Marriage with Unrighteous Witnesses
Dear scholars, As-Salamu `alaykum. My marriage contract was witnessed by three
witnesses, two of whom signed as witnesses. Then we discovered that one of the
two witnesses was unrighteous, for he does not observe Prayer. Is the marriage
contract considered valid in this case, or should it be redone with two
righteous witnesses? Jazakum Allah khayran.
Name of Mufti A Group of Islamic Researchers
Content of
In the Name of Allah, Most
Gracious, Most Merciful.
All praise and thanks are due to Allah, and peace and blessings be
upon His Messenger.
Dear brother in Islam, we would like to thank you for the great
confidence you place in us, and we implore Allah Almighty to help us serve His
cause and render our work for His sake.
This marriage is considered valid, whether the witnesses are
righteous or unrighteous. Even if no witnesses at all have signed the marriage
contract, the marriage is still deemed valid as long as it has been made
publicly known and was witnessed at the time of contracting. This is because
the point of having witnesses is to assure the publicity and declaration of the
marriage.
In this regard, Sheikh Sayyed Sabiq (may Allah have mercy on him), author of the well-known
book Fiqh Us-Sunnah and one
of the eminent Muslim scholars of Al-Azhar, states:
“As for stipulating the righteousness of the witnesses, the Hanafi scholars maintain that it is not a condition, and
that the marriage contract is deemed valid even if with unrighteous witnesses. They
also view that whoever can be a legal guardian (of the bride) in a certain
marriage can be a witness in the same marriage. On the other hand, the main
purpose of the presence of witnesses is to assure the publicity of the marriage.
The Shafi`i scholars view that there
must be righteous witnesses of the marriage contract, for the Prophet (peace
and blessings be upon him) is reported to have said, “No marriage (is valid) unless
there are a legal guardian and two righteous witnesses.” According to them,
there are two different opinions in case the marriage contract is witnessed by
two men whose righteousness is unknown or unverified; the sound opinion of the
two is that the marriage contract is valid. This is because marriage can be
concluded in villages and deserts and often attended by the populace, whose
righteousness cannot be verified. Thus, stipulating the righteousness of the
witnesses will be a kind of difficulty, so a witness's apparent state of
righteousness is sufficient in this case, as long as he is not notorious for
being unrighteous. Then, if a witness is discovered to be unrighteous after
concluding the marriage contract, this does not affect its validity, for the
condition of a witness’s righteousness is not to be publicly notorious for
being unrighteous, which is fulfilled in this case.”
The Maliki scholars are the simplest and
easiest regarding the issue of witnesses of the marriage contract. According to
them, the presence of witnesses is just desirable when concluding the marriage
contract, yet it is a must when consummating the marriage (that is, the
consummation must be known to have happened).
Pointing out the Maliki opinion, the
eminent Muslim scholar Sheikh Yusuf Al-Qaradawi states:
“According to the Maliki scholars, the
most important thing for the validity of the marriage contract is the presence
of two righteous witnesses excluding the legal guardian. Rather, they stipulate
the signature of two witnesses on the contract only as a matter of
desirability, just to avoid the juristic disagreement in this concern. In his
book entitled Ash-Sharh As-Saghir,
the eminent Muslim scholar Sheikh Ad-Dardir, states: “The
signature of witnesses is desirable when concluding the marriage contract just
to avoid the juristic disagreement in this regard, for there are many imams who
view that the marriage contract is invalid without witnesses.
However, we view that the marriage contract is valid in itself, just like a
sale contract, even if without witnesses, yet its validity is not stated and
its fruits, like the lawfulness of sexual intercourse, are not fulfilled
without the presence of witnesses to be acquainted with the consummation of the
marriage. Accordingly, it is permissible to conclude the marriage contract
secretly then inform two righteous men of it.” What is stated by Sheikh Ad-Dardir shows that it is desirable to make the marriage
publicly known to avoid any suspicion of adultery or fornication? So, he states
that the publicity of the marriage is just a matter of desirability, not
obligation.”
In this connection, Sheikh of Islam Ibn Taymiyah states the following:
“If the marriage is witnessed by two Muslims, it is deemed valid,
even if the two witnesses are not considered just, righteous ones according to
the Muslim judge, that is, as long as the witnesses are not notorious for being
unrighteous. That is to say, the marriage is deemed valid as long as it is made
public and not hidden according to the apparent opinions of the four schools of
fiqh. On the other hand, if the marriage is witnessed
by two unrighteous witnesses, it is still deemed valid according to Imam Abu Hanifa, and Imam Ahmad in one of the two opinions
attributed to him. Moreover, if the marriage is without witnesses and the
bride's legal guardian made her marriage public, the marriage is also deemed
valid according to Imam Malik, and Imam Ahmad in the
other opinion attributed to him. This is the more preponderate opinion of the
two, as the Muslims used to give their women in marriage during the lifetime of
the Prophet (peace and blessings be upon him) and he never stipulated the
signature of witnesses to the marriage contract. In addition, the stipulation
of the signature of witnesses to the marriage contract is not stated in a
confirmed hadith, nor in the sahih
(sound) books of Hadith, nor in the sunan, nor in the musnads (other
collections of Hadith).”
Allah Almighty knows best.