Question Summary:
About secret marriage, you have stated that all that is needed for a marriage to be valid is 2 sane Muslim men as witnesses (no wali or imam). However, when we called our local Masjid and talked to the imam about our situation and marriage, he told us a hadith that said that a marriage is not-valid without a wali. He went on to tell us that a wali is required for it to be a valid marriage! Question Detail:
About 6 months ago, I was involved in a haram relationship with a muslim sister. Alhamdolillah, with hidayah and guidance from Allah (swt), I became a much better muslim, and me and the sister have stopped the relationship. Now, we only talk online, rarely just to say hi and hows it going. I still however believe that this is haram, but due to her emotional attachment, it is very hard to stop talking completely, though we do not discuss anything haram when we talk. Alhamdolillah we are both strong into our deen now and we have decided that we should get married in order to prevent anything haram, at all, from occuring.
We have done Istikharah which came out positive for the both of us. Furthermore, we have brought it up to our parents, but they have told us to wait until we graduate before we start talking about anything (we are sophomores now, we have 2 years to go). Brother, we wanted to have you tell us what the best course for us is. We don't want to fall into any haram and this is the reason for us wanting to get married now, Alhamdolillah our intentions are to have a lasting marriage with each other InshaAllah. At the same time, we do not want to go around our parents, but we feel as if we must. We also don’t know if they will agree later on.
While looking on this website at the questions about marriage, particularly secret marriage, you have stated that all that is needed for a marriage to be valid is 2 sane Muslim men as witnesses (no wali or imam). However, when we called our local Masjid and talked to the imam about our situation and marriage, he told us a hadith that said that a marriage is not-valid without a wali. He went on to tell us that a wali is required for it to be a valid marriage. We are very unsure on what to go with, please help us brother, JazakAllahu Khayr
Answer :
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
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