Fatawa Answer

Question: Nikah Validity

ID: 1759

Name: Marriage and Divorce

Question

When I was 14 years old, me and my cousin who was 18 years old, we used to like each other. My brother and my other male cousin (of 17 and 16 years of age at that time) knew about us. One day all of us were walking together and my other male cousin and my brother started to tease me and my cousin and in that teasing my other male cousin might've asked me and my cousin the ijab o qabool , and I think I might've gotten married to him. I don't remember exactly what happened. I don't know the exact question my other male cousin asked and I don't know if me and my cousin said yes or no. I asked my brother who was there at that time and he said he doesn't remember anything. I asked my other male cousin and he also said that he don't know. All I  remember is that all of us were laughing and I was feeling shy, and my other cousin saying "congrats, you may now kiss the bride" and me saying "no", smiling and walking away. The reason I think that we might've gotten married is becasue two years after all of this, I heard the hadeeth saying that nikah, divorce and taking back one's wife takes place even if done in jest. I didn't know what to do so, I asked my cousin (to whom I think I might've gotten married to) to text me a divorce message. I didn't tell him why I was asking him to send me such a text and I lied that I am playing truth and dare with my friends and they have given me a challenge. After I insisted a couple of times, he sent me a text saying only the word "divorce" and that's it. I asked an imam about the divorce and they said that this divorce doesn't count because first, I framed it as a challenge and the guy was unaware of the nikah and secondly, we don't know if he intended it or not. I asked two other imams' and they said that just like the nikah can take place even if done as a joke, the divorce can take place as well. And I also read somewhere that once he sent the divorce message it became a formal writing for which no intention is necessary. 

So, now I am confused and worried. I don't remember anything. Did the nikah take place? Does the divorce count? Can I marry someone else? What if the nikah did take place and now I forgot about it, then that would mean that I would be living a life of sin if I get married to anyone? Please guide me as to what should I do next. 

Answer

بسم اللہ الرحمٰن الرحیم

الجواب وباللہ التوفیق 

Marriage can take place even if performed in jest.  According to the saying of the Holy Prophet (SAW). 

’’عن أبی ھریریۃ ؓ أن رسول اللہ صلی اللہ علیہ وسلم قال: ثلاث جدھن جد وھز لھن جد النکاح والطلاق والرجعۃ‘‘ (رواہ ابوداؤد والترمذی وابن ماجہ)

Translation: There are three things that will have credibility whether they are done seriously or in jest; Marriage, divorce and retroactivity. 

Since your marriage is neither final nor certain, rather it is in a state of doubt and illusion, and while the witnesses are also showing ignorance in this regard, so this marriage has not been held under Shariah rules. When the marriage itself is void, the question of divorce is also meaningless. You are allowed to marry elsewhere. 

العاشر: ينعقد النكاح من الهازل وتلزم مواجبه لقوله صلى الله عليه وسلم: «ثلاث ‌جدهن جد وهزلهن جد: النكاح والطلاق، والرجعة» رواه الترمذي من حديث أبي هريرة عن النبي - صلى الله عليه وسلم۔"(كتاب النكاح،3/ 199،دار الفكر)

فالنِّكاحُ إذا لَمْ يَكُنْ مُنْعَقِدًا يَقَعُ الشَّكُّ فِي انْعِقادِهِ، فَلا يَنْعَقِدُ بِالشَّكِّ، وإذا كانَ مُنْعَقِدًا يَقَعُ الشَّكُّ فِي زَوالِهِ، فَلا يَزُولُ بِالشَّكِّ عَلى الأصْلِ المَعْهُودِ أنَّ غَيْرَ الثّابِتِ بِيَقِينٍ لا يَثْبُتُ بِالشَّكِّ، والثّابِتُ بِيَقِينٍ لا يَزُولُ بِالشَّكِّ(بدائع:۲/۳۴۰)

فقط واللہ اعلم بالصواب

Answered On: Sunday, Jul 30, 2023 | N/A

Answered By: Mufti Mohammed Ataur Rahman Sajid

Checked By: Mufti Mohammed Navalur Rahman