitled, as a debt of the estate	None
The son born in June	Not applicable	Inherits, being legitimate
The three surviving wives of valid marriages	Not in issue on the facts	Inherit as sharers, taking the widow's share between them

Two traps in this problem

The March death does not make Nadia's marriage valid. Removing the fifth wife impediment leaves the difference of religion impediment standing. This is the key discrimination in the first half of the problem.

The expiry of iddat does not regularise Rehana's marriage. Reason each impediment out separately: the want of witnesses and the fifth wife problem both survive it.

Conclusion. Every impediment on these facts was relative, so nothing was void: the children are protected, and the wives' loss is confined to inheritance rather than extending to dower or to the legitimacy of their children. Contrast a single absolute impediment, such as consanguinity, which would have made the union void and the child illegitimate with no possibility of cure.