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:

1. Offer and acceptance should take place.
2. 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  

Question: Assalamalykum, I need to know if it is permissible in islam to perform nikah secretly. The circumstance is that neither of our parents are going to agree at this point because according to them we are too young to get married (23 and 18 years old). The reason we want to do nikah is to protect ourselves from haram acts. Can we perform nikah (just the two of us) if we can then please explain how it should be performed. I know there have to be witnesses and nikah has to be announced but is there a way around it. If we can't then please explain in detail what we should do to control our nafs (temptations) because it is really hard for us to not see each other.

Answer: In the name of Allah, Most Gracious, Most Merciful

Assalaamu `alaykum waRahmatullahi Wabarakatoh

There are two aspects to your query

* Parents permission
* Secret Nikah

At the outset, you should understand that marriage is a major step in ones life. If this step is taken in the proper manner, one will enjoy everlasting success and bliss in the future. However, if the step is taken carelessly or in negligence, one will suffer the consequences of this forever. One great contributing factor towards the success of ones marriage is, taking the blessings of the parents and seniors.

It is therefore important that you consult with your parents before embarking on any decision. Their guidance and advice will be based on the vast experience they have of life. They understand your urge and also understand your future and certainly they will not advise you something that would be against your interest. It is important that you explain your parents the urge you have to marry. It is possible they do not see the urgency for you to marry and therefore not willing for you to marry now. You may also inform them about your fear of becoming involved in Zina and the implications that would have upon you in this world as well in the Hereafter.

If then too, your parents do not agree and you still fear becoming a victim of Zina, you may make Nikah with the girl. However, the Nikah must be performed in the presence of two muslim male witnesses.

And Allah knows best

Wassalam

Mufti Mohammad Zakariyyah Desai,

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

KAFA'AH (SUITABILITY AND COMPATIBILITY) IN NIKAH

A healthy marital life coupled with a good relationship make up the prime objects of Nikah. That is only possible when natural inclinations and backgrounds are shared (by both spouses). In the absence of such unity, living together successfully, despite great effort is indeed difficult, as attested to by many marital breakdowns due to non-compatibility.

Certain actions and situations elicit different responses from persons of differing backgrounds and nature. For this reason, the Shari’ah has considered Kafaa’at (suitability and compatibility) between spouses necessary.

Kafaa’at in Lineage

Due to the above, the Fuqahaa (Jurists) have stated that among Arabs, a non-Quraishi male is not a match (Kuf) for a Quraishi woman, nor can any person of non-Arab descent be a match for a woman of Arab descent.

For example, the Sayyids, whether Siddique or Farooque, Uthmaani or Alawi, or belonging to some other branch can never be matched by any person not sharing their lineage, no matter his profession and family status. These families (Sayyids, etc.) are suitable matches for one another, since they share descent from the Quraishi tribe. Thus, marriages between themselves are correct and permitted without any condition as appearing in Darrul Mukhtaar:

‘… And Kafaa’at in lineage. Thus the Quraysh are suitable matches for one another as are the (other) Arabs suitable matches for one another.’

The ruling relevant to non-Arabs is as follows: ‘An Ajmi (non-Arab) cannot be a match for a woman of Arab descent, no matter that he be an Aalim (religious scholar) or even a Sultan (ruling authority). This is the correct view.)

Kafaat in Profession

Among Arabs, Kaf’aat with regards to professions is not considered since such does not usually form a basis for respectability in their society. Rather, all professions are regarded equal. A person of a certain profession does not usually regard another as of lower in status. This is contrary to the practise of non-Arabs who consider professions as status in their society. Professions are accorded different levels in status and on this basis, association of a person of superior profession with another of a lesser degree is regarded as difficult. It is for this reason the noble Shari’ah has taken Kafa’aat into consideration in worldly dealings (although in the sight of Allah, such things are no measure of superiority or inferiority).

Thus, the Fuqahaa (jurists) have stated that a weaver is not a Kufu’ (match) of a tailor, rather he is inferior nor is a tailor the Kufu’ of a cloth merchant nor a cloth merchant the Kufu’ of an Aalim (scholar of Deen) or Qadhi (judge of an Islamic court). (Darrul Mukhtaar vol.3 pg.90; MH Sa’eed)

The Ruling Regarding Consideration of Kafa’aat Being Necessary

It is the saying of Nabi (Sallallaahu Alayhi Wasallam), ‘Listen! Women should be married off only by their (Shar’ee) guardians (Wali) and their marriage should take place only with suitable matches.’ (Akfaa).’ (Daaraqutni and Bayhaqi)

It is most suitable for a woman’s Nikah to be contracted by her Wali (Shar’ee guardian) – So that she is not deceived due to inexperience and ignorance and that she remain safe from the destructive reins of desires. Also that she, as far as possible, be married to a Kufu’ (so she remains protected from the distress and incompatibility of marriage to a non-Kufu’)

Nabi (Sallallaahu Alayhi Wasallam) said, ‘Oh Ali (Radhiallaahu Anhu)! Never delay in 3 matters; Salaat – when it’s time is nigh; Janaaza – when it is ready (before you), an unmarried woman – when her Kufu’ (suitable partner) is found.’ (Tirmidhi)

Three things should never be delayed without valid Shar’ee excuse: a) Salaat – when its Mustahabb time has set in. b) Janaaza – When the bier is ready, and c) an unmarried woman – when a Kufu’ is found.

Another saying of Nabi (Sallallaahu Alayhi Wasallam), ‘Choose carefully for your seed. Marry suitable (Akfaa) woman and marry off (your females) to them (Akfaa).’

Seek suitable women in marriage. Get married to Akfaa and get your females married off to Akfaa as well (a similar narration comes from Aaisha (Radhiallaahu Anha)

Is Marriage with a non-Kufu’ invalid in all circumstances?

The answer to this question is that Nabi (Sallallaahu Alayhi Wasallam) has advised the Shar’ee guardians of a female to consider her best interests from all angles. Consideration of Kafaa’at is part of this, and her due right. Nevertheless, it is right of the guardians as well. Just as a female may experience shame, incompatibility and disunity by marriage to a non-Kufu’, her guardians also share the same experience. Furthermore, in the case of disagreement, they are inconvenienced and suffer greatly. Due to this, if a sane, Baaligh (one who has reached the age of maturity) female marries a non-Kufu’ without the permission of her guardian, according to the adopted view, the Nikah is void and invalid. (Darrul Mukhtaar and Shaami).

Similarly, if any guardian has the Nikah of a non-Baaligh female performed with a non-Kufu’, it is also void and invalid. However, if the guardian (in question) is the father or paternal grandfather who marries the non-Baaligh female to a non-Kufu’, the Nikah is valid and binding. The affection and kindness of a father or grandfather, being as it is, demands that dispensing with Kafaa’at was not done without consideration of some other greater benefit. Ill-will is definitely not the reason.

If a sane Baaligh female herself consents to marriage with a non-Kufu’, and her guardians as well, the Nikah will be valid and correct, even though it is unsuitable in consideration of future benefits (as appears in Hidaaya and most other reference works).

Reply to One Misconception

This (above) also clarifies the misconception that with regards to non-Arabs, the Fuqahaa (Jurists) have considered a new Muslim as non-Kufu’ of one who is Qadeemul Islam (old Muslim). By this, it seems that new Muslims are unable to marry, since they are non-Kufu’ to those who are Qadeemul Islam (old Muslim). The answer is apparent, that there is no general prohibition in marriage to a non-Kuf’, rather the condition is that both the female as well as her guardian grant her consent. Concerning the marriage of new Muslims, it should be borne in mind that no shame should be attached to this. Marriage with them should be done happily and without reservation.

A Point of Note

One thing should always be borne in mind regarding new Muslim and Nikah. His adherence to Islam should be clear and his sincerity and firmness upon Islam should be apparent from his dealings. Until such is not established, it is not suitable for one to advance or go ahead with the Nikah since this could lead to problems.

Final Note

Superiority and virtue, worldly or otherwise are always of two kinds.

1) Ikhtiyaar (by choice) – that which a human being can earn or attain by his own endeavour.

2) Non-Ikhtiyaar (opp of 1) – which is not the outcome of any effort or endeavour, nor can it be attained by one’s own striving.

An intelligent one is he who continues to strive in attaining the first kind and never loses courage in doing so. Pursuing attainment of the second kind (non-Ikhtiyaari) is a complete abandonment of intelligence and nothing but a waste of time.

The purpose of our discussion is to point out that nobility in lineage is among these non-Ikhtiyaari virtue. This same rule applies here that one so honoured regard it a divine favour and express gratitude thereof while one not so blessed, not engage in pursuit of it thinking that such is better for himself. How can one know whether he will be able to fulfil therights of such upon attainment thereof?

Therefore, strive and work to attain the Ikhtiyaari, the actual real, virtue and an everlasting treasure by which one attains a far greater status in the sight of Allah than those of noble lineage.

Jawaahirul Fiqh vol.2 pg.95; Maktaba Darul Uloom

Article taken (with Thanks) from www.sunniforum.com