If the impediment or prohibition to marriage is temporary or remedial, then a marriage performed in violation of such impediments is not void, but, as the Muslim law gives call, irregular. An irregular marriage, under Muslim law, is not same thing as voidable marriage under English law or Hindu law.
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A voidable marriage is a perfectly valid marriage till it is avoided, and it can be avoided only by either party to the marriage. No third person can take a stand on it. A voidable marriage on its annulment has, practically, the same consequences as a void marriage. On the other hand, an irregular marriage is not a valid marriage: nor is it a void marriage.
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A fasid marriage is not a valid marriage to begin with, but it can be validated and made a fully valid marriage by removing the impediment, or by remedying the prohibition. Thus, when a person marries his wife’s sister, the marriage is irregular, but he can validate it by pronouncing talak on his wife. Such a marriage has been held fasid and not batil, therefore, till terminated in accordance with law it continues to subsist.
Hence the wife and children of such marriage were entitled to maintenance. Or, when a Sunni male marries an idolater, the marriage is irregular, but, on his wife’s conversion to Islam, the marriage becomes valid.
An irregular marriage is totally an ineffective marriage before consummation. Either party to an irregular marriage has a right to terminate it at any time, either before or after consummation, by just expressing an intention to do so.
Any words indicating such an intention are enough, such as one party may say to the other. “I have relinquished thee”, If consummation has taken place in an irregular marriage, then the wife is entitled to dower, proper or specified, whichever is less.
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The wife is required to perform idda of three courses on dissolution of marriage, either by divorce, or, by death of the husband. The children of such marriage are fully legitimate, and have rights of inheritance to the property of both parents. The parties to an irregular marriage have no right of mutual inheritance.
A marriage under Muslim law is irregular in the following cases:
(i) A marriage performed without witnesses.
(ii) A marriage performed with a woman undergoing idda.
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(iii) A marriage prohibited on account of difference of religion.
(iv) A marriage with a fifth wife.
(v) A marriage performed in violation of the rule against unlawful conjugation.
Since the Ithna Ashari law does not recognize irregular marriages, marriages under head (ii) to (v) are void under that law. But for a Shia marriage no witness is necessary.
