Question # 242: The sister in question made nikah to a foreigner married man secretly with 2 of his friends as witnesses whom she never met or know. The man said he would give mehr, marriage consummated but still hasn’t given mehr but excuses been given when she mentions about mehr. He doesn’t want to make commitment (as in fulfilling full obligations )says he would be bound and that nikah is just technical, not real ,not declared and was done solely for her sake because she adamantly refused to succumb to zinna and he only for sexual pleasures. She is now not happy in this relationship and wants to ask for khul divorce. 1. Is her nikah valid? 2, does she have to do iddat? 3. How many days will her iddat have to be? 4. under the circumstances of nikah being secret and she living with brother, how will it be possible to do iddat cos nobody in her family knows? Please your urgent response would be appreciated as this situation and manner in which this man views the nikah is traumatising her and that she has been taken advange off. She a revert muslimah and is striving and trying to live her life in the best possible sunnah way to please Allah SWT Jazzakumu Allahu Khairun..

Bismi-llahi r-raḥmani r-raḥīm,

Assalamu ‘laikum warahmatullahi wabarakatuh,

All praise and thanks are due to Allah (سبحانه و تعالى), and peace and blessings be upon His Messenger (صلى الله عليه و سلم).

Dear questioner,

First of all, we implore Allah (سبحانه و تعالى) to help us serve His cause and render our work for His sake.

Shorter Answer: Marriage in Islam is a contract that has arkaan (pillars) and shuroot (conditions), which need to be fulfilled for its validity.  If the conditions required for the soundness of the marriage contract are not met, the contract is “defective” (faasid), according to Hanafi fiqh, “void” (baatil) according to the others. Among others, the four conditions applicable in this case are:

  1. Two just and acceptable witnesses: In order for a marriage to be valid, it is stipulated that it be witnessed by two Muslim witnesses of good character; however, we do not know if the witnesses were Muslims or not.
  2. Existence of dowry (mahr): It is Sunnah to stipulate the dowry in the marriage contract, but if it is not stipulated, the marriage is still valid and the wife should be given a dowry like that of other women (her peers). The delayed dowry is permissible but the amount has to be specified; however, we do not know if the amount was specified.
  3. Declaration: It is not allowed to make attempts to keep a marriage a secret and the announcement is obligatory (before consummation). According to Ibn Taymiyah, if there are witnesses but the marriage is not announced, then there is some doubt as to whether the marriage contract is valid. This is to distinguish the valid shar’i marriage from immorality, because zina is done secretly, whereas legitimate marriage is proclaimed openly.
  4. Presence of the guardian or representative (wali) of the woman: And most importantly, presence of guardian or representative (wali) of the woman; we do not if the wali was present or not. As for Hanafis, it is permissible to get married without a guardian; however, the two witnesses must be present.

In conclusion, the marriage contract that fails to meet the conditions for its soundness is completely void (baatil) according to the majority, whereas according to the Hanafi school, the contract is defective (faasid) and hence has some legal effect. Nevertheless, if the marriage was consummated, it is not considered Zina; rather, it is a doubtful marriage.

As for the separation/discontinuation of the marriage, the faasid marriage must be ended with the husband pronouncing divorce or wife asking for Khul’ or annulment issued by the Muslim ruler (judge). The woman is entitled to full Mahr; if it was not agreed, then the mahr of women similar to her. Her iddah is the same as a divorcee, i.e., three menstrual cycles, if she menstruates, or three months, if she is not pregnant. If she is pregnant, the ‘iddah will continue until child birth.

In the end, we like to inform that the matter is one of Qada` (adjudication) and only a mufti can give his opinion on the validity or invalidity of marriage. We advise you to get in touch with one of the people of knowledge near you to explain the issue to him in detail. Our answer is for your information and not a judgment. 

Long Answer: Before attempting to answer this particular question of yours, I would like to reiterate that we, as students of knowledge, do not claim to be scholars (or qualified to issue fataawa). All the answers to the questions on this page are provided based on the authentic sources – the Qur’an and the Sunnah and the opinions of the scholars of Ahl us-Sunnah wal-Jama’ah. Consequently, we will endeavor to answer your question in light of the opinion of scholars while seeking the help of Allah (سبحانه و تعالى) in this regard.

Marriage in Islam is a contract. Thus, as in any contract in Islam, there are the following elements:

  • Rukn (plural: arkaan) can be translated as “pillar” and is an essential part of the legal reality of something. Without it, that legal reality does not exist.
  • Shart (plural: shuroot) can be translated as “prerequisite” or “condition” is a requirement for the legal reality/validity of something but (a) is external to it and/or (b) does not completely void the legal reality if not found.

All the scholars agree that “offer and acceptance” (Al-Ijaab wa al-qubool) is among the arkaan of a marriage. According to the Hanafis, offer and acceptance are the only arkaan of the marriage contract, while according to the Jamhoor (Majority of Scholars), along with offer and acceptance, the two parties to the contract: the prospective husband and the guardian of the woman also counts as arkaan. Some others count the following among the arkaan, although the majority of these scholars count them among the shuroot: The presence of witnesses and Dowry (Mahr).

Consequently, based on the fulfillment of arkaan and shuroot, the marriage contract can be segregated in the following categories:

  • Sahih (Sound): A contract which fulfills all of the arkaan and the shuroot and has full effect in the law.
  • Baatil (Void): A contract that has failed to fulfill specific arkaan or vital shuroot. A contract which is baatil is the opposite of one which is sahih and has no legal effect at all. If a marriage contract is found to be void, even if it is only discovered after consummation, the legal condition will be as if it never happened at all. The lineage of the father will not be established and there is no waiting period (‘iddah) upon the woman. An example of this would be if a man married a woman who was married to someone else at the time.
  • Faasid (Defective): This is a contract which fails to fulfill some of the shuroot, but not the arkaan. For non-Hanafis, faasid and baatil have the same meaning. In Hanafi fiqh, a marriage which was faasid has some legal ramifications, especially if it was consummated.

With respect to marriage, there are four different kinds of Shuroot (conditions) which must be met:

  1. Conditions Required for Initiating the Contract (shuroot al-in’iqaad): These are the conditions that must be present with respect to the arkaan or fundamentals of the marriage contract.
  2. Conditions Required for the Soundness of the Contract (shuroot as-sihha). These are conditions which must be fulfilled in order for the marriage to have its proper legal effect. If these conditions are not met, the contract is “defective” (faasid), according to Hanafi fiqh, “void” (baatil) according to the others.
  3. Conditions Required for the Execution of the Contract (shuroot an-nifaadh): These are conditions which must be met for the marriage to have actual practical effect. If these conditions are not met, then the marriage is “suspended” (mauqoof) according to Hanafi and Maliki fiqh. For example, a minor girl until she reaches puberty.
  4. Conditions Required for Making the Marriage Binding (shuroot al-luzoom): If these conditions are not met, then the marriage is non-binding meaning that either of the two parties or others may have the right to annul the marriage. If they accept the marriage with such shortcomings, it becomes binding.

As for case under consideration, out of the ten conditions required for the soundness of the contract (shuroot as-sihha), the following four are pertinent to note:

  1. Two just and acceptable witnesses: In order for a marriage to be valid, it is stipulated that it be witnessed by two Muslim witnesses of good character, because the Prophet (صلى الله عليه و سلم) said: “There is no marriage except with a wali (guardian) and two witnesses of good character.” (Narrated by al-Bayhaqi from the hadith of ‘Imraan and ‘Aa’ishah; classed as sahih by al-Albani in Saheeh al-Jaami’) With regard to the witness, it is stipulated that he be male, an adult and of sound mind. The testimony of a child, woman or insane person is not valid. The Hanafis differed from that and allowed the testimony of a man and two women.

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. (al-Ikhtiyaaraat al-Fiqhiyyah)

  1. Existence of dowry (mahr): The dowry (Mahr) is an obligatory part of the marriage contract, as stipulated by Allah (سبحانه و تعالى) in the Qur’an: “All others are lawful, provided you seek (them in marriage) with Mahr (bridal-money given by the husband to his wife at the time of marriage) from your property, desiring chastity, not committing illegal sexual intercourse, so with those of whom you have enjoyed sexual relations, give them their Mahr as prescribed” (Soorah an-Nisa’a, 4:24)

It is Sunnah to stipulate the dowry in the marriage contract, but if it is not stipulated, the marriage is still valid and the wife should be given a dowry like that of other women like her, who share the same characteristics according to which the rates of dowries may differ.  In other words, she is entitled to a dowry like that of her peers in her country/society.

Secondly, the dowry should be known; if they agree to an unspecified dowry, that is not valid, and the wife should be given a dowry like that of her peers. Ibn Qudaamah (may Allah have mercy on him) said: No dowry is valid unless it is specified. This is the view of al-Shafi’I (al-Mughni)

Shaykh Muhammad ibn ‘Uthaymeen (may Allah have mercy on him) said: The delayed dowry is permissible and there is nothing wrong with it. If a man stipulates that the dowry or part of it is to be delayed, there is nothing wrong with that. But it is permissible if he stipulates a specific time period, and it becomes due at that time. If the time is not specified, then it becomes due in the event of divorce, annulment or death; so, it is a debt owed by the husband which may be demanded from him after that time period ends whilst he is still alive, or after death, as in the case of all debts. (Majmoo‘ Fataawa wa Rasaa’il Ibn ‘Uthaymeen)

  1. Declaration: It is not allowed to make attempts to keep a marriage a secret. This is a condition laid down by the Malikis. The others dislike such a marriage but they say the marriage is still valid. The majority of the scholars say that the public announcement of the wedding is mustahabb (preferred, but less than obligatory), but authentic hadith prove that it is obligatory. Az-Zuhri says that the announcement is obligatory and states that if two people get married secretly with two witnesses and ask them to keep it secret, they should be separated immediately and the woman must wait an ‘iddah (waiting period) and receive her Mahr.

The relevant ahadith of Prophet (صلى الله عليه و سلم) in this regard are the following:

  • “Make the marriage well-known and open.” (Recorded by al-Tabarani. According to al-Albani, it is sound (hasan))
  • “Make the marriage well-known and announce it.” (Recorded by al-Tabarani. According to al-Albani, it is sound (hasan))
  • “Announce the wedding.” (Recorded by Ahmad, al-Tabarani, al-Haakim and others. According to al-Albani, it is sound (hasan))

Shaykh al-Islam Ibn Taymiyah (may Allah have mercy on him) said: If there are witnesses but the marriage is not announced, then there is some doubt as to whether the marriage contract is valid, because the Prophet (صلى الله عليه و سلم) enjoined that marriages be announced, and said: “Proclaim the wedding.” And because there is the fear that secret marriage will lead to negative consequences, even if it is witnessed, because a man may commit zina – Allah forbid – with a woman then say: ‘I married her,’ then he summons two false witnesses and they give their (false) testimony.  (al-Sharh al-Mumti‘) This proves that announcing the marriage is stronger than only having the marriage contract witnessed.

This is so as to distinguish the valid shar’i marriage that is enjoined by Islam from immorality, because zina is done secretly, whereas legitimate marriage is that which is proclaimed openly, so as to distinguish the one from the other. This is the wisdom behind announcing marriages. (Dr. Khaalid ibn ‘Ali al-Mushayqih) Also, according to the scholars, the announcement must come before consummation of the marriage.

  1. Presence of the guardian or representative (wali) of the woman: The wali is a Muslim man charged with marrying the one under his charge to a man who will be good for her. There is no disagreement that the first wali is her natural father if he is Muslim and that the last in line is the ruler. The wali is an absolute requirement for a marriage, and any marriage done without him is null and void according to the following ahadith and according to the majority of fuqaha’, the Malikis, Shafi‘is and Hanbalis:
  • “No marriage except with a guardian and the ruler is the guardian of she who has no guardian.” (Recorded by Ahmad, Abu Dawood, al-Nasa’i, at-Tirmidhi, ibn Majah and Al-Haakim. According to al-Albani, it is sahih)
  • “If any woman marries without the permission of her guardian, then her marriage is void, then her marriage is void, then her marriage is void. If he consummated, she is entitled to the mahr that would have made her private parts lawful to him” (Recorded by Ahmad, Abu Dawood, at-Tirmidhi, ibn Majah and Al-Haakim. According to al-Albani, it is sahih)

If there is no guardian present or he is not qualified to be the woman’s guardian (because of being a non-Muslim), then guardianship with regard to her marriage passes to the ruler or the one who acts on his behalf. If there is no Muslim ruler either, the director of the Islamic Centre, the imam of the mosque or one of the scholars may act as her guardian in marriage. If none of these are available, then a Muslim of good character may act as her guardian in marriage with her permission.

However, as for the Hanafis, they regard it is permissible to get married without a guardian, but they stipulate that two witnesses must be present, who can hear the marriage contract from both parties. If two witnesses are not present, then the marriage is not valid according to them. 

In view of the conditions mentioned above and from the perusal of the question, the following things are worth noting:

  1. In order for a marriage to be valid, it is stipulated that it be witnessed by two Muslim witnesses of good character; however, we do not know if the witnesses were Muslims or not.
  2. The delayed dowry is permissible but the amount has to be specified; however, we do not know if the amount was specified.
  3. It is not allowed to make attempts to keep a marriage a secret and the announcement is obligatory. According to Ibn Taymiyah, if there are witnesses but the marriage is not announced, then there is some doubt as to whether the marriage contract is valid.
  4. And most importantly, presence of guardian or representative (wali) of the woman; we do not if the wali was present or not. As for Hanafis, it is permissible to get married without a guardian; however, the two witnesses must be present.

In conclusion, the marriage contract that fails to meet the conditions for its soundness is completely void (baatil) according to the majority, whereas according to the Hanafi school, the contract is defective (faasid) and hence has some legal effect. Nevertheless, if the marriage was consummated, it is not considered Zina (fornication or adultery); rather, it is a doubtful marriage (i.e. they married each other while believing that the marriage is valid). Any children from this marriage are to be traced back to their father.

Separation/Discontinuation of Marriage 

Ibn Qudaamah stated in Al-Mughni that “separation in a Faasid marriage necessitates divorce or annulling the marriage.” Hence, the faasid marriage must be ended with the husband pronouncing divorce or annulment issued by the Muslim ruler (judge). Accordingly, it is necessary that the young man divorces that woman; as there is nothing wrong with her trying to convince him to give her Khul’. If he refuses to divorce or accept Khul’, then she may refer the case to the Islamic judge or whoever is acting on his behalf such as the Islamic centers in the western countries to annul the marriage.

With respect to Mahr, the above-mentioned hadith is applicable, where Prophet (صلى الله عليه و سلم) said: “If any woman marries without the permission of her guardian, then her marriage is void, then her marriage is void, then her marriage is void. If he consummated, she is entitled to the mahr that would have made her private parts lawful to him”. However, there is some difference of opinion over what mahr she should receive. Some say it is the mahr that they agreed upon while others say that it is the mahr of women similar to her and cannot be what they agreed upon.

With respect to Iddah, Ibn Qudamah said: “A woman who has been doubtfully cohabited (as a wife) has to have Iddah as a divorcee. The same thing is applicable to the woman whose marriage is invalid. This was the opinion of Ash-Shafi’i, for the point of doubt relating to engaging the womb and issues related to lineage are similar to the legal and valid marriage. So, the procedures followed in relation to attaining certainty (by having Iddah) are the same.” (al-Mughni) Hence, the ‘iddah is three menstrual cycles, if she menstruates, or three months, if she is not pregnant. If she is pregnant, the ‘iddah will continue until child birth.

The matter is one of Qada` (adjudication) and only a mufti can give his opinion on the validity or invalidity of marriage. We advise you to get in touch with one of the people of knowledge near you to explain the issue to him in detail. Our answer is for your information and not a judgment.

(Most part of the above reply is based on various answers by Shaykh Muhammad Saalih al-Munajjid and from the book ‘The Fiqh of Family, Marriage and Divorce’ by Jamaal al-Din M. Zarabozo)

Allahu A’lam (Allah (سبحانه و تعالى) knows best) and all Perfections belong to Allah, and all mistakes belong to me alone. May Allah (سبحانه و تعالى) forgive me, Ameen.

Wassalaam