Discussion regarding the categories of conditions in marriage.
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The Shaykh : Conditions in marriage are divided into three categories: valid, invalid and voiding the contract, and invalid but not voiding the contract. How many categories are there? Three: valid, invalid and voiding the contract, and invalid but not voiding the contract. As for the valid ones, is fulfilling them obligatory, or is fulfilling them a recommended practice? There is scholarly disagreement on this. Some said that fulfilling them is a recommended practice because the one who set the condition has the right to annul the contract if it is not fulfilled for him. Others said that fulfilling them is obligatory, and this is the correct view: that fulfilling them is obligatory, due to the generality of the saying of Allah the Exalted: [Al-Ma'idah 5:1] and the saying of Allah the Exalted: [Al-Isra 17:34] and the saying of the Prophet (peace and blessings be upon him): Sunan Abi Dawud 2139Sahih (Al-Albani) If conditions in sales require fulfillment, then conditions in marriage are all the more so. This is the correct view.
An example of this is if a woman conditions upon her husband that he not marry another woman over her, and he accepts, and the marriage contract is concluded on the condition that he not marry another woman over her. Do we say, "O you, it is recommended for you not to marry over this woman," or do we say, "It is obligatory that you not marry over this woman"?
The questioner : The second one.
The Shaykh : The correct view is the second: that we say it is obligatory. If he says, "If I marry, she has the option," we say, "But you are now forcing her by force to do this. She does not want to separate from you; she desires to remain with you. How can you say, 'I do not force her to stay,' when she wants to stay? She does not want to stay with you for ten days, then you divorce her in front of people, and you have ruined her virginity and caused people to lose interest in her. The correct view is that fulfilling conditions in marriage is obligatory. We have mentioned two proofs from the Qur'an and one proof from the Sunnah for its obligation. We have previously discussed a number of conditions in marriage, and a number remain. The author (may Allah have mercy on him) said: "And if it is conditioned that there is no mahr for her, the condition is void and the marriage is valid". Is that what you have? "And if it is conditioned that there is no mahr for her, the condition is void and the marriage is valid".
The questioner : ... .
The Shaykh : Is that what you have? You have it like that.
The questioner : ... .
The Shaykh : Look with your eyes, my brother.
O you who have believed, fulfill [all] contracts.
يا أيها الذين ءامنوا أوفوا بالعقودAnd fulfill [every] commitment. Indeed, the commitment is ever [that about which one will be] questioned.
وأوفوا بالعهد إن العهد كان مسؤولاThe condition worthier to be fulfilled by you is the one by which you made the private parts (of your wife) lawful (for you).
إن أحق الشروط أن توفوا به ما استحللتم به الفروجAn example of this is if a woman conditions upon her husband that he not marry another woman over her, and he accepts, and the marriage contract is concluded on the condition that he not marry another woman over her. Do we say, "O you, it is recommended for you not to marry over this woman," or do we say, "It is obligatory that you not marry over this woman"?
The questioner : The second one.
The Shaykh : The correct view is the second: that we say it is obligatory. If he says, "If I marry, she has the option," we say, "But you are now forcing her by force to do this. She does not want to separate from you; she desires to remain with you. How can you say, 'I do not force her to stay,' when she wants to stay? She does not want to stay with you for ten days, then you divorce her in front of people, and you have ruined her virginity and caused people to lose interest in her. The correct view is that fulfilling conditions in marriage is obligatory. We have mentioned two proofs from the Qur'an and one proof from the Sunnah for its obligation. We have previously discussed a number of conditions in marriage, and a number remain. The author (may Allah have mercy on him) said: "And if it is conditioned that there is no mahr for her, the condition is void and the marriage is valid". Is that what you have? "And if it is conditioned that there is no mahr for her, the condition is void and the marriage is valid".
The questioner : ... .
The Shaykh : Is that what you have? You have it like that.
The questioner : ... .
The Shaykh : Look with your eyes, my brother.