Fatwa ID: 06510

 

Answered by: Maulana Mohammed Dilwar Hussain

 

Question:

 

Please can you advise and provide a fatwa in the following two circumstances:

 

Three people attend the secret nikah ceremony, these three people are:

• the bride
  2) the groom and
  3) one other male is there to perform the nikah. 

 

 

The families do not know the couple ate doing nikah. Nikah is done in secret as the groom already has a wife. Both the bride and groom are mature adults in their 40s. 

 

The groom follows a silsila sheikh who has written three Quran tafseers.

 

The sheikh has stated that nikah is valid if the bride accepts the proposal of marriage and that the groom himself can be the second witness, so there is no need for two separate witnesses. The groom and bride made proper ijab-o-qabool in the presence of the one male witness who performed the nikah ceremony. Please can you advise and provide a fatwa in these circumstances? Can the groom be the second witness? Is this nikah valid? 

 

The bride never accepted nikah could be valid without two additional witnesses but went ahead with nikah under these circumstances because the groom promised her he will go and ask for her hand in marriage at a later stage when his first wife finds out about the marriage. The groom has previously attempted to seek his first wife’s permission but she has been violent and angry.

 

Please advise as the groom believes it is valid due to his high regard for his sheikh. Someone else in the silsilah has done nikah in the same way and he confirmed that a mufti of high standing stated it was valid. This brother states that he also researched and found something which states that according to Imam Abu Hanifah, there is no requirement for separate witnesses so nikah is valid. The groom is refusing to accept nikah was not valid, he says the groom himself can be the second witness but the bride always believed it to be invalid

 

The first wife recently found out about this nikah and there was a lot of anger. The groom has 3 children with his wife and 2 sons who are 18 and over in age. They threatened to expose the groom to all their extended families as an adulterer and also as one who is sexually incapable (for a year the groom has been unable to maintain an erection with his first wife). The groom has a respectable and very active role at his local masjid. He is highly respected by users of the masjid, and a lot of the brothers approach him for advice on issues they face in life. He also carries out a lot of work to bring people to the deen and close to Allah SWT. The groom’s first wife and sons threatened to expose him to everyone unless he states out loudly that he gives talak to his second wife. They also threatened abuse and wanted him to leave the house. The groom was frightened of being exposed to everyone in such a bad way and during the day he had been reading about talak given under duress. The first wife and boys are not giving up, they keep pushing him to give talak to the other woman. He thought if he gives talak it will not be final as he is being forced to give it. So he said he gives talak 3 times without mentioning his second wife’s name. The second wife is a good wife, she knows nothing about this. The groom did not really want to give talak to her, he only did it because he thought it would Count as duress. What is the position regarding this?

 

 

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

 

Answer:

 

Marriage is an act from the Sunnah of our beloved Prophet ﷺ. Marriage spreads honour, dignity and respect. The Prophet ﷺ taught that marriages should be announced. [Sunan Ibn Majah, Hadith 1895] [1]. One of the purposes of this is so to protect one’s honour and dignity from false accusations and slander of an illicit relationship.

 

Some scholars have defined the minimum criteria of a marriage being valid is to have two male witnesses present (or 1 man and 2 women), the proposal and acceptance by the bride and groom with the mahr being fixed. [Al Hidayah; volume 2, page 328] [2]

 

This is the minimum requirement for the validity of a marriage. If such a marriage was to occur with these minimum requirements being fulfilled then that marriage would be valid. However, as you have stated that there was only one witness present, so the Nikah would not be valid.

 

In regards to your second question, uttering the words of Talaq (divorce) fall under two categories; Sareeh (clear wording) and Kinaya (vague wording).

 

If clear wording is used, such as “I divorce you” or “you are divorced” whether they be said in person or not, via message, with witnesses present or not, etc. then this will cause talaq (divorce) to occur immediately. The wife will then need to enter into iddah. The inference of such wording would mean Talaq Raj’i will occur which would subsequently allow for reconciliation to take place within the iddah period without the need of renewing the nikah. Verbally uttering words or gesturing to her to return would be sufficient for the marriage to renew. Even looking at her with desire and lust would also have the same effect. [Al Hidayah; volume 2, page 380] [3]

 

However, the use of vague wording where ambiguity remains (i.e., using such wording which would not normally infer divorce) will require an intention of divorce to be present at the time of using such wordings. If an intention of divorce is not made at the time of using such wordings, then talaq will not take place. Examples of such wordings would be, as you have said “I free you,” “I release you,” “get out of here,” “I don’t want to see you again” etc. [Al Hidayah; volume 2, page 391-392] [4]

 

Simply uttering the words of Talaq alone are not sufficient for Talaq to take place. They need to be directed towards somebody, either by saying it directly to them or by mentioning the wife’s name. It should also be known, that verbally uttering Talaq, whether done so due to duress or not, Talaq will occur. Being under duress does not nullify a verbal Talaq. As the Talaq was not directed at anyone, the Talaq will not occur.

 

However, as the Nikah was not valid due to a lack of witnesses, the incident of Talaq does not come into question. If they wish to be together, then a valid Nikah must be conducted with a minimum of two male witnesses.

 

 

 

Only Allah knows best.

Written by Maulana Mohammed Dilwar Hussain

Checked and approved by Mufti Mohammed Tosir Miah

Darul Ifta Birmingham

 

 

 

 

[1]حَدَّثَنَا نَصْرُ بْنُ عَلِيٍّ الْجَهْضَمِيُّ، وَالْخَلِيلُ بْنُ عَمْرٍو، قَالاَ حَدَّثَنَا عِيسَى بْنُ يُونُسَ، عَنْ خَالِدِ بْنِ إِلْيَاسَ، عَنْ رَبِيعَةَ بْنِ أَبِي عَبْدِ الرَّحْمَنِ، عَنِ الْقَاسِمِ، عَنْ عَائِشَةَ، عَنِ النَّبِيِّ ـ صلى الله عليه وسلم ـ قَالَ ‏ “‏ أَعْلِنُوا هَذَا النِّكَاحَ وَاضْرِبُوا عَلَيْهِ بِالْغِرْبَالِ‏”‏

 

[2]قال: ولا ينعقد نكاح المسلمين إلا بحضور شاهدين حرّين عاقلين بالغين مسلمين رجلين أو رجل وامرأتين

 

[3]الطلاق على ضربين: صريح وكناية. فالصريح: قوله أنت طالق، ومطلقة، وطلقتك، فهذا يقع به الطلاق الرجعي لان هذا الألفاظ تستعمل في الطلاق، ولا تستعمل في غيره، فكان صريح

 

[4]وبقية الكنايات، وهذا مثل قوله: أنت بائن، وبتة، وبتلة… لأنه تحتمل الطلاق وغيره، فلا بد من النية