Rulings For Permanent Marriage

This is a translation of an excerpt from the chapter on marriage from the book Fiqh al-Imam Ja'far as-Sadiq (as), by Sheikh Muhammad Jawad Mughniyah. The translation and commentary in the footnotes are by Hujjat al-Islam Sheikh 'Abd al-Hakeem Carney.

It is mustahab, in marriage, to have two speeches: The first at the moment of seeking marriage, the second before the marriage contract ('aqd). Imam As-Sadiq (as) has said:

A group said to Imam Ali (as): "We want to marry a certain man with a certain woman, and we want to give a speech to him." So Imam Ali (as) began a speech [at the time of the seeking of the woman for the man], beginning with praise and glorification for Allah (swt), then exhortations to fear of Allah, and then he said: "This man, so-and-so the son of so-and-so, calls on this woman, so-and-so the daughter of so-so, and he is in the stature of which you have been made known, and he is of a lineage of which you are ignorant, and he will provide for her a dowry of which you know...and peace and blessings be upon Muhammad and his family.

The author of Al-Masalik has said: It is mustahab to give a speech for the marriage contract, and this speech consists of praise for Allah the Exalted, the two shahadas, prays for the Prophet and his family (s), exhortations to piety, and prayers for the couple. Similarly, it is recommended to speak of the Prophet and then the Imams (as). It is also recommended to give the speech before the betrothal [that will take place with] the woman and her guardian, as well as it being mustahab for the wali to give the khutba himself. It is best to keep the speech short, limiting oneself to praise for Allah (swt). Indeed, Imam Zain al-'Abideen (as) would not say more than: "Praise be to Allah, peace and blessings upon Muhammad and his family, I ask Allah for forgiveness, We are here to wed you upon the conditions set by Allah (swt)." In fact, Imam Zain al-'Abideen (as) has said that he who has praised Allah, has given his speech.

In any case, Shaheed at-Thani has stated: "If one abandons the khutba, the marriage contract is correct according to all of the 'ulama except Dawud az-Zahiri."

Moving on, we see that the marriage has two pillars (rukn): The formula (seegah) and the two marriage partners. As for the dowry, it is not a pillar or a condition for the correctness of the marriage contract.

First, words which express both offer (ijab) and acceptance (qabul)¹ from the stand point of the one being sought for marriage² and the one seeking marriage,³ or someone who represents the two parties as a designated representative (wakil) or as a guardian (wali). The marriage is not correct by the parties merely being pleased to the marriage and giving themselves over to it, nor is it correct if they perform the seegah through some kind of signs or writing if they are able to speak. As such, this type of contract is distinct from all other kinds of contracts and transactions.⁴

You might ask: Why does this have to be done in words? Are these words nothing but a means of expressing acceptance and intention of the marriage? If people are certain about their acceptance of the marriage, then isn't the use of words or non-use of them equal in value?

We would respond by saying that the purpose of using words in the marriage contract is to make binding the marriage agreement and the effects that come from that agreement, in a way that there is no room for equivocation. It is like the signature on a business contract, which establishes the transaction between the people involved, or the signature on a treaty which establishes an agreement between nations. In fact, the contract of marriage is one of the most important kinds of contracts, as is expressed in the ayat from suira an-nisa': "And you have taken from them a weighty agreement."Any talk about a transaction or treaty remains purely formal until the signature is applied, so the relationship between the man seeking marriage and the woman who is sought in marriage remains purely formal until they use the marriage formula which acts like a signature. When they both make the verbal expression of marriage, then the contract becomes binding on them, and this contract becomes absolutely sound and firm.

There is consensus that the offering (ijab) of the contract for a permanent marriage is established by the words "zawajtu" or "nikahtu."⁵ In fact, many of the jurisprudents have argued that the marriage does not become establishes except by one of these two words. The basis for this is the ayat: "When Zayd left his life, you were married (zawaj) to him," and the ayat: "Do not marry (nikah) those whom your fathers have married (nikah)," with the meaning of nikah referring to the marriage contract.⁶

There is disagreement about whether or not the permanent marriage can go into effect with the words mut'atu⁷. Most jurisprudents, according to the author of Al-Masalik, have argued that the permanent marriage does not go into effect with these words. This is because people start out being haram to each other sexually, and these words do not establish certainty that this prohibition has been removed. This is in contrast to the words zawajtu or nikahtu. Furthermore, the act of marriage involves concerns related to 'ibadat which are based upon commands that come from God the Lawgiver. The author of Al-Masalik states:

Marriage is something that is based upon precaution, and it involves issues of 'ibadat which are commanded by the Lawgiver. Insofar as the basic status of people is the prohibition of sexual relations, then we act upon istishab until permissibility of sexual relations is concerned in a shari'ah approved way.

As far as the statement of existence (qabul), there suffices any words which are explicit in expressing satisfaction with the marriage contract, such as "qabiltu" (I accept) or "radaitu" (I am happy with this." The author of Al-Jawahir:

There is no problem with obtaining [a knowledge] of one's acceptance through either of these phrases...If someone says: "I marry ( ajtu) myself to you" and you respond: "I accept the marriage (nikah)," or if someone says: "I marry (nikahtu) myself to you," and you respond "I accept the marriage (zawaj)," this is correct even though one has used opposite words [in the ijab and qabul]. Similarly, there is no disagreement and no doubt that one may simply say "qabiltu," as is the case is on other contracts.

It is a famous opinion amongst the jurisprudents, as argued by the author of Al-Masalik, that the marriage formula for a permanent marriage does not come into effect unless one uses the past tense of the verb used in the marriage formula (zawajtu instead of azawaj).⁸ Many from the learned scholars, such as the author of Al-Masalik, the author of Al-Jawahir, Sheikh Ansar i in his appendix to Al-Makasib, the author of Al-'Urwah wa Al-Uthqa, the author of Al-Mustamsik, and other scholars, have argued that the marriage can go into effect without the use of the past tense verb. The author of Al-Masalik, however, has disputed this with an argument that has been used by the author of Al-Jawahir and others, saying:

The use of words in the marriage contract is intended to indicate and reveal an intention that a person has within themselves. The argument made by some that the past tense of the verb is explicit in doing this, as opposed to other tenses, is incorrect. This is because the basic use of the past tense verb is to state that something has happened, not to express intention.⁹ However, it has been narrated that the past tense can have this meaning. If it wasn't for this narration, then there would be no use to using the past tense verb in this way. The only reason that the verb is able to be used properly in this way is that the meaning of intention is determined by the outside circumstances surrounding the use of this word. If the same circumstances existed, then it would be possible to understand that one is expressing an intention without using the past tense verb.

It is narrated from the Ahl al-Bayt (as) that the temporary marriage is put into effect using the present tense of the verb. If it is permissible to do this in a temporary marriage, then it is permissible to do so in a permanent marriage, since there is any difference between them as they are both binding contracts.

The hadeeth that Sheikh Ansari is referring to here is when a man asked Imam Ja'far (as) about how he was supposed to start a temporary marriage. The Imam (as) said:

She says : "On the Book of Allah, I am marrying you [using the present tense, azawajuka] for mut'a, and the sunnah of His Prophet, for this amount of money for this amount of time." If you say: "Yes, I am happy with this," then she is yours, and you are now the best of men because of her.

There is consensus that the marriage contract is established by using words that are not Arabic if one is unable to speak Arabic. There is, however, disagreement in whether or not the marriage goes into effect if one is capable of doing it in Arabic. It is the common opinion, as argued by the author of Al-Hada'iq, that this is not permissible. A large group of scholars, including Sheikh Ansari and Sayyid Al-Hakeem, have argued the opposite. In the ninth volume of Mustamsik of Al-'Urwati, Sayyid Hakeem quotes a hadeeth from Ibn Hamza to this effect. Sheikh Ansari in the appendix of Al-Makasib says:

There is no evidence which requires that the words be in Arabic. As for those who say that it is required when one is able to do, this is incorrect, because one's ability to do speak Arabic doesn't have any relevance to the meaning of the words being expressed.

There is also consensus that the marriage is not correct if the formula is written instead of spoken. However, if someone is unable to speak, but can find someone who could speak for him, it nonetheless suffices that he make whatever indications are necessarily to make clear and explicit his intention to marry. This is if he would not be able to write. If he is able to write, then he should write and it he should make whatever indications he can [sign language, etc.] which can be understood by others. We have a hadeeth from Imam As-Sadiq (as), when he was asked how a person who is unable to speak, unable to write, and unable to hear is to go about divorcing his wife. The Imam (as) said: "He should do some actions which can be understood by others."

Most of the jurisprudents have argued that there needs to be continuity between the offering (ijab) and the acceptance (qabul). This means that the marriage would not be correct if there was a big gap between the offering and the acceptance. Sayyid Al-Hakeem says in the ninth volume of Al-Mustamsik:

The definition of a contract does not apply when there is some kind of big disparity [in the contract], even if this big disparity occurs during a single meeting.

There is no evidence to say that it is necessary that the marriage contract occur in a single meeting, nor is there any evidence for this in any other kind of contract.

We have argued elsewhere that all that is wajib is that one continue to have the intention of the contract when the acceptance (qabul) comes. It suffices, then, that one expresses that they still intend the marriage and have not changed their minds. As far as there being some sort of big gap, this makes no difference.

It is the famous opinion that attaching conditions to the marriage renders it invalid. If someone says, for example: "I marry myself to you if so-and-so is happy with this," or is conditioned by any other eventuality like this, than the contract is invalid. There is no evidence for this except the probability that a contract, any contract, can only be valid if the effects of that contract are allowed to come from it right then, and that it is not possible allow those effects to come to pass sometime in the future. We have argued elsewhere, however, that this opinion is incorrect for other contracts, but nonetheless holds true in the case of marriage. This is because marriage, unlike other transactions, is followed by certain specific effects.

By nature, the ijab (offering) comes from the woman sought for marriage, and the qabul (acceptance) comes from the man. As such, she says: "I marry myself to you," and then the man or his representative says: "I accept." However, it is famous amongst the jurisprudents that the place of these statements may be reversed, so that the man says: "You marry yourself to me for this dowry," and the woman says: "I marry myself to you," or, "I accept." Shaheed ath-Thani says in Sharh al-Lau'mah:

Because the contract is an offering and an acceptance and the relationship between the two, how can the two people come to an agreement that is in conflect with their intention?Furthermore, in marriage (more so than other contracts), woman are often shy to initiate the marriage formula, and so in this case they would be forgiven for not doing so...Beyond this, many have claimed complete consensus that it is permisible that the acceptance (qabul) may be done first, before the ijab.

It suffices that the woman's response simply be the word "Yes," in accordance with the hadeeth of Imam As-Sadiq (as), narrated by Aban ibn Taghlib, where he says: "If the woman says yes after the man has said 'I marry you for mut'a for this dowry and for this period of time,' then she is your woman and you are the best of men because of her."

In fact, it suffices that the two people say whatever is easiest for them, if they are not unable to recite the words for zawaj or nikah. So if one of them says: "I make myself permissible to you (jawaztuka)," as opposed to "I marry you (zawajtuka)", then this is correct so long as both people are certain about the intention of the other. The author of Al-Shara'i and the author of Al-Jawahir say:

If one of the two parties is unable to speak the words of marriage, then they may speak that which is easy from, on the assumption that both parties understand the intention of the other.

There is consensus, as stated by the author of Al-Jawahir, that giving the choise of abrogating the marriage (either in a permanent or temporary marriage) in some specific time period is invalid. Thisi s because marriage is not something which accepts abrogation. However, there is disagreement on whether or not placing this condition invalidates the entire contract, or if it is only this condition which is invalid. The author of Al-Jawahir says:

It is well known amongst the scholars of law, and in fact I have not found anybody who disagrees on this point, that the condition is invalid. This is because the marriage contract does not accept conditionality, because it involves issues related to 'ibadat, and the abrogation of the marriage only occurs based upon certain kinds of defects in one of the spouses, defects which have been discussed in the canonical sources. As such, it does not accept abrogation in this way, in contrast to other kinds of business contracts. Furthermore, giving the option of abrogating the marriage negates the necessities which come from the contract, and it is invalid in light of the legeal evidences...As such, giving this option invalidates the entire marriage contract.

Many scholars, such as Ibn Idrees, and Sayyid Isfahani in Al-Waseelah, and Sayyid Yazdi in Al-'urwati, and Sayyid Al-Hakeem in Al-Mustamsik, have said that the condition is the only thing invalid, whereas the contract itself is correct. We are of this position, because the marriage conract has special rulings which differentiate it from other contracts.

There is consensus, with the exception of Ibn 'Aqeel, that witnesses to a permanent marriage is recommended, but not obligatory. The author of Al-Jawahir says: "It is well-known amongst the scholars of law the witnessing is not obligatory, and any statements in favor of it being obligatory are rare."

This is because witnessing is an additional condition to the marriage, whereas the basic premise which we fall back upon is that it is not necessary. This only changes with evidence, and there is no evidence. Nonetheless, there are narrations which come from both Sunni and Shi'a sources which say that no marriage can take place without a guardian and two witnesses. However, these narrations are weak, as argued by the authors of Al-Jawahir and Al-Masalik.

All of the scholars are in agreement that the man seeking marriage and the woman sought for marriage but be of sound-mind, legal age, and mature, except with the presence of a guardian. The author of Al-Jawahir has said that the words of a child or insane person are like the sounds of animals when it comes to a contract. An insane person loses all discretion over his affairs when he is mad, and a drunk, dazed, or sleeping person have the same ruling as an insane person. As far as someone who is merely joking, then their contract does not count either.

All scholars are also agreed that the man and woman must both be free from any prohibitions on marriage, whether these be caused by some otuside factor, or by relation.

The scholars are also agreed that the people being married must be specified, so it would not be permissible to say: "I marry myself to one of these girls" or "I marry myself to one of these two men." This is because the effectuation of the legal ramifications which come from marriage cannot occur except by a specific, definite person.

There is also consensus that the parties must be intending to marry, must be willing to do so, and have the choose to do so. However, if a marriage occur with one of the parties against the marriage, but then that person later on agrees to it, the marriage is correct. The author of Al-Jawahir says: "If the displeasure of one of the parties is removes, and their willingness to marry is obtained, this is sufficient in making the marriage correct." Sheikh Ansari, in Al-Makasib, says:

It is famous amongst the later 'ulama that if a person who dislikes the contract decides to agree with this (by whatever way he makes this known), then the contract is correct. The consequences of agreeing to the contract will then apply to him, because the contract is now actualized.

The contract, in this case, was in existence, but there was something prohibting it from going into effect. Once this prohibition, namely the dislike of one of the parties, was lifted, then the contract is effectuated. However, the marriage does not go into effect by someone who was just joking about the contract, or was intoxicated, or was asleep, because the effectuation of the contract cannot come from such people.

Based on all of this, if a woman claims that she did not intend to marry, or the man claims this, but after the contract they engaged in the physical relations of marriage, or had a wedding, or the woman took the dowry, or anything like this which indicates that the person was willing to marry, then their claim that they did not want to marry and that the marriage is invalid is to be rejected.

If a drunk woman marries herself, then decides to go ahead with the marriage and is happy with it, then the establishment of the marriage is an accomplished fact.

Nonetheless, it is the common opinon of the scholars that this is not the case. The author of Al-Masalik says:

It is known that one of the conditions for marriage is the intention to marry. But if a drunk person, who has reached a level of intoxication by which their reason has been removed and becomes no longer able to make intentions, decides to marry, then the marriage is invalid, as is the case with all other contracts. This applies to a man or woman. This is the stronger opinion based upon the necessities which are dictated by the principles of Islamic law. Since the contract itself was invalid, then there is no effect to permitting this contract later, since one cannot permit something that itself was invalid at its basis. There are hadeeth which say the opposite of this...but we would argue that some of these hadeeth refer to a person whose intoxication has not reached complete senseless, though it is probably best that these hadeeth simply be rejected.¹⁰

It is not permissible, either, for a foolish person [safeeh]¹¹ to marry themselves on their own accord. This is because marriage requires the disposal of financial resources, such as dowry and daily support, and the foolish person is not allowed to dispose of his financial resources freely. The contract is permissible, however, with permission from his guardian, even if he has another representative recite the actual marriage formula for him, even if this representative is not approved by the guardian. The author of Al-Mustamsik says that there is complete consensus on this, based on the generality of the evidences in this regard.

If a woman employs a representative to marry her to a specific person, then it is not permissible for that representative to marry her to somebody else. If he does, then the contract becomes faduli.¹² If the woman does not specify who she wants to marry, but simply says "Marry me to some man," than most of the scholars say that it is not permissible for the representative to then marry her to himself. This is because the circumstances of the situation show that the woman did not want to marry the representative,¹³ and this is made clear from the statements that she has said, even if this may be merely circumstantial.

However, if she is explicit in permitting this to the representative, saying: "Marry me to yourself," or she says something like "Marry me to whomever you wish," then we may ask if the representative have the right to assume both the position of offering and acceptance in performing his job as representative saying: "I marry this woman to myself, and I accept the marriage for myself."

Most of the scholars, such as the authors of Ash-Shara'i, Al-Masalik, Al-Jawahir, and Al-'Urwati wa Al-Uthqa, have said that this is permissible, and that it suffices that he simply reverse the positions of offering and acceptance as is necessary by the situation. As far as the ahadeeth which say that this is not permissible, these are of weak isnad and are weak in evidence. This has been argued by the author of Al-Masalik. Others have said that these ahadeeth refer to something makruh, as has been argued by the author of Al-'Urwah.

We are of this opinion, if we are summing that the person who is represented has made her intentions clear to the represented. If it is doubtful, however, such as if she had selected several men to be her representative, and the task is divided up between these men after the parties involved have agreed on the basic point that they will represent her.

A man asked Imam as-Sadiq (as) about a woman whom he proposed marriage, and there was not anybody with her. He asked her if she was married, to which she said no. He then asked the Imam (as) if it was permissible to marry her, to which the Imam (as) said: "Yes, and she is the one who has to be true to herself."

Someone else said to the Imam (as) that he was walking down the street, and saw a beautiful women. He did not know if she had a husband or not. The Imam (as) said: "This is not your responsibility. It is her responsibility to be true to herself."

A third person said to the Imam (as) that he has married a women, and then went about asking about her. The Imam (as) said: "Why did you go around asking? It is not your responsible to make an investigation."

A man asked Imam ar-Rida grandson of Imam as-Sadiq (as) about a man who married a woman, and then doubted in his heart that she might have a husband. The Imam (as) said: "What does this have to do with him? If he asked her if she was married, could she not find somebody to bear witness that she was not?

The scholars of law have operated on these narrations, in addition to the principle that we assume that all Muslims are behaving correctly when we doubt then.

Someone asked Imam as-Sadiq (as) about a representative who made a mistake in saying the name of the woman he represented. The Imam (as) said: "There is no problem in this." This is because it is obvious that both people involved know who he is being married, and this is all that is needed.

6The argument being that these words are used in the Qur'an to refer to making a marriage, whereas we would remain uncertain about the use of any others. All of this argument hinges upon the principle of istishab in usul al-fiqh. This principle argues that if we have certainly about a certain situation, and then we doubt if that situation has continued, then we assume that situation is still in effect. This is in line with the hadeeth of Imam Ja'far (as): "Certainty is not broken by doubt." In this case, we are certain that a man and woman were haram to each other sexually before seeking marriage. They only become halal to each other when a marriage act that is certain, for the certainty that they are haram to each other cannot be broken by a doubtful marriage formula. This is the argument, but some scholars have disputed this, such as Ayatullah Jannaati in Iran.

8This would not apply in English, for example, because it is permissible to use the past tense verb in a way expressing something that will happen or is about to happen in Arabic, whereas it would not make sense to do so in English and most other languages.

10There is no doubt that any such ahadeeth would contradict the much more well-known ahadeeth which say that it is impossible for a drunk person to enter into a contract, oweing to their inability to make a proper intention (in the eyes of Islamic law), and the number of ahadeeth which indicate that marriage requires the intention of the parties involved. In such a case, we can dispense with these narrations implying that the marriage of an intoxicated person is correct oweing to their relative rarity in comparison to these other narrations. One may ask what the difference is here between the marriage of a drunk person and the marriage of a person who did not want to marry but later makes the marriage permissible. The difference is that the contract has been made for a person who did not like the contract, and if they decide to agree with it later, then that contract goes into effect. However, the contract of an intoxicated person is not really a contract, and so there is actually nothing for the drunk person to agree upon once they become sober.

11A safeeh is a person who, though not insane, is nonetheless irresponsible and foolish enough that they cannot dispose of their money and affairs without permission of a guardian.

12A faduli contract is a contract where one person forms a deal between one person and another, where one (or both) of those people never asked that person to do so. If those parties are both satisifed with the contract afterwards, then the contract is correct, but if they do not, then the contract is invalid. In any case, it is not permissible for a person to form a contract between two other people when he has not asked him to do so, and such a person has committed a sin even if the other parties agree to the contract.