Fatwa ID: 07433
Answered by: Maulana Burhaan Rahman
Question:
Assalamualaikum my nikah was performed by a mufti on the phone. I and my partner were present and the mufti was on the phone but there was no witness. My parents are separated. I never ever concealed anything from my mother whether she would support me or not, I used to tell her everything even about the nikah and she permitted me of nikaah but she was not present at the time of the nikah, this all happened yesterday.
Is it valid or not? Because the nikah is performed by the mufti on the phone without any witness and my mom wasn’t there.
And I didn’t tell my mom about the nikaah yet. I’m also confused whether to call my mother about the nikah or not. Because I thought it is not valid without my mother’s presence.
In the name of Allah, the Most Gracious, the Most Merciful
Answer:
A condition of nikah being done is that there has to be a walee (guardian) and witnesses:
Our beloved prophet (SAW) has mentioned:
لاَ نِكَاحَ إِلاَّ بِوَلِيٍّ
There is no marriage without the permission of a guardian. [Abi Dawud 2085]
He (SAW) also mentioned:
أَيُّمَا امْرَأَةٍ نُكِحَتْ بِغَيْرِ إِذْنِ وَلِيِّهَا فَنِكَاحُهَا بَاطِلٌ فَنِكَاحُهَا بَاطِلٌ فَنِكَاحُهَا بَاطِلٌ
Whichever woman married without the permission of her guardian, her marriage is invalid, her marriage is invalid, her marriage is invalid. [Tirmidhi Hadeeth no: 1102]
He (SAW) also mentioned in another Hadeeth regarding witnesses:
لا نكاح إلا بولي وشاهدين من المسلمين
There is no marriage contract except with a walee and two witnesses. [Tabrani Hadeeth no: 7558/Ibn Hibban Hadeeth no: 4075]
So as the nikah over the phone didn’t have sufficient witnesses, the nikah is invalid. We should also remember the walee mentioned in the Hadeeth. Unless there is no such person or the relatives do not fit the requirements, closely linked relatives should not be disregarded. The walee of a lady is her father, followed by any successors her father may have named before his passing, and finally her paternal grandfather or great-grandfather. If not the Muslim leader – in this day and age if not found, a local Imam etc.
In the future, if one is to do nikah over communication means, have the guardian present and also do it on Skype/zoom etc. It would be clearer and removes all ambiguity.
With regards to not telling your mother about it, that should be avoided (keeping it a secret from your mother).
أَعْلِنُوا هَذَا النِّكَاحَ وَاجْعَلُوهُ فِي الْمَسَاجِدِ وَاضْرِبُوا عَلَيْهِ بِالدُّفُوفِ
Publicise the marriage, hold it in the Masjids, and beat the duff for it (to be done publicly). [Tirmidhi Hadeeth no: 1089]
Only Allah knows best.
Written by Maulana Burhaan Rahman
Checked and approved by Mufti Mohammed Tosir Miah
Darul Ifta Birmingham
