Marriage contract done by phone with no witnesses; husband said that he could get it witnessed after consummation

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.

Is it permissible for a woman to stipulate that her husband should not offer naafil prayers and so on, and is he obliged to fulfil that stipulation?

If the wife stipulates that her husband should not take a second wife, this is a valid condition that must be fulfilled, and if he does take a second wife, she has the right to annul the marriage, because of the report narrated by al-Bukhaari (2721) and Muslim (1418) according to which the Messenger of Allah (blessings and peace of Allah be upon him) said: “The conditions that are most deserving to be fulfilled are those by means of which intimacy becomes permissible for you.” 

This has been discussed previously in fatwa no. 143120.

But if the wife stipulates that her husband should not offer naafil prayers, this is an invalid condition and he is not obliged to fulfil it. It is invalid because it is contrary to the Book of Allah, may He be exalted, and in opposition to it, and whatever is like that is invalid, because the Prophet (blessings and peace of Allah be upon him) said: “What is the matter with people who stipulate conditions that are not in accordance with the Book of Allah? Whoever stipulates a condition that is not in accordance with the Book of Allah, it is invalid, even if he stipulates a hundred conditions. The Book of Allah is more valid and the conditions stipulated by Allah are more deserving of being adhered to.”

It is contrary to the Book of Allah, may He be exalted, because Allah, may He be glorified, has enjoined the doing of good, and offering a lot of naafil prayers. Allah, may He be exalted, says (interpretation of the meaning):

“O you who have believed! Bow down, and prostrate yourselves, and worship your Lord and do good that you may be successful”

[al-Hajj 22:77].

Allah, may He be exalted, praised the pious for offering a lot of prayers at night (qiyaam al-layl) and sleeping only a little, as He, may He be exalted, says (interpretation of the meaning):

“Verily, the Muttaqûn (pious) will be in the midst of Gardens and Springs (in the Paradise),

Taking joy in the things which their Lord has given them. Verily, they were before this Muhsinûn (good-doers)

They used to sleep but little by night [invoking their Lord (Allâh) and praying, with fear and hope].

And in the hours before dawn, they were (found) asking (Allâh) for forgiveness”

[adh-Dhaariyaat 51:15-18]

“And the (faithful) slaves of the Most Gracious (Allâh) are those who walk on the earth in humility and sedateness, and when the foolish address them (with bad words) they reply back with mild words of gentleness.

And those who spend the night in worship of their Lord, prostrate and standing”

[al-Furqaan 25:63-64].

And Allah praised a group among the People of the Book, as He said (interpretation of the meaning):

“Not all of them are alike; a party of the people of the Scripture stand for the right, they recite the Verses of Allâh during the hours of the night, prostrating themselves in prayer”

[Aal ‘Imraan 3:113].

With regard to the differentiation between the two, it is that the woman has a valid reason to stipulate that her husband not take a second wife, because women are jealous by nature, especially towards co-wives. This is something inherent in women, and no one is free of it, even the wives of the Prophet (blessings and peace of Allah be upon him, and may Allah be pleased with them). It was narrated that ‘Aa’ishah (may Allah be pleased with her) said: I never felt jealous of any wife of the Prophet (blessings and peace of Allah be upon him) as I felt jealous of Khadeejah, although she had died before he married me, because of what I used to hear of him mentioning her. Narrated by al-Bukhaari (3815).

Al-Bukhaari (5225) narrated that Anas said: The Prophet (blessings and peace of Allah be upon him) was with one of his wives, and one of the Mothers of the Believers sent a platter on which there was some food. The one in whose house the Prophet (blessings and peace of Allah be upon him) was struck the servant’s hand, and the platter fell and broke. The Prophet (blessings and peace of Allah be upon him) picked up the broken pieces of the platter, then he collected in the food that had been on the platter, saying: “Your mother was jealous.” Then he kept the servant waiting until he brought a platter from the one in whose house he was, and he gave the intact platter to the one whose platter had been broken, and kept the broken platter in the house of the one who had broken it.

Moreover, a woman is also affected if she has a co-wife, apart from the matter of jealousy, because instead of having her husband with her every night, there will be a need to divide his time between her and her co-wife or co-wives, so her share of him will be less, and she will have to share with others her maintenance and the maintenance of her household. All of that will obviously lead to a reduction in her share of her husband and his wealth. But with regard to acts of worship, such as naafil prayers and others, there is no valid reason to stipulate that her husband refrain from doing them, in addition to the fact that such a condition is contrary to the objectives of the Lawgiver.

This is the difference between the two conditions: the first one has an obvious benefit, so it is permissible for her to stipulate it, whereas in the case of the second one, there is no benefit for her in it, so it is not permissible for her to stipulate it.

With regard to the opinions of Shaykh Ibn Baaz and Shaykh al-Albaani, we have not come across any comment from either of them concerning this issue.

And Allah knows best.

Status of the maternal aunt and her rights in Islam

The maternal aunt has a high status in Islam, which is similar to that of the mother, as Abu Dawood (2278) narrated from ‘Ali (may Allah be pleased with him, from the Messenger of Allah (blessings and peace of Allah be upon him), that he said: “The maternal aunt is of the same status as the mother.” Classed as saheeh by al-Albaani in Saheeh Abi Dawood.

And it was said that what is meant is that she is of the same status as the mother with regard to being entitled to custody, because the hadith was narrated concerning that.

Fath al-Baari (7 /506)

And it was said that her status is equivalent to that of the mother with regard to custody and other matters.

Adh-Dhahabi said in al-Kabaa’ir: That is, with regard to showing kindness, honouring, and upholding ties of kinship with her.

See also: Sharh Buloogh al-Maraam by Shaykh Ibn ‘Uthaymeen (5/203)

The second meaning is supported by the report narrated by at-Tirmidhi (1904) from Ibn ‘Umar, according to which a man came to the Prophet (blessings and peace of Allah be upon him) and said: O Messenger of Allah, I have committed a grave sin; can I repent? He said: “Do you have a mother?” He said: No. He said: “Do you have a maternal aunt?” He said: Yes. He said: “Then treat her kindly.”

Classed as saheeh by al-Albaani in Saheeh at-Targheeb (2504)

This indicates that honouring one’s maternal aunt and treating her kindly come under the heading of virtuous deeds and acts that expiate sins.

Abu Dawood (4970) narrated from ‘Aa’ishah (may Allah be pleased with her) that she said: O Messenger of Allah, all my friends have a kunyah. He said: “Call yourself by the name of your son ‘Abdullah” – meaning the son of her sister. Musaddad said: ‘Abdullah ibn al-Zubayr. He said: So she was known by the kunyah of Umm ‘Abdullah. He was ‘Abdullah ibn az-Zubayr, the son of her sister Asma’ (may Allah be pleased with them all).

This hadith confirms what is mentioned above, that the maternal aunt is of the same status as the mother.

So the Muslim should treat his maternal aunt in a kind manner, just as he treats his mother.

See the answer to question no. 148430

Secondly:

A person’s maternal aunt – or his paternal aunt – is a maternal aunt to him and to all of his descendants, or a paternal aunt to him and all of his descendants. So your father’s paternal aunt is a paternal aunt to you, and your father’s maternal aunt is a maternal aunt to you; the same applies to your mother’s paternal aunt and maternal aunt.

See the answer to question no. 34791

Thirdly:

A man’s maternal aunt is one of his mahrams, so it is permissible for him to shake hands with her, be alone with her and travel with her, and it is permissible for her to uncover her face in front of him, as a mother does in front of her sons.

It is permissible for a Muslim woman to uncover in front of her mahrams and women like her that which usually the case with people of religious commitment and good conduct, such as the face, head, neck, forearms and part of the shin.

It is not permissible for her to wear short or see-through clothes in front of them, or tight clothes that show the shape of the ‘awrah.

See the answers to questions no. 82994 and 43480

And Allah knows best.