The Difference between Valid, Void, and Irregular Marriage in Light of Islamic Fiqh

 

The Jordanian Personal Status Law divides marriage into three types: valid marriage (Sahih), void marriage (Batil), and irregular marriage (Fasid). It explains the ruling for each. In this article, I will discuss their types, definitions, and the most important differences between them.

First: Definition of Each in Language and Terminology

1. Valid (Sahih) in language: from the root "Sahha, Yasihhu, Sihhan" – meaning it is sound, free from defects. The plural is "Sihah" [1]. It is the opposite of illness [3].

o Terminologically: conformity of an action that has two aspects (i.e., worship or transaction) with Shari'ah [4].

2. Void (Batil): "A thing becomes void (Batula, Yabtulu, Butlan), its ruling drops, so it is Batil" [5].

o Terminologically: that which is not legislated in its essence nor in its description. For example, selling the "Malaqih" – which is selling fetuses in the wombs of mothers. Selling the fetus alone is entirely unlegislated, and its prohibition is not due to an incidental defect [6].

3. Irregular (Fasid) in language: (Fasada) – the root Fā', Sīn, Dāl forms one word: "Fasada al-shay’u yafsudu fasadan wa fusūdan" [7].

o Terminologically: that whose essence is legislated, but it is prohibited due to an incidental description/defect [8].

Second: In Terms of Their Rulings

Validity, irregularity, and voidness are descriptions applied to Shari'ah rulings in general. A prayer is described as valid if it fulfills its pillars, conditions, and has no obstacles. It is described as irregular or void if it lacks what was mentioned. Contracts are described as valid, and their effects follow, if they fulfill their pillars, conditions, and have no obstacles. They are irregular or void if they lack what was mentioned [9].

The ruling of validity, irregularity, or voidness relates to whether Shari'ah conditions are met or not. If the Lawgiver requires an action and legislates its causes, conditions, and pillars, and the accountable person performs it according to Shari'ah's requirement – fulfilling pillars and meeting conditions correctly – the Lawgiver rules the action as valid. If the action does not meet Shari'ah's requirement, lacking pillars or conditions, the Lawgiver rules it as invalid [10].

What the accountable person performs is either worship (Ibadat) or transactions (Mu'amalat).

• For worship (salah, zakat, fasting, Hajj): if its pillars and conditions are met, it results in the discharge of duty, the obligation being lifted, and reward in the Hereafter if ruled valid.

• For transactions (marriage, divorce, sale, gift, etc.): if performed with all pillars and Shari'ah conditions, their Shari'ah effects follow – permissibility is established by marriage, removal of permissibility by divorce, exchange of ownership in sale, ownership without compensation in gift. If a pillar is missing, it is void (Batil), meaning no Shari'ah effect follows [11].

If worship misses a condition without fulfilling its pillars, scholars agree the action is void/irregular with no effect [12-13].

If a transaction misses a condition while fulfilling its pillars, the Hanafis differ from the majority (Jumhur). The Jumhur do not differentiate between worship and transactions; they say the action is void or irregular with no effect. Their division is binary: an act/contract is either valid (with effects) or invalid (no effects) [14].

The Hanafis made the division binary for worship (valid or invalid; irregular equals void, requiring re-performance). But for transactions, they made it threefold:

• Valid: pillars and conditions met, full effects follow.

• Irregular (Fasid): pillars met, but a defect occurs in a description/condition external to the contract's essence (e.g., a sale with an unknown future date, marriage without witnesses).

• Void (Batil): defect in pillars or fundamental conditions [15].

Third: Effects Resulting from Each

The valid is that which fulfills pillars, conditions, and required descriptions, so all effects follow. Irregular and void in transactions, according to the Jumhur, have no effects. The Hanafis differentiate: if the defect relates to pillars/conditions, it is void with no effect; if it relates to an external description, it is irregular with some effects (plus sin) [16].

Fourth: The Most Important Differences between Valid, Void, and Irregular Marriage

The Jordanian Personal Status Law divides marriage into three types: Valid (Sahih), Void (Batil), and Irregular (Fasid).

• Valid Marriage: Article (29): "A marriage contract is valid if its pillars and all conditions of validity are met." Article (32): "If the contract is valid, its effects follow from its conclusion." Valid marriage is a Shari'ah cause that establishes permissibility, transferring the relationship from prohibition to permission [17].

• Void Marriage (Batil): Where one of its pillars or conditions is missing; its existence is like non-existence. It is void in cases such as:

1. Marriage to a woman permanently prohibited due to lineage, kinship, or marriage (though prohibition due to breastfeeding is considered irregular by the law for a specific interest) [18].

2. Marriage to another man's wife or a woman in her waiting period ('Iddah).

3. Marriage to a polytheist woman (Mushrikah).

4. Marriage of a Muslim woman to a non-Muslim man.

Ignorance is not excused unless the person is new to Islam and unaware of these rulings [19].

• Irregular Marriage (Fasid): "A contract missing one of its conditions" [20]. Article (31) states the contract is irregular in these cases:

a. Marriage to a woman prohibited due to breastfeeding.

b. Marriage to a woman whom it is forbidden to combine with his current wife (e.g., two sisters, a woman and her paternal aunt, or maternal aunt).

c. Marriage to a fifth wife (for a man already having four).

d. Marriage to a woman he has thrice divorced, unless she marries another husband (without conditions of "Tahlil").

e. Marriage without witnesses, or with witnesses lacking required Shari'ah qualifications.

f. Mut'ah marriage (temporary marriage).

g. If either or both contractors lack capacity conditions at the time of contract, or are coerced (with consideration of Article 35(c) [21]).

Differences between Valid and Void Marriage:

1. In valid marriage, each spouse may enjoy the other lawfully. In void marriage, it is unlawful.

2. Valid marriage entails the specified bridal gift (Mahr), maintenance (Nafaqah), inheritance, and prohibition of marriage through affinity (Musaharah). Void marriage yields no ruling whatsoever, no maintenance, lineage, waiting period, or inheritance – even if consummated. Article (33): "If the contract is void, whether consummated or not, it yields no ruling and entails no effect of maintenance, lineage, waiting period, or inheritance."

Differences between Valid, Irregular, and Void Marriage:

1. Irregular marriage before consummation is like void marriage: no ruling, no effect. Separation is required, enjoyment is prohibited, no bridal gift, no maintenance, no waiting period, no inheritance, no prohibition through affinity. After consummation, some effects follow: bridal gift (for what was enjoyed), waiting period (to clear the womb), and lineage establishment [22]. Article (34): "If the contract is irregular and not consummated, it yields no ruling or effect. If consummated, it entails bridal gift, waiting period, lineage, and prohibition through affinity, but not other effects like inheritance or maintenance."

2. In irregular marriage, a valid seclusion (Khalwah Sahihah) does not necessitate a waiting period, whereas it does in valid marriage [23].

3. In valid marriage: if the bridal gift is validly named, the lesser of the named bridal gift or the equivalent dower (Mahr al-Mithl) is due. If the naming is irregular or no bridal gift is named, the equivalent bridal gift is due regardless of amount [24].

Summary:

• Valid Marriage (Sahih): Fulfills all pillars, conditions, and lacks obstacles. Entails all Shari'ah effects: bridal gift, maintenance, inheritance.

• Void Marriage (Batil): Missing a fundamental pillar or condition. Entails no Shari'ah effects (e.g., marriage to a permanently prohibited relative, or another man's wife).

• Irregular Marriage (Fasid): Missing a non-pillar condition. Entails some effects (bridal gift, waiting period, lineage) but not others (inheritance, maintenance).

 

 

[1] Al-Jawhari, Al-Sihah Taj al-Lughah wa Sihah al-Arabiyyah, 4th ed., 1/381.

[2] Al-Harawi, Tahdhib al-Lughah, 1st ed., 3/260.

[3] Hayto, Al-Wajiz fi Usul al-Tashri' al-Islami, 4th ed., p. 62.

[4] Same as above. What is meant by "having two aspects" is an action that can either conform to Shari'ah or violate it. Sometimes it occurs in accordance with Shari'ah, other times in opposition. The meaning is that if such an action conforms to Shari'ah because it fulfills what is required by Shari'ah, it is valid; otherwise, it is not.

[5] Al-Fayyumi, Al-Misbah al-Munir, p. 51.

[6] Hayto, Al-Wajiz fi Usul al-Tashri' al-Islami, 4th ed., p. 64.

[7] Ibn Faris, Mu'jam Maqayis al-Lughah, 4/503.

[8] For example, selling one dirham for two dirhams. The dirham is fundamentally sellable, but it is prohibited because one side contains the forbidden increase. The prohibition is not due to the dirhams themselves, but due to the description present in this contract. This is according to the Hanafis. As for the majority (Jumhur), void (Batil) and irregular (Fasid) are synonymous. The benefit of this distinction for the Hanafis is that in an irregular purchase, the buyer acquires ownership (though it is khathī / impure ownership, along with sin and disobedience), whereas in a void purchase, he does not acquire ownership at all.

Another example of Fasid: If a man vows to fast on the day of Nahr (Eid al-Adha), his vow is valid, even though fasting that day is prohibited. The sin lies in performing the fast, not in making the vow. He is ordered to break the fast and make it up later to avoid sin while fulfilling the vow. If he does fast on that day, he has discharged his vow because he performed the fast as he committed to; thus, the irregular act is considered (for fulfilling the vow) while still bearing sin and disobedience. And Allah knows best. Hayto, Al-Wajiz fi Usul al-Tashri' al-Islami, 4th ed., p. 64.

[9] Ibn Qudamah, Rawdhat al-Nazir wa Jannat al-Manazir fi Usul al-Fiqh, 2nd ed., 2/181.

[10] Badran, Abu al-'Aynayn Badran, Usul al-Fiqh al-Islami, p. 296. It is stated in Al-Taqrir wa al-Tahbir 'ala Tahrir al-Kamal ibn al-Humam, 1/168: "As for the Hanafis, they considered the description of validity in the Shari'ah term as is known regarding prohibition. Validity in transactions is the establishment of effects without the obligation of annulment. Irregularity (Fasad) according to them is the establishment of effects along with the obligation of annulment. If the valid act is an act of worship, then [validity is merely] the establishment of effects. The author (may Allah have mercy on him) said: The meaning is that the Hanafis adopted the concept of validity according to those who disagree with them, which is the establishment of effects and the achievement of the intended purpose. For the Hanafis, this is not the complete meaning of validity in absolute terms, but rather in acts of worship. As for transactions, validity for them is that along with the condition that it is not required to be annulled. If only the effects are established in both [worship and transactions], that is irregularity (Fasad) according to them, because they distinguish in transactions between valid and irregular, whereas void is that which has no effects at all."

[11] Badran, Usul al-Fiqh al-Islami, p. 296.

[12] According to the Hanafis: "Chapter of the traveler who commits an innovation then leads residents... When they mixed the obligatory prayer with a voluntary one, their prayer became irregular (Fasadat). As for the residents, he led them in something he should not have led them in, therefore he made their prayer irregular." Al-Shaybani, Muhammad ibn al-Hasan, Al-Asl al-Ma'ruf bil Mabsut, 1/183. According to the Malikis: "Whoever does not recite [Al-Fatihah] in every rak'ah, his prayer is irregular (Fasadat), unless he is a follower (ma'mum) – and this is the correct view according to us." Ibn 'Abd al-Barr, Al-Kafi fi Fiqh Ahl al-Madinah, 1/201. According to the Shafi'is: "If a traveler had completed a full day and night, then began a prayer and intended to settle (as a resident) before completing the prayer, his prayer becomes irregular (Fasadat), and he must perform a new ablution and then pray that prayer." Al-Nawawi, Al-Majmu' Sharh al-Muhadhdhab, 1/523. According to the Hanbalis: "If he intends to pray alone without an excuse, his prayer becomes irregular (Fasadat), because he abandoned following his Imam without an excuse, so it is similar to one who abandons it without intending to separate." Ibn Qudamah, Al-Kafi fi Fiqh al-Imam Ahmad, 1/290.

[13] Badran, Usul al-Fiqh al-Islami, p. 297.

[14] Badran, Usul al-Fiqh al-Islami, p. 297. Also Al-Ansari, Asna al-Matalib fi Sharh Rawd al-Talib, 4/479, where he said: "Know that the irregular (Fasid) and the void (Batil) among contracts are the same in ruling according to us, except in certain cases such as Hajj, lending, Khul', and Kitabah (contract of manumission)."

[15] Badran, Usul al-Fiqh al-Islami, p. 297.

[16] "If a man gives another man a garment, an animal, a slave, a slave-girl, or anything that is measured by volume or weight as a Salam advance for a fixed term, and then they separate before the capital is received, the Salam contract is irregular (Fasid). It is not permissible to return to it except by starting a new Salam contract." Al-Shaybani, Al-Mabsut, 5/41.

[17] Al-Qudah, Al-Wafi fi Sharh Qanun al-Ahwal al-Shakhsiyyah al-Urduni, 1/127.

[18] Bani Salamah, *Sharh Qanun al-Ahwal al-Shakhsiyyah al-Urduniyyah Raqm 15 li Sanat 2019*, p. 141.

[19] This is stated in Article (30):

a. The marriage contract is void (Batil) in the following cases:

1. A man marrying a woman who is permanently prohibited to him due to lineage or marriage-affinity (Musaharah).

2. A man marrying another man's wife or a woman in her waiting period ('Iddah).

3. A Muslim man marrying a non-Scriptural woman (i.e., not Jewish or Christian).

4. A Muslim woman marrying a non-Muslim man.

b. In the cases mentioned in paragraphs (1), (2), and (3) of subsection (a) of this article, knowledge of the prohibition and its cause must be established. Ignorance is not considered an excuse if the claim of ignorance is unacceptable from someone like the claimant.

[20] Bani Salamah, *Sharh Qanun al-Ahwal al-Shakhsiyyah al-Urduniyyah Raqm 15 li Sanat 2019*, p. 141.

[21] Article (35), paragraph (c) states: "A claim of marriage irregularity (Fasad) due to minority age shall not be heard if the wife has given birth, is pregnant, or if both parties at the time of filing the lawsuit possess the conditions of legal capacity."

[22] Al-Qudah, Al-Wafi fi Sharh Qanun al-Ahwal al-Shakhsiyyah al-Urduni, p. 130, slightly adapted.

[23] Dr. Bani Salamah, *Sharh Qanun al-Ahwal al-Shakhsiyyah al-Urduniyyah Raqm 15 li Sanat 2019*, p. 145, states: "It appears from the text of Article (33) that the law has adopted the Hanafi view on this matter. It is noticeable that it omitted mention of the dower (Mahr) and the prohibition through affinity (Musaharah) when mentioning the effects in the article. The article states: 'If the contract is void (Batil), whether consummated or not, it yields no ruling whatsoever and does not establish any effect of maintenance, lineage, waiting period, or inheritance.' It is noticeable that the text omitted mention of dower and prohibition through affinity, unlike maintenance, lineage, waiting period, and inheritance. So, were these mentioned as examples or as an exhaustive list? A clarifying memorandum for the law was necessary for such cases."

[24] Bani Salamah, *Sharh Qanun al-Ahwal al-Shakhsiyyah al-Urduniyyah Raqm 15 li Sanat 2019*, p. 146.