Question # 600: Salam aleikoum, I have a question about the nikkah, wali and witnesses. There is a hadith that says they can’t be a fasiq. I want to marry but my familie all shave the beard, the wives dad also. This is a major sin and openly, and they were clothes below the ankle what is a also a openly major sin. Does this mean i have to search other people? Wa aleikoum salam

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: The hadith requiring a wali and witnesses of good character does not mean that every relative who shaves his beard or wears his garment below the ankle must be passed over. Across the four madhahib, the uprightness expected of a wali or witness is generally assessed by outward conduct and general reputation rather than by probing for every fault, and the scholars have noted that practices which have become common, including shaving the beard and isbaal, are not by themselves treated as disqualifying in this context. Shaving the beard is considered impermissible in the position followed by most of the four schools. Isbaal done without any intention of pride is, according to the majority of the four madhahib, not even sinful, let alone a major sin; it becomes unambiguously haraam, and a kabira, only when pride is present. On this basis, the questioner would not ordinarily need to search for a wali or witnesses outside his family. That said, since the wali is the more consequential of the two roles, especially regarding the bride’s father, it is still wise to describe the specific situation to a local, knowledgeable scholar before the contract, and gently encouraging relatives toward the Sunnah remains commendable in any case.

Long Answer: The hadith the questioner has in mind is widely attested in the wording: “There is no marriage except with a guardian and two witnesses of good character” (Narrated by al-Bayhaqi from the hadith of ‘Imran and ‘A’ishah, and classed sahih by al-Albani in Saheeh al-Jaami’). Because the wording ties the marriage to witnesses of good character (‘udul), it is a fair and common question whether someone known to fall into a particular sin can serve in that role, or as wali.

Before turning to the specific acts the questioner mentions, two terms are worth defining. ‘adalah refers to a person’s general uprightness: someone is considered ‘adl when he is not known to persist openly in major sin or to be dominated by minor sins. Fisq, its opposite, is the condition of the fasiq. Therefore, a fasiq is someone who sins continuously, while making clear this does not remove him from the fold of Islam or from being treated as a fellow Muslim. Beyond that specific description, it remains general fiqh background, rather than one traceable classical citation, that fisq in the sense relevant to disqualification concerns a person’s overall pattern of open, unrepented major sin, not a single prohibited act, however common that act may be.

With that in view, the wali and the witnesses are actually governed by separate discussions in fiqh, so each is worth taking in turn before returning to the beard and isbaal.

Scholars are not unanimous that ‘adalah is even a strict condition for a witness’s testimony to be valid, as opposed to simply being the better and more excellent way to conduct the contract:

  • In the Hanafi school, the position relied upon is that ‘adalah is not a condition for validity. What is required of a witness is that he be Muslim, sane, and of legal age; someone known to be openly sinful may still validly witness the contract, because the purpose of witnessing a marriage, unlike testimony in a court dispute, is chiefly to publicize it and distinguish it from something illicit, rather than to certify the witness’s own standing. This reasoning is elaborated in the Hanafi reference work Bada’i al-Sana’i by Imam al-Kasani.
  • The Maliki school treats having the contract witnessed at the time of the offer and acceptance as mustahabb (recommended) rather than strictly required, since witnessing may be delayed until nearer the consummation, and the underlying purpose can also be met once the marriage becomes known. Where witnesses are used, Malikis prefer them to be of good character; Imam ad-Dardeer states that: “It is recommended to have two men of good character witness the marriage contract. One who is not proven to be of good character, either because his character is unknown or because he is an evildoer, is not valid (as a witness) … As for having witnesses before consummation of the marriage, that is obligatory and is stipulated (ash-Sharh al-Kabeer ma’a Hashiyat ad-Dasouqi)
  • The Shafi’i and Hanbali schools are generally the strictest in stating that witnesses of good character are a condition of validity. Even so, in the position followed within the Shafi’i school, this standard is met by outward appearance and general reputation among people. Scholars in this school do not require investigating a witness’s private conduct, and if it later becomes known that a witness lacked uprightness, the marriage already concluded is not undone by that discovery. The Hanbali reference work Sharh Muntaha’l-Iradaat states that: “The marriage contract cannot be done except with the witness of two males who are adults, of sound mind, able to speak and hear, Muslims… and of good character, even if it is only outwardly.”

As for a wali, two different conditions are discussed, and it matters which one is in view.

The first, agreed upon by the schools, is that the wali must himself be Muslim; someone who is not Muslim has no wilayah over a Muslim woman under any circumstances, by scholarly consensus. If a person does not pray because he denies that it is obligatory, then he is a disbeliever according to scholarly consensus. If he does not pray because he is lazy and heedless, then the scholars differed as to whether he is a disbeliever or not, but the correct view as indicated by the texts of the Qur’an and Sunnah and the views of the Sahabah is that he is a disbeliever. And on that specific basis, unfit to act as wali. That ruling turns on prayer being abandoned completely, which is a different situation from having a fault such as an unshaven beard or a lowered garment, so it does not transfer directly to the case here.

The second, narrower condition, mentioned by some jurists though not treated as agreed upon by all of them, is that the wali has good character (‘adalah) rather than being openly corrupt. Among those who do apply this condition, several state that the outward appearance of good character is sufficient, or that what actually matters is whether the wali can be trusted to look after the woman’s interests in the marriage.

Next, letting the beard grow is described in hadith as part of the natural disposition (fitrah). In the wording usually given, the Prophet (صلى الله عليه و سلم) instructed: “Trim the mustaches and let the beards grow”, so that Muslims would be distinct from those who shaved theirs. Most of the four schools hold that shaving is not permitted. Furthermore, all four Imams, Imam Abu Hanifah, Imam Malik, Imam ash-Shafi’i, and Imam Ahmad ibn Hanbal, agree that the shaving of the beard is impermissible (Wujub Ifa’ al-Lihyah). Even where shaving is held to be haraam, scholars differ on whether it reaches the level of a kabira, a major sin, as opposed to a lesser prohibition. Some contemporary scholars, such as Shaykh Assim al Hakeem, describe it as haraam without classing it among the major sins. This distinction matters for the question asked, because fisq in the sense that disqualifies a wali or witness concerns a pattern of open, unrepented major sin, not an individual prohibited act on which scholars themselves differ, both as to its ruling and its severity.

As for Isbaal, letting a garment fall below the ankle, is addressed in several hadith, and the scholars draw a clear line between two situations. Where isbaal is done with khuyala’, meaning pride, arrogance, or showing off, it is haraAm without any difference of scholarly opinion, and it is a major sin, on the strength of the hadith in which the Prophet (صلى الله عليه و سلم) said: “Whoever trails his garment out of pride, Allah will not look at him” on the Day of Resurrection. Where isbaal is not done with that intention, for instance out of habit or ordinary local dress, the scholars hold three different positions: that it is haraam, that it is makrooh, or that it is simply permissible:

  • In the Hanafi school, it is reported that Imam Abu Hanifah himself wore an expensive outer garment that dragged along the ground, and when someone asked whether this was forbidden, he replied that the prohibition concerned those who do it out of pride, which did not describe him (Ibn Muflih, al-Adab ash-Shar’iyyah, also mentioned in al-Fatawa al-Hindiyyah).
  • In the Maliki school, scholars differed among themselves: Ibn al-‘Arabi, in ‘Aridat al-Ahwadhi, and al-Qarafi held it haraam, while Ibn ‘Abd al-Barr, in at-Tamheed, and the position attributed to al-Hattab in Hashiyat al-‘Adawi held it merely makrooh, which the author of that gloss considered the most likely correct view.
  • In the Shafi’i school, Imam ash-Shafi’i himself, as related by an-Nawawi in both al-Majmu’ and his commentary on Sahih Muslim, held that isbaal outside of pride or showing off is not haraam, only makrooh, though some later Shafi’i authorities, including adh-Dhahabi in Siyar A’lam an-Nubala’ and Ibn Hajar, took the stricter view that it is haraam regardless of intention.
  • In the Hanbali school, al-Iqna’ and Ibn Qudamah in al-Mughni describe isbaal without pride as makrooh, and Ibn Taymiyah likewise favored the view that it is not haraam (Ibn Muflih in al-Adab ash-Shar’iyyah; Ibn Taymiyah in Sharh al-‘Umdah).

Also Refer to Question # 422: Ruling on Wearing Clothes below Ankle (Isbaal) for details.

It is worth noting, for a complete picture, that several respected contemporary scholars, including Shaykh Ibn Baz, Shaykh Ibn ‘Uthaymeen, and the scholars of the Standing Committee for Issuing Fatwas, favored the stricter view that isbaal is haraam even without pride, reading the hadith that omit the condition of pride as unrestricted. Someone who wishes to follow this more cautious view for himself is entitled to do so, but questioners should know that, on the classical record above, it remains a minority position among the four schools regarding isbaal done without pride, rather than a settled or unanimous one.

This precise question, whether shaving the beard and isbaal disqualify someone from serving as a marriage witness: The majority of Muslim scholars view that having witnesses to the marriage contract is one of the conditions of its validity. However, they held different opinions regarding stipulating that the witnesses should be ‘Adl (trustworthy and righteous). Anyway, if this is something stipulated, it is not stipulated to investigate deeply its reality; however, it is sufficient that the witness’s Fisq is not known. Also, some scholars view that the one who does something prohibited as the result of misjudgment is not regarded as Fasiq. Moreover, the matters that have become widespread in some countries, such as Isbaal and shaving the beard, should not be regarded as a defect in someone’s trustworthiness and righteousness.

None of this erases the underlying ruling on the beard, or on isbaal done with pride; both remain matters a believer should sincerely work on. It does mean, however, that a family in which these practices are common does not, on that basis alone, fall outside the standard the fuqaha actually apply when deciding who may witness a marriage, and, by the same reasoning applied to the milder of the two conditions discussed above for a wali, who may serve in that role either.

Bringing the above together, the questioner would not ordinarily need to search a wali or witnesses outside his own family and his prospective wife’s family simply because relatives shave their beards or let their garments fall below the ankle. This holds with even more ease for witnesses, given how many scholars either do not require ‘adalah of them at all or accept outward reputation as sufficient, and it extends to the wali as well, since the one condition on which the schools agree, that he be Muslim, is not in question here, while the further condition of good character, where it is applied, is understood the same lenient way.

A few points are worth keeping in mind. Because the wali‘s role, particularly the role of the bride’s father, is the more consequential of the two, and because local communities and the madhhab followed can differ on which of the positions above they weigh most heavily, it is wise to describe the specific situation to a local, trustworthy scholar before the contract is finalized, so that the marriage leaves no one, including the couple themselves, with lingering doubt. None of the above is a reason to stop encouraging family members, with good manners and without nagging, toward growing the beard and raising the garment, since both remain matters of the Sunnah that the questioner is right to care about, quite apart from their bearing on this particular contract. Finally, if the questioner’s own conscience, or the position he follows, inclines him toward the stricter view on isbaal without pride, he is not obligated to set that caution aside for himself, even while recognizing that it is not the only, or the majority, classical position among the four schools.

(The above reply is based on the following resources:

  • islamqa.info
  • islamonline.net
  • islamweb.net
  • Assimalhakeem.net
  • Fiqh of Love: Marriage in Islam (notes) by Shaykh Waleed Basyouni (AlMaghrib Institute course))

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