There is a man who wanted to marry a woman who is living on her own in Egypt. He asked her about her guardian, and she replied that she had a brother living in Tunis, so he contacted him by phone and they both said the words of proposal and acceptance, and the brother blessed this marriage. But the husband asked him about whether there were any witnesses with him who were present at the time of this proposal and acceptance, and he said no. Then the issue of witnesses was forgotten, and the bride told her sister, and the bride, her sister and her neighbour came to the husband, and he gave her her dowry. Then the sister and neighbour departed, and left the bride there. The husband said: There remains the issue of two witnesses, but we can bring the two witnesses later, even if it is after consummation of the marriage, and he consummated the marriage with her. Is this marriage contract valid? Would the testimony of two witnesses make this marriage contract valid? Is there any expiation to be offered for this?
Praise
be to Allah
The majority of scholars stipulate that in order for the
marriage contract to be valid, it must be witnessed by two Muslim men of
good character, because the Prophet (blessings and peace of Allah be upon
him) said: “There is no marriage except with a guardian and two witnesses of
good character.” Narrated by al-Bayhaqi from the hadith of ‘Imraan and
‘Aa’ishah; classed as saheeh by al-Albaani in Saheeh al-Jaami‘ no.
7557
Ibn Qudaamah said: The marriage contract can only be done in
the presence of two Muslim witnesses, regardless of whether the couple are
both Muslims, or only the husband is Muslim. This was stated by Ahmad and is
the view of ash-Shaafa‘i. … because the Prophet (peace be upon him) said:
“There is no marriage except with a guardian and two witnesses of good
character.”
End quote from al-Mughni (7/7)
Al-Sarkhasi said: Marriage is a contract of great importance
and significance, and its objectives are noble. Therefore Islamic teaching
highlights its gravity by stipulating that there must be two witnesses to
it, unlike other contracts.
End quote from al-Mabsoot by as-Sarkhasi (5/11)
The majority of fuqaha’ are of the view that it is stipulated
that the witnesses must be males, so in their view the testimony of women in
this matter is not valid. The Hanafis differed from that and allowed the
testimony of a man and two women. This has been explained previously in
fatwa no. 97239.
The majority of fuqaha’ also stipulated that the witnessing
must occur at the time of the marriage contract. However the Maalikis
differed from that and regarded it as permissible for there to be no
witnesses at the time of the marriage contract, on condition that there be
witnesses just before the time of consummation. It says in Haashiyat as-Saawi
‘ala ash-Sharh as-Sagheer (2/339): The basic principle concerning
witnessing of the marriage is that it is obligatory, and that it is
recommended for it to be done at the time of the marriage contract. If that
happens at the time of the marriage contract, then both matters are
fulfilled, what is obligatory and what is recommended. If it does not happen
at the time of the marriage contract, but it happens just before the time of
consummation, then what is obligatory has been fulfilled, but what is
recommended has been omitted. If witnessing does not happen just before the
time of consummation or at the time of the marriage contract, but witnesses
are present at one of them, then the marriage is definitely valid, but those
who are in charge of the marriage are sinning by failing to call witnesses.
If no witnesses were present at all, then the marriage contract is
definitely invalid. End quote.
This is the view of the majority of scholars.
Some of the scholars are of the view that it is not essential
to have witnesses to the marriage if the matter is publicly announced.
Shaykh al-Islam Ibn Taymiyah (may Allah have mercy on him) said: Undoubtedly
if a marriage is publicly announced it is valid, even if it was not
witnessed by two witnesses. If it is concealed but witnessed, then there are
some reservations about the matter. If it is both witnessed and publicly
announced, then there is no dispute that it is valid. If there are no
witnesses and it is not publicly announced, then it is invalid according to
most of the scholars, and if there is any difference of opinion, then it is
rare.
End quote from al-Ikhtiyaaraat al-Fiqhiyyah (p. 177)
Once this is established, if this marriage was done without
any public announcement, then it is invalid and must be annulled, and cannot
be validated by the testimony of two witnesses after consummation. Rather if
the couple want to continue with it, then they must do a new marriage
contract, with the proposal and acceptance, witnessed by two Muslim men of
good character. It is only invalid because it was done without being
witnessed and without being publicly announced, therefore it is a secret
marriage, which is invalid. We noted above that Shaykh al-Islam Ibn Taymiyah
said: If there are no witnesses and it is not publicly announced, then it is
invalid according to most of the scholars, and if there is any difference of
opinion, then it is rare. End quote from al-Ikhtiyaaraat al-Fiqhiyyah
(p. 177)
The testimony of these two women – the wife’s sister and her
neighbour – to the marriage does not have any impact on that, because women
have nothing to do with witnessing marriage, according to the view of the
majority of scholars.
But if the marriage was announced and it became well-known
among people that this man had married this woman, then it is a valid
marriage, because in that case it fulfilled the conditions of marriage by
means of this proposal and acceptance that were done over the phone, which
is valid, so long as it was free from any tampering and you were actually
certain that the one who spoke to you on the phone and did the marriage
contract for the woman was really her brother.
But if you were not certain, at the time of doing the
marriage contract, that the one who did the marriage contract with you was
the woman’s brother, then this marriage contract is not valid, because it is
not certain that her guardian was present at the time of the marriage
contract.
Please see the answers to questions no.
2201, 105531 and 125482
It is clear from the details of the case asked about here
that this husband was unaware of the seriousness of marriage in the religion
of Allah, and he did not know that marriage as prescribed in Islam is
ordained by Allah, and that the rulings thereon limits set by Allah, to
which Allah has given great significance and importance, and which He has
commanded His slaves to adhere to and has forbidden them to transgress
beyond that. How can that be compared with the behaviour of some people who
seek to validate their marriage by seeking concessions from here and there.
There is no power and no strength except with Allah, the Almighty, the Most
Wise.
As for the husband saying that it is permissible to have the
marriage witnessed after consummating the marriage with his wife, this is
invalid and wrong. The husband must ask Allah to forgive him for that, and
he must beware of speaking about the religion and laws of Allah without
knowledge. Allah, may He be exalted, says (interpretation of the meaning):
“Say (O
Muhammad (blessings and peace of Allah be upon him)): ‘(But) the things that
my Lord has indeed forbidden are Al-Fawahish (great evil sins, every kind of
unlawful sexual intercourse, etc.) whether committed openly or secretly,
sins (of all kinds), unrighteous oppression, joining partners (in worship)
with Allah for which He has given no authority, and saying things about
Allah of which you have no knowledge’”
[al-A‘raaf 7:33].
And Allah knows best.
