Muslim Matrimonial Contract with Extra Conditions
Matrimonial contract is civil in nature. You can attach reasonable conditions to the marriage agreement. In case of violations of these extra attached conditions, you may go to the court for dissolution of marriage. Furthermore, if your spouse agrees, you may add, modify or even waive the conditions.
However, a promise of marriage itself does not constitute to be a Muslim matrimonial contract. Even if you make a marriage promise in presence of witnesses it can’t have any legal effect. You can’t go for specific performance of the marriage contract nor can claim any damages for breach of the same.
When Marriage is Repudiated?
Some Muslim jurists entitle the guardians (wali) to bind minors into marriage contract. However, all jurists agree that a girl can repudiate a marriage on attaining puberty. When a girl goes for option of puberty, she is not bound by the extra conditions of the matrimonial contract.
However, they are bound to compensate the actual damage alone. They have to return presents of ornaments, clothes money etc made in contemplation of marriage. Such compensation is not to be given for any remote and indirect loss or damage sustained by reason of breach. The aggrieved party can receive compensation for any loss or damage caused to him or her by the breach, which the parties knew would be likely to result from its breach.
Kinds of Conditions to Matrimonial Contract
There can be two kinds of conditions which are attached to a matrimonial contract; legal and illegal. The illegal conditions affect the validity of marriage and render the contract voidable, unless consummation takes place. When consummation has taken place, the conditions alone would become void without affecting the validity of the marriage contracted.
Illegal Conditions in Matrimonial Contract
1- When you make a matrimonial contract with a woman with the condition that she would not claim any kind of dower, the condition is illegal. No Muslim marriage can be contracted without a dower. However, the marriage is considered valid but the wife is entitled to proper dower.
2- When you contract a marriage with a woman that she shall would be at liberty to leave your house without any reason and reside permanently with her parents or independently. The courts in India and Pakistan consider such marriage valid but condition illegal. The reason is very simple that Muslim matrimonial contract is made to establish a family and not otherwise.
3- Any condition which limits the marriage to a fixed period of time is void in Sunni law. However, the Shia law allows such marriage in the name of Muta’a.
4- A condition that one party shall be at liberty to terminate the matrimonial contract on discovery of certain defects in the other party is also considered illegal.
5- A condition that the husband shall not stop her wife to visit immoral places is illegal in Muslim matrimonial contract.
6- A condition that a woman should forgo her right to maintenance or that she or her children shall not entitle to inheritance is illegal and void. The laws of inheritance are given by God and no human being can refuse to those rights.
7- Some jurists consider that a condition to restrict husband’s freedom to divorce his wife is illegal. However, they agree that if divorce is attached with payment of some compensation, the husband is bound to pay the compensation.
8- A condition that the husband shall obey all her wishes and to serve her as a servant is considered illegal.
Legal Conditions in a Matrimonial Contract
1- Islam allows polygamy. However, a condition that the husband can’t take second wife during the existence or continuance of the first is considered valid. Any monetary condition attached to the second marriage of the husband is also valid. In violation of the condition the wife is not only entitled to the agreed compensation but also separate maintenance and residence, if she does not want divorce.
2- Any condition binding the parties to live at a particular place for a specific period is considered valid. However, this condition does not mean that a husband can be bound to live permanently at the house of wife or her parents. The later condition is considered illegal for its permanence.
3- A condition that the wife shall live with her parents and shall not be removed elsewhere without her condition is valid. And added condition that the husband shall pay her monthly maintenance her parents’ house is also valid.
4- A condition that the husband shall not remove the wife from the conjugal domicile without her consent is valid.
5- A condition that the husband can’t absent himself from the conjugal domicile beyond a particular period of time is valid.
6- The parties may agree to treat a certain portion of the dower as prompt.
7- A condition that the woman shall not relinquish any portion of her dower is valid. This condition protects rights of women when some mischievous act if feared on the part of the husband.
8- A fixed amount as a maintenance is valid.
9- A condition that her second husband shall maintain the children by her former husband is valid.
10- A condition that the husband shall not stop her to make visits to her relatives.
11- The courts in India have held that if a husband agrees to give a specific allowance even after separation is valid as it is neither against Islam nor against the public policy.
12- A wife can reserve the right of divorce to herself on the happening of a certain contingency. However, this does not limit the right of divorce of the husband.
13- A condition that wife can leave her husband’s residence in case of ill treatment is valid.
14- A condition to safeguard against ill-treatment of husband is valid. She may claim divorce if the condition is violated.
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