Conducting the Nikaah over the phone
Q: I request you to take out some time to respond my query. My friend is suffering from depression for a long time, may Allah give you ajar for this. One of my friends was engaged to her cousin for a long time. During their engagement period they used to talk on the phone. She was kind of a religious girl so she used to feel guilty about it, to lower her burden her cousin said since we are going to get married in future if we do secret nikah right now it will save you from guilt. After some arguments he convinced her (at that time she was only 17 years old). She said that “on the phone” a person (which her cousin said was a molvi) asked her thrice if she accepts her cousin in her nikah and she said yes 3 times” And that’s it she never signed a nikaah nama, and there was no witness at her side at the time she accepted the nikaah (she doesn’t know anything about the other side that how many people were present), it all happened on the Phone. After that they met 2 or 3 times but never formed bond of husband and wife. She doesn’t know if it was a real nikaah or a drama, or her cousin fooled her. After some time they got some family issues because of which they broke up with each other. Now she is engaged to someone else and she still doubts that she is in the nikaah of her cousin (her ex fiancé). If you can provide her a reference of a hadees or whatever that is nikah like that on phone is valid or not so that she gets married without any burden on her heart. In the end on her continuous insistence he said talaaq thrice again on the phone, but she is still not satisfied. Please note that she belongs to hanafi school of thought.
A: It is a precondition for the validity of the nikaah that the bridegroom, bride (or their representatives) and the two male baaligh sane Muslim witnesses be in the same gathering. Since this condition was not found in the case which you have explained (where the boy, from one place proposed and the girl, from another place, accepted via the phone), the nikaah was not valid.
And Allah Ta’ala (الله تعالى) knows best.
Mufti Zakaria Makada
Checked & Approved:
Mufti Ebrahim Salejee (Isipingo Beach)