Shariah rulings about court marriages

  

·        Is a court marriage permissible as per Islam?

 

Along with the acquiescence of the guy and the girl, offer and acceptance in the presence of 2 adult and sane Muslims is also a condition for marriage.  If a court marriage is with the acceptance of the girl and the guy and is in the presence of witnesses, then it is valid.  If the dower has not been fixed then the customary dower of the girl’s family must be given.

 

·        What if the girl’s parents are not present in the court at the time of marriage?

 

The acquiescence of the girl and the guy is enough.  However, the acquiescence of the parents and/or guardians is a source of good and blessings.

 

·        Normally what happens is that the lawyer makes all the arrangements.  The girl and the guy simply go to the court and the Mullah solemnizes the marriage.  Sometimes, the witnesses are not even present at the time of marriage.  Simply their names are used.  What does the Shariah say about this?

 

For the witnesses, it is necessary that they actually hear the offer and acceptance.  Simply getting nominated and filling out forms does not fulfill the conditions of a marriage witness.  In such a situation, the marriage is not valid at all.  When conducting the marriages of Muslims, it is the moral and professional responsibility of the Qazi and the lawyer to make sure that these conditions are fulfilled.  If these conditions are fulfilled in a court marriage then the marriage is valid.  Otherwise, the guy and girl are still strangers for each other.  As mentioned in Fatawa A’alamgiri, Kitaab Un Nikaah, Al Baabul Awwal.

 

·        Sometimes the lawyer/s make the girl sign a paper saying that she is marrying out of her own free will.  What about this?

 

If the girl acquiesces to the match and is proceeding out of her own free will, it is permissible but it is usually seen that those marriages which occur without the acquiescence and blessings of the parents are not steady.  Out of their love for their wards, parents normally take those decisions which are best for the children.  Thus, marrying with the parents’ wishes is always the best option.

 

·        The girl and the guy establish physical relations with each other after this kind of marriage and sometimes even before it.  Does Islam permit it?

 

Before the marriage, the guy and the girl remain absolute strangers (i.e. non-Mahram) for each other.  Seeing and touching each other is nothing but sin.  Both the guy and the girl should repent this sin.  Even if the marriage is completed with all its conditions, the girl should practice Hijab against other men.  Revealing the private relations of the husband and wife before others is a very disgusting example of moral regression.  Islam has ordered the husband to provide a separate room for the wife.  Establishing physical relations in the presence of others is against the principles of modesty and a violation of the Shariah rules of Hijab.

 

·        Does the parent/guardian have any right to nullify this kind of marriage?

 

In marriage suitability is to be kept in mind.  If an adult girl marries out of suitability (Ghair Kufu) then the parents/guardian has the right to nullify the marriage.  If an adult girl marries within suitability, then the parents/guardian will have no right to nullify the marriage.  In suitability lineage, Islam, profession, residence, honesty and wealth are considered.  If an adult girl marries with suitability, then her marriage is valid as mentioned in the following Hadith:

 

Translation: It is narrated on the authority of Hadhrat ‘Abdullah bin ‘Abbas (May Allah be well pleased with them) that the Holy Prophet (Sallallahu alaihi wa sallam) said:  A woman who had been married has more right over herself than has her guardian and a maiden will be asked about her wish and her assent is her silence (out of modesty).

 

[Sahih Muslim, Hadith No. 3542; Sunan Abu Dawood, Hadith No. 2100; Sunan Nasaai, Hadith No. 321; Jame’ Tirmidhi, Hadith No. 1132; Muwatta Imam Malik, Hadith No. 1097]

 

This Hadith clearly shows that it is necessary to take the permission of the girl as well.  Her acquiescence is enough for marriage.

 

As far as those Hadith are concerned which say that the acquiescence of the guardian is necessary, they are only about those cases in which the girl marries out of suitability.

 

To recap, the girl can marry as per her own wishes, although it is better to involve the parents as well.  If she marries out of suitability (Kufu), the parent/guardian has the right to nullify that marriage.  If she has married within suitability, then they have no right to do so. 

 

In the marriage, if the witnesses were not actually present and didn’t hear the offer and acceptance, then the marriage is not valid at all.  Similarly if no offer and acceptance was made and simply forms were filled out, even then the marriage is not valid at all.

 

And Allah knows best.

 

Mufti Syed Ziauddin Naqshbandi

 

[Professor, Islamic Law, Jamia Nizamia,

Founder-Director Abul Hasanaat Islamic Research Center]