Types of shighaar marriage (zawaaj al-badal): when is it invalid?

Praise
be to Allah

Firstly:

Shighaar
marriage (quid-pro-quo marriage) – or what people call zawaaj al-badal
(exchange marriage) is prohibited and forbidden according to the teachings
of Islam, because of what it involves of injustice towards the woman and
denying her her rights, as well as exploitation of the position of
guardianship.

It was narrated
from Ibn ‘Umar (may Allah be pleased with him) that the Prophet (blessings
and peace of Allah be upon him) said: “There is no shighaar marriage
(quid-pro-quo) marriage in Islam. Narrated by Muslim (1415)

It was narrated
that Jaabir ibn ‘Abdullah (may Allah be pleased with him) said: The
Messenger of Allah (blessings and peace of Allah be upon him) forbade
shighaar marriage. Narrated by Muslim (1417).

Secondly:

Marriage by way
of exchange (shighaar) has three forms:

1.    

where two men
each marry a female relative of the other or a woman who is under his
guardianship, without stipulating that the marriage of either of them be
conditional upon and connected to the marriage of the other, and with a
specified dowry given to each of them.

This kind of
marriage is not regarded as coming under the heading of shighaar marriage,
and there is nothing wrong with it.

It says in
Fataawa al-Lajnah ad-Daa’imah (vol. 1 – 18/427):

If one man
proposes to the ward of another (i.e., a woman under the guardianship of the
other man), and the other man proposes to the ward of the first man, without
there being any conditions attached (to connect the two marriages), and the
marriage contracts are done with the consent of the two women and fulfilling
all the other conditions of marriage, then there is no difference of
scholarly opinion concerning that, and in that case it does not come under
the heading of shighaar marriage. End quote.

2.    

Where the
marriage contract is done on condition that each of them marry the ward of
the other, with no dowry (mahr), and intimacy [through marriage] with one of
the women is granted in return for intimacy with the other.

This type comes
under the heading of shighaar that is prohibited according to the Prophetic
Sunnah and the consensus of the scholars.

Imam
ash-Shaafa‘i (may Allah have mercy on him) said:

if a man gives
in marriage his daughter or a woman under his guardianship, no matter who
she is, on condition that the other man give him his daughter or a woman
under his guardianship, no matter who she is, in marriage, and the dowry of
each of them is intimacy [through marriage] with the other, and neither of
the men specifies a dowry, then this is the shighaar marriage that the
Messenger of Allah (blessings and peace of Allah be upon him) prohibited. So
the marriage is not valid and must be annulled. End quote from al-Umm
(6/198].

Ibn ‘Abd al-Barr
(may Allah have mercy on him) said:

With regard to
what it means in shar‘i terms, it refers to when one man gives his ward in
marriage to another man, on the basis that the other man will give his own
ward in marriage to him, with no dowry between them except intimacy (through
marriage) with one woman in return for intimacy (through marriage) with the
other, according to the explanation given by Maalik and a number of the
scholars. End quote from al-Istidhkaar (5/465)

He also said:
This is a matter concerning which there is no difference of opinion among
the scholars that it is the shighaar marriage that is prohibited in this
hadith. End quote from at-Tamheed (14/70).

Ibn Rushd (may
Allah have mercy on him) said:

With regard to
shighaar marriage, the scholars are agreed that what is meant is when a man
gives his ward in marriage to another man on the basis that the other man
gives his own ward in marriage to him, with no dowry between them except
intimacy (through marriage) with one woman in return for intimacy (through
marriage) with the other, and the scholars are agreed that it is a marriage
that is not valid, because it is proven to be prohibited.

End quote from
Bidaayat al-Mujtahid (3/80).                          

This ruling is
not limited to daughters or sisters; rather it includes any woman who is
under the guardianship of a man.

An-Nawawi (may
Allah have mercy on him) said: The scholars are unanimously agreed that
women other than daughters, such as sisters, nieces, paternal aunts, female
cousins and slave women come under the same ruling as daughters with regard
to this issue.

End quote from
Sharh Saheeh Muslim (9/201)

The scholars of
the Hanafi madhhab are in agreement with the majority of scholars that this
form of marriage is prohibited and is not permissible; however they regard
the marriage as valid and say that it is obligatory to give each of the
women a dowry like that of her peers. They said: Then it will not be a
shighaar marriage.

See:
al-Mabsoot (5/105); Badaa’i‘ as-Sanaa’i‘ (2/278).

3.    

Where a man
gives his daughter, sister or woman who is under his guardianship in
marriage to another, on condition that the other man give his own daughter
or ward in marriage to him, but with a dowry for each of them, whether it is
the same or different.

This type of
marriage is the subject of a difference of opinion among the scholars.

Some of the
scholars are of the view that this type also comes under the heading of
shighaar marriage that is prohibited, and the fact that this condition is
stipulated is sufficient to make it a shighaar marriage. This is the view of
the Zaahiris and was the view favoured by some Shaafa‘i and Hanbali
scholars.

Al-Khuraqi – who
is Hanbali – said:

If he gives his
ward to him in marriage on condition that the other man give his own ward to
him in marriage, then there is no marriage between them, even if they also
specify a dowry.

End quote from
Mukhtasar al-Khuraqi (p. 238). See also: al-Muhalla by Ibn
Hazm (9/188)

This view was
also favoured by Shaykh Ibn Baaz (may Allah have mercy on him) and the
scholars of the Standing Committee. In a fatwa issued by the Committee, it
says:

If a man gives
his ward in marriage to another man, on condition that the other man give
his own ward in marriage to him, this is the shighaar marriage that the
Prophet (blessings and peace of Allah be upon him) forbade, and this is what
some people call zawaaj al-badal (exchange marriage), which is an invalid
marriage, regardless of whether a dowry is specified or not , and regardless
of whether or not it was done on the basis of consent.

End quote from
Fataawa al-Lajnah ad-Daa’imah (vol. 1 – 18/427)

They quoted as
evidence the report narrated by Muslim in his Saheeh (1416) via Ibn
Numayr from ‘Ubaydullah, from Abu’z-Zinnaad, from al-A‘raj, from Abu
Hurayrah (may Allah be pleased with him) who said: The Messenger of Allah
(blessings and peace of Allah be upon him) prohibited shighaar marriage.
Shighaar marriage is when one man says to another: Give your daughter to me
in marriage and I will give you my daughter in marriage, or give your sister
to me in marriage and I will give you my sister in marriage.

Shaykh Ibn Baaz
(may Allah have mercy on him) said:

The correct view
is that once the condition is in place, then it is to be regarded as a
shighaar marriage, regardless of whether other factors (the dowry, consent,
and so on) are also present, because of the apparent meaning of the hadiths
from the Prophet (blessings and peace of Allah be upon him), because in the
hadith of Abu Hurayrah (may Allah be pleased with him), it says:  Shighaar
marriage is when one man says to another: Give your sister to me in marriage
and I will give you my sister in marriage, or give your daughter to me in
marriage and I will give you my daughter in marriage. And he did not say:
and there is no dowry between them; rather he spoke in general terms
(regardless of anything else).

End quote from
Majmoo‘ Fataawa Ibn Baaz (20/280)

He (may Allah
have mercy on him) also said:

Nikaah al-badal
(exchange marriage), which is also called shighaar marriage (quid-pro-quo
marriage) is not permissible. It was prohibited by the Prophet (blessings
and peace of Allah be upon him) in a number of hadiths. So exchange marriage
in which a condition is stipulated – when one man says, Give me your sister
in marriage and I will give you my sister in marriage, or give me your
daughter in marriage and I will give you my daughter in marriage – is not
permissible. This is nikaah al-badal, which is also called shighaar
marriage. Even if a dowry is specified, and regardless of whether the
dowries (of the two women) are the same or are different, so long as this
condition is stipulated, it is not permissible.

End quote from
Fataawa Noor ‘ala ad-Darb by Ibn Baaz (21/26).

The Maalikis
call this type of marriage a kind of shighaar, and the ruling on it in their
view is that it preferable to annul it before it is consummated; however
after the marriage has been consummated it is to be deemed valid and a dowry
is to be given, greater than the typical dowry, or the greater of the two
dowries stipulated, to each of the two women.

In
at-Tahdheeb fi Ikhtisaar al-Mudawwanah (2/132) it says:

If one man says
to another: Give your daughter to me in marriage for one hundred, on
condition that I give my daughter to you in marriage for one hundred, or for
fifty, there is nothing good in that, and it comes under the heading of wajh
ash-shighaar. [Such a marriage] is to be annulled before it is consummated,
but is to be deemed valid after consummation has occurred, and each of the
women is to be given the greater of the two dowries specified, or a dowry
like that of her peers, and this is not shighaar in a clear or blatant
sense, because there is a dowry involved. End quote.

It is called a
kind of shighaar because it is shighaar in one aspect but not another.
Because a dowry is stipulated for each of them, it is not shighaar, because
the marriage contract is not without a dowry. But because it is stipulated
that one of the marriages is in return for the other, then it is shighaar.

End quote from
Haashiyat al-‘Adawi ‘ala Kifaayat at-Taalib ar-Rabbaani (2/52).

The view of the
majority of scholars is that this marriage is not regarded as being
shighaar, because a dowry is stipulated for each of them.

Imam
ash-Shaafa‘i (may Allah have mercy on him) said:

If a man gives
his daughter or a woman under his guardianship in marriage to another man,
on the basis that that man give his own daughter or woman under his
guardianship to him in marriage, and on the basis that the dowry of one of
them should be such and such – something that is specified – and the dowry
of the other should be such and such – something else that is also
specified, whether it is less or more… Then this is not the shighaar
marriage which is prohibited. End quote from al-Umm (5/83).

Ibn Qudaamah
(may Allah have mercy on him) said:

But if they also
stipulate a dowry, so he says: I give my daughter to you in marriage on
condition that you give me your daughter in marriage, and the dowry of each
of them will be one hundred, or the dowry of my daughter will be one hundred
and the dowry of your daughter will be fifty, or less or more, then what is
narrated from Ahmad, as far as we know, is that it is valid.

End quote from
al-Mughni (7/177).

Ibn al-Qayyim
said: There was a difference of opinion concerning the reason for the
prohibition:

It was said: It
is making each of the two marriage contracts conditional upon the other.

And it was said:
The reason has to do with making intimacy (through marriage) the dowry, and
making intimacy with one as the dowry for the other, in which case the woman
does not benefit and does not receive the dowry herself; rather the dowry
goes to her guardian, and his intimacy with his wife is gained by allowing
the other man to be intimate (through marriage) with his ward, and this is
injustice to both women and is depriving the marriage of a dowry that could
benefit her.

This is in
accordance with the linguistic meaning and usage, because the Arabs say:
baladun shaaghirun min ameer (a land devoid of any ruler) or daarun
shaaghiratun min ahliha (a house devoid of its inhabitants) when it
becomes empty; they also say shaghara al-kalb to refer to a dog
lifting one of its feet and leaving its place empty.

If a dowry is
stipulated, then there are no reservations concerning it, and there is no
issue left except that of each of the men stipulating a condition on the
other, which does not affect the validity of the marriage contract. This is
what was narrated from Ahmad. End quote from Zaad al-Ma‘aad fi Hadiy
Khayr al-‘Ibaad (5/99).

This is also
indicated by the report narrated by al-Bukhaari (5112) and Muslim (1415),
via Maalik, from Naafi‘, from Ibn ‘Umar (may Allah be pleased with him),
that the Messenger of Allah (blessings and peace of Allah be upon him)
forbade shighaar, and shighaar is when a man gives his daughter in marriage
on condition that the other man give his own daughter in marriage to him,
with no dowry between them.

Imam
ash-Shaafa‘i (may Allah have mercy on him) said:

I do not know
whether the explanation of shighaar is part of the hadith or is the words of
Ibn ‘Umar, Naafi‘ or Maalik.

End quote from
al-Umm by ash-Shaafa‘i (6/197)

There is a
report which indicates that this explanation is the words of Naafi‘ (may
Allah have mercy on him).

In Saheeh
al-Bukhaari (6960) it is narrated that ‘Ubdayullah ibn ‘Umar al-‘Umari
said: Naafi‘ told me, from ‘Abdullah (may Allah be pleased with him) that
the Messenger of Allah (blessings and peace of Allah be upon him) forbade
shighaar.

I said to
Naafi‘: What is shighaar?

He said:
Marrying a man’s daughter and giving one’s own daughter to him in marriage
without any dowry, or marrying a man’s sister and giving one’s own sister to
him in marriage without any dowry.

Al-Jawhari said
in as-Sihaah (2/700):

Shighaar is a
kind of marriage that was done during the Jaahiliyyah. It refers to when one
man says to another: Give me your daughter or sister in marriage on
condition that I will give you my sister or daughter in marriage, and that
the dowry of each of them will be intimacy (through marriage) with the
other. It is as if they waived the dowry and deprived the women of it. End
quote.

With regard to
the report narrated by Muslim via Ibn Numayr from ‘Ubaydullah ibn ‘Umar
al-‘Umari, from Abu’z-Zinnaad, from al-A‘raj, from Abu Hurayrah(may Allah be
pleased with him) who said: The Messenger of Allah (blessings and peace of
Allah be upon him) forbade shighaar, and shighaar is when one man says to
another: Give me your daughter in marriage and I will give you my daughter
in marriage, or give me your sister in marriage and I will give you my
sister in marriage –

This explanation
of shighaar is not the words of the Prophet (blessings and peace of Allah be
upon him) either. An-Nasaa’i (6/112) narrated it and stated that the
explanation of shighaar is the words of ‘Ubaydullah ibn ‘Umar al-‘Umari –
one of the narrators of the hadith – and is not the words of the Prophet
(blessings and peace of Allah be upon him).

Based on that,
this explanation does not constitute proof; rather it is more appropriate to
accept the explanation of Naafi‘. The view of the majority of scholars is
stronger, so if a dowry like that of her peers is specified, the husband is
compatible and the woman agrees to it, then this is not a shighaar marriage.

Shaykh al-Islam
Ibn Taymiyah (may Allah have mercy on him) said:

The correct view
is that of the people of Madinah, Maalik and others, and it is what is
narrated from Ahmad and most of his earlier companions, that the reason why
it is regarded as being invalid is the fact that the marriage is devoid of
any dowry.

End quote from
Majmoo‘ al-Fataawa (34/126).

This view was
favoured by Shaykh Muhammad ibn Ibraaheem (may Allah have mercy on him) when
he was asked about nikaah al-badal (exchange marriage) when both wives agree
to it and they have a complete dowry.

He replied: If
the matter is as you say, that each of the wives has a dowry like that of
her peers, and each of them agrees to the marriage, then there is nothing
wrong with the marriages mentioned, and they do not come under the heading
of shighaar marriage which is prohibited. And Allah is the source of
strength.

End quote from
Fataawa ash-Shaykh Muhammad ibn Ibraaheem (10/159).

Shaykh Ibn
‘Uthaymeen (may Allah have mercy on him) said:

If the dowry is
like that of her peers, and is not lacking, and the woman accepts the
husband and he is compatible with her, then this is valid. This is the
correct view in our opinion: that if all three conditions – namely
compatibility, a dowry like that of her peers, and the woman’s consent – are
fulfilled, then there is nothing wrong with that, because there is no
injustice to the wives, for they have been given the dowry in full, and
there is no compulsion; all there is, is the fact that each of the men
wanted to marry the daughter of the other, and stipulated a condition to
that effect…

The apparent
meaning of the evidence implies that if the usual dowry is given, the wife
agrees to the marriage, and the husband is compatible, then there is no
reason to prevent it.

End quote from
ash-Sharh al-Mumti‘ ‘ala Zaad al-Mustaqni‘ (12/174).

Although we say
that the marriage contract is valid in this case, it should be noted that it
is not appropriate to resort to this form of marriage.

Shaykh Muhammad
ibn Ibraaheem Aal ash-Shaykh (may Allah have mercy on him) said in
Majmoo‘ al-Fataawa (10/158):

It should be
noted in future that no marriage contract in which there is an exchange
should be done, whether a dowry is mentioned or not, because of the strength
of the argument which says that it is invalid, for it leads to serious bad
consequences, as it forces women to marry people they do not want and gives
precedence to guardians’ interests over those of the women which – as is
obvious – is not permissible. Moreover it also leads to depriving the women
of a dowry like that of their peers, as it usually happens among people who
do this type of marriage, and it also leads to a great deal of conflict and
dispute after marriage. End quote.

Thirdly:

If a shighaar
marriage does take place – i.e., in the manner which the scholars agree is
the shighaar that is prohibited, as discussed above – then it is invalid and
must be annulled, according to the majority of scholars, then a new marriage
contract should be done.

Imam Maalik (may
Allah have mercy on him) was asked, as it says in al-Mudawwanah al-Kubra
(2/98):

If a shighaar
marriage takes place, and the men consummate the marriages to the women and
they stay with them until they have children – do you think that this is
valid or should it be annulled?

Maalik said: It
should be annulled in all cases. End quote.

Ash-Shaafa‘i
said:

The marriage is
not valid and is to be annulled. End quote from al-Umm (6/198).

Ibn Qudaamah
(may Allah have mercy on him) said:

There is no
difference in the reports from Ahmad which say that a shighaar marriage is
invalid.

End quote from
al-Mughni (10/42).

Ibn ‘Abd al-Barr
(may Allah have mercy on him) said:

This marriage
contract is not valid, and should be annulled whether that is before
consummation or after.

End quote from
al-Istidhkaar (16/203).

Based on that:

If it becomes
clear to a person that his marriage was done on the basis of shighaar, then
he must annul this marriage and do a new marriage contract, fulfilling all
the necessary conditions, and he must specify a dowry for his wife that they
agree upon. Shaykh Muhammad ibn Ibraaheem (may Allah have mercy on him) was
asked about shighaar marriage and he said:

The marriage is
invalid, and they must be separated… Then after that he is like any other
suitor; if the woman wants to marry him and he gives her a dowry like that
of her peers, then it is permissible for him to marry her with a new
marriage contract.

End quote from
Fataawa ash-Shaykh Muhammad ibn Ibraaheem Aal ash-Shaykh (10/160).

Shaykh Ibn Baaz
(may Allah have mercy on him) said:

Her guardian may
give her in marriage to him again, with a marriage contract and dowry as
prescribed in Islam, and in the presence of two witnesses. There is no need
for ‘iddah in this case, because the water (semen) is his [i.e., there is no
need to determine if she is pregnant before allowing remarriage because the
child is his]… But if he does not want her and she does not want him, then
he may divorce up with a single talaaq, then when her ‘iddah is over, she
may marry whoever she wants.

End quote from
Fataawa Noor ‘ala ad-Darb by Ibn Baaz (21/39).

But as noted
above, the scholars of the Hanafi madhhab regard marriage in this manner as
valid, and they stipulate that a dowry like that of her peers must be given
to each of the women.

Whoever follows
them in this view, or lives in a country where most of the people follow the
Hanafi madhhab, or where the courts issue verdicts on the basis of that
view, his marriage is not to be annulled in such a case, as is the guideline
on issues concerning which there are differing scholarly views.

Ibn Qudaamah
(may Allah have mercy on him) said, after discussing the invalidity of a
marriage contract done without a guardian (wali), as is the view of most of
the scholars apart from the Hanafis:

If a judge deems
this marriage contract to be valid, or the one who did the marriage contract
was a judge, then it is not permissible to annul it.

The same applies
to all invalid marriage contracts.

End quote from
al-Mughni (7/6).

Ibn Muflih (may
Allah have mercy on him) said:

Whoever follows
a scholar in regarding a marriage contract as valid will not have to be
separated from his wife if his view changes.

End quote from
al-Furoo‘ (11/218).

Shaykh al-Islam
Ibn Taymiyah (may Allah have mercy on him) was asked about tahleel marriage;
what if a Muslim follows some of the scholars who regard it as permissible?

He replied:

With regard to
tahleel [a marriage to a woman who has been thrice divorced, for the purpose
of making it permissible for her to go back to her previous husband] in
which there is an agreement with the husband – either verbally or on the
basis of custom – that he will divorce his wife, or the husband has that
intention in mind, it is prohibited. The Prophet (blessings and peace of
Allah be upon him) cursed the one who does that in a number of hadiths… The
woman does not become permissible by means of this procedure for the first
husband who divorced her, and she is not permissible for the second husband
to keep her on the basis of this tahleel marriage. Rather he must leave her.

But if he
decides on the basis of ijtihaad, or following a scholar’s view, that this
is permissible, so she marries the second husband, then he divorces her and
she goes back to the first husband after that, then the first husband
realises that this procedure is in fact prohibited and was not as he
initially thought, then the stronger view is that he does not have to leave
her; rather he should refrain from doing such a thing in the future, and
Allah will pardon him for what happened in the past.

End quote from
Majmoo‘ al-Fataawa (32/152-151)

Based on that,
your marriage is valid, but people should be prevented from doing that in
the future, as Shaykh al-Islam Ibn Taymiyah (may Allah have mercy on him)
said.

And Allah knows
best.