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The Validity of a Marriage Contract With Disobedient Witnesses
Shaykh al-Islaam Ibn Taymiyyah [d.728] (may Allaah have Mercy on him) was asked about a man who proposed marriage to a woman who had a walee (representative) other than the ruler. This man came (to the court) with witnesses for the marriage, and he had knowledge of their fisq (disobedience), however, they are acceptable witnesses according to the ruler (in the courts). Is such a marriage valid with these kinds of witnesses? And if it is valid, is it disliked?
He responded:
Yes, the marriage in such a case is valid. The 'adaalah (integrity) that is a required attribute of the witnesses to a marriage is only that they are not known for open disobedience, even if they are actually disobedient in private. So long as this disobedience is not in the open, and their apparent situation is that such things are kept private, then such a marriage is valid, according to the more correct of the scholars' two positions on this issue. This is according to the math-hab of Ahmad, ash-Shaafi'ee, and others.
If the witnesses had been required to be declared trustworthy by the ruler (i.e. official witnesses endorsed by the court), most of the people's marriages would be invalid, except those who took that route! It is well known that the people in the time of the Messenger of Allaah (sallallaahu 'alayhe wa sallam), and in the time of Aboo Bakr, 'Umar, 'Uthmaan, and 'Alee as well, used to finalize their marriage contracts in the company of a few others, even if the attendees had not been declared reliable witnesses by the ruler (i.e. official witnesses endorsed by the court).
However, some of the scholars of Fiqh have stated that the two witnesses are required to be upright and just people. According to them, the official witnesses appointed by the rulers are considered acceptable, even if one of them was actually a disobedient person! So, in both opinions, the marriage is valid with such witnesses, even if they were disobedient in private, and Allaah knows best. |
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Source: Majmoo'ah al-Fataawee (v.32, p.38)
Moosaa ibn John Richardson
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Moosaa
10-07-2006 @ 3:02 PM
