Marriage Under Hanfi Law Part 2 By Mutahir Tirimzi Adv

Hanfi LawAll the five schools of fiqh concur that marriage is performed by the recital of a marriage contract which contains an offer made by the bride or her deputy (na'ib), such as her guardian or agent (wakil), and a corresponding acceptance by the groom or his deputy. A mere agreement without the recital of the contract does not amount to marriage.

The schools also agree that a marriage contract is valid when recited by the bride or her deputy by employing the words, ankahtu or zawwajtu (both meaning. I gave in marriage) and accepted by the groom or his deputy with the words, 'qabiltu' (I have accepted) or 'raditu' (I have agreed).

The schools of fiqh differ regarding the validity of the contract when not recited in the past tense or recited by using words other than those derived from the roots al-zawaj and al-nikah, such as, al-hibah and al-bay'.

The Hanafi’s say: A marriage contract is valid if recited by any word conveying the intention of marriage, even if the words belong to the roots al-tamlik, al-hibah, al-bay', al-'ata, al-'ibahah and al-'ihlal, provided these words indicate their being used for the purpose of marriage. But the contract will not conclude if the word used are derived from al-'ijarah (hiring) and al-'i'arah (lending), because these words do not convey the meaning of perpetuity and continuity.

They have based their argument on this narration from the Sahih al-Bukhari and the Sahih Muslim. A woman came to the Prophet (s) and said: "O Apostle of Allah. I have come to offer myself to you." On hearing this, the Prophet (s) lowered his head and did not reply. Then one of those present said: "If you do not want her marry her to me." The Prophet (s) asked him: "Have you anything?" He replied, "By God. I have nothing." Again the Prophet asked him. "Have you any knowledge of the Qur'an?" He replied regarding the extent of his knowledge of the Qur'an. Then the Prophet said. "I make her your property in exchange for your knowledge of the Qur'an" (using the word mallaktul)1.

The Maliki’s and the Hanbali’s say: The contract is valid if recited by using the words al-nikah and al-zawai or their derivatives and is also valid when the word used is al-hibah, with the condition that the amount payable as dower (mahr or sidaq) is also mentioned. Words other than these cannot be used. They have based their argument for the use of the word al-hibah on this verse of the Qur'an (see Abu Zuhrah. al-'Ahwal al-shakhsiyyah [1948] p. 36):