On of the big fiqh issues that we find has hit many of our communities is the situation of the witnesses for the marriage contract. Some people say that it is something which is part of the contract, and others say that it is not. Those whom say that it is part of the contract, claim that the contract is considered invalid if this condition is not met. Those that say it is not a necessary part, say that it is a valid contract if they are not there to witness the contract itself. Even though this issue of the validity of the contract is not the topic at hand, I do want to point out one thing about this issue. Even though you find that some people point out that a particular narration dealing with this situation is weak, there are other narrations that are not. For instance, there is one that we spoke in some detail before about, in which the Prophet (may Allah’s peace and blessings be upon him) said,
“لَا نِكَاحَ إِلَّا بِوَلِيٍّ وَشَاهِدَيْ عَدْلٍ وَمَا كَانَ مِنْ نِكَاحٍ عَلَى غَيْرِ ذَلِكَ فَهُوَ بَاطِلٌ فَإِنْ تَشَاجَرُوا فَالسُّلْطَانُ وَلِيُّ مَنْ لَا وَلِيَّ لَهُ”
[رواه ابن حبان وصححه الألباني]
“There is no marriage except by way of a wali and two just witnesses. What happens from marriage that is not like that, it is nor recognized. So if they differ, than the ruler is the wali for the one there is no wail for them.”
[reported by Ibn Habbaan and Sheikh al Albaani declared it sahih)
In this, we find that there is a clear proof that has been reported to be authentic by one of the Scholars of Hadeeth of our time and other than him. This one of the proofs that those that say that the contract is invalid if the two just witnesses are not present.
Now the issue that we need to move on to once this is understood, is the situation of the condition of these two witnesses. We see from the hadeeth, that they need to be two just witnesses. What exactly does this entail? Do we just look at anyone and assume that they fit the requirements, as many of us have done? Or are there certain things, or characteristics that the Scholars have laid out, so as to explain to us who qualifies and who does not? This is what we are here to discuss today.
What I would like to bring to your attention about in this issue is the fact that Imaam an Nawawi (may Allah have mercy upon him) has stated in his famous fiqh book entitled Minhaaj at Taalibeen that there are certain conditions that must be met in order for the individual to be considered a just witness. He stated,
“ولا يصح إلا بحضرة شاهدين وشرطهما حرية وذكورة وعدالة وسمع وبصر وفي الأعمى وجه”
“And it is not correct except that there are two present witnesses. Their conditions are being a free person, a male, being just, the ability to hear and the ability to see (but there is a stance that allows for a blind person to stand as a witness).”
Thus, we need to begin to fear Allah in that which we are doing, in terms of marriage specifically. It is not appropriate that we continue to just find anyone on the street, and decide that they will become witnesses for our marriages. The witnesses serve a serious purpose in our religion. They are not just simply to watch what goes on. When needed they should be able to be called upon, and their statements and recollections be trusted.
As we see from this authentic hadeeth, this is from among the conditions for the marriage contract to be considered to the valid or acceptable. Therefore, we need to pay more attention to what we are doing in this situation, if what we are truly trying to do, is put together contract that is acceptable to Allah. If we stick to following this command, along with any of His other commands, we will find that things will be much easier and less confusing in our lives. It is only when we move away from, or try to find ways around that which He has legislated, that we find ourselves in the problems that we face in many of our communities today.
May Allah put a desire in all of our hearts, to adhere to that which He legislated in the way that He legislated. May Allah forgive us for all of our shortcomings, and strengthen us in emaan. Allahuma ameen.
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