(Series of Answers by the Eminent Scholar Ata Bin Khalil Abu Al-Rashtah, Ameer of Hizb ut-Tahrir, to the Questions of the Followers of his Facebook Page "Feqhi")
Answer to Question The Void (Batil) and Irregular (Fasid) Marriage Contract To: Farah Farhat
Question:
In the name of Allah, the Most Gracious, the Most Merciful. Peace be upon you and the mercy of Allah and His blessings.
Our Ameer, may Allah protect and preserve you,
My question is as follows: What is the difference between the conditions of validity (shurut as-sihha) and the conditions of conclusion (shurut al-in'iqad) in marriage? And what is their effect on the contract; when is it considered void (batil) and when is it considered irregular (fasid)? May Allah reward you with goodness and grant you victory over your enemies. May you remain under the care and protection of Allah.
Answer:
Walaikum Assalam wa Rahmatullahi wa Barakatuhu,
- We have explained and detailed this in The Social System in Islam, where we stated:
("...Marriage is concluded by a Shari’i offer (Ijab) and acceptance (Qabul). The offer is the statement issued first by one of the two contracting parties, and the acceptance is the statement issued second by the other contracting party... Four conditions are required for the conclusion of marriage:
First: The union of the session (Majlis) of offer and acceptance, such that the session in which the offer was issued is the same session in which the acceptance was issued. This applies if both parties are present. If they are in different cities and one writes a letter to the other offering marriage, and the recipient accepts, the marriage is concluded. However, it is required in this case that she reads or has the letter read to two witnesses, making them hear its text, or she says to them: 'So-and-so sent a proposal to me,' and she takes them as witnesses in the session that she has married herself to him.
Second: That each of the two contracting parties hears the speech of the other and understands it, knowing that the intent of these words is the marriage contract. If they do not know this because they did not hear or did not understand—for example, if a man prompts a woman to say 'I marry myself to you' in French, and she does not understand it, and she utters the words he prompted without understanding them, and he accepts without her knowing that the purpose was a marriage contract—then the marriage is not concluded. However, if she knew that the purpose of what she said was a marriage contract, then it is valid.
Third: That the acceptance does not contradict the offer, whether the contradiction is in the whole offer or part of it.
Fourth: That the Shari’ah has permitted the marriage of the two parties to each other, such as the woman being a Muslim or from the People of the Book, and the man being a Muslim and nothing else.
If the contract fulfills these four conditions, the marriage is concluded. If it fails to fulfill even one of them, the marriage is not concluded and is void (batil) from its foundation.
Once the marriage is concluded, it must fulfill the conditions of its validity (shurut sihha) to be correct. There are three conditions:
First: That the woman is a legal subject for the marriage contract (e.g., that he does not combine two sisters).
Second: That the marriage is not valid except with a guardian (Wali). A woman does not have the power to marry herself off, nor to marry off others, nor does she have the power to appoint someone other than her guardian to marry her off. If she does so, her marriage is not valid.
Third: The presence of two Muslim, adult, sane witnesses who hear the speech of the contracting parties and understand that the purpose of the words used for offer and acceptance is the marriage contract.
If the contract fulfills these conditions, it is valid (sahih); if one is missing, it is an irregular (fasid) marriage...") After that, we explained the evidences for these conditions in The Social System... From this, it becomes clear that if the conditions of conclusion are not met, the contract becomes void (batil), and if the conditions of validity are not met, the contract becomes irregular (fasid).
- To clarify the difference between irregularity (fasad) and voidness (butlan): voidness is the non-conformity with the command of the Lawgiver in terms of its essence (asl), meaning its origin is prohibited, or the condition that was not met affects the essence of the act. In contrast, irregularity (fasad) is when the essence of the act conforms to the command of the Lawgiver, but an attribute (wasf) that does not affect the essence is what contradicts the command of the Lawgiver.
Irregularity (fasad) cannot be imagined in acts of worship (ibadat); rather, only voidness (butlan) exists there, because anyone who tracks their conditions and pillars will find they are all related to the essence (asl). However, it can be imagined in transactions (mu'amalat) and contracts. For example, the sale of Al-Malaqeeh (the offspring in the wombs of animals) is void (batil) from its foundation because it is prohibited in its essence. In contrast, the sale of a townsman for a desert dweller (bay' al-hadir lil-badi) is an irregular (fasid) sale due to the desert dweller's ignorance of the price; he has the choice once he sees the market to either execute the sale or annul it. For example, a joint-stock company (sharikat al-musahamah) is void (batil) from its foundation because it lacks a bodily partner (sharik badan), thus missing a condition related to the essence. However, if partners entered a partnership according to Shari’i conditions but one partner stipulated a fixed amount of profit for himself, the partnership would be irregular (fasid) because it contains uncertainty (gharar) in the attribute (wasf), not the essence. This is because a partner deserves a percentage of the profit, not a fixed amount, as the company might lose. If they agree on a profit percentage, the irregularity is removed, and the contract becomes valid.
Thus, there is no difference between void and irregular in acts of worship; they are all either valid and discharging of the obligation or invalid and the obligation remains. Prayer is either valid (sahih) or void (batil) and nothing else. However, voidness differs from irregularity in financial contracts that create mutual obligations or transfer ownership, such as contracts of sale, leasing, transfer of debt, partnership, and the like.
In marriage, both the void (batil) and irregular (fasid) contracts are contrary to Shari'ah. However, the void contract is nullified from its foundation and carries no legal effects. If sexual intercourse occurs, it is ruled as adultery (zina); the child is not attributed to the man, there is no waiting period (iddah), no entitlement to dower (mahr), and no prohibitions established by marriage (mahram status via affinity)... it is void from its origin.
As for the irregular (fasid) contract, the violation of Shari'ah is in the conditions of validity, not the conditions of conclusion. Therefore, despite the sin committed by the parties, it does carry legal effects if sexual intercourse occurs (i.e., the husband consummates the marriage). If he does not consummate it in an irregular contract, no effects follow. The effects that follow in the case of consummation in an irregular marriage include:
- The Dower (Mahr): The dower becomes obligatory in an irregular marriage upon consummation based on what was narrated from the Prophet ﷺ that he said:
أَيُّمَا امْرَأَةٍ نَكَحَتْ بِغَيْرِ إِذْنِ وَلِيِّهَا فَنِكاَحُهَا بَاطِلٌ فَنِكاَحُهَا بَاطِلٌ فَنِكاَحُهَا بَاطِلٌ فَإِنْ دَخَلَ بِهَا فَلَهَا الْمَهْرُ بِمَا اسْتَحَلَّ مِنْ فَرْجِهَا...
"Any woman who marries without the permission of her guardian, her marriage is void, her marriage is void, her marriage is void. If he has consummated the marriage with her, then she is entitled to the dower (mahr) for what he has made permissible of her private parts..." (Extracted by At-Tirmidhi who said it is a Hasan Hadith). In this Hadith, the Prophet ﷺ granted the dower to the woman who marries in an irregular marriage (i.e., without her guardian's permission) on the condition that the husband has consummated the marriage with her, because the Messenger ﷺ linked the dower to consummation in the phrase: "If he has consummated the marriage with her, then she is entitled to the dower for what he has made permissible of her private parts."
- There are other effects resulting from an irregular marriage if there is consummation... but they involve jurisprudential details and differences, such as the waiting period (iddah), lineage (nasab), inheritance, and prohibitions by affinity (hurmat al-musaharah). Whoever has a specific need regarding these can refer to them in their relevant sources.
Allah is All-Knowing and Most Wise.
Your brother, Ata Bin Khalil Abu Al-Rashtah
29 Jumada al-Ula 1439 AH 15/02/2018 CE
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