Essentials of a Valid Contract: Comparison between Muslim law and Indian Contract Act, 1872

Written by: Amber Gupta

Introduction

Contract - An agreement which is binding and enforceable is a legal contract. In a valid contract, both parties are legally bound by the contract.

According to Section 2 (h) of the Contract Act, “an agreement enforceable by law is a contract.”

This means that a contract is deemed to be controlled if it is enforceable by law. It is a contract that can be executed by any party to the contract. If one of the parties refuses to fulfill the contract, the other party can bring an action before a court of law against that party. To be enforceable by statute, an agreement must include some of the basic elements of a legal contract as set out in section 10.

According to Section 10, “all agreements are contracts if they are made by the free consent of parties, competent to contract, for a lawful consideration and with a lawful object and are not hereby expressly declared to be void.”

Where applicable, the agreement must comply with the provisions of the law for the written attestation or registration.

Essentials of Valid Contract are -

• Offers and Acceptance

• Legal Relationship

• Lawful Consideration

• Capacity of Parties

• Free Consent

• Lawful Objects

• Writing and Registration

• Certainty

• Possibility of Performance

• Not Expressly Declared Void

Muslim marriage law

Marriage under Muslim law is a legal agreement or a civil contract between a bride and a groom and is part of Islamic marriage. The term 'Nikah' is used for the marriage of the Muslims, which means “contract.” Nikah is an Arabic term. The definition of nikah is the physical relationship between a woman and a man. The 'Quran' refers directly to marriage as “Mithaqun Ghalithun,” which means “solid agreement.” This agreement involves marital rights and responsibilities between a man and a woman. Marriage under Muslim law is distinct from other civil marriages. This is not a religious ceremony completed by a bride and a groom, but a contract that establishes marital duties between a man and a woman.

Nikah is not only a marriage contract but also a social structure granting a dignified independent status to married women. It says that, in a marriage, the husband must pay or agree to pay anything to the wife as a sign of respect for her. It prohibits unrestricted polygamy and limits it to four wives at a time. From time to time, Muslim marriage has been described as a contract. According to Hedaya, Marriage (Nikah) is a basic contract used for the legalization of children.

In Abdul Kadir vs Salima and Anr. Case (1886) ILR 8 All 149, Justice Mahmood observed “ Marriage among Muslims is not a sacrament, but purely a civil contract; and though it is solemnized generally with the recitation of certain verses from the Quran, yet the Muslim law doesn’t positively prescribe any service peculiar to the occasion.”

He defined Muslim marriage as based on the declaration or proposal of one party and the consent or approval of the other party. According to him, the dower in Muslim marriage should not be confused with consideration in the form of a civil contract.

In a concise decision, Pareed Pillay, Judge of t The Kerala High Court, in Adam v. Mammad, set out the key features of Muslim marriage law. In the case before him, he ruled that no legitimate marriage had taken place where the father of the girl had given her consent and the daughter had withheld hers. In this case, the judge referred to Justice Mahmood as the famous dicta in Abdul Kadir's case and argued that consent is a must for the legitimacy of a marriage.

The requirements of a Muslim marriage are almost equal to a civil contract. There are few comparisons between a Muslim marriage and a contract

Proposal and acceptance: a marriage proposal, known as the "Ijab" for marriage and the acceptance of the "Qubul" proposal, is required. This should be done in the presence of two witnesses and a “maulvi” (Muslim priest).

Witness can be two males or one male and one female. It is the same as the terms of the Indian Contract Act, 1872, where a contract is an agreement; an agreement is a commitment and a commitment is an approved proposal. Any agreement must therefore have a proposal on the one hand and its approval on the other.

A person's capacity to contract marriage: The second requirement for this form of marriage to be fulfilled is that the parties must be adults and have a sound mind. The marriage of minors can only be performed with the permission of their guardians. Just as in the case of a contract entered into by a guardian, on reaching a majority, in Muslim law, a marriage contract can be set aside by a minor on reaching the puberty age.

As per section 11 of the Indian Contract Act, 1872, only certain individuals who are major and of a sound mind can be parties to the contract.

Free consent: every marriage is legal only if the parties have free consent. As marriage requires a proposal “Ijab” from one party and approval “Qubul” from the other, so does the contract. Furthermore, marriage cannot take place without free consent and such consent should not be gained through fraud, force, or undue influence.

In the case of Mohiuddin v. Khatijabi (41 Bom L.R. 1020), it was held that marriage would be nullified if it were to take place without the free consent of the parties. As per section 19, an agreement will be null and void unless it is prepared with the free consent of the parties.

Discharge: Muslim marriage offers discharge from marriage by its various forms of divorce (Talaq) such as Talaq-ul-Bidaat, Talaq-ul-Sunnat, Khula, etc. Sections 37, 39, 62, 63, 64, and 67 of the Indian Contract Act of 1872 set out the procedures for the Discharge of the contract.

The parties to a Muslim marriage can enter into any pre-nuptial or post-nuptial contract that is enforceable by law, given that it is fair and not contrary to the policy of Islam. As in the case of a contract. The provisions of the marriage contract can also be modified under legal bounds to satisfy legal issues.

Conclusion

That marriage under Islamic law is a legal contract since it fulfills the basic provisions of the contract, e.g. offer and approval, consideration (where desire and appreciation from the other party are treated as consideration), and free consent. Like Justice Mahmood, "marriage between the Muslims is not a sacrament, but a civil contract" And, on the other hand, from an Islamic religious point of view, marriage is a devotional act and, as the role of marriage in Islam is also represented by the Quran, marriage is a "sacred covenant" which indicates that the Quran says marriage is a "holy agreement"

Citation

•“Nature of Muslim Marriage Sacrament or Civil Contract.” Legal Service India - Law, Lawyers and Legal Resources, www.legalserviceindia.com/legal/article-1645-nature-of-muslim-marriage-sacrament-or-civil-contract.html.

• Brief History of the Law of Contract and the Essential Elements of a Valid Contract. l, 1 Jan. 1970, dennis-universe.blogspot.com/2011/12/brief-history-of-law-of-contract-and.html.