1. Is is compulsory to publicly announce the amount of the maher at a nikah or is it sufficient for example to say the groom is giving 18ct gold jewellery set…2. Is it preferable for the brides father to be the wakeel and her to elder brothers to be her witnesses or is it better to get somebody like uncles, etc…3. Is it permissible to have a pre-nuptial contract wherein the women has the option of giving the man talaaq under certain specified circumstances

Answered according to Hanafi Fiqh by Askimam.org

1. Is is compulsory to publicly announce the amount of the maher at a nikah or is it sufficient for example to say the groom is giving  18ct gold jewellery set or does it have to be even more specific, example to day it has a necklace, bracelet, etc? alternatively is it in order if it announced that the groom has given a certificate regarding the value to the brides father?
 
2. Is it preferable for the brides father to be the wakeel and her to elder brothers to be her witnesses or is it better to get somebody like uncles, etc to act as wakeel and witnesses?
 
3. Is it permissible to have a pre-nuptial contract wherein the women has the option of giving the man talaaq under certain specified circumstances which have to be first approved by the jamiat or another authentic body?

Answer

In the name of Allah, Most Gracious, Most Merciful

Assalaamu `alaykum waRahmatullahi Wabarakatoh

1. The announcement of mahr is not mentioned in the books of fiqh as a condition for the validity of the nikah; hence, it will not be necessary to announce the amount of mahr during the nikah. However, the amount of mahr should be mutually agreed between the two parties before the nikah.

2. The Sunnah method of conducting a nikah is that the wali of the girl seeks permission from her to conduct her nikah; i.e. he tells the girl that I wish to get you married to this certain boy, in exchange for a certain amount of mahr. This is also called wakalah and the wali will be regarded as the wakeel. The wali can also appoint someone else to seek permission on his behalf, and the rules applying to the wali will apply to this person.

The wali of the girl is the closest male relative of the girl. This is generally the father, then her grandfather in the absence of her father, then her brother, then her brother’s son, then her father’s brother, etc.

It will be advisable for the wali to be the wakeel of the girl and conduct the nikah. When the wali seeks permission from the girl, it will not be necessary for the girl to answer verbally, but her staying silent will suffice. However, if a male relative besides the wali seeks permission, (e.g. the brother seeks permission when the father is present, or the father’s brother seeks permission when the brother is present) then keeping silent will not suffice and it will be necessary for the girl to accept verbally.

The presence of two witnesses is not a condition for the validity of nikah when seeking permission from the girl. The only purpose the witnesses will serve is that they can be produced as witnesses when the girl later refuses that she gave permission to the wali to conduct the nikah. However, these witnesses should not be ghair-mahram to the girl. In the absence of any mahram witnesses, it will be preferable not to have any witnesses.

The misconception people have that the father cannot be the wakeel and two witnesses have to be present for the nikah to be valid, is incorrect. 

 

Once the wali has taken permission from the girl, it will be permissible for him to conduct the nikah on her behalf, or appoint the Qadhi, etc. (make him wakeel) to conduct nikah on his behalf.

 

( فإن استأذنها هو ) أي الولي وهو السنة ( أو وكيله أو رسوله) … ( فسكتت ) عن رده مختارة ( أو ضحكت غير مستهزئة أو تبسمت أو بكت بلا صوت ) … ( فهو إذن ) أي توكيل … ( فإن استأذنها غير الأقرب ) كأجنبي أو ولي بعيد ( فلا ) عبرة لسكوتها ( بل لا بد من القول كالثيب )

(Dur al-Mukhtar ma’a Hashiyat Rad al-Muhtar Vol.3 Pg.58-62 – H.M. Sa’eed Company)

( الوالي في النكاح ) ( العصبة بنفسه ) ( بلا توسطة أنثى ) ( على ترتيب الإرث والحجب )

(Dur al-Mukhtar ma’a Hashiyat Rad al-Muhtar Vol.3 Pg.76 – H.M. Sa’eed Company)

أما الشهادة على التوكيل بالنكاح فليست بشرط لصحته كما قدمناه عن البحر، وإنما فائدتها الاثبات عند جحود التوكيل.

(Rad al-Muhtar Vol.3 Pg.21 – H.M. Sa’eed Company)

(Fatawa al-Mahmoodiyah Vol.11 Pg.576-582 – Jami’ah Farooqiyah)

In the light of the abovementioned, it will be preferable for the father to be the wakeel of (take permission from) the girl; and any of the male relatives who are mahram could be witnesses to this taking of permission. 

 

3. The right of talaq is vested in the husband only. However, Shari’ah has taken into consideration the difficulties the wife would face in certain situations, and has permitted her to request the husband to grant her the liberty of exercising his right of issuing talaq. This is termed as Tafweed al-Talaq. When the husband agrees to this and gives his wife the right, she will have the right to give herself talaq. She will still not have the right to give the husband talaq and the husband will not lose his right of issuing talaq.

It will be permissible for the wife to request the tafweed al-talaq before Nikah (in a pre-nuptial contract). However, when a person is documenting a pre-nuptial contract, he should make the tafweed al-talaq contingent upon the marriage. He should not say that if I engage in any of the following actions my wife will have the right of exercising talaq upon her, as he is handing over the right of talaq to his wife when the woman is still not her wife. Rather, he should say, if I get married to … the daughter of …, and then engage in any of the following actions, then she will have the right of exercising talaq upon herself. In this way, he is handing the right of talaq only after she becomes the wife.

(Al-Heelah al-Najizah li al-Heelah al-‘Ajizah Pg.20 – Dar al-Isha’at)

And Allah knows best

Wassalam

Ml. Abu Yahya,
Student Darul Iftaa

Checked and Approved by:

Mufti Ebrahim Desai
Darul Iftaa, Madrassah In’aamiyyah

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