Is it necessary for 2 witnesses to be present when the guardian takes the girl’s permission for Nikah? In some communities, it is considered necessary that the same 2 witnesses who witness the actual Nikah also witness the guardian taking the bride’s permission. Would Nikah be valid if there are no witnesses when taking her permission?
In the name of Allah, Most Compassionate, Most Merciful,
According to the Hanafi jurists (fuqaha), it is not necessary for witnesses to be present when the bride’s consent is taken by her guardian (wali) or agent (wakil) for the validity of the marriage. However, it is recommended to have this witnessed in order that it may help avoid any potential future disagreements.
Shaykh Muhammad Qudri Basha states in his standard codification of Hanafi personal law, Al-Ahkam al-Shar’iyya fi ‘l-Ahwal al-Shakhsiyya:
“It is valid to appoint an agent (tawkil) for marriage verbally and in writing [m: and give him permission to marry one off]. It is not a condition to have this witnessed for the validity of the marriage, but rather [it is recommended] due to the fear [and likelihood] of denial and disagreement.” (Al-Ahkam al-Shar’iyya P: 35, Item no 58)
It is stated in Al-Fatawa al-Hindiyya:
“Appointing an agent for marriage [i.e. the bride giving her consent to the Wali or agent] is valid even if witnesses are not present.” (Al-Fatawa al-Hindiyya 1/294. The same has been mentioned by Ibn Abidin in his Radd al-Muhtar ala ‘l-Durr al-Mukhtar 3/21)
What is necessary, however, especially in our times, is that the guardian (wali) or another agent (wakil) obtains clear and decisive consent from the woman to marry her off to a particular suitor. As for remaining silent, the jurists consider it also a form of consent in virgins as long as the silence is not out of sorrow or disapproval.
Shaykh Qudri Basha (may Allah have mercy on him) states:
“An adult free woman may not be forced to marry, whether she is a virgin or a non-virgin. Rather, it is necessary to seek her permission and approval. If she is a virgin and her immediate guardian (wali) or his agent (wakil) or messenger (rasul) seeks her approval before marrying her off… and she knows the husband and the dowry, and remains silent from refusing, without being forced…, then this is considered an approval.” (Al-Ahkam al-Shar’iyya fi ’l-Ahwal al-Shakhsiyya P: 33, Item no 53)
As such, there is no obligation of having witnesses present at the time of obtaining permission from the bride – neither the two witnesses who witness the actual Nikah nor some other witnesses. The Nikah would be perfectly valid in such a case. The jurists, however, do recommend having witnesses present especially when there is a possibility of denial and disagreement in the future between the woman and her agent. It is even better to have the woman’s consent in writing and signed by her to avoid possible disputes.
And Allah knows best
[Mufti] Muhammad ibn Adam
Leicester , UK