that it is not permissible as one of the conditions of marriage is
that it should be done in one place?
Praise be to Allah.
The proposal (eejaab) and acceptance (qubool) form one of the pillars
or essential parts of the marriage contract, without which it is not
valid. The proposal is said by the wali (guardian) or his proxy and
the acceptance is said by the husband or his proxy.
It is stipulated that the proposal and acceptance should come in one
sitting. It says inKashshaaf al-Qinaa'(5/41): If there is a lapse of
time between the proposal and acceptance, it is valid so long as both
are done in the same gathering and there is no distraction that would
count as an interruption according to local custom, even if the
interval between the two is lengthy. But if they part before the
acceptance is spoken after the proposal has been issued, then the
proposal becomes invalid. The same applies if there is a distraction
that interrupts the proceedings according to local custom, because
that is turning away from it and it is as if the proposal had been
rejected. End quote.
Similarly, it is also stipulated that witnesses be present in order
for the marriage contract to be valid.
Based on that, the scholars differed with regard to doing the marriage
contract by using modern needs such as the telephone and the Internet.
Some of them say that that is not permissible, because of the absence
of witnesses, even though the presence of two witnesses on the phone
at the same time comes under the same ruling as if they were in the
same place. This is the view of the Islamic Fiqh Council (Majma'
al-Fiqh al-Islami).
Some of the scholars are of the view that this should be disallowed,
as a precaution to protect the marriage, because it is possible to
imitate a person's voice and thus deceive others. This is what is
stated in fatwas issued by the Standing Committee for Issuing Fatwas.
Some of the scholars regard it as permissible so long as there is no
risk of tampering. This is what was stated in fatwas issued by Shaykh
Ibn Baaz (may Allah have mercy on him).
Thus it is known that the problem is not the issue of being the same
place, because contact between both parties at the same time via the
phone or Internet comes under the same ruling as if they were in the
same place.
It is also possible for this marriage contract to be witnessed, by
hearing the voice of the speaker over the phone or Internet; in fact
with technological advances nowadays it is possible to see the wali
and hear his voice when he makes the proposal, and it is also possible
to see the husband.
Hence the most correct view with regard to this matter is that it is
permissible to do the marriage contract over the phone or Internet, if
there is no danger of tampering, the identity of the husband and wali
is proven, and the two witnesses can hear the proposal and acceptance.
This is what was stated in fatwas issued by Shaykh Ibn Baaz (may Allah
have mercy on him), as stated above. It is also what is implied by the
fatwa of the Standing Committee, which disallowed marriage in such
cases as a precaution and for fear of deceit.
The one who wants to be on the safe side may do the marriage contract
by appointing proxies; so the husband or guardian may appoint someone
to do the marriage contract on his behalf in front of witnesses.
There follow the comments of scholars that confirm what we have referred to:
1.Statement of the Islamic Fiqh Council:
Statement no. 52 (6/2) concerning the ruling on contracts via modern
needs of communication.
After stating that it is permissible to do contracts via modern means
of communication, the Council said:
The guidelines mentioned above do not apply to the marriage contract,
because of the stipulation that witnesses be present in that case. End
quote.
2.Fatwa of the Standing Committee for Issuing Fatwas:
Question: if the pillars or essential parts and conditions of the
marriage contract are fulfilled, except that the wali and the husband
are in different countries, is it permissible to do the marriage
contract by phone or not?
Answer: because nowadays deceit and trickery are widespread, and some
people are skilled at imitating others, and some are able to make
their voice sound like a number of people, male and female, young and
old, and even speak different dialects and languages, so that the
listener thinks that several people are speaking when in fact it is
only one person, and because Islamic sharee'ah is concerned with
protecting people's chastity and honour, and takes more precautions
than other religions with regard to contracts and dealings, the
Committee thinks that it is not appropriate, with regard to marriage
contracts, the proposal and acceptance, and appointing proxies, to
handle such matters over the phone. This is in order to achieve the
aims of sharee'ah and protect people's chastity and honour, so that
those who follow whims and desires and those that seek to deceive and
cheat people will not be able to toy with matters of marriage. And
Allah is the source of strength.
End quote fromFataawa al-Lajnah ad-Daa'imah, 18/90
3.Fatwa of Shaykh Ibn Baaz (may Allah have mercy on him)
Question:
I want to get married to a girl and her father is in another country;
at present I cannot travel to meet him and do the marriage contract,
for financial or other reasons. I am currently in a foreign country.
Is it permissible for me to call her father so that he can say to me,
"I give you my daughter So and so in marriage," and I can say, "I
accept." The girl agrees to the marriage and there are two Muslim
witnesses who can listen to what I say and what he says, via the
speakers on the phone. Is this regarded as a legitimate marriage
contract?
Answer:
The website put this question to Shaykh 'Abd al-'Azeez ibn 'Abdullah
ibn Baaz (may Allah have mercy on him) and he replied that if what is
described is true (and there is no tampering involved), then it
fulfils the conditions of shar'i marriage and the marriage contract is
valid. And Allah knows best.
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