What is the status of a nikah,1 which a girl and a boy do by themselves. That is, the boy asks the girl that do you accept so and so (own name) son of so and so (father’s name) as your husband with so much (amount) as haq meher in front of God and repeats this statement thrice. And then the girl says yes. And then the girl asks the boy the same question. And then the boy gives her the money of haq meher.
Is it an invalid nikah or does it hold any status?
The Qur’an says that the contract of Nikah (marriage) should be undertaken in the manner that is recognized, supported and followed by the honorable and noble people of a society (see: Al-Baqarah 2: 232).
In the light of the guidance provided by the Qur’an , it may be said that a nikah, to be valid, must fulfill two necessary conditions; firstly, it must entail the free consent of both the male and the female entering into this contract; secondly, it (the contract) must not be kept hidden and should be declared in the society.
The first condition is quite obvious. It is the very spirit of every contract that it should be based on the free consent of all the parties entering into that contract. Any contract, which is not based on the free consent of the parties concerned is void in the eyes of the law.
Furthermore, because nikah (marriage) is a social contract, it must, therefore, be declared and recognized in the society. It is basically this social recognition, which nikah provides to the mutual bond between a male and a female who may otherwise be unrelated to each other. If you look closely at the marital relationship between a man and a woman, you shall see that the only difference it has when it is compared to a sexual relationship between a man and a woman who are not married to each other is that the latter is not recognized by the society to be any relationship at all. Every social relationship, by its very nature, gives all the parties in such a relationship some rights on the others and imposes on them some duties toward others. A nikah is basically a social declaration by both the parties of the intent of fulfilling all the rights and duties that arise out of wedlock. If any nikah fails to fulfill this condition of social declaration, it can then, by no means, be termed as a nikah. It would be given the same status as a relationship between a male and a female living together without entering into the contract of marriage.
18th February 1998
- The contract of marriage. [↩]