The Conditions of Valid Marriage Contract

25-7-2022 | IslamWeb

Question:

Hello. During nikkah, is the nikkah valid where the wali gave his permission by silence? (in cases of social anxiety or shyness or if he doesn't want to write)Thank you.

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Answer:

All perfect praise be to Allah, The Lord of the Worlds. I testify that there is none worthy of worship except Allah, and that Muhammad is His slave and Messenger.

The majority of the scholars are of the view that the presence and consent of the guardian is a condition for the validity of the marriage contract. But his consent only is not enough; it is a condition that he conducts the contract himself or that he appoints someone else in his place to utter the acceptance.

Ibn Qudaamah from the Hanbali school said: “If a woman conducts the marriage contract for herself or for others either with the permission of her guardian or without his permission, then the contract is not valid.”

Hence, the marriage contract is not effective with the silence of the guardian as a way of expressing his consent, and the writing is not sufficient as well for whoever is able to utter the acceptance, according to the view of the majority of the scholars.

The Indian Fataawa, which is one of the books of the Hanafi School of jurisprudence, reads: “The marriage contract is not concluded by writing from those who are present. If he (the bridegroom) wrote ‘I marry you’, and she (the bride) wrote ‘I accept”, then the marriage contract is not concluded [valid] in this way; as stated in an-Nahr al-Faa’iq.” [End of quote]

Shaykh ad-Dardeer from the Maaliki School of jurisprudence, said: “Signaling is not sufficient as well as writing except for the necessity of dumbness.”

Al-Haytami from the al-Shafi'i School of jurisprudence, said: “It (i.e. the marriage contract) does not take place with the writing either in absentia or being present, because it is a metaphor.”

Besides, Al-Mirdaawi from the Hanbali School of jurisprudence, said:

“I know that the correct view of the School is that the marriage contract is not concluded except by proposal and acceptance with these words only; the majority of the scholars of the School are of this view. Many of them authoritatively asserted this, among whom is the author of ar-Ri’ayatayn, the author of al-Haawi as-Sagheer, the author of al-Wajeez and others. This is the view favored in al-Furoo’ and other books. It was also said that it is valid and is also concluded in writing.”

Allah knows best.