I was forced into marrying my cousin back home. My family blackmailed me into taking me with them and said we were all going to attend a cousin’s wedding. I was threatened by my brother to agree to the marriage once I got there. During the marriage ceremony, the Imam asked the groom whether he accepted me in his marriage to which he relied “yes”. When the Imam asked me, I just looked at my mum and brother and remained quite but did not say anything. People just thought I was shy. After that, my brother forced me to sign the marriage certificate (nikah nama). I had no choice but to sign, otherwise he would have severely beaten me up.
My question: Is my marriage to my cousin valid according to Islam? I did not give a verbal consent, but I did sign the marriage papers out of force. I have been told that, if a woman remains quite when asked about marriage, it’s as good as saying yes, is that true?
The basic requirements for a valid marriage according to Shariah are the following:
1) Offer (ijab) from one party and acceptance (qabul) from the other in one session, and that this offer and acceptance are heard and understood clearly.
2) The presence of at least two male witnesses or one male and two female witnesses, who hear and clearly understand this offer and acceptance. (See: al-Mukhtasar of Imam al-Quduri, 2/140)
Now, the first part of a valid marriage contract is the exchange of offer and acceptance between the two parties involved. This “offer” can be pronounced by the female herself or by her guardian/agent whom she appoints to pronounce the offer on her behalf. In this case, the male will pronounce the “acceptance” himself or through his agent. The roles can also be reversed, in that the male pronounces the “offer” and the female pronounces the “acceptance” either themselves or through their guardians/agents. Normally, when marriages are conducted in Mosques, the agent/guardian of the female pronounces the “offer” on her behalf and the male pronounces the acceptance. In some cases, the female (bride) is also present in the marriage ceremony and hence she herself makes this pronouncement.
These two pronouncements of offer and acceptance are fundamental for a valid marriage contract according to Islam. They must be verbal and not merely written in order that they are heard and understood clearly by the witnesses.
Imam Kamal al-Din ibn al-Humam (Allah have mercy on him) states:
It is a condition that each one of the two parties hears the statement of the other, i.e. the statements of offer (ijab) and acceptance (qabul). (Fath al-Qadir, 3/190)
Shaykh Muhammad Qudri Basha states in his al-Akham al-Shar’iyya fi al-Ahwal al-Shakhsiyya:
“Item no 9: Marriage is not valid through writing (only) if both parties are present. However, it is valid with the letter of an absent person sent to the one he intends to marry provided the letter is read out in the presence of two witnesses and they hear the text of the letter, or she says to the witnesses “such and such person has sent me this letter wishing to marry me” and she then appoints them as witnesses in the same session declaring that she has married herself to him.” (al-Akham al-Shar’iyya, P: 15)
What this text of Shaykh Qudri Basha is saying is that if both parties are present at the time of the marriage ceremony, both will have to make verbal pronouncements of offer and acceptance. It will not be sufficient if they were to merely write these statements down on a piece of paper or sign the marriage contract and give it to each other. However, if one party was not present at the marriage ceremony, for example, the male was absent, it is permitted for him to write the “offer” beforehand and send it to the female. In this case, the female will have to verbally and vocally read out the “offer” on behalf of the male in front of two male witnesses and then verbally pronounce her “acceptance”. In other words, the female will first be acting as an agent on behalf of the male and pronouncing the offer and then making her own pronouncement. The bottom line is that the two witnesses must hear two separate verbal pronouncements of offer and acceptance.
Likewise, Imam al-Haskafi (Allah have mercy on him) states:
“Marriage will not be contracted by the writing of a person who is present, but rather, with the writing of the one who is absent.”
Imam Ibn Abidin (Allah have mercy on him) elaborates on this by stating:
“The scenario for this is as follows: The male writes a letter proposing (making offer of) marriage to the female. When the letter reaches her, she brings forward witnesses and reads out the letter in their presence and says, “I marry myself to him” or she says, “Such and such person has written to me offering marriage hence be witness that I have married myself to him”. (In this case marriage will be valid). However, if she merely said in the presence of the witnesses that, “I have married myself to such and such person” marriage will not be contracted, because listening to both parts (i.e. offer and acceptance) is a condition for the validity of marriage. And by making the witnesses hear what is written in the letter…. they would have heard both parts. (Radd al-Muhtar ala al-Durr al-Mukhtar, 3/12)
In light of the above, it becomes clear your marriage was not a valid marriage; hence, there is no need for you to go through an Islamic divorce. You state that during the marriage ceremony you were asked to accept the marriage and you remained quite, although you were forced into signing the marriage contract. Due to the fact that both you and the male were present at the ceremony, it was necessary for both of you to verbally pronounce the offer and acceptance, but you merely gave your approval in writing; hence your marriage does not stand as valid.
As far as remaining silent being considered an approval, that is when a guardian (wali) seeks permission from a female to marry her off to someone.
Shaykh Qudri Basha (Allah have mercy on him) states:
“(Item no 53): 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 (wakeel) or messenger (rasul) sought her approval before marrying her off… and she knew the husband and the dowry and remained silent from refusing, without being forced…, then this is considered an approval.” (al-Ahkam al-Shar’iyya fi’l Ahwal al-Shakhsiyya, P: 33)
Therefore, if a guardian sought the permission of a virgin woman in marrying her off, her remaining silent would be interpreted as her approval. Thereafter, the guardian will pronounce the offer verbally on her behalf during the marriage ceremony and the husband will pronounce the acceptance. The witnesses, as mentioned earlier, must hear both pronouncements.
This makes it clear that there are two separate situations here. If the female is not intending to attend the marriage ceremony and appoints her guardian to pronounce the offer or acceptance on her behalf, then her remaining silent when being asked by her guardian will translate as her giving her consent and approval. However, if she personally attends the marriage ceremony, as was your case, she must explicitly and verbally pronounce the offer or acceptance in order for the marriage to be considered valid.
In conclusion, your marriage with your cousin is not valid according to Shariah. If you wish to marry him, you may do so; otherwise there is no need to go through an Islamic divorce.
And Allah knows best
[Mufti] Muhammad ibn Adam
Leicester , UK