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Ground Floor,Pirzada Building, 4-Mozang Road,Lahore Pakistan
Oral Marriage
Sunday, December 30th, 2018    Gull Hassan Khan

 ORAL MARRIAGE AND NON-REGISTRATION OF MARRIAGE:

The Marriage Establishes a firm bond of love, confidence, affection and mutual trust, i.e ‘both of them build up marital life on the basis of mutual trust and understanding. The Nikah (Marriage) is defined in Section 239 of Muhammadan Law, which reproduced as under:-

CONCEPT OF MARRIAGE IN ISLAM was to commence a marital life within the limits ordained by Allah—Marriage required mutual trust and understanding between the spouses—If a partner had lost trust in her counterpart then spouses could not live within the limits fixed by Shariah. (2017  MLD  1677     SHARIAT-COURT-AZAD-KASHMIR)

“Marriage (Nikah) is defined to be a contract which has for its object the procreation and legalization of children.

The Honorable Superior Courts of Pakistan have declared that:-

“The marriage under Islamic law is a civil contract and not a sacrament. It is ordained by Almighty Allah in Holy Quran and it is for the comfort, love and compassion.”

(2007 MLD 570, 2003 CLC 702, 2003 CLC 878).

“Marriage in Islam is in the nature of civil contract entered into between a man and woman and no formal deed, as per Sharia, is necessary to be drawn to prove that a valid marriage has come into being.” ( 2004 PCr.LJ 622 ). 

“Islam enjoins that when a male or a female attains puberty/ majority, they are free to contact Marriage according to the rites/canons of Islam and there is no prohibition on solemnization of marriage.” (2000 YLR 488). 

 The Honorable Superior Courts of Pakistan have also declared that registration of marriage is a requirement of law but its non-registration does not make the marriage invalid. Honourable Court in Many Judgments also declared as under:-

“Under Muslim law, nikah can be performed orally and such a nikah is not invalid merely because it is not registered according to provisions of Muslim Family Laws Ordinance, 1961. If it is otherwise proved to have taken place in accordance with the requirement of Islamic law. (PLD 1990 SC 28)”

            “If the spouses claim themselves to be husband and wife, the other formalities can be ignored and their simple statement is sufficient to prove the same.” ( 2005 YLR 1859, 2000 YLR 577, PLD 1982 FSC 42).

Acknowledgement by a Muslim father rendered a son or daughter a legitimate child or heir. 2018 PCrLJ Note 29 

For Valid Nikah, the presence of witnesses is mandatory but when both man and woman admit that the factum of Nikah and solemnizing the marriage with each other, the requirement of two witnesses under the law is not mandatory”. (2004 YLR 239)

“In Islamic law when a woman and a man acknowledge their Nikah a presumption of truth is attached to it”.(2004 YLR 2836).

In a case titled “Abdul Majid Khan another Vs Mst Anwar Begum” reported as PLD 1989 SC 362, the Honourable Supreme Court of Pakistan has laid down that the presumption regarding Muslim Marriage, in absence of direct proof can be raised and acted upon, in the following instances;-

(a)          Prolonged and continues cohabitation as husband and wife;

(b)          The fact of acknowledgement by the man, of paternity of children born to the women, provided all the conditions of valid acknowledgement are fulfilled; or

(c)          The fact of the acknowledgement by the man, of the women, as his wife.

CONSEQUENCES OF NON REGISTRATION:

Accordingn to Muslim Family Laws Ordinance 1961, regsitration marriage is mandatory and in failure, it may lead to a sentence and fine by court. Section 5 of MFLO, 1961 is reproduced  here;

” 5.Registration of marriages.– (1) Every marriage solemnized under Muslim Law shall be registered in accordance with the provisions of this Ordinance.

[7][(2) For the purpose of registration of marriages under this Ordinance, the Union Council shall grant licenses to one or more persons, to be called Nikah Registrars.]

(3) Every marriage not solemnized by the Nikah Registrar shall, for the purpose of registration under this Ordinance, be reported to him by the person who has solemnized such marriage.

(4) Whoever contravenes the provisions of sub-section (3) shall be punishable with simple imprisonment for a term which may extend to three months, or with fine which may extend to one thousand rupees, or with both.

(5) The form of nikahnama, the registers to be maintained by Nikah Registrars, the records to be preserved by Union Councils, the manner in which marriages shall be registered and copies of nikahnama shall be supplied to the parties, and the fees to be charged therefor, shall be such as may be prescribed.

(6) Any person may, on payment of the prescribed fee, if any, inspect at the office of the Union Council the record preserved under sub-section (5), or obtain a copy of any entry therein.”

That in view of above-said citation/Judgment of the superior court of Pakistan it is quite clear the non- registration of marriage do not invalidate a marriage if both parties accept the same and where children from that marriage and paternity of children are also admitted by the husband, however non registration of marriage ispunishable offence and offender may face a simple impriosnment upto 3 months .

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