{"id":18,"date":"2016-04-09T13:53:20","date_gmt":"2016-04-09T13:53:20","guid":{"rendered":"http:\/\/atmateen.com\/?p=18"},"modified":"2022-08-08T22:22:45","modified_gmt":"2022-08-08T17:22:45","slug":"court-marriage-in-islam","status":"publish","type":"post","link":"https:\/\/atmateen.com\/court-marriage-in-islam\/","title":{"rendered":"Is Court Marriage Allowed In Islam – Legality of Court Wedding in Islamic Law"},"content":{"rendered":"\n

The marriage is called court marriages because it is performed in court in front of a magistrate. The proper term for this is “a marriage without a guardian<\/strong>“. According to Shariah Law, women cannot marry themselves, nor they can marry any other woman.<\/p>\n\n\n\n

There must be a guardian (Wali) present for her at the time of marriage (nikah). Regarding Court marriage in Islam, our four schools of thoughts have a different view on this particular point.<\/p>\n\n\n\n

Court marriages in Islam are allowed & legal according to Ahnaf. They permit the girls that she can marry without a wali. Other three schools differ, and they say it is invalid and void as a girl marries without the consent of wali.<\/p>\n\n\n\n

Read Also:<\/strong> How To Get NADRA Marriage Registration Certificate In Pakistan<\/a>
Explain it:<\/strong> Kya Court Marriage Jaiz Hai?<\/p>\n\n\n\n

In this post, I will try to explain how the school of thoughts has based their opinion on court marriage. What are their arguments? While discussing these opinions, I will try to construe impliedly the legality of court marriage in Islam.<\/p>\n\n\n\n

Arguments Of Maliki, Shafi\u2019i And Hanbali School Of Thoughts<\/h2>\n\n\n\n

Imam malik r.a says that there is no marriage without a guardian. It is a condition precedent for the validity of the marriage.<\/p>\n\n\n\n

Imam Shafi also holds the same opinion. They base their opinion on hadith that is \u2018la nikah ila biwali\u2019 (There is no nikah without wali)[1].<\/p>\n\n\n\n

So on the base of above hadith, a woman cannot do marriage of herself nor do someone else marriage (nikah) and if it is done it will be invalid.<\/p>\n\n\n\n

Abu Huraira, Ayesha r.a.a Hasan bin Salih, Abu Yousaf, and many other companions agree on this point[2]. Further Imam Ahmad and Yahya r.a. have declared \u2018la nikah ila biwali\u2019 hadith to be Sahih hadith.<\/p>\n\n\n\n

Evidence by the Hanafi School<\/h2>\n\n\n\n

As for the view of this school they say. That hadith \u2018la nikah ila biwali\u2019 is reported in Jami\u2019 Tirmidhi, Kitab an-Nikah. As follows: \u201cAbu Musa (RA) reported that Allah\u2019s Messenger \ufdfa said, \u2018Marriage is not performed if (consent of the) guardian is not there.\u201d<\/p>\n\n\n\n

Debate On Hadith \u2018la nikah ila biwali\u2019<\/h3>\n\n\n\n

Now when we try to analyze this hadith we will come to know that there is a discussion about whether this hadith is Sahih or not[3].<\/p>\n\n\n\n

Read Also:<\/strong> Format of Suit of Dissolution of Marriage on the Basis of Khula<\/a><\/p>\n\n\n\n

It is also written by imam tahawi that the people of the first opinion hold this hadith as evidence. Because it is narrated from Abu Ishaq through Israel[4].<\/p>\n\n\n\n

He narrates from Abu Barda who narrates from his father. That the Prophet Muhammad (PBUH) said that, now the evidence against them is that according to their rules it is not correct to use this hadith as proof because those people who have stronger memory than Israel, like Sufyan and Shu\u2019bah, have narrated it \u2018munqati\u2019an\u2019 (broken) from Abu Ishaq.<\/p>\n\n\n\n

Dr. Maulana Fadhal Ahmad’s Commentary<\/h3>\n\n\n\n

In his commentary on an English translation of Jamia Tirmidhi have stated. That this hadith of Abu Musa r.a is not supportive evidence because there is a contradiction in its reporting.<\/p>\n\n\n\n

Imam Tirmidh<\/strong>i himself confirmed this, so this hadith is mursal and it is not preferable to deduce rules out of it. Another point is that Shafi does not approve hadith which is narrated by Hajjaj bin Artaah.<\/p>\n\n\n\n

But in this case, they are confirming the hadith even though in a chain of this hadith he is there [5].
Some experts of hadith say that there are three hadith that is not to be proven by Prophet \ufdfa. la nikah ila biwali is one of them.[6]<\/p>\n\n\n\n

Whether \u2018la nikah ila biwali\u2019 Is Applied On Male or Female?<\/h2>\n\n\n\n

When we analyze the wording of this hadith. We get general meaning whether this rule only applies to females or males too.<\/p>\n\n\n\n

Imam Shafi did not particularize this point and hence it goes against his opinion. There is another hadith which is also referred to as supportive evidence it is narrated by Ayesha (r.a.a) that \u201cAllah\u2019s Messenger \ufdfa said,<\/p>\n\n\n\n

If any woman marries without the consent of her guardian then her marriage is void. Her marriage is void. Her marriage is void. If he cohabits with her then for her is the dower as the man enjoyed her. And if her awliya dispute with each other than the ruler is the wali of the one who has no wali<\/p>\n\n\n\n

Again this hadith is also da\u2019eef and troubled just like the previous one [7]. For the sake of arguments, we take this hadith as Sahih.
Then point which is to be noted is that if a man cohabits with women than she will get a dower. But dower is something which is given to the wife. If the nikah has been invalid just like the Shafi says. Then it is a case of Zina and Zina cannot be legalized by giving dower.<\/p>\n\n\n\n

Thus it is obvious that her marriage is not void. Instead, nikah did take place but because of some technicalities, their marriage became irregular.<\/p>\n\n\n\n

Evidence From Holly Quran<\/h3>\n\n\n\n

Now there are some Quranic verses and these ahadith also contradicts with them such as;<\/p>\n\n\n\n

Do not prevent them from marrying their husbands – [Qur\u2019an 2:232]<\/p>\n\n\n\n

This verse is evidence for the Hanafi. It attributes the right of nikah to the women and also that the wali has no right to interfere in the matter of the woman.<\/p>\n\n\n\n

However, people who oppose Hanafi say this verse is evidence for their stand as well. When Qur\u2019an forbids something to the wali it meant that he had authority over it.<\/p>\n\n\n\n

But in the above verse wali is not referred ethical and social pressure is referred and this verse was revealed at the time.<\/p>\n\n\n\n

When Ma\u2019qil bin Yasar (r.a) who was stopping his sister from marrying her previous husband [8]. The second verse which the Hanafi use as evidence is as follows
When they have fulfilled their term, there is no blame on you if they dispose of themselves in a just and reasonable manner- [Qur\u2019an 2:234]<\/p>\n\n\n\n

In simple words, it is said that once her iddah has expired. She is at liberty to do as she pleases on the condition that she conforms with the Shariah.<\/p>\n\n\n\n

If she wishes to remarry, no one can stop her [9]. After the above-mentioned verse, the Quran also mentions. What if a husband divorces her, she will no longer remain lawful for him. Unless she marries a man other than him. [Qur\u2019an 2:230]<\/p>\n\n\n\n

This verse also attributes marriage to the woman which is evidence by Ishaarat\u2019un Nass. That woman can do her nikah herself [10].<\/p>\n\n\n\n

The opposition also cites a verse in the Qur\u2019an which is as follows. Arrange the marriage of the spouse-less among you- [Qur’an 24:32]<\/p>\n\n\n\n

The wali is addressed in this verse. The women do not have the right to marry without the permission of her wali. But there is an issue in this verse.<\/p>\n\n\n\n

Interpretation Of Word “Ayami”<\/h3>\n\n\n\n

The word used in verse is \u2018Ayami\u2019 which is the plural of \u2018Aym\u2019. It is referred to as someone who has no spouse whether it is a male or a female.<\/p>\n\n\n\n

In that context, the verse would mean that it is preferred for both men and women. That they should not take steps for nikah without a wali.<\/p>\n\n\n\n

And if someone does this act then what is the Hukam. This verse is silent on this point. If both adult males and females come under the meaning of \u2018Ayami\u2019. Then as the nikah of a man, who enters in it without wali is considered to be valid. Similarly, it would be valid if a woman marries without a wali.<\/p>\n\n\n\n

Given the above verse, there is another hadith which is used by Ahnaf as evidence.
\u201cIbn Abbas (r.a) reported Allah’s Messenger \ufdfa as saying an unmarried woman (al-Aym) has more right to her person than her guardian. And a virgin should also be consulted, and her silence implies her consent.\u201d[11]<\/p>\n\n\n\n

Disagreement On The Interpretation Of Al-Aym<\/h2>\n\n\n\n

There is a disagreement among the scholars regarding the meaning of \u2018al-Aym\u2019. Its meaning is \u2018an unmarried woman\u2019.<\/p>\n\n\n\n

The disagreement lies in whether it means a previously married woman only. Or does it include an unmarried virgin as well? These are the people who say a woman cannot do nikah without permission of wali.<\/p>\n\n\n\n

Others said that \u2018al-Aym\u2019 includes a woman who was never married. This latter meaning is confirmed by the Ahl al-lughah and imam nawawi also confirms it [12].<\/p>\n\n\n\n

Even If we accept the tafsir of Imam Shafi and state that \u2018Aym\u2019 means \u2018thaib\u2019 only. Even then the argument agrees and supports the Hanafi view.<\/p>\n\n\n\n

This at least proves that a woman who has been previously married has more rights on her nikah than the wali. This point can be proved by a hadith which is as under narrated by Umm SalamaSubai\u2019a al-Aslamiyya had delivered after her husband\u2019s death by half a month. Two men asked to marry her. One was young, and the other was old. She preferred the young man. The old man said, \u2018You are not free yet (to marry). Her family was away at that time. Young man hoped that when her family would come. They may prefer him over the other man. She came to the Messenger of Allah (PBUH) and he said, \u2018You are free (of the \u2018iddah), marry whoever you desire.[13]<\/p>\n\n\n\n

There is another hadith which favors the Hanafi view which is<\/strong><\/p>\n\n\n\n

A woman came to Prophet Muhammad (PBUH) and said, O \u2018Messenger of Allah! I have given myself to you. The prophet (PBUH) maintained silence and the woman stood there for long.<\/p>\n\n\n\n

Then a man got up and said, \u2018Messenger of Allah, marry her to me. If you do not need her. The prophet (PBUH) asked him what dower he can afford to give. After which he said, \u2018I have married her to you for what you know of the Quran.<\/p>\n\n\n\n

At that time there was no wali of the woman present. There is another hadith \u201cUmm Salmah narrates.<\/p>\n\n\n\n

After the death of Abu Salmah, the Messenger of Allah (PBUH) came and proposed to me. I said, \u2018O Messenger of Allah! At this moment I do not have any wali present.\u2019 He said, \u2018No wali of yours, whether present or away, will dislike your marriage with me.\u2019 So Umm Salmah said to her son, \u2018O \u2018Umar! Get up and do my nikah with the Messenger of Allah (PBUH). Hence, he did their nikah.<\/p>\n\n\n\n

Further, there is a narration by companions. That Ali (RA) used to tell people nikah without a wali is impermissible. But if such nikah took place then he would declare it valid.[14]<\/p>\n\n\n\n

Umar ibn al-Khattab (RA) said, \u2018the woman does not get married off. Unless with the permission of her wali or permission of someone responsible good judgment or the sultan.[15]<\/p>\n\n\n\n

So in this way, he permitted the nikah without the permission of a wali. Provided someone of sound judgment or responsibility from among the relatives allow. Even if the person is not a wali.\u201d<\/p>\n\n\n\n

View of Hanafis on Court marriage in Islam<\/h2>\n\n\n\n

In light of the above discussion, it can be asserted. That Hanafi school of law permit marriage without a wali, as result they acknowledge court marriage in Islam.<\/p>\n\n\n\n

But at the same time, Hanafi also says. Though the court marriage or the marriage without a wali is valid still the female or male will be accounted on the day of judgment.<\/p>\n\n\n\n

Conclusion<\/h2>\n\n\n\n

What we learn is that, the view of Imam Abu Hanifa (RH) is quite stronger in the matter of court marriage in Islam. There is also a matter of Qiyas. Whereby the Ahnaf says that just as an adult man can utilize his property and marry properly by word. The woman can also utilize her property and marry herself.<\/p>\n\n\n\n

Hence, she has a right over her property and her person. While many ghair muqallids try to criticize the Hanafi regarding their ruling on this issue. But some scholars on their side has given a ruling similar to the Hanafi opinion.<\/p>\n\n\n\n

Bibliography<\/h2>\n\n\n\n

[1] Bidayatul mujtahid vol.2, pg.6-7<\/a>
[2] Al mughni vol.7, pg.5 by ibn qudama<\/a>
[3] Ashi\u2019-\u2018at al-lama \u2018aat sharhmiskat vol.4, pg 286<\/a>
[4] sharh ma\u2019ani al-athar vol.3, pg 17-18<\/a>
[5] Urdu translation of sunan ibn maja by Maulana Muhammad qasim amin<\/a>
[6] Ibid vol.2, pg 31
[7] Mir\u2019atul mansjih by mufti ahmad yar khan vol.3, pg 285<\/a>
[8] Dars e tirmidhi by mufti taqi usmani vol. 3, pg 377<\/a>
[9] Tafsir anwar ul bayan by mufti Muhammad ashiqllahi vol. 1, pg 297<\/a>
[10] Dars e tirmidhi by mufti taqi usmani vol.3, pg 377<\/a>
[11] Sahih muslim kitab an nikah<\/a>
[12] Sharh muslim vol. 9, pg 203<\/a>
[13] Muwatta imam malik, kitab an nikah<\/a>
[14] Kanzul ummal vol. 12, pg 532<\/a>
[15] Kanzul ummal vol. 12, pg 530<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

The marriage is called court marriages because it is performed in court in front of a magistrate. The proper term for this is “a marriage without a guardian“. According to Shariah Law, women cannot marry themselves, nor they can marry any other woman. There must be a guardian (Wali) present for her at the time […]<\/p>\n","protected":false},"author":5,"featured_media":4152,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"image","meta":{"footnotes":""},"categories":[8],"tags":[149,162,230,367],"blocksy_meta":{"styles_descriptor":{"styles":{"desktop":"","tablet":"","mobile":""},"google_fonts":[],"version":6}},"aioseo_notices":[],"_links":{"self":[{"href":"https:\/\/atmateen.com\/wp-json\/wp\/v2\/posts\/18"}],"collection":[{"href":"https:\/\/atmateen.com\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/atmateen.com\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/atmateen.com\/wp-json\/wp\/v2\/users\/5"}],"replies":[{"embeddable":true,"href":"https:\/\/atmateen.com\/wp-json\/wp\/v2\/comments?post=18"}],"version-history":[{"count":1,"href":"https:\/\/atmateen.com\/wp-json\/wp\/v2\/posts\/18\/revisions"}],"predecessor-version":[{"id":5694,"href":"https:\/\/atmateen.com\/wp-json\/wp\/v2\/posts\/18\/revisions\/5694"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/atmateen.com\/wp-json\/wp\/v2\/media\/4152"}],"wp:attachment":[{"href":"https:\/\/atmateen.com\/wp-json\/wp\/v2\/media?parent=18"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/atmateen.com\/wp-json\/wp\/v2\/categories?post=18"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/atmateen.com\/wp-json\/wp\/v2\/tags?post=18"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}