3 Safar 1442 AH / 20 September 2020 CE
Bidayah: Marriage becomes binding with an offer and acceptance with two words both of which are considered past tense. [Marriage] becomes binding with two words of which one is considered past tense and the other future tense. For example, one says, ‘Marry me’ and [the other] responds, ‘I have married you’. [Marriage] becomes binding with the words nikah and tazwij [as well as] hibah, tamlīk and sadaqah. [Marriage] becomes binding with the words sale. [Marriage] does not become binding with the word rent. [Marriage] does not [become binding] with the words allowed, permission, and borrowed. [Marriage] does not [become binding] with the word bequest.
Principle: Marriage is formed with an offer and acceptance which are communicated in a way which shows intent to form a marital relationship.
النِّكَاحُ يَنْعَقِدُ بِالْإِيجَابِ وَالْقَبُولِ بِلَفْظَيْنِ يُعَبِّرُ بِهِمَا عَنْ الْمَاضِي لِأَنَّ الصِّيغَةَ وَإِنْ كَانَتْ لِلْإِخْبَارِ وَضْعًا فَقَدْ جُعِلَتْ لِلْإِنْشَاءِ شَرْعًا دَفْعًا لِلْحَاجَةِ
Marriage becomes binding with an offer and acceptance with two words both of which are considered past tense.
Because although the form [in past tense] is assigned for reporting (ikhbār), it is used for formation (inshāʾ) in the Shariah to meet the need [to make the contract certain].1
To form a marriage contract a couple cannot merely do ikhbār (inform) that they are married rather they must communicate to each other wordings which suggests intent to form (inshāʿ) a marital relationship. The difference between inshāʿ (forming) and khabr (informing) is that inshaʿ is the cause of the outcome whilst khabr is the mere telling of an outcome.
According to the shariah, The past tense is used to communicate inshaʿ (formation) even though grammatically it is used for informing. This is specific to the Arabic language. In English and Urdu, the present tense is used to communicate formation (inshaʿ), hence, the offer and acceptance will be valid in the present tense in these languages.
وَيَنْعَقِدُ بِلَفْظَيْنِ يُعَبِّرُ بِأَحَدِهِمَا عَنْ الْمَاضِي وَبِالْآخَرِ عَنْ الْمُسْتَقْبَلِ، مِثْلَ أَنْ يَقُولَ زَوِّجْنِي فَيَقُولَ زَوَّجْتُك لِأَنَّ هَذَا تَوْكِيلٌ بِالنِّكَاحِ وَالْوَاحِدُ يَتَوَلَّى طَرَفَيْ النِّكَاحِ عَلَى مَا نُبَيِّنُهُ إنْ شَاءَ اللَّهُ تَعَالَي
[Marriage] becomes binding with two words of which one is considered past tense and the other future tense. For example, one says, ‘Marry me’ and [the other] responds, ‘I have married you’.
Because [saying ‘marry me’] is making [the other their] representative for marriage. One person can take charge of both parties of the marriage as we will mention iA.
The future tense with an imperative is in reality not an offer rather it is giving someone else the right to get them married which in this case is the person being proposed. In the case of marriage, it is valid that one person makes an offer to themselves on behalf of another and then accepts it themself.
Hence, it will not be allowed for the offer to be in the past tense and the acceptance to be imperative.
Principle: Offer and acceptance are valid with any wordings which convey permanent transfer of ownership irrespective it is literal or figurative.
وَيَنْعَقِدُ بِلَفْظِ النِّكَاحِ وَالتَّزْوِيجِ وَالْهِبَةِ وَالتَّمْلِيكِ وَالصَّدَقَةِ. وَقَالَ الشَّافِعِيُّ رَحِمَهُ اللَّهُ لَا يَنْعَقِدُ إلَّا بِلَفْظِ النِّكَاحِ وَالتَّزْوِيجِ لِأَنَّ التَّمْلِيكَ لَيْسَ حَقِيقَةً فِيهِ وَلَا مَجَازًا عَنْهُ لِأَنَّ التَّزْوِيجَ لِلتَّلْفِيقِ وَالنِّكَاحَ لِلضَّمِّ. وَلَا ضَمَّ وَلَا ازْدِوَاجَ بَيْنَ الْمَالِكِ وَالْمَمْلُوكَةِ أَصْلًا. وَلَنَا أَنَّ التَّمْلِيكَ سَبَبٌ لِمِلْكِ الْمُتْعَةِ فِي مَحَلِّهَا بِوَاسِطَةِ مِلْكِ الرَّقَبَةِ وَهُوَ الثَّابِتُ بِالنِّكَاحِ. وَالسَّبَبِيَّةُ طَرِيقُ الْمَجَازِ
Imam Shafiʿī RA states that [marriage] is not binding except with words nikah and tazwij4 . Because [the concept of] transferring ownership is not [found] in [marriage] literally nor is it there figuratively. Because tazwīj means to pair5 and nikah mean to join [literally]. In essence, there is no [real] pairing or joining between the owner and the owned.
According to us, the transfer of ownership is the cause (سبب) for the right to consummate with those qualified6 by means of owning the slave. [The right to consummate] is established by means of marriage. [Shared] cause is a [valid] approach [to derive figurative speech].
Marriage is done if the offer and acceptance are delivered with words clearly specified for marriage. There is no dispute in this and in fact marriage is considered done even if the intent is absent as to the onlooker the intent is clear. There is a dispute regarding figurative speech (majāz). We say marriage will occur with figurative speech similar to divorce. This is so long as they used words which conveys the transfer of ownership in some way such as gifting, trading or donating.
It is a rule of ours that for a figure of speech (majāz) to be valid, the parts must but be related to each other via a shared cause (سبب) or reason (علة). Some state that there is no relationship between marriage and ownership. Marriage literally means to join a pair and this does not occur in ownership. The owner does not really become part of that which is owned, hence, there is no real joining.
We answer there is a causal link between marriage and ownership. Marriage to a woman confers the rights to consummate. Ownership of a qualified female slave confers the right to consummate. The common element between the two is the right to consummate (ملك متعة) which attained via a contract to transfer of ownership. Hence, the figurative speech (majāz) using terms denoting transfer of owner is valid and applicable.
Note! Marriage using a valid form of figurative speech is binding. If a mahr is accompanied then it will be recognised as a marriage even without intent. However, if there is no mahr, it is recognised as marriage only if there is intent.
وَيَنْعَقِدُ بِلَفْظِ الْبَيْعِ هُوَ الصَّحِيحُ لِوُجُوْدِ طَرِيْقِ الْمَجَازِ
وَلَا يَنْعَقِدُ بِلَفْظِ الْإِجَارَةِ فِي الصَّحِيحِ لِأَنَّهُ لَيْسَ بِسَبَبٍ لِمِلْكِ الْمُتْعَةِ
Rent or any other word which suggests temporary access and not a permanent transfer is invalid as a figurative speech (majāz) for marriage as it lacks a shared causal link (سبب). If a man were to rent a slave woman, he will not have the right to consummate (ملك متعة). Hence, there is no relationship between marriage and rental. At most, rent and the like are akin to a temporary marriage which in the Shariah is not recognised as marriage.
وَلَا بِلَفْظِ الْإِبَاحَةِ وَالْإِحْلَالِ وَالْإِعَارَةِ لِمَا قُلْنَا
وَلَا بِلَفْظِ الْوَصِيَّةِ لِأَنَّهَا تُوجِبُ الْمِلْكَ مُضَافًا إلَى مَا بَعْدَ الْمَوْتِ
[Marriage] does not [become binding] with the word bequest.15 Because [bequest] leads to ownership which is attributed to after [the owner's] death.
If someone were to say 'I am married to you after I die' or 'I sell you the slave after she dies', marriage and the sale is invalid. In neither case, the right to consummation is conferred.
إنشاء / Lit: to form / Something that causes an outcome. In contrast to khabr which informs an outcome. For example, 'Tell me!' is an inshaʿ as it is causing someone to tell. On the other hand, 'He told me' is khabr as it informing what happened and nothing else.
وضعا / Lit: to fix / Waḍaʿ is meaning or function fixed for a word. It represents the default meaning. The default function of a past tense form is ikhbār (to inform).
دفعا للحاجة / Lit: to remove the need /
تلفيق / Lit: to attach one end of the clothing with another before it is stitched together /
ضم / Lit: to join
ملك متعة / Lit: the right to benefit / إنتفاع / This is the right to exclusively have intercourse with a woman. In the Shariʿah, this right can only be held by man for his wife or owned female slave. There are some restrictions to slave girls which Allm. Marghinani alluded to by stated qualified (محلها).
في محلها / Lit: in its place / This is alluding that when a man purchases a slave woman, he has the right to consummate with her 'subject to her meeting the criteria'. There are instances where purchase does not confer that right. For instance, if the female slave is a woman who he is not allowed to combine in his marriage, his raḍaʿi relative or a Zoroastrian slave.
مجاز / Lit: Figurative speech / When a word or speech is used in a meaning other than its fixed meaning by referring to a shared cause (سبب) or reason (علة).
طريق المجاز / Lit: approach to figurative speech (majāz) / Usul fiqh outlines an acceptable way of forming majāz which is by way of a shared cause or reason. If a figurative speech does not follow this approach, the sentence will be deemed redundant (laghw) and will have no effect. The transfer of ownership is the common cause which links to the right to consummation.
Muhammad Saifur Rahman Nawhami
3 Safar 1442 AH
20 September 2020 CE
- 1The need to make the contract certain (دفعا للحاجة) is the rationale of why offer and acceptance need to be inshaʿ and not khabr. A valid contract requires consent from each of the parties as it imposes rights on one for the other, hence, there is a need for certainty. As opposed to khabr, inshāʿ provides certainty as it is not subject to be being deemed true or false.
- 2Such as 'I marry you' or 'I take as my wife' respectively. As in words which are expressly used for marriage.
- 3Such as 'I gift myself you', 'I give myself to you' and 'I donate myself to you' respectively. As in words which are figuratively used for marriage.
- 4As in words which expressly used for marriage such as "I marry you" or "I take you as my wife".
- 5Talfīq / Lit: To attach one end of the clothing with another before it is stitched together.
- 6The Arabic is 'محلها' which literally means 'in its place' referring to slaves with whom there is scope to consummate. By this clause, Allm. Marghinani exempts those who the owner does not have a right to consummate. Such as male slaves, married slave, radhaʿi sister, wive's relative (sister, niece or aunt) or other property such as animals.
- 7Such as someone says, 'I sell myself to you for £1000' with the intent of marriage.
- 8imam Marghinani is rejecting the view of Imam Abu Bakr Aʿmash who states that it is invalid to the use the word sale for marriage.
- 9A sale is a transfer of property in exchange for a property with consent. The discussion has just passed of how this can be a metaphor (majāz) for marriage.
- 10Such as someone says, 'I rent myself to you for £1000' with the intent of marriage
- 11imam Marghinani is rejecting the view of Imam Karkhi who states that it is allowed
- 12Meaning it is an invalid figurative speech (majāz) due there being no causal link.
- 13Such as some say, 'I rent myself to you for £1000', 'I give you permission to myself for £1000' or 'I borrow myself to you for a £1000' respectively with the intent of marriage.
- 14It is the same as saying rent which is invalid as mentioned.
- 15Such as someone says, 'I bequeath myself to you'.
Subject: Fiqh, Hidayah
Author: M. Saifur Rahman Nawhami