Wiqayah
It is a condition [for the validity of marriage] that each one of [contracting parties] has heard the words of the other. This must be in the presence of two free male witnesses (or a male and two female witnesses) who are mukallaf (sane and adult) and Muslims. Together, both [witnesses must have] heard their words [of offer and acceptance]. Hence, [marriage] is not valid if they heard it separately.
[The marriage] is valid [if the witnesses were] not upright (fāsiq), punished for accusing someone of adultery (mahdūd fil qaḍaf). [Marriage is valid] in the presence of [witnesses who are] blind, children of marrying couple, or the children of one of them. However, their [testimony] will have no effect if their family [from the marrying couple] makes a claim.
Likewise, the marriage of a Muslim to a ẓimmi woman is valid in [the presence] of two ẓimmi [witnesses]. Their [testimony] will have no effect if [the groom] refuses [to acknowledge the marriage].
[A father] who commands a man to get his underage daughter married, so he gets her married in the presence of one witness. If the father is present the marriage is valid or else not. Similarly, if the father gets his adult daughter married in the presence of one witness, if she is present [the marriage] is valid or else not.
Hidayah
قَالَ وَلَا يَنْعَقِدُ نِكَاحُ الْمُسْلِمِينَ إلَّا بِحُضُورِ شَاهِدَيْنِ حُرَّيْنِ عَاقِلَيْنِ بَالِغَيْنِ مُسْلِمَيْنِ رَجُلَيْنِ أَوْ رَجُلٍ وَامْرَأَتَيْنِ عُدُولًا كَانُوا أَوْ غَيْرَ عُدُولٍ أَوْ مَحْدُودِينَ فِي الْقَذْفِ
اعْلَمْ أَنَّ الشَّهَادَةَ شَرْطٌ فِي بَابِ النِّكَاحِ لِقَوْلِهِ - صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ - لَا نِكَاحَ إلَّا بِشُهُودٍ
وَهُوَ حُجَّةٌ عَلَى مَالِكٍ فِي اشْتِرَاطِ الْإِعْلَانِ دُونَ الشَّهَادَةِ. لَا بُدَّ مِنْ إعْتِبَارِ الْحُرِّيَّةِ فِيهَا لِأَنَّ الْعَبْدَ لَا شَهَادَةَ لَهُ لِعَدَمِ الْوِلَايَةِ. وَلَا بُدَّ مِنْ اعْتِبَارِ الْعَقْلِ وَالْبُلُوغِ لِأَنَّهُ لَا وِلَايَةَ بِدُونِهِمَا. وَلَا بُدَّ مِنْ اعْتِبَارِ الْإِسْلَامِ فِي أَنْكِحَةِ الْمُسْلِمِينَ لِأَنَّهُ لَا شَهَادَةَ لِلْكَافِرِ عَلَى الْمُسْلِمِ
The marriage between two Muslims will not be binding except in the presence of two witnesses who are free, sane, baligh (adult), and Muslims. [It must be in the presence of] two male witnesses or one male and two female witnesses [who possess the stated qualities]. [The witnesses] may be upright (ʿadil), not upright (fasiq) or a person who had been punished for accusing someone of adultery (mahdud fil qaḍaf).
Note that witnessing is a requisite in the issue of marriage.1 This is due to the Prophet ﷺ statement, 'There is no marriage without witnesses'. This is poof against Imam Malik RA2 .
It is necessary to consider [the witness's status] in terms of being free. Because a slave cannot be a witness as they lack the capacity.3
It is necessary to consider [the witness's status] in terms of being sane and an adult (baligh). Because one is not given authority without the two [factors].
It is necessary to consider [the witness's status] in terms of Islam4 with regards to marriage [between] two Muslims5 . Because a disbeliever may not be a witness against a Muslim.
The marriage contract (offer and acceptance) must be witnessed by two men or a man and two women together in a single gathering. Witnessing means to hear the words of offer and acceptance uttered. If the marriage contract is not witnessed, it is invalid according to us even if is verified later.
Those witnessing the marriage must be qualified. The key principle to qualify as a witness is that they must have authority over themselves as well as be within an equal or superior classification. So they must be adult, sane and Muslim. Hence, a slave, child, or an insane cannot be a witness as they do not have the authority to make their own decision for themselves let alone against another. Also, a disbeliever cannot testify against a Muslim as they are not equal to them in class. All believers are one class and the disbelievers are another. The disbelievers chose to shun Allah and refused to recognise His authority. Hence, they are denied authority over those who believe in Allah.
وَلَا يُشْتَرَطُ وَصْفُ الذُّكُورَةِ حَتَّى يَنْعَقِدَ بِحُضُورِ رَجُلٍ وَامْرَأَتَيْنِ وَفِيهِ خِلَافُ الشَّافِعِيِّ رَحِمَهُ اللَّهُ تَعَالَى. وَسَتَعْرِفُ فِي الشَّهَادَاتِ إنْ شَاءَ اللَّهُ تَعَالَى
It is not a condition [for a valid marriage that the witness] be male. Hence, [a marriage] becomes binding in the presence of one male and two female [witnesses]. In this [matter] there is a dispute of Imam Shafi'I RH. You will learn [more about this] in the [chapter of] Shahadat (testimony) iA.
وَلَا تُشْتَرَطُ الْعَدَالَةُ حَتَّى يَنْعَقِدَ بِحَضْرَةِ الْفَاسِقَيْنِ عِنْدَنَا خِلَافًا لِلشَّافِعِيِّ رَحِمَهُ اللَّهُ. لَهُ أَنَّ الشَّهَادَةَ مِنْ بَابِ الْكَرَامَةِ وَالْفَاسِقُ مِنْ أَهْلِ الْإِهَانَةِ. وَلَنَا أَنَّهُ مِنْ أَهْلِ الْوِلَايَةِ فَيَكُونُ مِنْ أَهْلِ الشَّهَادَةِ، وَهَذَا لِأَنَّهُ لَمَّا لَمْ يُحَرِّمْ الْوِلَايَةَ عَلَى نَفْسِهِ لِإِسْلَامِهِ لَا يُحَرِّمُ عَلَى غَيْرِهِ لِأَنَّهُ مِنْ جِنْسِهِ، وَلِأَنَّهُ صَلُحَ مُقَلَّدًا فَيَصْلُحُ مُقَلِّدًا وَكَذَا شَاهِدًا
It is not a condition [for a valid marriage that the witness be] upright (ʿadil). Hence, a marriage is valid in the presence of two fasiq [witnesses] according to us. This is in contrast to Imam Shafiʿī RH.
According [to Imam Shafiʿī], to be a witness is a matter of honour and a fasiq (transgressor) is among the people of dishonour.
According to us, [a fasiq] is a person who has authority6 so can be a witness. This is because since the fasiq was not denied authority over himself due his Islam,7 he will not be denied authority over other matters as he belongs to the same class [overall as other Muslims].8 [Also] because [a fasiq ruler] has the ability to assign [judges] so he has the ability to be a judge and likewise a witness.9
وَالْمَحْدُودُ فِي الْقَذْفِ مِنْ أَهْلِ الْوِلَايَةِ فَيَكُونُ مِنْ أَهْلِ الشَّهَادَةِ تَحَمُّلًا، وَإِنَّمَا الْفَائِتُ ثَمَرَةُ الْأَدَاءِ بِالنَّهْيِ لِجَرِيمَتِهِ فَلَا يُبَالِي بِفَوَاتِهِ كَمَا فِي شَهَادَةِ الْعُمْيَانِ وَابْنَيْ الْعَاقِدَيْنِ
A person who had given hadd for accusing someone of adultery (mahdud fil qaḍaf) is a person who has authority.10 Thus they are a person who can bear witness. What is lost is to effectively give [testimony]11 Due to the prohibition [in the Quran] as a result of their crime. The loss [of giving testimony] will not be given consideration such as bearing of witness by the blind or the two sons of the contracting parties.12
Gender, piety or criminal status does not bar Muslims bearing witness so long as they meet the other criteria. These are factors in which we are disputed with the other mazahib. The principle is that a Muslim whose authority to act on their own accord is recognised, is deemed able to bear witness. Hence, subject to numbers a woman is allowed to bear witness to marriage as well as a fasiq and a person who is mahdud fil qaḍf. As the shariah recognises their authority to act on behalf of themselves or others despite these factors such as being given guardianship. Note! The capacity to bear witness is different from the right to give testimony. To bear witness is have knowledge of the event and to give testimony is to be able to convince another that the event occurred. A woman, fasiq and convicted felon may be rejected by a judge due to varying reasons but it has no impact on their capacity to be informed.
وَإِنْ تَزَوَّجَ مُسْلِمٌ ذِمِّيَّةً بِشَهَادَةِ ذِمِّيَّيْنِ جَازَ عِنْدَ أَبِي حَنِيفَةَ وَأَبِي يُوسُفَ. وَقَالَ مُحَمَّدٌ وَزُفَرُ: لَا يَجُوزُ
لِأَنَّ السَّمَاعَ فِي النِّكَاحِ شَهَادَةٌ وَلَا شَهَادَةَ لِلْكَافِرِ عَلَى الْمُسْلِمِ فَكَأَنَّهُمَا لَمْ يَسْمَعَا كَلَامَ الْمُسْلِمِ. وَلَهُمَا أَنَّ الشَّهَادَةَ شُرِطَتْ فِي النِّكَاحِ عَلَى اعْتِبَارِ إثْبَاتِ الْمِلْكِ لِوُرُودِهِ عَلَى مَحَلِّ ذِي خَطَرٍ لَا عَلَى اعْتِبَارِ وُجُوبِ الْمَهْرِ إذْ لَا شَهَادَةَ تُشْتَرَطُ فِي لُزُومِ الْمَالِ وَهُمَا شَاهِدَانِ عَلَيْهَا، بِخِلَافِ مَا إذَا لَمْ يَسْمَعَا كَلَامَ الزَّوْجِ لِأَنَّ الْعَقْدَ يَنْعَقِدُ بِكَلَامَيْهِمَا وَالشَّهَادَةُ شُرِطَتْ عَلَى الْعَقْدِ
If a Muslim marries a dhimmi woman in [presence] of two dhimmi witnesses, [the marriage] is valid according to Imam Abu Hanifah and Imam Abu Yusuf. Imam Muhammad and Imam Zufar state that it is invalid.
[According to Imams Muhammad and Zufar it is] because to hear [the words] in a marriage is to bear witness. A non-Muslim cannot bear witness against a Muslim, hence, it is as if they did not hear the words of the Muslim.
[According to Imam Abu Hanifah and Imam Abu Yusuf] witnessing [the contract] is made a condition in marriage to establish the right to consummate as [the husband is gaining] access to that which was restricted. [Witnessing] is not [made a condition] to necessitate mahr as witnessing is not required to [enact] financial obligation. [Hence,] the two [dhimmis] are witnesses against [the dhimmi woman].
A non-Muslim cannot bear witness against a Muslim in regards to marriage. However, a non-Muslim can bear witness in favour of a Muslim. Imams Muhammad and Zufar consider witnessing a marriage to a dhimmiyah as a testimony against the Muslim as their testimony will result in the Muslim forced to pay mahr. Whilst the Shaykhayn consider it to be a testimony in favour of the Muslim as their testimony will result in the Muslim gaining the right to consummate.
As opposed to when [the witnesses] did not hear the words of the [prospective] husband.13 Because the contract becomes binding with both14 of their statements15 whilst witnessing16 of the contract is a condition.
قَالَ وَمَنْ أَمَرَ رَجُلًا بِأَنْ يُزَوِّجَ ابْنَتَهُ الصَّغِيرَةَ فَزَوَّجَهَا وَالْأَبُ حَاضِرٌ بِشَهَادَةِ رَجُلٍ وَاحِدٍ سِوَاهُمَا جَازَ النِّكَاحُ
لِأَنَّ الْأَبَ يُجْعَلُ مُبَاشِرًا لِلْعَقْدِ لِاتِّحَادِ الْمَجْلِسِ وَيَكُونُ الْوَكِيلُ سَفِيرًا وَمُعَبِّرًا فَيَبْقَى الْمُزَوِّجُ شَاهِدًا وَإِنْ كَانَ الْأَبُ غَائِبًا لَمْ يَجُزْ
لِأَنَّ الْمَجْلِسَ مُخْتَلِفٌ فَلَا يُمْكِنُ أَنْ تَجْعَلَ الْأَبَ مُبَاشِرًا، وَعَلَى هَذَا إذَا زَوَّجَ الْأَبُ ابْنَتَهُ الْبَالِغَةَ بِمَحْضَرِ شَاهِدٍ وَاحِدٍ إنْ كَانَتْ حَاضِرَةً جَازَ، وَإِنْ كَانَتْ غَائِبَةً لَمْ يَجُزْ، وَاَللَّهُ أَعْلَمُ
[A father] who commands17 a man to get his underage daughter married, so he gets her married and the father is present with a male witness other than the two,18 [in this case] the marriage is valid.
Because the father is deemed as the person enacting [the marriage contract]19 due to the gathering being the same [as the appointed representative]. Hence, the representative will be merely relaying and interpreting [the words], in effect the person conducting the marriage will be a witness.
If the father is absent,20 [the marriage] will be invalid. Because the gathering is separate and it is not possible to deem the father as enacting the marriage.21
On this [same principle], if the father gets his daughter married in the presence of one witness while she is present, [the marriage] will be valid. If she is absent, [the marriage] will be invalid.
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Muhammad Saifur Rahman Nawhami
9 Safar 1442 AH
27 Sept 2020 CE
Updated: 10 Oct 2020 CE
Status: Draft
Ref: 200927501
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- 1Witnesses are not a requisite in sales and other financial transactions.
- 2According to the Malikiyyah nikah is valid without witnesses so long as it announced but is required if the one is challenged. This is in contrast to the Ahnaf who state that the marriage itself is invalid. See Mawahib al-Jalil li Sharh Mukhtasar al-Khalil v. 5 p. 27
- 3A slave does not hold authority over themselves, so they will not be given authority over another. Hence, they are not authorised to be witnesses or bear testimony which practically impacts others.
- 4As in the witness being Muslim.
- 5If the bride is not a Muslim this criterion may be dropped as Allm. Marghinai will clarify soon.
- 6A fasiq can be a guardian (wali) for their children and they are given the right to veto a marriage with probable cause. So if we recognise their authority in this regard we will recognise their authority in the lower matters such as being a witness for a marriage.
- 7He is allowed to trade, marry and parent on his own accord
- 8A fasiq, in essence, is still a Muslim and therefore will possess all the basic rights in terms of capacity. Whilst their capacity is not denied, a judge will not be required to accept their testimony as that is a separate matter pertaining to trust.
- 9To be a ruler is to have authority over others. Although not ideal, a person being a fasiq is not disqualified from being a ruler. A ruler can appoint judges. In principle, if one is qualified to appoint they must be qualified to act in that role also. Hence, a judge is qualified to be a judge so in effect they must be qualified to be a witness. One of the criteria of being a judge is that they must possess the capacity to be a witness.
- 10They can act as a guardian, marry and make other such decisions.
- 11As in they can witness events or act as a witness but the judge will not accept their testimony if called upon.
- 12The testimony of sons or daughters in favour of their parents is rejected by a judge. So marriage is valid if was witnessed by the sons of the bride or the groom. But if contested the judge will not accept their testimony.
- 13This is an answer to Imam Muhammad's evidence.
- 14The prospective husband and wife
- 15Their statement of offer and acceptance
- 16Hearing
- 17authorises
- 18Meaning there is one male witness along with the father and the representative.
- 19despite appointing a representative
- 20If the father is absent and there is only the representative along with one witness.
- 21The representative will step in as the guardian, so there will be only one witness to the marriage.