Importance of Witnesses in Muslim Marriage Law
Generally, the Muslim marriage law requires that marriage contract must be in the form of an offer and acceptance expressed in a single meeting. However, different jurists differ on effect of absence of witnesses, their number and qualifications. Different countries have coded different laws following different jurists which are acceptable to the local community.
In Shiite school of thought the presence of witnesses does not invalidate a marriage. In Hanfi law, the presence of witnesses
is must for a valid marriage. A major portion of the Muslim world considers presence of witnesses important but their absence merely makes a marriage irregular which can be regularized later on.
Quran is silent on the issue of witnesses!
Majority of Muslim jurists rely upon a hadith quoted by Muslim in his collection. Prophet(PBUH) said, “Announce Your Marriages”. There are three broader view expressed by different scholars and accepted by different legislatives of the Muslim countries.
Witnesses to Protect Women’s Rights
The women have been more vulnerable partner in any marriage contract. Whatever rights Islam has given to them are withdrawn in one pretext or the other. It is truer in the Muslim world where local cultures and customs are adopted in the name of Islam.
That’s why the Muslim marriage law in most of the Muslim countries requires presence of witnesses on one pretext or the other. It is more beneficial to the women to protect their marital rights and elements of a valid marriage like age, capacity and free consent. It is true that most of the laws don’t specify the details for which the witnesses should testify but when the issues come to courts they are expected to tell details as settled between the partners of the Muslim marriage contract.
However, the law makers should not play with the validity of marriage while making law for presence of witnesses. Neither God nor his Prophet (PBUH) has made the presence of witnesses compulsory for the validity of marriage. The Hadith, “announce your marriages” is clear that announcement comes after marriage and not otherwise.
Secondly, in most of the Muslim societies the women find it difficult to go with their choice for marriage. It will become more difficult for them to find willing witnesses when their families oppose their freedom of choice. Thus the absence of witnesses must not invalidate the marriage.
This principle is practiced in Pakistan and accepted by the courts. In Shazada Begum v. Abdul Hamid 1950 Lah 773, PLD 1950 Lah 540 and many other cases, the courts have observed that a marriage can’t be invalidated merely on account of witnesses.
Circumstantial evidence is given due weight and even considered conclusive at times. The Muslim Family Laws Ordinance 1961 does not necessitate for presence of witnesses at the time of marriage. Even the rules don’t require. However, the form II specified as marriage certificate has a column for witnesses. This form is used to register the marriage and non-registration is a criminal offence in the ordinance.
Qualifications of Witnesses
The Muslim marriage law requires that the witnesses must be sane, of full age and Muslims.
According to Hanfi marriage law they must include at least one male and two females so that if the female witness forgets details of marriage the other female witness may remind her. They inference to Quran:
“O ye who believe! When ye deal with each other, in transactions involving future obligations in a fixed period of time, reduce them to writing Let a scribe write down faithfully as between the parties: let not the scribe refuse to write: as Allah Has taught him, so let him write. Let him who incurs the liability dictate, but let him fear His Lord Allah, and not diminish aught of what he owes. If the party liable is mentally deficient, or weak, or unable Himself to dictate, Let his guardian dictate faithfully, and get two witnesses, out of your own men, and if there are not two men, then a man and two women, such as ye choose, for witnesses, so that if one of them errs, the other can remind her. The witnesses should not refuse when they are called on (For evidence).”
However, the verse is not applicable on marriage for two grounds. First, it is for financial transactions and second the transaction is to be for a fixed period of time. While marriage conducted for a fixed period of time is considered void by most of the Hanfi jurists.
The Muslim marriage law in Pakistan does not specify any number and qualification of witnesses. Generally, the witnesses should be Muslims. However, when bride is non-Muslim, the condition of religion is not upheld.
The Muslim marriage law in Fiji declares two women as valid witnesses to a Muslim marriage. Tunician Muslim marriage law requires that the witnesses may be either male or female. In Sudan and Yemen Two men or one man and two women are required to testify a Muslim marriage. In Sudan, the law requires that the witnesses should be of ‘good reputation and trustworthy’.
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