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Search Fatawaa


Subject : Marriage without the Consent of the Guardian and the Presence of two Honorable Witnesses is Void

Fatwa Number : 614

Date : 20-04-2010

Classified : Pillars of marriage

Fatwa Type : Search Fatawaa


Question :

What is the ruling of Sharia on the marriage in which a grown up woman says to a grown up man "I give myself in marriage to you for a dower of so and so" and the man replies "I accept"; without the consent of the woman`s guardian or the presence of two honorable witnesses?



The Answer :

All perfect praise be to Allah the Lord of the Worlds. May His peace and blessings be upon our Prophet Mohammad and upon all his family and companions.

 

This marriage is void because it was concluded without the consent of the woman`s guardian and the absence of two honorable witnesses. This type of marriage was practiced during Jahilyiah (Times of ignorance before the advent of Islam) and was called (The marriage of paramours), which Allah The Almighty Has Forbidden where He Said {What means}: "……nor taking paramours" {An-Nisa`, 25}. This type of marriage had been practiced in some ignorant societies until recently.

This type of marriage is void because it lacks the pillars of valid marriage, which are as follows:

1- Man and woman who are lawful in marriage for each other.

2- A woman`s guardian (The closest male relative entitled to be her guardian). If she has no guardian, then the judge acts as one.

3- Offer on the part of the woman`s guardian and acceptance on the part of the man or his deputy.

4- Two honorable witnesses.

The evidence on each pillar is as follows:

1- "Prohibited to you (For marriage) are:- Your mothers, daughters, sisters; father’s sisters, Mother’s sisters; brother’s daughters, sister’s daughters; foster-mothers (Who gave you suck), foster-sisters; your wives’ mothers; your step-daughters under your guardianship, born of your wives to whom ye have gone in,- no prohibition if ye have not gone in;- (Those who have been) wives of your sons proceeding from your loins; and two sisters in wedlock at one and the same time, except for what is past; for God is Oft-forgiving, Most Merciful." Also (prohibited are) women already married, except those whom your right hands possess: Thus hath God ordained (Prohibitions) against you: " {An-Nisa`, 23}. This verse lists the women prohibited in marriage, so other women are lawful in marriage. Therefore, Allah continues the verse by saying: "Except for these, all others are lawful" {An-Nisa`, 24}.

2- ‘A’isha reported God’s Messenger as saying: “If any woman marries without the consent of her guardian her marriage is void, her marriage is void, her marriage is void." {Related by Tirmithi. No. (1102)}. The Prophet (Peace and blessings be upon him) also said: “There is no marriage without a guardian.” {Abu Dawoud, No. (2085)}. This is the Madhab of the Malikis, Hanbalis, Shafis, and the majority of the scholars. The mentioned narrations outweigh their Madhab over others. Moreover, the Jordanian Personal Status Law stipulated certifying the marriage contract in an Islamic court.

3- As for offer and acceptance, it expresses marriage agreement.

4- As for the honorable witnesses, the Prophet (Peace and blessings be upon him) said: "There is no marriage without a guardian and two honorable witnesses." {Related by Dar Qhotni}. The honorable witness must be Muslim, adult, rational, virile, haven`t committed major sins, and doesn`t persist on committing minor sins.

If any of the above pillars is lacking, then the marriage is void. It goes without saying that marriage is a significant matter as it has serious social implications on the married couple, their families, and society as a whole. Therefore, Sharia recommends that this important event is accompanied by the following matters:

1- Announcing the wedding because it is a pleasant and honorable matter. Thus, the couple should inform the local community at least. This is in order that people don`t think evil of them when they see them together. This announcement is realized through the following:

A- The wedding`s banquet. Narrated Anas: "When `Abdur-Rahman came to us, the Prophet (Peace be upon him) established a bond of brotherhood between him and Sa`d bin Ar-Rabi`. Once the Prophet (Peace be upon him) said: "As you (O `Abdur-Rahman) have married, give a wedding banquet even if with one sheep." {Related by Bukhari}.

B- Beating the Duff (Tambourine). Muhammad b. Hatib al-Jumahi reported the Prophet as saying: “The distinction between what is lawful and what is unlawful is the song and the tambourine at a wedding.” {Related by Nasa`i}.

C- Permissible singing by women attending the wedding.

D- Registering the marriage with the official bodies. This is amongst the new matters introduced by the Muslim rulers in order to preserve parentage and honor since the registration of family relationships is far more important than the registration of the ownership of cars and property.

It is true that marriage which meets the above pillars is valid, even if it wasn`t registered in Islamic court, but it violates the rules and regulations of the ruler and doing so concerning a matter which achieves a benefit is forbidden. According to some people, the unregistered marriage contract is called customary marriage, which isn`t the type mentioned in the above question. Definitely, a marriage which a man and a woman have in secret isn`t something to be proud of. The Prophet (Peace be upon him) said: "Piety is good manner, and sin is that which creates doubt and you do not like people to know of it." [Muslim].

The free, truthful Muslim wouldn`t accept to be the subject of gossip and evil thought.

Safiyyah bint Huyai (May Allah be pleased with her), the Mother of the Believers, said: "I came to visit the Prophet (Peace be upon him) while he was in the state of I'tikaf (seclusion) in the mosque during the last ten days of Ramadan]. After having talked to him, I got up to return. The Prophet (Peace be upon him) also got up with me and accompanied me a part of the way. At that moment two Ansari man passed by. When they saw him they quickened their pace. The Prophet (Peace be upon him) said to them: "Do not hurry. She is Safiyyah, daughter of Huyai, my wife." They said: "Subhan Allah (Allah is free from imperfection)! O Messenger of Allah! (You are far away from any suspicion)." The Messenger of Allah (Peace be upon him) said: "Satan circulates in a person like blood (in the blood streams). I apprehended lest Satan should drop some evil thoughts in your minds." [Al-Bukhari and Muslim]. He (Peace be upon him) also said: "When one of you has been away from home for a long time, he must not come to his family during the night." {Related by Bukhari}. This is because man`s dignity is tantamount to his life. Abu Bakrah (May Allah be pleased with him) said: "Delivering the sermon during the Farewell Pilgrimage on the day of Sacrifice at Mina, the Messenger of Allah (Peace be upon him) said: "Verily your blood, your property and your honour are as sacred and inviolable as the sanctity of this day of yours, in this month of yours and in this town of yours. Verily! I have conveyed this message to you." [Al-Bukhari and Muslim]. And Allah The Almighty Knows Best.

 

 

 






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