Conducting marriage contract over the phone according to the Hanafi Mathhab
Fatwa No: 239932

  • Fatwa Date:16-2-2014 - Rabee' Al-Aakhir 16, 1435
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Question

I am from Hanafi maslak and I respect all maslaks because all 4 maslaks are considered valid. My question is regarding a telephonic nikah. A girl name SARA is residing in Italy and a boy named AHMED is residing in Pakistan. Last year they performed their nikah on telephone like this that SARA appointed someone from Pakistan as her wakeel to do offer and acceptance on her behalf with ALI. So AHMED performed offer and acceptance with ALI in the presence of BASIT as witness. There were totaly 3 persons in same sitting i.e. ALI, AHMED, BASIT while SARA was on phone. Now my question is : 1. Can a girl`s wakeel could be also himself be a witness if the girl is on phone and not present in the boy`s country. 2. Is this nikah on phone valid? 3. Please answer my question in terms of Hanafi maslak

Answer

All perfect praise be to Allah, The Lord of the Worlds. I testify that there is none worthy of worship except Allah, and that Muhammad  sallallaahu  `alayhi  wa  sallam ( may  Allaah exalt his mention ) is His Slave and Messenger.

The Hanafi jurists have underlined that it is permissible for a father to marry off his adult and sane daughter in the presence of one witness if the marriage contract is conducted in her presence because in this case she is considered a contracting party; otherwise, it is not permissible.

In principle, as long as the commanding party (the bride in this case) is present in the contract session, she is to be considered a contracting party, conducting the contract. The testimony of the Wakeel (deputy of the bride) is accepted if he does not state that he conducted the contract so that he would not be a witness to a contract that he himself conducted. For more benefit, kindly refer to Fatwa 146735.

Secondly, conducting the marriage contract over the phone is a novelty whose permissibility had not been determined by our earlier scholars. The Islamic Fiqh Council decreed that it is impermissible to conduct a marriage contract over the phone. For more benefit, please refer Fataawa 83780 and 89838.

However, according to the majority of scholars, including the Hanafis, sight is not among the conditions of the witnesses in a marriage contract. The two witnesses may be blind without affecting the validity of the contract as long as they verify the voices of the two contracting parties with no room for doubt. It is noticeable that the two cases are alike; the blind witness who is present in the marriage contract session cannot see the two contracting parties or either of them, just like the witness over the phone. The witnesses in both cases merely hear the voices of the contracting parties.

Taking these two considerations into account, it seems that the marriage contract conducted over the phone is valid according to the Hanafi Mathhab, if we considered that the bride is virtually present in the marriage contract session and that she is the commanding party, and thus became a contracting party because of her presence when the contract is conducted, then in this case, her Wakeel is considered the second witness.

However, we advise to renew the marriage contract to be on the safe side; for as far as the marriage contract in Islam is concerned, the degree of prudence and caution required in conducting it should be exceptionally higher than other contracts.

For more benefit, please refer to Fatwa 86348.

Allaah knows best.

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