Telephone nikkah

http://www.askimam.org/public/question_detail/21122

Assalam O Alaikum,

I wanted to ask a question regarding my nikkah. Is it possible to marry a girl who is overseas and I can not go for my nikkah. She has her parents and all the witness there and my parents and my witness there as well as witness for the nikkah. Can I have my nikkah on the phone or video call on internet? Is it permissible?

JazakAllah Khair!

Kamran 

Answer

In the Name of Allah, the Most Gracious, the Most Merciful.

As-salāmu ‘alaykum wa-rahmatullāhi wa-barakātuh.

It is possible for two people to marry one another whilst they are in two different countries. However the method used to do this should be in total conformity to the proper procedures of conducting such a marriage. If the bride and groom make an offer and acceptance directly to one another over the phone or a video call then the marriage will not be valid. 

The proper procedure would be that one of the two parties select an individual to be their representative in the physical location of the other party. 

For example A lives in New York whilst B lives in Shanghai, now in order for A to marry B he (A) will have to select someone who would be his representative in the physical location (in this case Shanghai) of B. Now the representative of A will make an offer in the presence of two witnesses to party B in Shanghai. Once party B accepts, the Nikah will be contracted. Party A can listen to this over the phone and the Nikah will be valid. Even if party A does not listen to this over the phone the Nikah will still be valid.

However if party A directly proposes to party B whilst both are in their respective countries in the presence of witnesses the Nikah will not be valid. This ruling is equally applicable to video calls and the Nikah will not be valid.[1]

Arranging a nikah by letter: 

A sends a letter to Shanghai appointing C (who is in Shanghai) to be his representative. A makes two people (X and Y) his witnesses at the time of writing the letter. C will propose in the presence of two witnesses and party B will accept the proposal.

An example of a letter wherein proxy takes place:

I party A, appoint C as my representative to marry me to B of Shanghai, in the presence of two witnesses, namely X and Y.

All three (A, X and Y) will sign the document.

The girl’s party can be represented by the father of the girl or anyone who is her Guardian according to the Islamic laws of Guardianship.

And Allah Ta’āla Knows Best

Mawlana Ali bin Cassim,
Student Darul Iftaa
Los Angeles, U.S.A

Checked and Approved by,
Mufti Ebrahim Desai.

http://www.askimam.org/public/question_detail/18470

nikah via a phone, internet etc.:

It is a pre-requisite for the validity of nikah that, witnesses be present who witness both, the proposal and acceptance of nikah. Hence, if both parties still wish to go ahead with the nikah without being present at one place, i.e. telephonically, the only alternative will be to contract the nikah via a proxy (representative).

In this case, you will appoint a representative/agent (wakeel) in Pakistan who will on your behalf, make the offer to the girl’s party. The girl or her representative will accept (i.e. make qubul) of this proposal and in this manner, the nikah will be concluded In Pakistan.

Understand this procedure by means of an example:

When authorizing C to be your representative, C should be in the presence of two witnesses, while you authorize him with these words,

“I authorize you to contract my nikah with Ayesha, daughter of D, for the sum of Rs… as dower.”

This representative of yours, in Pakistan, will say, “Being a duly authorized agent of Ahmed M, I propose to marry Ayesha, daughter of D, to Ahmed M in lieu of Rs…”

In turn, the girl or her representative will pronounce her acceptance, in the presence of at least two witnesses and say, “I married/accepted Ahmed M, son of so and so, for the sum of Rs… as dower.”

Once the above procedure is followed, the nikah contract will be valid on condition that the appointed representative in Pakistan is absolutely sure of his appointment through the telephone and that his appointment is witnessed by two persons. This is impossible to confirm through a speaker phone system.^[6] It would also be better if the representative’s appointment is reduced to paper for clarification.

How is a marriage contract performed over the telephone and what are the absolute minimum requirements for a marriage contract to be valid?

<ANSWER>

In the name of Allah, Most Compassionate, Most Merciful,

The basic requirements for a valid marriage according to Shariah are the following:

1) Offer (ijab) from the female (herself or her guardian/agent whom she appoints to pronounce the offer on her behalf) or male (or his agent), and acceptance (qabul) from the male or female (or their agents), and that this offer and acceptance is heard and understood clearly.

2) The presence of at least two male witnesses or one male and two female witnesses, who hear and clearly understand this offer and acceptance.

Imam al-Quduri (Allah have mercy on him) states in his al-Mukhtasar:

“Marriage is contracted by offer and acceptance, in two statements, both of them expressing the past tense, or one of them expressing the past and the other the future, such as one saying, “Marry (your daughter) to me” and the other saying, “I have married (her) to you”. The marriage of Muslims is not contracted without the presence of two free, adult, sane, Muslim male witnesses, or one man and two women, whether they be morally upright (adil) or non-upright.” (Mukhtasar al-Quduri, 2/140)

In other words, the basic minimum requirement in order for a marriage to be considered Islamically valid is that there be a valid offer from one party and a corresponding acceptance from the other, in the presence of two male or one male and two female witnesses who know what is happening. The offer, acceptance and the presence of the witnesses must all take place in the same session and at the same place. (The consent of the woman’s guardian is also a necessary requirement in some cases, for which one may refer to the fiqh of guardianship).

Marriage over the Phone

Now, a marriage taking place over the phone in a manner that all the relevant parties are in different places will not be valid in accordance with the above explanation. One party will be pronouncing the offer over the phone and the other party (in another place) will be accepting this offer. This will not be sufficient for the marriage to be considered valid even if the witnesses are present with any one of the parties. As stated, it is a condition for the validity of marriage that the witnesses be present in the same place the marriage offer and acceptance take place.

The Solution

The solution to the situation where both parties are in different counties and would like their marriage contracted is through agency (wakala). The jurists (fuqaha) of the Hanafi School state that both the woman and man may appoint agents to conduct their marriage on their behalf.

Shaykh Muhammad Qudri Basha states in his al-Akham al-Shar’iyya fi al-Ahwal al-Shakhsiyya:

Item 57: 

“It is permitted for a man or woman to marry themselves off, or to make another their agent (wakeel), whomsoever they wish, as long as they are free, sane, adults...”

And:

Item 58: 

“It is valid to make another one’s agent (wakeel) for marriage verbally or in writing. It is not a condition that this transfer of agency be witnessed over in order for it to be valid, rather [it is recommended] lest there be denial or dispute.” (al-Akham al-Shar'iyya fi al-Ahwal al-Shakhsiyya with footnotes by Yusuf ibn Muhammad al-Haj Ahmad, P: 35)

As such, if Zayd wants to marry Fatima without both of them being present in one place, Fatima (who is in the US, for example) may authorize a relative or friend living in the UK over the phone to contract her marriage with Zayd and pronounce offer or acceptance on her behalf. If, for example, she selects her uncle Amr to be her agent, then Amr at the time of the marriage ceremony in the presence of the witnesses will say, “I being the agent of Fatima daughter of such and such person have given her in the marriage of Zayd with X amount of dowry. At this point, Zayd will say, “I have accepted Fatima in my marriage in the presence of these witnesses”. With this, the marriage will be considered as valid.

It should be noted that any one of the two parties may appoint an agent. It is permitted to have an agent on behalf of the woman with the man himself being present, or the agent on behalf of the man and the woman herself being present. It is also permitted that both parties have agents conducting their marriage; hence, both agents will pronounce the offer and acceptance on behalf of the man and woman. The strict condition is that the offer, acceptance and witnesses must all be in one place, whether the man and woman are both physically present making these pronouncements or they appoint agents to make the pronouncements on their behalf. (See: al-Ikhtiyar li ta’lil al-Mukhtar, 2/121)

And Allah knows best

[Mufti] Muhammad ibn Adam
Darul Iftaa
Leicester , UK