After examining the status of the consent of the Muslimah at Marrige, the obligation of having to get the Seeghotul-Aqd from her Waliyy to be legally married to her and the rulings concerning interactions between prospective couples after the proposal before the Aqd, it is necessary to examine, the status of Witnessing the Nikah based on the Quraan, the Sunnoh and the explanations of the companions of the M~ssenger (sollallohu alayhi wa sallam), their students and those who came after them. A Precondition for Marriage Allaah says, "Then when they are about to attain their term appointed, either take them bock in a good manner or part with them in a good manner. And take as witnesses two just persons from amongst you (Muslims)" (Q65[Talaaq12). Based on this verse, some of the scholars say, "Allaah commanded witnessing in the remarriage of a divorced woman which is a renewal of an earlier marriage. Thus, if witnessing is commanded on remarriage, its being a requirement in fresh marriage basically is greater since the one he remarries was his wife and the one he newly marries is a strange woman to him." (Sharhal-Mumti 5/ 139). Also, it is variously reported that the Messenger (sallallahu alayhi wa sallam) said, "There is no valid marriage except with two just witnesses." (Tirmidhee).
Thus, al-Imaam ash-Shawkaanee (RAH) said, "This implies that witnessing is a precondition (for the validity) of a Nikaah (Nayl ol-Awtoor 4/443). On the other hand, other scholars say, Witnessing in a remarriage (of a divorced) is commanded to avoid arguments between the husband and wife so that for example, he claims that he has remarried the woman when actually she did not consent to that and so it becomes an argument between them and more so, she may claim that she had not been remarried making her legal for another man in marriage while her husband had actually remarried her and that becomes a means to evils. But in basic marriage there is no such argument and it is not a subject of arguments (between prospective couples)."(Sharhal-Mumti 5/139).
As such they explain that the verse rather only proves the ruling of witnessing in a remarriage (after divorce) and not the precondition of witnessing in a marriage. They also respond that the hadeeth quoted above is very weak in all its various chains and is unsuitable as a proof to establish witnessing as a precondition for the validity of a marriage. Not In the Secret Even when the verse quoted above does not clearly proof the precondition of witnessing in a valid Nikaah and the preponderance of evidence shows that the hadeeth quoted above is weak and as such not suitable as evidence. Al-Imaam lbn Taimiyyah (RAH) said. "But for a Marriage in secret agreed upon to be kept secret and no one witnesses to it (that the Nikaah actually took place), it is baseless from the generality of the Scholars and is of fornication (or adultery)." (Majmoo Fataawah 33/157).
And this isthe truth. Ash-Shaykh Muhammad bn Saaliha1-Uthaymeen (RAH) said,"And verily, because means to evils is feared from a secret marriage since someone can commit fornication (or adultery) with a lady And refuge is sought from Allaah and then say. I had married her and he comes with two false witnesses who witness to it (in falsehood)."(Sharh al-Mumti 5/ 140) Thus. the Eminent Companion Abdullah bn Abbas (RA) said. "Fornicators (Adulteresses) marry themselves without publicity."(Tirmidhee).
Similar reports have been mentioned from Umar bn al-Khattaab, Alibn Abee Taalib, Saeed bn al-Musayyab; Attaa bn Abee Rabaah, Az-Zuhree, Aamir ash-Shabee, Abu Haneefah, Maalik bn Anas, Shaatiee, Ahmad bn Hanbal amongst others (Nayl al-Awtaar 4/443 and Muwattau). AI-Imaam at-Tirmidhee (RAH)said, "This is what the Scholars are upon from the Companions to those who came after them amongst the Taabioon that - There is no valid Nikaah except that it is witnessed ... " (Tirmidhee). Similar statement is also made by al-Imaam al-Baghawee RH. (Taleeqaatur-Radiyyah 2/162). Thus, marriages are not to be made secretly. They are of the matters that must be given publicity as much as possible.
This article was culled from the publications of Deen Communication Limited