Impermissible relationships often fulfil the requirements of Nikkah?

[Adil Faiyaz]

Assalamu Alaikum Wa Rehmatullah.

The wave of having illicit relationships with the opposite gender is way too common nowadays. Most of the youth are not aware of the requisites to constitute a Nikah. However, I'd request any of the learned people here to please correct me where I'm wrong and answer the following questions.

According to Hanafi Madhab, the proposal by either (girl/boy) and acceptance from the other in the presence of two male witnesses, or one male and two female witnesses (considering them being adult, sane, muslims) is sufficient for the Nikah to take place. Also it is not necessary for the witnesses to know the intention of both the parties, as far as they have heard the words clearly enough to recall. And Nikah takes place, even if the parties are not intending for instance they are play-acting or joking.

Does the following scenarios constitute a Nikah? (in the presence of the required number of witnesses)

(i) A girl says: "I'm yours only." Boy replies, "Yes, you're mine only."
(ii) A boy says: "Are you mine only?". Girl replies, "Yes, I'm yours only."
(iii) A boy says: "Are you ready to be with me forever?. Girl replies, "Yes, I'm ready to be with you forever." or "I'm with you forever already."
(iv) A girl says: "I hand myself over to you." Boy replies, "I accept."
(v) A couple in a group of students performing a stage-play, they act in a scene that involves proposal and acceptance in front of a crowd of more than two people.

If yes, then will the actual marriage of the girl (considering the couple departed after a while) be considered adultery since she'd have been already in Nikah with the previous person even if they both are not aware of it?

Moreover, how should one react if one finds oneself in such a situation where one is married without intention of being married.

Jazak'Allah Khair.

[Ibn Al-Majnoon]

Could someone please answer this, because it really is a widespread and relevant issue at the moment. JazakumAllahu Khairan.

[Acacia]

This is interesting. I would be interested in answers here too.

In the meantime, perhaps youth need to be made aware of the significance of marriage and not joke about it. As for play-acting, 18 is the age of consent for the Hanafi madhab right? So, children (under age 18) might pretend-marry but until they attain the age of consent, I would assume it means that any contract they themselves jokingly or playfully make would not be valid?

As for 'marriage' during a theatrical performance... perhaps the actual ceremony can be written out of the play?

[تفويض]

السلام عليكم

Regarding the fifth, of play-acting, they would be considered to be married. I have listened to talks where scholars have said that there is no such thing as joking when it comes to nikah or talaq, so even if a husband jokingly gives talaq it's considered to be a proper talaq. Similarly, even acting and saying I have accepted you as my wife etc in play acting in front of witnesses is enough for them to now be married. These two areas due to their importance and severity are binding even if done playfully, to discredit people taking them lightly. As for the rest I'm not sure simply because of the wording.

When nikah is done the past tense is used and its always of the form I have accepted (as opposed to I accept). Whether that is a requirement of nikah or just a preferable method I'm not too sure. That's something scholars would have to clarify, it would be very interesting to know.

و عليكم السلام

[mffhere]

Assalamu Alaikum,

If an adult boy and an adult girl jokingly propose and accept one another in marriage in the past tense as is done in a real Nikah in the presence of two witnesses, the marriage will be valid according to the Hanafi Madhab. The consent of the girl?s father is not a prerequisite for the validity of the Nikah. That is according to other Madhaahib.

However, according to the Hanafi Madhab, if an adult girl gets married to a boy that is according to her family status (Kufu), then her family has the right to object to the Nikah. Rasulullah [sallallaahu alayhi wasallam] said, ?The joking of three things are a reality ? Nikah, Talaaq and Itaaq (freeing a slave).? The implication of a joking Nikah is the same as a real ikah. The boy will be regarded as a husband. He will have to maintain the girl as his wife. The girl cannot marry another person until the boy divorces her and she spends her iddah. The institution of Nikah is sacred and one must approach it with the respect it demands.

and Allah Ta'ala Knows Best

Mufti Ebrahim Desai

taken from: http://www.islam.tc/cgi-bin/askimam/ask.pl?q=14553&act=view

Also saying "I accept" is considered a valid answer refer Marriage in Islam by Maulana Ashraf Ali Thanwi ra -http://www.darululoom-deoband.com/en...ooks/nikah.htm)


A related thread http://www.sunniforum.com/forum/show...tionally/page2

Wassalamu Alaikum

[Acacia]

[Adil Faiyaz]

Jazak'Allah Khair Bhai.

Hence, it can be concluded that the Nikkah will take place in the last scenario. The others will require some scholar to look at it personally and answer them. However, since the girl is married in the last condition, will her actual marriage be considered adultery and consequently will their offspring be illegitimate? This might result in complete destruction of one's life.

Also, what is the time period for a girl to have her Nikah null and void considering her husband is absent without her consent?

[poster123]

Similarly, even acting and saying I have accepted you as my wife etc in play acting in front of witnesses is enough for them to now be married. These two areas due to their importance and severity are binding even if done playfully, to discredit people taking them lightly. As for the rest I'm not sure simply because of the wording.

[Zahed]

Please let me know a fact- is a marriage valid if guardians of boy/girl are absent there? Only 2 witnesses are sufficient?

[mffhere]

Please let me know a fact- is a marriage valid if guardians of boy/girl are absent there? Only 2 witnesses are sufficient?

Assalamu Alaikum

In Hanafi fiqh the presence of guardian is not a requisite for marriage and yes only 2 witnesses are sufficient (It has been answered in the reference provided in post # 5.)

Below is another fatwa of hanafi fiqh for the same

In the name of Allah, Most Gracious, Most Merciful

Assalaamu `alaykum waRahmatullahi Wabarakatoh

The rulings stated in our fatawa are based on the Hanafi mazhab, unless otherwise mentioned. Hereunder are the conditions for validity of nikah according to the Hanafii mazhab:

Offer and acceptance should take place.
It should be witnessed by two sane Muslims who have reached the age of maturity.

Fathul Qadeer Vol:3 Pgs: 102/3 & 110 (Maktabah Rasheediyah)

( النكاح ينعقد بالإيجاب والقبول بلفظين يعبر بهما عن الماضي ) لأن الصيغة وإن كانت للإخبار وضعا فقد جعلت للإنشاء شرعا دفعا للحاجة

قال ( ولا ينعقد نكاح المسلمين إلا بحضور شاهدين حرين عاقلين بالغين مسلمين رجلين أو رجل وامرأتين عدولا كانوا أو غير عدول أو محدودين في القذف ) اعلم أن الشهادة شرط في باب النكاح لقوله صلى الله عليه وسلم { لا نكاح إلا بشهود }

However, some of the other mazahib do state that nikah will not be valid without the presence of a Wali (guardian), and the nikah be conducted with the words of the wali.

The ruling regarding a secret marriage is as follows:

If the woman has married such a man who is not “equal” to her in Shariah, then the contract of nikah is not valid.
If the women got married to her equal and the other requirements of nikah mentioned above are found, the nikah will be valid.

Rad-ul-Muhtar Vol:3 Pg:56,57 (H.M. Sa’eed company)

و يفتى فى غير الكفاء بعدم جوازه اصلا و هو المختار للفتوى لفساد الزمان (رد المحتار) قال العلامة ابن عابدين (قولنا بعدم جوازه اصلا) هذه رواية الحسن عن ابى حنيفة و هذا اذا كان لها ولى و لم يرض به قبل العقد فلا يفيد الرضا بعده بحرو اما اذا لم يكن لها ولى فهو صحيح نافذ مطلقا كما ياتى.

However, it is not advisable to marry in secret.

Firstly, if the couple happens to cohabit and a child is born, the public would regard the child to be illegitimate and it would be very difficult to convince them that a nikah had taken place.

Secondly, this could be a cause for the displeasure of the parents, if they find out; whereas, Islam emphasises on pleasing the parents.

Overall, Islam does not encourage secret nikahs and Nabi (Sallallahu Alaihi Wasallam) had ordered the Sahaba (R.A) to announce their nikahs.

عن عائشة قالت قال رسول الله صلى الله عليه وسلم أعلنوا هذا النكاح واجعلوه في المساجد واضربوا عليه بالدفوف

Jaami’ Attirmizi Vol:1 Pg:207 (H.M. Sa’eed company)

Therefore, the best advice in the situation mentioned will be to convince the parents to at least have only the nikah at the moment, and to have the rukhsati (to live with the husband) and walima later.

And Allah knows best

Wassalam

Ml. M. Jawed Iqbal,
Student Darul Iftaa

Checked and Approved by:
Mufti Ebrahim Desai
Darul Iftaa, Madrassah In'aamiyyah

Wassalamu Alaikum