convince my first wife and my community about this wish, and to avoid
breaking up my marriage and causing trouble to my family from my first
wife, I could find no solution more suitable then marrying a Christian
woman who I had got to know in a foreign country. My marriage to her
was done as follows:I informed her of my wish to marry her, and she
agreed to be my wife. But she did not have any guardian, because her
father is Christian and would never accept her marrying a Muslim, and
he does not care about her anyway. So she gaveherself to me in
marriage without a wali(guardian), and I followed the view that it is
permissible for a previously married woman to give herself in
marriage. Because wemet in a foreign country, where I do not know
anyone who could witness the marriage, I followed theview that the
testimony of two witnesses to the marriage can be replaced by an
announcement, becausethe purpose served is the same. So I contactedtwo
sincere friends by phone and informed them of this marriage, so that
announcement of the marriage could be done, and I informedothers after
that. I also gave her a mahr (dowry) and informed her that this mahr
is her right as a wife. The mahr was in the form ofa gold ring. I told
her that this marriage was witnessed by Allah and that she was like a
wife to me, and she had to be sincere to me as a wife and not commit
any sin. She agreed to marriage on the basis ofthese conditions, and
we got married and lived as husband and wife. Nevertheless I fear
Allah, may He be glorified and exalted, and I am afraid that
everything I have done may be invalid and subject to the ruling on
zina (adultery or fornication). Recently I have been faced with some
problems in my work and with my first wife, and I am afraid that Allah
is punishing me. Yet I do not think there is anything wrongwith my
second marriage; she is Christian and has sacrificed a great deal. She
has given up many of the rights that she has over me, and she
understands my situation. She agreed to be my wife and she obeys me in
what I haveasked of her. I hope thatthere is nothing wrong with this
second marriage of mine, even though I know that it goes against the
conditions of marriage on which there is scholarly consensus, but I
followed the opinions of respectable scholars. What is your opinion?
Praise be to Allah.
Firstly:
It is not permissible for aMuslim to follow whatever he wants of
opinions, even if they were stated by some of the scholars, because by
doing that he is following his whims anddesires and is not following
the laws of Allah.
Rather what he must do – if he is able to – is to follow the most
correct opinion which is supported by shar'i evidence. If he is not
able to weigh up which of the opinions is most correct, then he should
ask someone whose knowledge and religiouscommitment he trusts, and
follow the advice hegives him.
Secondly:
For marriage to be valid,it is stipulated that the wali (guardian) of
the woman be present, and it is not permissible for the woman to do
the marriage contract for herself, because the Prophet (blessings and
peace of Allah be upon him) said: "There is no (valid) marriage except
with a wali." Narrated by Abu Dawood, 2085; classed as saheeh by
al-Albaani inIrwa' al-Ghaleel, 1839. And he (blessings and peace of
Allah be upon him) also said: "Any woman who gets married without the
permission of her wali, her marriage is invalid, her marriage is
invalid, her marriage is invalid." Narrated by Ahmad, 24417; Abu
Dawood, 2083; at-Tirmidhi, 1102; classed as saheeh by al-Albaani
inSaheeh Abi Dawood.
In that regard it makes no difference whether the woman is a virgin or
previously married.
Shaykh Ibn Baaz (may Allah have mercy on him) said:
One of the conditions of the marriage contract being valid is that it
should be done by the wali (guardian), whether the woman is a virgin
or previously married, because the Prophet (blessings and peace of
Allah be upon him) said: "There is no (valid) marriage except with a
wali." End quote.
Majmoo' Fataawa Ibn Baaz, 21/39
If her father did not agree to this marriage because he did not
wanther to marry a Muslim, then guardianship passes to the next
closestof her guardians, such asher brother, then her paternal uncle.
If all of them refuse, the head ofthe Islamic Centre in her city can
give her in marriage; if that is not applicable, then the imam of the
Jaami' mosque may do that.
The majority of scholars are of the view that the marriage contract is
not valid except in the presence of two witnesses to the marriage
contract, because the Prophet (blessings and peace of Allah be upon
him) said: "There is no (valid) marriage except in the presence of the
wali andtwo witnesses of good character." Narrated by al-Bayhaqi,
14086; classed as saheeh by al-Albaani inSaheeh al-Jaami', 13515.
Some of the scholars stipulated that the marriage must be announced
publicly in order for it to be valid. According to these scholars, the
announcement must come before consummation of the marriage. Telling
two men about it does not constitute a public announcement.
Based on that, the marriage contract that you did is not valid, and
you should not be intimate with her until after a new marriage
contract which is done correctly, in accordance with the conditions
stipulated in sharee'ah.
The scholars of the Standing Committee for Issuing Fatwas was asked
about a Muslim who marries a Christian woman without the permission of
her guardian. They replied:
The marriage contract is not valid unless it is done in the presence
of the wali and two witnesses of good character. It is not permissible
for the woman to do the marriage contract for herself, because the
Prophet (blessings and peace of Allah be upon him) said: "There is no
(valid) marriage except in the presence of the wali and two witnesses
of good character." And he (blessings and peace of Allah be upon him)
said: "A woman cannot give another woman in marriage, and a woman
cannot give herself in marriage." Based on that, the marriage contract
mentioned in the question is not valid,and it must be done again with
the wali of the woman.
A kitaabi (i.e., Jewish or Christian) woman may be given in marriage
by her father. If he is not present or he is present but refuses, the
closest of her male relatives on her father's side may give her in
marriage. If they are not present, or they are present but refuse, the
Muslim qaadi (judge) may give her in marriage; if there is no Muslim
qaadi, then the head of the local Islamic centre may give her in
marriage, because the shar'i evidence from the Qur'an and Sunnah
indicates that. End quote.
Fataawa al-Lajnah ad-Daa'imah, 18/180-181
Shaykh Muhammad ibn Ibraaheem (may Allah have mercy on him) was asked
about a man who married an Australian Christian girl in London, and
the wife gave herself in marriage without the presence of a wali.
There was no mention of the value of the mahr (dowry) in the marriage
contract, and itwas not attended by anywitnesses apart from a Muslim
man and a Christian woman who was the mother of the bride. In the
wedding party there were some Christian girls and friends of the
bride, along with the Christian registrar. Four years later, the wife
became Muslim and she has two children from him. She isasking about
the validityof her marriage contract; if it is not valid,then how can
it be madevalid?
He replied: With regard to the marriage contract that you describe, it
is not valid, because the wali and two witnesses were not present. The
Prophet (blessings and peace of Allah be upon him) said: "There is no
marriage except in the presence of the wali andtwo witnesses of good
character." With regard to not stating the mahr in the marriage
contract,that does not affect anything.
The way to correct it is to bring her wali to the registrar to do the
marriage contract for her to the husband mentioned, after obtaining
her approval and consent. This should also be attended by two
witnesses of good character. If she does not have a wali, then herwali
is the shar'i judge; she should give him permission to do her marriage
contract. Thereis no sin on them for what has passed, and their
children are legitimate and it is correct to call them aftertheir
father, if they believed that the marriage contract was valid, because
this comesunder the heading of a marriage that was thought to be
legitimate. End quote
Fataawa wa Rasaa'il Muhammad ibn Ibraaheem, 10/68
And Allah knows best.
No comments:
Post a Comment