Alhassanain(p) Network for Heritage and Islamic Thought

The Night at Mina

After completing the tawaf, the pilgrim must return to Mina during what are called Layali al‑Tashriq, which are the nights of the llth, 12th, and 13th‑‑with the exception of him who being in a hurry departs after midday and before sunset on the 12th; there being nothing against him who leaves under these circumstances on the third day, in accordance with the verse:

فَمَنْ تَعَجَّلَ فِي يَوْمَيْنِ فَلَا إِثْمَ عَلَيْهِ

He that departs on the second day incurs no sin (2:203)

According to Abu Hanifah, to stay overnight in Mina is Sunnah not wajib. Those who consider it wajib agree that it is a rite and not a rukn. They disagree, however, regarding the necessity of kaffarah upon the defaulter. According to Ahmad ibn Hanbal, there is none; according to al‑Shafi’i, a mudd (al‑Tadhkirah, al‑Mughni, Fiqh al‑Sunnah); and according to Malikis, a sacrifice (al‑Zarqani's sharh of Malik's Muwatta').

According to the Irnamiyyah, "If one spends the night at a place other than Mina, there is nothing upon him if he spends it at Makkah praying all the night until morning; but if the night is spent there without prayer, or somewhere else, in prayer or otherwise, he must sacrifice a sheep, even if the default was on account of oversight or ignorance". (al‑Sayyid al‑Hakim's Manahij al‑nasikin).

There is no obligatory rite for the nights in Mina, though spending them in prayer and worship is mustahabb.

Ramy during the Ayyam al-Tashriq

The schools agree that there is no rite except ramy of the three jimar every day during the three days called ayyam al‑tashriq, regardless of whether the pilgrim is performing Hajj al‑tamattu; al‑'ifrad or al‑qiran. As to the number of pebbles and other things they have been mentioned under "Jamrat al‑‘Aqabah."

According to the Imamiyyah, the time of ramy on each of the three days extends from sunrise until sunset, midday being the preferable hour. The other schools say that it extends from midday until sunset, and if done earlier should be repeated. Abu Hanifah permits ramy before midday only on the third day. Ramy after sunset is permissible only for those with a [valid] excuse.

All the five schools are in consensus about the number of jimar and the way of performing the ramy on the three days. Below is the way of its performance as described by al‑Tadhkirah and al‑Mughni.

The pilgrim performs ramy on each of the three days by throwing 21 pebbles, seven in each of the three times. He begins at the first jamrah, al‑Jamrat al‑'Ula, which is the farthest of them from Makkah and nearer to Masjid al‑Khayf. It is mustahabb to toss the pebble in a fashion called hadhf1 , from the left side standing at Batn al‑Masil, and to say takbir with every pebble that is thrown and to pray.

After that, he proceeds to the second jamrah, called al‑Jamrat al‑Wusta, halts at the left side of the way, and, facing the Qiblah, praises Allah and prays for blessings upon the Prophet (S), then moving ahead a little prays, and then throws the pebbles in the same way as above, then pauses and prays after the last pebble.

Then he moves on to the third point called Jamrat al‑‘Aqabah, and performs the rite of ramy as before, without any pause after finishing. With this the rites of ramy for the day are complete.2

The total number of pebbles thrown on the three days is 63 (that is, if one spends the night of the 13th in Mina), 21 each day.

With the seven thrown on the day of ‘Id the total number is 70.

The author of al‑Tadhkirah, after the above description, says that there is no difference of opinion about it. The author of al‑Mughni makes a similar remark, adding that Malik has opposed the raising of hands.

The description of the rites of ramy given by the author of al‑Mughni is similar if not exactly the same as the one given above by the author of al‑Tadhkirah.

All schools, except Abu Hanifah, agree about the order of the ramy of the jimar, and that if one of them is stoned out of turn, then it is obligatory to repeat the rite in the correct order. Abu Hanifah says that the order is not binding. (al‑Tadhkirah, al‑Mughni)

The ramy may be performed on foot or from a mount, though the former is better. It is permissible for one who has an excuse that someone else may perform it for him, and there is nothing upon one if he omits the takbir, the prayer or the pause after the second jamrah.

If the ramy is delayed by a day intentionally, or on account of ignorance or oversight, or is put over completely until the last day of Tashriq and is performed on a single day, the pilgrim does not incur a kaffarah according to the Shafi’is and the Malikis. Abu Hanifah says that if one, two, or three pebbles are delayed by a day, for every pebble delayed a poor man must be fed; if four are delayed by a day, a sacrifice becomes essential.

All the four schools are in consensus that if one does not perform the ramy at all until the days of Tashriq are past, he is not obliged to perform the rite later any time. But they disagree as to the related kaffarah, which, according to the Malikis is sacrifice regardless of some‑‑even one‑‑or all of the pebbles being omitted; according to the Hanafis the sacrifice is required for omitting all, and for fewer one must feed a poor man for every pebble omitted.

The kaffarah according to Shafi'is is a mudd of food for every pebble if two are omitted; for three a sacrifice becomes obligatory. (Ibn Rushd's Bidayah, al‑Mughni)

The Imamiyyah say, if the ramy of one or more jimar is forgotten, the rite must be performed during the days of Tashriq; but if forgotten altogether until one reaches Makkah, the pilgrim is obliged to return to Mina to perform them if the days of Tashriq are not past; otherwise he must perform the rite himself the following year, or depute another to perform it; in any case there is no kaffarah upon him. (al‑Tadhkirah) This agrees with the fatawa of al‑Sayyid al‑Hakim and al‑Sayyid al‑Khu'i, with the difference that the former regards the legal grounds in favour of the obligation of completion of the rite as stronger (aqwa), whereas the latter considers it as dictated by caution (ahwat), and both agree that intentional omission of ramy does not invalidate the Hajj.

We referred earlier to the consensus of all the schools that it is sufficient for the Hajj pilgrim to remain for only two days of Tashriq in Mina and that he may depart before the sunset on 12th; if he remains until sunset, it is obligatory upon him to stay overnight and perform the rite of ramy on the 13th. The Imdmiyyah, however, say that the permissibility of leaving on the 12th is only for one who has not violated the prohibition on hunting and sex in the state of ihram; otherwise he is obliged to remain in Mina on the night of the 13th.

Offering salat in the Masjid al‑Khayf at Mina is mustahabb, so also on the hill called Khayf. (al‑Tadhkirah)

On returning to Makkah after the rites of Mina, it is, according to Imamis and Malikis, mustahabb to perform the tawaf al‑wada; which, according to Hanafis and Hanbalis, is wajib for non‑Makkans and those who do not wish to stay on in Makkah after returning from Mina. There is no tawaf al‑wada; nor any fidyah, for women who enter their periods before the departure, even from the viewpoint of those who consider the tawaf as obligatory; however, it is mustahabb for her to bid farewell to the House from the door nearest to it and without entering al‑Masjid al‑Haram.

Here we conclude the discussion about the rites of Hajj.

Notes

1. Hadhf means a certain way of tossing in which the pebble is held under the thumb and tossed by the back of the index finger.

2. Al‑Sayyid al‑Hakim says that it is desirable that the third ramy should be done with one's back toward the Qiblah. According to al‑Mughni it should be done facing the Ka'bah.

The Dhu al-Hijjah Moon

It happens often that the Dhu al‑Hijjah new moon is established for a non‑Imami scholar, and he declares its sighting, and the authorities of al‑Haramayn al‑Sharifayn make it compulsory for all pilgrims to follow his ruling, regardless of whether the new moon has been established for an Imami mujtahid or not. In such a case, what is an Imami pilgrim to do about the wuquf in ‘Arafat and other rites related to specific dates and times if he cannot act according to his own school of fiqh? Is his Hajj invalid if he makes the halt with others, performing all the rites simultaneously with them?

Al‑Sayyid al‑ Hakim, in his Manahij al‑hajj (1381 H.), p. 91, says: "When the non‑Imami authority (hakim) rules that the new moon has been sighted, so that the halt in ‘Arafat takes place on the 8th of Dhu al‑Hijjah and the halt in the Mash'ar on the 9th, then on the principle of taqiyyah, or the fear of being harmed, the halt with others is valid and relieves one of the duty. The same holds in case of a na'ib undertaking Hajj on another's behalf or one on a mustahabb Hajj of oneself or that of another. Also, there is no difference with respect to fulfilment of the duty whether he knows or not that the ruling (of the non‑Imami hakim) is contrary to the reality."

Al‑Sayyid al‑Khu'i in Manasik al‑hajj (1380 H.), p. 80, says: "When the new moon is established for a non‑Imami qadi and he rules that it has been sighted, but the sighting of the new moon is not established for the Shi’ah ‘ulama', to follow others in making the halt is obligatory and satisfactory of the Hajj duty if there is a probability of the ruling being correct. One who acts contrary to the dictates of taqiyyah and the possibility of being harmed, thinking that legal caution lies in acting contrary to them, has committed something forbidden and his Hajj is invalid.”1

There is no doubt that God desires ease not hardship for His servants, and there is hardship in repeating the Hajj another time, even for one who has the means to undertake it more than once. But what should a poor man do who returns the next year to find the same thing to have occurred again? Should he keep on repeating the pilgrimage, two, three, or four times... until it coincides with the ruling of his school? May God's peace and benedictions be upon Amir al‑Mu'minin, the Sayyid al‑Wasiyyin, who said:

إن الله كلّف يسيراً ، ولم يُكلف عسيراً ، وأعطى على القليل كثيراً

God has assigned duties which are easy to fulfil not difficult to cope with; and He rewards much for little.

Besides, we know that such kind of things happened during the era of the Infallible Imams (‘a) and not one of them is known to have commanded the Shi’ah to repeat the Hajj. It is on this basis that al‑Sayyid al‑Hakim, in Dalil al‑nasikin, says, "To fall in with the ruling of the non‑Imami qadi is permissible; this is in accordance with definitive practice from the times of the Imams (‘a), which has been to follow them (i.e. the non‑Imamis) in the halt (at ‘Arafat), and no other alternative has ever been suggested."

However, al‑Sayyid al‑Shahrudi, in his Manasik al‑hajj, says, "It is permissible to follow, in regard to this question, the fatwa of the absolute mujtahid (al‑mujtahid al‑mutlaq) who considers it permissible." To tell the truth, to me this kind of thing is not digestible when coming from a mujtahid mutlaq, although I have read and heard such things from more than one mujtahid whom the common people follow.

Because, a mujtahid mutlaq in his fatwas should either take an affirmative or a negative stand, and if he doesn't, has no right to be a legal authority (for taqlid). Someone may say that it is not a condition for being mujtahid mutlaq that he should never abstain from giving a definitive fatwa or give up caution (ihtiyat) in some matter, for ‘caution is the path of salvation' (al‑'ihtiyat sabil al‑najat). In answer I would say, this is an obvious fallacy.

Because, ihtiyat in a matter is something, and giving a fatwa to consult someone else is another matter. In fact when the mujtahid sees the necessity of ihtiyat in a matter, he does not give a fatwa upon it—as is the practice of legal authorities regarding several issues?

Here we affirm al‑Hakim's position, because we understand from the necessary grounds for taqiyyah that the 9th is a requirement for wuquf in 'Arafat when that requirement can be satisfied in presence of security and absence of any fear of harm. But in case of insecurity and fear this condition does not stand, exactly like the requirement for sajdah (prostration) in salat that it should be made on something which is not edible or wearable (ghayr al‑ma'kul wa al‑malbus)—a requirement which applies to conditions when security is present and which falls in case of insecurity and fear.

Notes

1. Our teacher al‑Sayyid al‑Khu'i makes the absence of knowledge (that the fatwa of the non‑Imami authority about the sighting of the new moon is contrary to fact) a condition for the Hajj being satisfactory of the duty. But al‑Sayyid al‑Hakim considers the knowledge of its contradiction with reality or absence of such knowledge indifferent to the Hajj (performed on the basis of the non‑Imami faqih's declaration) being satisfactory of the duty. Here we affirm al‑Hakim's position, because we understand from the necessary grounds for taqiyyah that the 9th is a requirement for wuquf in 'Arafat when that requirement can be satisfied in presence of security and absence of any fear of harm. But in case of insecurity and fear this condition does not stand, exactly like the requirement for sajdah (prostration) in salat that it should be made on something which is not edible or wearable (ghayr al‑ma'kul wa al‑malbus)—a requirement which applies to conditions when security is present and which falls in case of insecurity and fear.

Ziyarah of the Greatest Prophet (S)

The ziyarah of the Greatest Prophet‑ may Allah's peace and benedictions be upon him and his Family‑ is a highly mustahabb duty. He is reported to have said, "Whoever visits my grave after my death is like one who has migrated with me in my life." He also said, "A salat in my mosque is like a thousand ones offered elsewhere with the exception of al‑Masjid al‑Haram, as to which a salat there is equal to a thousand in my mosque." It is emphasized that the mustahabb salat in the Prophet's Mosque should be offered between his tomb and the minbar, where, a tradition says, is a ‘garden of the gardens of Paradise.'

To visit all other mosques of al‑Madinah, like Masjid Quba, Mashrabat Umm Ibrahim, Masjid al‑'Ahzab, etc. and also the graves of the martyrs, in particular that of Hamzah (‘a) at Uhud, is also mustahabb. Also mustahabb is paying visit to the tombs of the Imams (‘a) buried in al‑Baqi’, viz., al‑'Imam al‑Hasan, al‑Imam Zayn al‑‘Abidin, al‑Imam al‑Baqir, and al‑'Imam al‑Sadiq, who upon whom all be peace and best of blessings.

As to the ziyarah of Fatimah (‘a), the mother of al‑Hasan and al‑Husayn, it is as important as that of her father, of whom she is a part (bidha'ah). There are several reports about the location of her honoured tomb, of which the most probable seems to be the one according to which she was buried in her house adjacent to her father's mosque. When the mosque was extended by the Umayyads, the grave also came to be included inside it. This is what Ibn Babawayh (al‑Shaykh al‑Saduq) believed. We think this is highly probable, because it agrees closely with the tradition that her grave is in a garden between the grave (of the Prophet) and the minbar. Allah alone has knowledge of everything.

History of al-Haramayn al-Sharifayn

The Ka’bah

‘It is the first temple ever to be built for men, a blessed place a beacon for the nations' (3:96) and the most ancient of them in the Middle East. It was first built by Ibrahim, the ancestor of the prophets, and Isma'il, his son, and the Qur'an quotes them praying as they raised its walls:

وَإِذْ يَرْفَعُ إِبْرَاهِيمُ الْقَوَاعِدَ مِنَ الْبَيْتِ وَإِسْمَاعِيلُ رَبَّنَا تَقَبَّلْ مِنَّا إِنَّكَ أَنْتَ السَّمِيعُ الْعَلِيمُ

And when Ibrahim and Isma'il raised up the foundations of the House (and dedicated it, saying): ‘Our Lord, accept this from us; Thou hear all and know all'. (2:127)

Isma'il gathered the stones and Ibrahim put them on one another until the walls were raised to the height of a man. Then the Black Stone was put in its place. According to tradition, the Ka'bah (al‑Bayt al‑Atiq) was nine cubits high and had an area of twenty by thirty cubits when Ibrahim (‘a) built it. It had two doors, but was without a roof.

As to the Black Stone, it is said to have been brought by Gabriel from heaven. It is also said that Adam brought it along with him on his descent from Paradise, that at first it was snow‑white and was blackened by the deeds of men, and so on. There is no harm in not believing any of these stories and the like, nor are we obliged to establish their verity, nor to know the origin of the Stone. All we are obliged to do is to revere it because the Prophet (S) considered it sacred and revered it. If someone asks the secret behind the Prophet's regarding this stone as sacred, all we can say is that only God and His Apostle know best.

According to some traditions the Ka'bah stood as Ibrahim and Isma’il had built it until it was rebuilt by Qusayy ibn Kilab, the fifth ancestor of the Prophet (S). The structure built by Qusayy stood until the time when the Prophet was 35 years old, when a great flood demolished its walls. The Quraysh rebuilt it. When the walls were raised to a man's height the clans disputed as to who should receive the honour of lifting the Black Stone into its place. They almost came to war with one another, if it was not for their making Muhammad the arbiter amongst themselves.

The Prophet's solution was to spread a cloak on the ground. Then taking up the Black Stone he laid it on the middle of the garment. "Let the eldest of each clan take hold of the border of the cloak," he said. "Then lift it up, all of you together." When they had raised it to the right height, he took the Stone and placed it in the corner with his own hands.

May God's benedictions and His mercy be upon you, O Apostle of God! You raised the Stone first with your noble hands from the ground and then put it into its place again with your hands. Thus you made God and man well pleased with you. This event was a definite evidence of your superiority over all, and of your being a ‘mercy for all the worlds', before your declaration of the apostlehood as after it. Your act was a clear sign that you were the bearer of a Divine mission, and that those who rejected you were enemies and opponents of the truth and of humanity.

The Ka'bah remained in its condition until Yazid ibn Mu'awiyah became caliph and till ‘Abd Allah ibn al‑Zubayr challenged his sovereignty over the Hijaz. Yazid's forces installed catapults on the hills around Makkah and bombarded the Ka'bah with tens of thousands of stones. The Ka'bah caught fire which finally demolished its structure. Ibn al‑Zubayr repaired it as it was before without making any changes, and he put a wooden fence around it. When ‘Abd al‑Malik ibn Marwan came to power, Ibn al‑Zubayr was besieged by his forces under al‑Hajjaj ibn Yusuf, who ultimately killed Ibn al‑Zubayr after causing damage to a part of the Ka'bah. Al‑Hajjaj rebuilt the demolished portions and made some changes in the walls as they used to be, and also had one of its doors (the ‘western door') blocked.

The Ka'bah remained in the altered condition after al‑Hajjaj's repairs until the year 1040/1630 when its walls collapsed due to heavy rains. Thereafter the Muslims from every corner gathered together to restore it and collected contributions from various regions of the Muslim world to rebuild it in the form as it stands to this day.

The Prophet's Mosque

When the Prophet came to al‑Madinah after the migration, the first thing that he built there was the mosque. Afterwards he built the houses by its side. At first its area was 30 by 35 metres, which the Prophet (S) extended, making it 57 by 50 metres.

There was no minbar in the mosque at the time of its making. The Prophet (S) used to deliver his sermons leaning against one of the pillars, which were made of trunks of date‑palms. Later, the Companions built a wooden minbar with two steps. ‘Umar ibn al‑Khattab, during his reign, extended the mosque by five metres on southern and western sides and fifteen on the northern. He left untouched the eastern side where the dwellings of the Prophet's wives were situated.

‘Uthman ibn ‘Affan demolished the mosque and rebuilt it, extending it in area by an amount almost equal to the one before by ‘Umar and left the houses of the Prophet's wives untouched. The building remained as ‘Uthman had made it until al‑Walid ibn ‘Abd al‑Malik demolished it again and extended it on all sides, and including even the houses of the Prophet's wives, together with that of ‘A'ishah, thus making the Prophet's tomb a part of the mosque.

The building constructed by al‑Walid stood until 266/879 when al‑Mahdi, the ‘Abbasid caliph, greatly extended its northern side. The building endured until the year 654/1256 when a fire broke out bringing down the roof and burning doors and the Prophet's minbar. The Mamluk sultan al‑Zahir rukn al‑Din Baybars I (658‑676/1260‑­1277) ordered its reconstruction and the mosque was restored to its original form before the fire.

In 886/1481, lightning struck the mosque destroying all the building except the chamber of the Prophet's tomb and a dome in the mosque's courtyard. It was rebuilt by the Mamluk king al‑'Ashraf Sayf al‑Din Qait Bay (872‑901/1467‑95) in a fashion better than before. In the 10th/16th century the Ottoman sultan Salim had it renovated, building the mihrab (niche) on the western side of the minbar and which is still there.

In the 13th/19th century the Ottoman sultan Mahmud II (1223‑1255/1808‑1839) had the green dome constructed. During the same century the mosque again needed repairs, which were carried out by the orders of the Ottoman sultan. This time, the engineers dismantled the old building little by little gradually building in its place the new structure which was completed in 1277/1861.

و صل اللهم على محمد و اهله الطاهرين و عرف بيننا و بينهم, و ارزقنا شفاعتهم يوم نلقاك ,

يا مبدل السيئات بأضعافها من الحسنات... انك ذو الفضل العظيم

Part 2: Personal Law

6. Marriage

The Marriage Contract and its Conditions

All the five schools of fiqh concur that marriage is performed by the recital of a marriage contract which contains an offer made by the bride or her deputy (na'ib), such as her guardian or agent (wakil), and a corresponding acceptance by the groom or his deputy. A mere agreement without the recital of the contract does not amount to marriage.

The schools also agree that a marriage contract is valid when recited by the bride or her deputy by employing the words, ankahtu or zawwajtu (both meaning. I gave in marriage) and accepted by the groom or his deputy with the words, 'qabiltu' (I have accepted) or 'raditu' (I have agreed).

The schools of fiqh differ regarding the validity of the contract when not recited in the past tense or recited by using words other than those derived from the roots al-zawaj and al-nikah, such as, al-hibah and al-bay'.

The Hanafi’s say: A marriage contract is valid if recited by any word conveying the intention of marriage, even if the words belong to the roots al-tamlik, al-hibah, al-bay', al-'ata, al-'ibahah and al-'ihlal, provided these words indicate their being used for the purpose of marriage. But the contract will not conclude if the word used are derived from al-'ijarah (hiring) and al-'i'arah (lending), because these words do not convey the meaning of perpetuity and continuity.

They have based their argument on this narration from the Sahih al-Bukhari and the Sahih Muslim. A woman came to the Prophet (S) and said: "O Apostle of Allah. I have come to offer myself to you." On hearing this, the Prophet (S) lowered his head and did not reply. Then one of those present said: "If you do not want her marry her to me." The Prophet (S) asked him: "Have you anything?" He replied, "By God. I have nothing." Again the Prophet asked him. "Have you any knowledge of the Qur'an?" He replied regarding the extent of his knowledge of the Qur'an. Then the Prophet said. "I make her your property in exchange for your knowledge of the Qur'an" (using the word mallaktul)1 .

The Maliki’s and the Hanbali’s say: The contract is valid if recited by using the words al-nikah and al-zawai or their derivatives and is also valid when the word used is al-hibah, with the condition that the amount payable as dower (mahr or sidaq) is also mentioned. Words other than these cannot be used. They have based their argument for the use of the word al-hibah on this verse of the Qur'an (see Abu Zuhrah. al-'Ahwal al-shakhsiyyah [1948] p. 36):

وَامْرَأَةً مُؤْمِنَةً إِنْ وَهَبَتْ نَفْسَهَا لِلنَّبِيِّ إِنْ أَرَادَ النَّبِيُّ أَنْ يَسْتَنْكِحَهَا

...And a believing woman if she gave (wahabat, derived from al-hibah) herself to the Prophet, if the Prophet desired to marry her... (33:50)

The Shafi'i scholars consider it wajib that the words used in the contract should be either the derivatives of the root al-zawaj or that of al-nikah.

The Imamiyyah say: It is wajib that the offer be made by using the words ankahtu and zawwajtu in the past tense. The marriage is not concluded if the word used is not in the past tense and does not belong to the roots al-zawaj and al-nikah, because these two roots conventionally convey the meaning of marriage and the past tense conveys the meaning of certainty and also because the Qur'an testifies their use:

فَلَمَّا قَضَىٰ زَيْدٌ مِنْهَا وَطَرًا زَوَّجْنَاكَهَا

أُرِيدُ أَنْ أُنْكِحَكَ

(33:37 ,28:27).

Apart from -this, the absence of consensus invalidates the use of words other than these in such a contract. For acceptance, according to them, the word qabiltu or raitu can be used.

The Imamiyyah, the Shafi'i and the Hanbali schools mention 'immediacy' as a condition for a marriage contract. By immediacy they mean the acceptance of the offer without any delay. The Malikis consider a minor delay inconsequential, such as a delay caused due to the recital of a short sermon or the like of it. The Hanafi school is of the opinion that immediacy is not necessary.

Even if a man addresses a letter to a woman conveying his proposal of marrying her and the woman gathers witnesses and reads out the letter to them and says. "I marry myself to him," the marriage is performed (al-Fiqh 'ala al-madhahib al-'arbiah, vol. 4. the discussion regarding conditions of marriage; al-'Abwal al-shakhsiyyah by Muhammad Muhy al-Din 'Abd al-Hamid).

All the schools concur that the contract can be recited in any language when it is impossible to recite it in Arabic but differ as regards the validity of the contract when so recited despite the possibility of its being recited in Arabic. The Hanafi, the Maliki and the Hanbali schools consider this as valid. The Shafi'i and the Imamiyyah Schools consider it as invalid. (Abu Zuhrah. al-'Ahwal al-shakhsiyyah. p. 27)

The Imamiyyah, the Hanbali and the Shafi'i schools consider a contract in writing as invalid. The Hanafi school is of the opinion that a written contract is valid provided the bride and the groom are not present together at the place of contract. The schools concur that a dumb person can convey his intention to marry by signs in case he is incapable of expressing it in writing. If he can express it in writing, it is better for him to combine both, writing and signs. in conveying his intention.

According to the Hanbali and the Hanafi schools, if a clause is included in the contract giving a choice to the bride and the groom to annul the contract. The contract is valid but the condition is void. The Maliki school is of the opinion that, if the marriage is not consummated, this condition as well as the contract are both void. But if the marriage has been consummated, the condition is void, not the contract. The Imamiyyah and the Shafi'i schools have declared both the contract and the condition as void irrespective of whether the marriage has been consummated or not.2 (al-Fiqh 'ala al-madhahib al-'arba'ah, vol. 4; al-Tadhkirah by al-'Allamah al-Hilli, vol. 2; and al-Masalik by al-Shahid al-Thani, vol. 2J)

As a matter of course, the offer is made by the bride and is accepted by the groom. The bride says, 'zawwa jtuka' (I have married myself to you) and the groom accepts by saying, 'qabiltu' (I have accepted). The question which now arises is, is the contract valid when the acceptance precedes the offer and the groom addresses the guardian of the bride saying, 'zawwijnihu ' (marry her to me) and the guardian replies, 'zawwa jtukahu ' (I have married her to you)? The Hanbali school considers it as invalid while the other schools concur on its validity (al-Tadhkirah by al-'Allamah al-Hilli, vol. 2). Al-'Allamah al-Hilli, an Imamiyyah scholar, in his book al-Tadhkirah, says, "A marriage contract cannot be made contingent on a future event because certainty is one of its conditions. If a condition is included prescribing a certain time or a certain quality, such as, when the offer is made with the condition that the marriage will conclude at the beginning of the forthcoming month and this offer is accepted, the contract is not valid. Al-Shafi'i is of the same opinion."

Abu Zuhrah, a Hanafi scholar, writes m his book al-'Ahwal al-shakhsiyyah: “A marriage should be concluded on the recital of the contract, because marriage is a contract and the consequences of the contract cannot be delayed after its conclusion. Therefore it is not possible to postpone the consequences of a contract till the fulfillment of a future condition”. In the book A'lam al-muqlin, Imam Ahmad has been referred to as validating a conditional contract of marriage.

A Subsidiary Issue

Al-Fiqh 'ala al-madhahib al-'arba'ah, quoting Hanafi and Shafi'i scholars, states: If an illiterate person mispronounces the word 'zawwaitu' and says instead, ''zawwajtu," the contract is valid. Al-Sayyid Abu al-Hasan al-'Isfahani, an Imamiyyah scholar, in his Wasilat al-najat, gives a similar fatwa.

Witnesses

The Shafi'i, the Hanafi and the Hanbali schools concur that the presence of witnesses is a necessary condition for a valid contract. The Hanafi school considers as sufficient the presence of two men or a man and two women. However, if all the witnesses are women, the contract is not valid. This school does not consider ‘adalah’ (justice) as a condition for the acceptability of the witnesses. The Shafi’i and the Hanbali schools consider as necessary the presence of two male Muslim witnesses possessing the quality of ‘adallah’.

According to the Malikis, the presence of witnesses is not necessary at the time of the contract but their presence is necessary at the time when marriage is to be consummated. Therefore, if the contract is recited without the presence of witnesses, it is valid. But, when the groom intends to consummate the marriage it is incumbent upon him to have two witnesses. If the marriage is consummated without the witnesses, the contract becomes void compulsorily, and this is considered as amounting to an irrevocable divorce. (Bidayat al-mujtahid by Ibn Rushd: Maqsad al-nabih by Ibn Jamii'ah al-Shafi’i)

The Imamiyyah do not consider the presence of witnesses as wajib but only mustababb.3

Notes

1. The Imamiyyah have narrated this tradition with different words. According to their version: A woman came to the Prophet (S) and said, '"Get me married." The Prophet then announced, "Who is ready to marry her?" One of those present stood up and said, “I”. The Prophet (S) then asked him, "What can you give her?" He replied, "I have nothing." The Prophet said, "No." The woman repeated her request and the Prophet (S) repeated the announcement but none stood up except the same man. The woman again repeated her request and the Prophet (S) announced again. Then the Prophet (S) asked him, "Do you have any good knowledge of the Qur'an?" He replied, "Yes. I do." The Prophet (S) then said, "I marry her to you (zawwajtukaha) in exchange for your teaching her what you know well of the Qur"an." Therefore, the word used was al-zawaj, not al-milk.

2. This is the view of most of the Imamiyyah scholars. But some of them, such as Ibn Idris among the early legists, and al-Sayyid Abu al-Hasan al-'Isfahani among the recent ones are of the opinion that the contract is valid and the condition is void. Accordingly, the Imamiyyah scholars in both their views are on the whole like the scholars of the other schools.

3. Dr. Muhammad Yusuf Musa, in his book al-Ahwal al-shakhsiyyah (1958) page 74, states: "The Shi'ah consider the presence of witnesses as necessary for marriage." He considers the Shi'ah and the Hanafi, the Shafi'i and the Hanbali schools to hold a common view. But there is no source of reference for what he states.

Capacity to Enter into a Marriage Contract

All the schools agree that sanity and adulthood (bulugh) are necessary qualities for both the parties to the contract, unless the contract is concluded by the guardian of any of them. The contract with the guardian shall be discussed later. The schools also agree that there should be no obstacle to marriage between the man and the woman such as consanguinity or any other disabling factor of a permanent or temporary character. We will discuss the legal obstacles to marriage in a separate chapter.

The schools also consider the ascertainment of both the parties to the contract as necessary. Therefore, when it is said. "I marry you to one of these two daughters." or "I marry myself to one of these two men." the contract will not be valid.

All the school except the Hanafi consider free consent as a sine qua non without which the contract does not conclude. The Hanafis are of the opinion that the contract is concluded even if coercion is present (al-Fiqh 'ala al-madhahib al-'arbdah). Al-Shaykh Murtada, al-'Ansari, an Imamiyyah scholar, after mentioning free consent as a condition, writes: "That which is commonly held by the Imamiyyah scholars of the latter period is that, when a person coerced consent freely later on, the contract is valid. In the book al-Hada'iq wa al-riyad their consensus has been reported on this issue." Al-Sayyid Abu al-Ha'san al-'Isfahani, an Imamiyyah legist, in his al-Wasilah in the chapter on marriage, writes: "Free consent of both the parties is a necessary condition for a valid contract. If both of them or any of them is coerced, the contract is invalid. But if the party coerced consents later, the reason in favor of the validity of the contract seems strong." According to the above-mentioned criterion, if the man or the woman pleads coercion and then willingly live together like a married couple and show the happiness of a newly married bride and groom, or if the woman takes the mahr or does any other act proving consent, the claim of coercion will be rejected and no other evidence will be accepted contradicting the consent.

According to the four school of fiqh, a contract recited in jest concludes the marriage. Therefore, when a woman says jokingly. “I marry myself to you” and the man accepts it in a similar fashion, the contract is concluded. Divorce and the freeing of a slave also conclude if recited in jest according to the tradition:

ثلاث جدهن جد وهزلهن جد: الزواج والطلاق والعتق

The three whose intentional and jestful (recital) is considered intentional are: marriage, divorce and freeing of a slave.

The Imamiyyah school considers all contracts involving jest as null and void due to the absence of the will to contract and as regards the above-mentioned tradition, they consider the narrators as unreliable.

The Hanafi and the Hanbali schools regard the marriage of an idiot as valid irrespective of whether the guardian has given permission or not. The permission of the guardian is necessary in the view of the Imamiyyah and the Shafi’i schools.

According to the Imamiyyah and the Hanafi schools, the consent given when the two conditions of sanity and adulthood (bulugh) are present concludes the marriage as per the authority of the tradition.

إفرار العقلاء على أنفسهم جائز

The consent of sane persons even if detrimental to their interest, is valid.

Al-Shafi’i, in the latter of his two views, considers the marriage as established when the bride being a sane adult acknowledges the marriage and the husband confirms her acknowledgement, because marriage is the right of both the parties. Malik recognizes a difference here. According to him, when the bride and the groom are in a foreign land their acknowledgement establishes the marriage; but when they are in their hometown they will have to furnish a proof of their marriage because it i convenient for them to do so. This was the former view of al-Shafi’i. (al-Tadhkirah by al- Allamah al-Hilli)

Bulugh

There is consensus among the schools that menses and pregnancy are the proofs of female adulthood. Pregnancy is a proof because a child comes into being as a result of the uniting of the sperm with the ovum: and menses, because, like the production of sperm in male, is a mark of female puberty. All schools, except the Hanafi, consider the growth of pubic hair as a sign of adulthood, but the Hanafis consider them no different from other hair of the body. According to the Shafi’i and the Hanbali schools, the adulthood of both the sexes is established on their completing fifteen years. According to the Malikis, it seventeen years for both the sexes. The Hanafis consider eighteen years for a boy and seventeen years for a girl a the age of maturity (Ibn Qudamah, al-Mughni, Bab al-Hijr. vol. 4). The Imamiyyah have mentioned fifteen years for a boy and nine years for a girl as the age of maturity on the authority of the following tradition narrated by Ibn Sinan:

إذا بلغت الجارية تسع سنين دفع إليها مالها وجاز أمرها وأقيمت الحدود التامة لها وعليها

When a girl reaches the age of nine her property will he returned to her and it will be rightful for her to handle her own affairs, and the hudud are applied against her and in her favor.

Experience also proves that a girl can conceive at the age of nine, and the ability to conceive is equivalent to conception in all aspects.

Note: That which the Hanafis have said regarding the age of maturity is the maximum age limit for maturity. The minimum age limit according to them is twelve years and nine years for a boy and a girl respectively: because at this age it is possible for a boy to ejaculate and to impregnate, and for a girl to have orgasm. to menstruate, and to conceive (Ibn 'Abidin [1326 H.] Bab al-hijr, vol. 5, p. 100).

Stipulation of Conditions by the Wife

The Hanbali school is of the opinion that if the husband stipulates at the time of marriage that he will not make her leave her home or city, or will not take her along on journey or that he will not take yet another wife, the condition and the contract are both valid and it is compulsory that they be fulfilled, and in the event of their being violated, she can dissolve the marriage. The Hanafi, the Shafi’i and the Maliki schools regard the conditions as void and the contract as valid, and the Hanafi and the Shafi’i schools consider it compulsory in such a situation that the wife be given a suitable mahr, not the mahr mentioned (Ibn Qudamah. al-Mughni. vol. 6. chapter on marriage).

According to the Hanafi school, when the man puts the condition that the woman would have the right to divorce, such as when he says. ''I marry you on the condition that you can divorce yourself," the condition is invalid. But if the woman makes such a condition and says to the man, "I marry myself to you on the condition that I shall have the right to divorce," and the man says in reply. "I accept." the contract and the condition are both valid and the woman can divorce herself whenever she desires.

According to the Imamiyyah school, if at the time of contract, the woman stipulates such conditions as that the man shall not take another wife, or shall not divorce her. or shall not prohibit her from leaving home whenever she wants and wherever she wants to go, or that the right to divorce will be hers, or that he shall not inherit her, or any other such condition which is against the spirit of the contract, the condition will be considered void and the contract will be valid.1 But if she lays down such conditions as that the man will not make her leave her city, or will keep her in a specific home, or will not take her along on journeys, the contract and the condition are both valid. But if any of these conditions are not met, she does not have the right to dissolve the marriage.

However, if in such a situation the woman refuses to accompany him, she still enjoys all the rights of a wife, such as being provided with maintenance and the like of it.2 When the wife pleads of having included a valid condition in the contract and the husband repudiates the inclusion of such a condition, the wife will have to furnish evidence, because she has pleaded this extra condition. On the wife being unable to furnish the evidence, the husband will take an oath regarding the non-inclusion of the condition because he is the one who negates it.

Notes

1. According to the Imamiyyah, an invalid condition in a non-marriage contract results in the contract becoming void. But in a contract of marriage such a condition does not cause the contract nor the mahr to be void unless a choice is given regarding the voiding of the contract or a condition is laid that none of the consequences of the contract will follow, which is against the spirit of the contract. They have argued on the basis of reliable traditions that there is a difference between a marriage contract and other forms of contract.

Some of the legists have said: "The secret of this difference is that marriage is not an exchange in the true sense of the word as in the case of other forms of contract." The Imamiyyah scholars have extensive discussions on these conditions the like of which are not found in books of other schools. Those who want further information regarding these conditions may refer to al-Makasib of Shaykh Murtada al-'Ansari and Taqrirat al-Na'ini of al-Khwansar i, vol. 2, and the third part of Fiqh al- Imam al-Sadiq by this author.

2. In Farq al-zawaj of Ustadh 'Ali al-Khafif. it is stated that the Imamiyyah consider these kind of conditions as void. This is a mistake which has been caused as a result of confusing these kind of conditions with those which negate the spirit of the contract.