about some of the rulings on engagement and customary marriage?
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The questioner: Peace be upon you.
The Shaykh : And peace be upon you. And where did you get this from?
The questioner : The guardian of the suitor goes with the delegation, holding a power of attorney from the suitor, to the guardian of the proposed bride with the intention of engagement. The guardian of the suitor says, "We have come to ask for, or to propose to, your daughter for our son so-and-so." The guardian of the proposed bride says, "It has come to you," and then they recite al-Fatihah, or they agree afterwards, or they may have agreed beforehand on the mahr and the like, such as the date of the marriage contract with the mu'adhdhin or the court. So, is what was done in the presence of the witnesses and the guardian considered an engagement or a marriage contract? Is what was done considered an engagement or a marriage contract? And if it is an engagement, does that mean that whenever he visits them, the proposed bride must uncover her hair and some of her body in front of him, or is it sufficient to do what she does for the initial viewing? And if it is a marriage contract, what is the meaning of the contract with the mu'adhdhin or in the court? And which of the two dates is considered valid: the date of the delegation's attendance or the date of the contract? And what is the ruling on what is called the customary contract in these days, especially after it has been legislated in Islamic countries?
The Shaykh : A lecture. May Allah guide you.
The questioner : Complete it.
The Shaykh : Complete it, please.
The questioner : And what is the ruling on what is called the customary contract in these days, especially after it has been legislated in some Islamic countries that a claim for divorce or maintenance is not heard unless the marriage is... on an official document? And is that considered one of the maslakh al-mursalah (unrestricted public interests), especially in those days when the integrity of people has been ruined and values have collapsed, to the point that we have heard of a wife who married customarily more than one man while she is still under the guardianship of her absent husband? And may Allah reward you with good.
The Shaykh : How did the last one marry customarily? What do you mean?
The questioner : She is under the guardianship of a husband and married another while she is under the guardianship of the first, with a customary contract, a document, and witnesses?
The Shaykh : That is the customary contract. That is what you mean.
The questioner : That is what happened just now!
The Shaykh : First, the customary delegation known in the country is not considered a definitive contract; rather, it is an engagement, as one of the parties in your question stated. And if that is the case, then naturally it is not permissible for the proposed bride to appear before her suitor with her hair uncovered except as she appeared to him before, because appearing is a branch of the contract. So, if this delegation is not considered a contract, then none of the rulings of marriage apply until after the contract.
The questioner : Even if there was an offer and acceptance and witnesses?
The Shaykh : You did not mention any offer and acceptance!
The questioner : ... .
The Shaykh : No, no. Offer and acceptance means, for example, that the guardian decided on the contract, not just agreed. Let us now clarify the matter. How does the customary engagement happen? Does it not show the agreement of the girl's guardian?
The questioner : Yes, exactly.
The Shaykh : Okay, but this is just an engagement; it does not mean that an offer and acceptance has taken place. But if an offer and acceptance actually takes place, that is the Shari'ah contract, and then the legal contract comes afterwards. If the delegation results in an offer and acceptance, meaning either by spoken words or by the situation, then that is the contract. But I did not understand from your presentation that there was an offer and acceptance. If there is an offer and acceptance, that is the Shari'ah contract, and then the legal contract comes afterwards. Indeed, we see today that it is one of the maslakh al-mursalah (unrestricted public interests) and a means to preserve rights, whether it is the right of the husband so that he is not encroached upon as a husband, as you mentioned in what you called customary marriage, or the right of the wife herself, because for example, a man may deny that he married her, even though he married her according to the Shari'ah, but legally and systemically he did not contract. So, I mean, the legal and systemic contract is indeed one of the maslakh al-mursalah (unrestricted public interests). There is no difference between a marriage contract and a sale and purchase contract. A sale and purchase contract is just the offer and acceptance between the seller and the buyer, and the matter is finished, and the buyer owns the goods that were agreed upon. But due to the corruption of people, a man may deny it, and this happens often. Therefore, it is one of the maslakh al-mursalah (unrestricted public interests) to register this contract in a specific department, called here the Land Department. Similarly, registering the Shari'ah contract in the Shari'ah court is also one of the maslakh al-mursalah (unrestricted public interests). I do not know if there is anything left in your questions, which are a lecture, that you should remind me of so that I can answer you!
The questioner : That is enough. May Allah reward you with good.
The Shaykh : And peace be upon you. And where did you get this from?
The questioner : The guardian of the suitor goes with the delegation, holding a power of attorney from the suitor, to the guardian of the proposed bride with the intention of engagement. The guardian of the suitor says, "We have come to ask for, or to propose to, your daughter for our son so-and-so." The guardian of the proposed bride says, "It has come to you," and then they recite al-Fatihah, or they agree afterwards, or they may have agreed beforehand on the mahr and the like, such as the date of the marriage contract with the mu'adhdhin or the court. So, is what was done in the presence of the witnesses and the guardian considered an engagement or a marriage contract? Is what was done considered an engagement or a marriage contract? And if it is an engagement, does that mean that whenever he visits them, the proposed bride must uncover her hair and some of her body in front of him, or is it sufficient to do what she does for the initial viewing? And if it is a marriage contract, what is the meaning of the contract with the mu'adhdhin or in the court? And which of the two dates is considered valid: the date of the delegation's attendance or the date of the contract? And what is the ruling on what is called the customary contract in these days, especially after it has been legislated in Islamic countries?
The Shaykh : A lecture. May Allah guide you.
The questioner : Complete it.
The Shaykh : Complete it, please.
The questioner : And what is the ruling on what is called the customary contract in these days, especially after it has been legislated in some Islamic countries that a claim for divorce or maintenance is not heard unless the marriage is... on an official document? And is that considered one of the maslakh al-mursalah (unrestricted public interests), especially in those days when the integrity of people has been ruined and values have collapsed, to the point that we have heard of a wife who married customarily more than one man while she is still under the guardianship of her absent husband? And may Allah reward you with good.
The Shaykh : How did the last one marry customarily? What do you mean?
The questioner : She is under the guardianship of a husband and married another while she is under the guardianship of the first, with a customary contract, a document, and witnesses?
The Shaykh : That is the customary contract. That is what you mean.
The questioner : That is what happened just now!
The Shaykh : First, the customary delegation known in the country is not considered a definitive contract; rather, it is an engagement, as one of the parties in your question stated. And if that is the case, then naturally it is not permissible for the proposed bride to appear before her suitor with her hair uncovered except as she appeared to him before, because appearing is a branch of the contract. So, if this delegation is not considered a contract, then none of the rulings of marriage apply until after the contract.
The questioner : Even if there was an offer and acceptance and witnesses?
The Shaykh : You did not mention any offer and acceptance!
The questioner : ... .
The Shaykh : No, no. Offer and acceptance means, for example, that the guardian decided on the contract, not just agreed. Let us now clarify the matter. How does the customary engagement happen? Does it not show the agreement of the girl's guardian?
The questioner : Yes, exactly.
The Shaykh : Okay, but this is just an engagement; it does not mean that an offer and acceptance has taken place. But if an offer and acceptance actually takes place, that is the Shari'ah contract, and then the legal contract comes afterwards. If the delegation results in an offer and acceptance, meaning either by spoken words or by the situation, then that is the contract. But I did not understand from your presentation that there was an offer and acceptance. If there is an offer and acceptance, that is the Shari'ah contract, and then the legal contract comes afterwards. Indeed, we see today that it is one of the maslakh al-mursalah (unrestricted public interests) and a means to preserve rights, whether it is the right of the husband so that he is not encroached upon as a husband, as you mentioned in what you called customary marriage, or the right of the wife herself, because for example, a man may deny that he married her, even though he married her according to the Shari'ah, but legally and systemically he did not contract. So, I mean, the legal and systemic contract is indeed one of the maslakh al-mursalah (unrestricted public interests). There is no difference between a marriage contract and a sale and purchase contract. A sale and purchase contract is just the offer and acceptance between the seller and the buyer, and the matter is finished, and the buyer owns the goods that were agreed upon. But due to the corruption of people, a man may deny it, and this happens often. Therefore, it is one of the maslakh al-mursalah (unrestricted public interests) to register this contract in a specific department, called here the Land Department. Similarly, registering the Shari'ah contract in the Shari'ah court is also one of the maslakh al-mursalah (unrestricted public interests). I do not know if there is anything left in your questions, which are a lecture, that you should remind me of so that I can answer you!
The questioner : That is enough. May Allah reward you with good.
Source
www.al-albany.com
The Arabic text is copied verbatim from the original source, without any edits.