Monday | 26 October 2020 | 9 Rabiul-Awal 1442
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Fatwa Answer

Question ID: 1175 Category: Dealings and Transactions
Not sure if there was a valid Nikah

Assalamu alaikum, 

I need help figuring out if there was a nikah or not. In 2013 I planned to marry a man (Hamada) I had met on the internet and known forr 5 months. We planned a civil marriage in Italy which couldn't take place due to his residency papers being out of order. We went to the restaurant anyway because it had been prepaid and hosted the people who came for dinner. At this dinner a friend of his came over and recited some Quran verses and then later Hamada says we are married. I did not sign a contract, and I did not have a guardian/wali, and at the time I was Catholic. I was married once before and divorced. Wouldn't I have to give agreement verbally? I also received no Mahr, didn't even know I was supposed to receive it. Hamada also never gave me any money, it was the other way around. I sent him some money when he lost his job once and then because I had promised to help with his dental work. I returned to the states after that trip and Hamada became a stalker and very jealous, and after 9 months of his emotional abuse (documented on Whatsapp and Viber) I told him it was over and have not heard from him in many years. 

If I become a Muslim and accept Islam do I have to get an islamic divorce from him? Was this a valid Islamic wedding?

Many thanks, 

Mary

 

 

 

الجواب وباللہ التوفیق

  1. In order for “nikah” to be valid, below two conditions must be satisfied:

(a) Offer and Acceptance. (b) presence of two witnesses.

Therefore, if you had accepted the offer and two witnesses were present at the “nikah” ceremony, then “nikah” was valid.

As it appears that neither you pronounced your acceptance nor were the witnesses present; if that was true, then your “nikah” did not take place. Therefore, you do not need the divorce as well.

But if the situation was any different from what is stated above, you may ask again.

  1. Also, for “nikah” to be valid, neither your signature is required nor the presence of your family members/elders. Verbal offer by the groom and verbal acceptance by bride is just sufficient.
  1. “Nikah” is considered valid even if the amount of dower is not stated at the “nikah” ceremony, in spite of the fact that payment of dower by the husband is a legal requirement which he must pay to his wife.

However, in the absence of proclamation of dower at the time of “nikah” the amount follows the rule of “Mahr Mithl”

(i.e. the amount of dower typically given to the girls in the bride’s family or to the girls in her community   hving similar status as of the bride). 

Some authentic religious references in Arabic are given below: 

واما رکن النکاح فھوا لایجاب والقبول وذلک بالفاظ مخصوصۃ او ما یقوم مقام اللفظ بدائع الصنائع، فصل رکن النکاح ،جزء ۲،ص ۲۲۹)

قال بلغنا عن رسول اللہ صلی اللہ علیہ وسلم انہ قال لا نکاح الا بشھود وبدا أخذ علما ؤنا (بلبوط للسرخسی باب النکاح بغیر شھود جز۵ ص ۳۱)

النكاح ينعقد بالإيجاب والقبول بلفظين يعبر بهما عن الماضي(ھدایۃ : ۱/۱۸۵)

(وَشُرِطَ سَمَاعُ كُلٍّ مِنْ الْعَاقِدَيْنِ لَفْظَ الْآخَرِ) لِيَتَحَقَّقَ رِضَاهُمَا. (وَ) شُرِطَ (حُضُورُ) شَاهِدَيْنِ (الدر مع الرد : ۳/۲۱)

ويصح النكاح وإن لم يسم فيه مهرا " لأن النكاح عقد انضمام وازدواج لغة فيتم بالزوجين ثم المهر واجب شرعا إبانة لشرف المحل فلا يحتاج إلى ذكره لصحة النكاح(ہدایۃ : ۱/۱۹۸)

وينعقد نكاح الحرة العاقلة البالغة برضاها وإن لم يعقد عليها ولى بكرا كانت أو ثيبا عند أبي حنيفة وأبي يوسف " رحمهما الله " في ظاهر الرواية (ہدایۃ : ۱/۹۱)

فقط واللہ اعلم بالصواب