The Ruling on Marriage by Shighar
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Fatwa No. ( 275 )
Q: The marriage of shighar is prevalent in most areas of the south, and some people there resort to tricks out of fear of being pursued. Among these tricks are the disparity in mahr (bridal gifts) and the disparity in timing, such that one man takes possession of his wife today and the other after a period of time, or one contract is made with a mu'adhdhin (officiant) different from the one who contracted for the other. He asks for a ruling on this marriage and whether it is exempt from being shighar, especially since the condition in it is: "Marry me to your daughter and I will marry you to mine, otherwise no."
The distinct stratagems regarding the separation of mahr (bridal gifts) and the separation of times, such as one taking possession of the wife today and the other after a period, or one contract being concluded before a mu'adhdhin (officiant) different from the one who concluded the contract for the other, and he asks for a ruling on this marriage and whether it is exempt from being shigar (exchange of brides). Especially since the condition in it is: "Marry me to your daughter and I will marry you to mine, otherwise not."
A: A similar question was previously posed to His Eminence the Grand Mufti of the Saudi lands, Shaykh: Muhammad ibn Ibrahim (may Allah have mercy on him), and he answered it. We are content with that answer and present its text to the questioner: The answer is: Praise be to Allah. Shighar is: a man marrying off his daughter on the condition that the other marries him to his daughter, or marrying him to his sister on the condition that he marries him to his sister, with no mahr between them. This type of contract is called shighar because of its ugliness; it was likened in ugliness to a dog lifting its leg to urinate. It is said: "The dog shighar" when it lifts its leg to urinate, as if each one lifted his leg for the other regarding what he desires. It is also said to be from the root meaning "emptiness"; it is said: "The place shighar" when it is empty, and "the direction is shaghira" meaning empty. Shighar is a form of mutual emptiness, one side emptying for the other, sex for sex. There is no disagreement on the prohibition of shighar and that it is contrary to the Shari'ah of Allah, as indicated by the authentic, noble hadiths regarding its prohibition and its contradiction of the requirements of the Shari'ah. In the two Sahihs, it is narrated from Nafi' from Ibn Umar, that the Messenger of Allah
(peace and blessings be upon him) Shighar is: a man marrying off his daughter on the condition that the other marries him to his daughter, with no mahr between them. And in Sahih Muslim, from Ibn Umar , that the Prophet (peace and blessings be upon him) said: Sunan Ibn Majah 1885Sahih (Darussalam) And in Sahih Muslim from Abu Hurayrah , he said: Sunan Ibn Majah 1884Sahih (Darussalam) Shighar is when he says: "Marry me to your daughter and I will marry you to mine, or marry me to your sister and I will marry you to mine." And in Sahih Muslim from Ibn al-Zubayr , that he heard Jabir ibn Abdullah say: Sunan al-Bayhaqi 10:1481 And from Abd al-Rahman ibn
Hurmuz al-A'raj, narrated by Ahmad and Abu Dawud . The scholars (may Allah have mercy on them) differed in their interpretation of shighar, as they differed on its validity. In (Nayl al-Awtar) it is said: Shighar has two forms: the first is - that mentioned in the hadiths - which is: the absence of mahr for the sex of each of them. The second is: that each of the two guardians conditions upon the other that he marry him to his ward. Some scholars considered only the first and prohibited it, while allowing the second. Ibn Abd al-Barr said: The scholars agreed that the marriage of shighar is not permissible, but they differed on its validity: the majority hold it to be invalid, and in a narration from Malik:
it is annulled before consummation but not after, and Ibn al-Mundhir attributed this to al-Awza'i. The Hanafis held it to be valid and the mahr obligatory, which is the view of al-Zuhri and Mukhul and al-Thawri and al-Layth, and a narration from Ahmad and Ishaq and Abu Thawr . And Ibn al-Qayyim (may Allah have mercy on him) said in (Zad al-Ma'ad): The jurists differed on this: Imam Ahmad said: The invalid shighar is: marrying his ward to a man on the condition that the other marries him to his ward, with no mahr between them. If they specified a mahr, the contract is valid with the specified amount according to him. And al-Khiraqi said: It is not valid even if they specify a mahr. And Abu al-Barakat Ibn Taymiyyah and others of the students of Ahmad said: If they specify a mahr and say that the sex of each is the mahr of the other, it is not valid; if they do not say that, it is valid. And in (al-Muharrar) it is said: If a man marries his ward to a man on the condition that the other marries him to his ward, and he agrees, with no mahr between them, the contract is not valid, and it is called the marriage of shighar. If they specify a mahr, the contract is valid with the specified amount, as stated by him. And al-Khiraqi said: It is not valid at all. It was said: If he says in it: "And the sex of each is the mahr of the other," it is not valid; otherwise, it is valid, and this is the more correct view. Given the existence of disagreement on the issue, what is stronger in our view is that what is explicitly shighar, on which there is no disagreement, namely: that one of them has no mahr, but sex in exchange for sex, or there is a small mahr as a trick, the ruling for
this is invalidity, so the contract is annulled whether before or after consummation. The Islamic Shari'ah has prohibited shighar because of the tampering with the responsibility of guardianship, and what it requires of giving sincere advice and exerting effort in choosing one who will be a helper for her in what brings her happiness in her worldly life and in the Hereafter. That is because the guardian's view of his ward is one of benefit, care, and attention, not one of desire, domination, and neglect. She is not in the position of his slave woman or his beast or what he owns that he exchanges for what he wants, but rather she is a trust on his neck, and it is incumbent upon him to secure for her from her marriage a suitable husband and the mahr of the like. Every shepherd is responsible for his flock, and if the guardian is negligent in seeking the interest of his ward by preferring his own interest over hers, such as exchanging her for money or a wife, or preventing her from marriage while waiting for one who gives him what he wants, his guardianship over her falls, and the guardianship of one who cares for her and her interests, who is more worthy of her guardianship, takes its place. As for what the questioner mentioned that shighar is prevalent in the tribes of Banu al-Harith and others, it is incumbent upon him and all those who are zealous for the interests of the Muslims to disapprove of it to them with their tongues. If that does not lead to deterrence, they must raise it to the authorities, and the authorities will, if Allah wills, do what upholds
the truth and invalidates falsehood and preserves the sanctity of Islam and knowledge of its requirements. And success is from Allah, and may Allah send prayers and blessings upon our Prophet Muhammad and his family and his Companions.
Q: The marriage of shighar is prevalent in most areas of the south, and some people there resort to tricks out of fear of being pursued. Among these tricks are the disparity in mahr (bridal gifts) and the disparity in timing, such that one man takes possession of his wife today and the other after a period of time, or one contract is made with a mu'adhdhin (officiant) different from the one who contracted for the other. He asks for a ruling on this marriage and whether it is exempt from being shighar, especially since the condition in it is: "Marry me to your daughter and I will marry you to mine, otherwise no."
The distinct stratagems regarding the separation of mahr (bridal gifts) and the separation of times, such as one taking possession of the wife today and the other after a period, or one contract being concluded before a mu'adhdhin (officiant) different from the one who concluded the contract for the other, and he asks for a ruling on this marriage and whether it is exempt from being shigar (exchange of brides). Especially since the condition in it is: "Marry me to your daughter and I will marry you to mine, otherwise not."
A: A similar question was previously posed to His Eminence the Grand Mufti of the Saudi lands, Shaykh: Muhammad ibn Ibrahim (may Allah have mercy on him), and he answered it. We are content with that answer and present its text to the questioner: The answer is: Praise be to Allah. Shighar is: a man marrying off his daughter on the condition that the other marries him to his daughter, or marrying him to his sister on the condition that he marries him to his sister, with no mahr between them. This type of contract is called shighar because of its ugliness; it was likened in ugliness to a dog lifting its leg to urinate. It is said: "The dog shighar" when it lifts its leg to urinate, as if each one lifted his leg for the other regarding what he desires. It is also said to be from the root meaning "emptiness"; it is said: "The place shighar" when it is empty, and "the direction is shaghira" meaning empty. Shighar is a form of mutual emptiness, one side emptying for the other, sex for sex. There is no disagreement on the prohibition of shighar and that it is contrary to the Shari'ah of Allah, as indicated by the authentic, noble hadiths regarding its prohibition and its contradiction of the requirements of the Shari'ah. In the two Sahihs, it is narrated from Nafi' from Ibn Umar, that the Messenger of Allah
(peace and blessings be upon him)
He prohibited shighar,
نهى عن الشغار،There is no Shighar in Islam.
لا شغار في الإسلامThe Messenger of Allah forbade Shighar.
نهى رسول الله صلى الله عليه وسلم عن الشغار،The Prophet (peace and blessings be upon him) prohibited shighar
نهى النبي صلى الله عليه وسلم عن الشغارHurmuz al-A'raj
That al-Abbas ibn Abdullah ibn al-Abbas married Abd al-Rahman ibn al-Hakam to his daughter and married him to Abd al-Rahman's daughter, and they had set a mahr (bridal gift), so Mu'awiyah ibn Abi Sufyan wrote to Marwan ibn al-Hakam ordering him to separate them, and he said in his letter: This is the shighar that the Messenger of Allah (peace and blessings be upon him) prohibited
أن العباس بن عبد الله بن عباس أنكح عبد الرحمن بن الحكم ابنته وأنكحه عبد الرحمن ابنته، وقد كانا جعلا صداقًا، فكتب معاوية بن أبي سفيان إلى مروان بن الحكم يأمره بالتفريق بينهما، وقال في كتابه: هذا الشغار الذي نهى عنه رسول الله صلى الله عليه وسلمit is annulled before consummation but not after, and Ibn al-Mundhir attributed this to al-Awza'i. The Hanafis held it to be valid and the mahr obligatory, which is the view of al-Zuhri and Mukhul and al-Thawri and al-Layth, and a narration from Ahmad and Ishaq and Abu Thawr . And Ibn al-Qayyim (may Allah have mercy on him) said in (Zad al-Ma'ad): The jurists differed on this: Imam Ahmad said: The invalid shighar is: marrying his ward to a man on the condition that the other marries him to his ward, with no mahr between them. If they specified a mahr, the contract is valid with the specified amount according to him. And al-Khiraqi said: It is not valid even if they specify a mahr. And Abu al-Barakat Ibn Taymiyyah and others of the students of Ahmad said: If they specify a mahr and say that the sex of each is the mahr of the other, it is not valid; if they do not say that, it is valid. And in (al-Muharrar) it is said: If a man marries his ward to a man on the condition that the other marries him to his ward, and he agrees, with no mahr between them, the contract is not valid, and it is called the marriage of shighar. If they specify a mahr, the contract is valid with the specified amount, as stated by him. And al-Khiraqi said: It is not valid at all. It was said: If he says in it: "And the sex of each is the mahr of the other," it is not valid; otherwise, it is valid, and this is the more correct view. Given the existence of disagreement on the issue, what is stronger in our view is that what is explicitly shighar, on which there is no disagreement, namely: that one of them has no mahr, but sex in exchange for sex, or there is a small mahr as a trick, the ruling for
this is invalidity, so the contract is annulled whether before or after consummation. The Islamic Shari'ah has prohibited shighar because of the tampering with the responsibility of guardianship, and what it requires of giving sincere advice and exerting effort in choosing one who will be a helper for her in what brings her happiness in her worldly life and in the Hereafter. That is because the guardian's view of his ward is one of benefit, care, and attention, not one of desire, domination, and neglect. She is not in the position of his slave woman or his beast or what he owns that he exchanges for what he wants, but rather she is a trust on his neck, and it is incumbent upon him to secure for her from her marriage a suitable husband and the mahr of the like. Every shepherd is responsible for his flock, and if the guardian is negligent in seeking the interest of his ward by preferring his own interest over hers, such as exchanging her for money or a wife, or preventing her from marriage while waiting for one who gives him what he wants, his guardianship over her falls, and the guardianship of one who cares for her and her interests, who is more worthy of her guardianship, takes its place. As for what the questioner mentioned that shighar is prevalent in the tribes of Banu al-Harith and others, it is incumbent upon him and all those who are zealous for the interests of the Muslims to disapprove of it to them with their tongues. If that does not lead to deterrence, they must raise it to the authorities, and the authorities will, if Allah wills, do what upholds
the truth and invalidates falsehood and preserves the sanctity of Islam and knowledge of its requirements. And success is from Allah, and may Allah send prayers and blessings upon our Prophet Muhammad and his family and his Companions.
Source
www.alifta.gov.sa
The Arabic text is copied verbatim from the original source, without any edits.