Explanation of the Book of Marriage-05
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The Shaykh : Then he said: "And from Nafi', from Ibn 'Umar (may Allah be pleased with them both), who said: Bulugh al-Maram 8:22 It is agreed upon by al-Bukhari and Muslim".
And they agreed—meaning al-Bukhari and Muslim—from another angle that the explanation of shighar is from the words of Nafi'.
This hadith says Ibn 'Umar:Sunan Ibn Majah 1884Sahih (Darussalam) The word "nahy" (forbidding) is derived from "al-nahy" (prohibition). The definition of prohibition is: demanding the abstention from an act with a sense of superiority. This prohibition is demanding the abstention from an act with a sense of superiority. And what is meant by "act" here is not the opposite of speech, but rather what is meant by "act" here is: bringing into existence, even if it is speech. So if a person says to another: "Do not say such and such," then, O servant of Allah, what did I say?
The student: ...
The Shaykh : No, if you write your excuse, but you look at what is written in the apparent text. Yes, okay. Demanding the abstention from an act with a sense of superiority. I say that what is meant by "act" here is not the opposite of speech, but rather what is meant is bringing into existence, whether the thing brought into existence is speech or action. So if you say to a person, "Do not say such and such," this is demanding the abstention from speech, but it is a prohibition. Yes.
So it is demanding abstention with a sense of superiority, meaning: that the one demanding feels that he is of a higher rank than the one being demanded from, even if it is assumed that he is of a lower rank in reality, it is still called a prohibition. How does he feel that he is higher when he is of a lower rank? Let us suppose that a man found an emir who had no soldiers with him, and this man was a thief and found him in the desert. Yes, and he said to him, "Come on, do not ride your camel, do not ride the camel." What do we say?
The student: A prohibition.
The Shaykh : A prohibition, even though the one prohibiting is of a lower rank, but in his own mind he sees himself as higher than him. For this reason, they said: "with a sense of superiority," and they did not say: "the demand of the high from the low." It is demanding the abstention from an act with a sense of superiority, even if the one demanding is not?
The student: Of a higher rank.
The Shaykh : Of a higher rank than the one being demanded from in reality. Did you understand?
His saying: "The Messenger of Allah (peace and blessings be upon him) forbade." There is no doubt that the Prophet (peace and blessings be upon him) is of a higher rank than his Ummah, so the prohibition is directed to them. And the scholars differed regarding the word "forbade" from such and such, or the known form of prohibition, meaning: they differed on whether the saying of a Companion, "He forbade," is like his saying: "The Messenger of Allah (peace and blessings be upon him) said: Do not do it?" There are two opinions: The first opinion is that the saying of the Companion, "He forbade," is weaker than his saying: "The Messenger of Allah (peace and blessings be upon him) said: Do not do it?" They said: Because "Do not do it" is explicit in prohibition, because this is the form of prohibition. As for "He forbade," this is the Companion's expression of what he understood from the saying of the Messenger of Allah (peace and blessings be upon him). He may understand from something that is not a prohibition that it is a prohibition. And on this basis, it would be weaker. But even so, it has the ruling of prohibition by form, without doubt, for two reasons:
The first reason is that the Companions (may Allah be pleased with them) know prohibition; they are not ignorant, not knowing the difference between prohibition and news.
And the second is that the Companions have a level of scrupulousness that prevents them from saying "He forbade" when there is a possibility that it is not a prohibition. Did you understand? So whoever says that this does not yield prohibition because it is not in its form, his saying is weak. Rather, we say: Prohibition is yielded from it without doubt, but the form is more explicit. And why did we say: "It is yielded"? For two reasons: Because the Companions know prohibition, and because they are more scrupulous than to say "He forbade" for a matter that may not be a prohibition. And on this basis, if he said "He forbade," it is as if the Messenger said: "Do not marry in shighar."
He says: Shighar is a verbal noun from "shaghara, yashaghiru, shigharan," and its counterpart in conjugation is "qatala, yuqatil, qitalan." So there must be two parties; it must be between two people. It is derived either from "shaghur," which means emptiness, or from "shaghara al-kalbu," which means when a dog lifts its leg to urinate. It is derived either from "shaghur," meaning you say "shaghara al-makan" when a place becomes empty, or from "shaghara al-kalbu" when a dog lifts its leg to urinate. It can be said that there is no objection to it being derived from both meanings, because it contains both "shaghur" and "shaghara." So there is no objection to it being derived from both of them.
So what is shighar, then? The narrator explained it by saying:Sahih al-Bukhari 5112 This context suggests that it may be from 'Abdullah ibn 'Umar, as that has come, and it may be from Nafi', as that has also come, and it may be from Malik, the narrator from Nafi', as that has also come. The narrations have come in this way: that it is from the words of Malik, from the words of Nafi', from the words of Ibn 'Umar. But it has not come as marfu' (attributed to the Prophet) as far as I know, meaning: it has not come that the Messenger of Allah (peace and blessings be upon him) is the one who explained shighar with this. These three narrations—that it is from the words of Ibn 'Umar, or from the words of Nafi', or from the words of Malik—do not actually contradict each other. Why? Because it is permissible that Ibn 'Umar explained it, then Nafi' received it from him, and then when he narrated the hadith, he did not attribute the explanation to Ibn 'Umar, but said it from himself, relying on what Ibn 'Umar narrated. Is that possible or not? It is possible.
And likewise, we say regarding Malik with Nafi', as with Malik with Nafi'. Just as now you say: "O so-and-so, do not intend evil, for indeed deeds are by intentions, and every person will have what he intended." This is attributed to your saying, not to the saying of the Messenger?
The student: From your saying.
The Shaykh : It is attributed to your saying, but it is from the saying of the Messenger of Allah (peace and blessings be upon him). So if Ibn 'Umar explained it, then Nafi' narrated it from him, and then said it while speaking about it, it is not said that this contradicts it being from the saying of Ibn 'Umar, because it is permissible that Nafi' speaks about it without attributing it to Ibn 'Umar, and a listener hears it and thinks it is from the saying of Nafi'. And likewise, we say regarding Malik with Nafi'. In any case: it has not come from the Prophet (peace and blessings be upon him), as far as I know, that he explained shighar with this. But we say: If the Companion explained it, the Companion is the most knowledgeable of people about the intent of the Messenger of Allah (peace and blessings be upon him), because he lived with him and understood his speech. Especially Ibn 'Umar (may Allah be pleased with them both), for he was among the most eager of people for the hadith of the Messenger of Allah (peace and blessings be upon him). For this reason, we find that the most knowledgeable of people about a man's speech are those who had the most intimacy with him. Is that not so?
The student: Yes.
The Shaykh : So we say: If this is from the explanation of Ibn 'Umar (may Allah be pleased with them both), then it is the definitive one, because Ibn 'Umar is a Companion, and the Companions are the most knowledgeable of people about the intent of the Messenger of Allah (peace and blessings be upon him).
Okay, he says:Bulugh al-Maram 8:22 "Marries him to her." "Marries him to her" indicates that it is a condition, meaning: that the second marriage is a condition for the first marriage. Did you understand?
Okay, and his saying in the hadith: This is not specific to a daughter, but it is by way of example. So if he marries him to his sister on the condition that he marries him to his sister, it is shighar. If he marries him to his sister on the condition that he marries him to his daughter, it is shighar. This is by way of example. For this reason, the phrase of the jurists—(may Allah have mercy on them)—is: "He marries him to his female relative on the condition that the other marries him to his female relative." "Female relative" is more general than "daughter," but "daughter" is clearer. Is it not? Clearer. "His daughter" is clear; everyone knows it. But "his female relative," you have to look for who his female relative is. For this reason, you often find that the phrases of the Salaf, and everyone who was close to the Messenger, are easy, simple, and simplified; it is easy to visualize them. Unlike the phrases of the later scholars, which have some complexity, even if they have some comprehensiveness. But the phrases of the Salaf are better, clearer, and more explicit. Okay.
He says: The mahr is the bridal gift. It is called "sadaq" (bridal gift) because its giving for the sake of the woman is proof of the sincerity of the one seeking her. Correct? Like this?
The student: Yes.
The Shaykh : Wealth is beloved to souls, and the beloved is not given up except to reach what is more beloved, because it is not possible to give up the beloved for the sake of the disliked, and it is not possible to give up a beloved for the sake of a beloved of the same kind, because that would be futile. Rather, the beloved is not given up except for what? For the sake of what is more beloved, whether in essence, or in kind, or in description. The important thing is: there must be a factor of preference. There must be a factor of preference. For this reason, the sadaq is called sadaq, why? Because it is proof of the sincerity of the one seeking her. Just as sadaqah (charity) is called sadaqah, because it is proof of the sincerity of the one giving it and that he seeks the reward of Allah. Okay, have you now visualized shighar? He says: "I married you to my daughter on the condition that you marry me to your daughter." He said: "I accepted." Then he married him! This is shighar, on the condition that there is no mahr between them. And the reason for the prohibition of it is very clear, because Allah the Exalted said in His Book:[An-Nisa 4:24] Is that so?
The student:[An-Nisa 4:24].
The Shaykh :[An-Nisa 4:24] And a woman’s private parts are not wealth, and this man, or rather these two men, made the private parts of each of the two women the bridal gift for the other, and this is not valid. Now, this is one aspect.
The second aspect: If this were permissible, it would be a cause for the loss of trust, because a man might marry his daughter to someone who is not a suitable match, because he will marry his own daughter to him, and thus the trust is lost.
Third: It may lead to forcing a woman into marriage. It may lead to forcing a woman into marriage because the guardian wants to achieve his objective and goal, so he does not care whether she is pleased or displeased.
Fourth: It is generally a cause for disputes and lawsuits that never end, because if one of the two women becomes incompatible with her husband, her husband will try to make the other man’s wife incompatible with him. This happens often; if the wife is angry with her husband for a long time, he goes to his daughter who is with her husband, and she is comfortable with him, and he says, “What do you want from this husband? Is there something wrong with him?” and he turns her against him. This is observed and experienced. So these are four harms, all of which indicate that the marriage of shighar is invalid and Islam does not approve of it. However, the hadith indicates that it is not shighar except with two conditions:
The first condition: That the marriage of the second woman is a condition in the marriage of the first. Where is this taken from?
The student: From “upon.”
The Shaykh :.
The second: That there be no bridal gift between them, meaning there is no mahr, neither little nor much. Let us look at the concept of these two conditions. If he marries his daughter to him, and we take the wording of the best version of the hadith, and then the other man marries his daughter to him afterwards without a condition, this is not shighar. This is not shighar, and it is valid and there is no problem with it. Now, but is the mahr obligatory for each one or not?
The student: Yes.
The Shaykh : Yes, it is obligatory. The mahr of the like is obligatory for each one as long as it has not been specified, so what is obligatory is the mahr of the like.
Now, another issue: If he marries her on the condition that the other man marries his daughter to him, he marries his daughter on the condition that the other man marries his daughter to him, and they set a bridal gift for each one, this is not shighar, because they set a bridal gift, and the apparent meaning of the hadith is that it is valid even with the minimum bridal gift. What is the minimum bridal gift?
The student: ...
The Shaykh : The minimum amount upon which a sale contract is valid. What is valid for a sale contract. Now... a sale contract is valid upon it.
The student: It is not correct.
The Shaykh : It is valid. We estimated these days in currency... a quarter of a riyal. So a sale contract is valid upon it, or not? A sale contract is valid upon it.Sunan an-Nasa'i 3359Sahih (Darussalam) But this is not the intended meaning. That is to say: Even if this is the apparent meaning of the hadith, it is not the intended meaning, and this is in accordance with the principles of the Shari'ah, because if he gave her, for example, one dirham, which is not a quarter of a dirham, did he give the woman her true mahr, or did her mahr become this dirham and the private parts?
The student: The second.
The Shaykh : The second, without a doubt. In fact, the private parts are much more than the dirham. For this reason, it must be restricted to being the mahr of the like. As for if it is less than that, it is not valid, because if it is less than that, the private parts of one of them become a part of what?
The student: Of the bridal gift.
The Shaykh : Of the bridal gift, and the private parts are not wealth, so it must be restricted to being the mahr of the like.
Now, if one of the two daughters is a young virgin and the other daughter is an older woman who has been married before, does the mahr differ or not? It differs, and let it be so. There is no harm in the one who marries the older woman who has been married before giving a mahr that is the like of hers, and the other giving a mahr that is the like of hers. The important thing is only that it be the mahr of the like.
There is also a second condition that is necessary, which is the consent of the two daughters. This is taken from the previous evidence that the consent of the two spouses is necessary in the marriage, otherwise the marriage is not valid.
A third condition is also necessary, which is that each of them be a suitable match for the woman. If he is not a suitable match, it is not valid. If these conditions are met, then the marriage is valid. But someone may raise an objection and say: If these conditions are gathered, they do not prevent the guardian from betraying his guardianship, because he will get a wife. What is the answer to this? The answer to this is that we say: Even if he betrays, since we have made the consent of the wife a condition, she will not consent except to the one she wants.
If someone says: And if we go beyond this, the second harm is raised against us, which is that if the relationship becomes bad, if the relationship becomes bad with one of the two wives, then her husband will make the other man’s wife incompatible with him. What is the answer to this? In reality, there is no answer to this.
Allah's Messenger (ﷺ) prohibited Shighar, which means that a man gives his daughter in marriage on condition that the other gives his daughter to him in marriage [in exchange] without any dowry being paid by either.
نهى رسول الله صلى الله عليه وسلم عن الشغار: والشغار: أن يزوج الرجل ابنته على أن يزوجه الآخر ابنته، وليس بينهما صداقAnd they agreed—meaning al-Bukhari and Muslim—from another angle that the explanation of shighar is from the words of Nafi'.
This hadith says Ibn 'Umar:
The Messenger of Allah forbade Shighar
نهى رسول الله صلى الله عليه وسلم عن نكاح الشغارThe student: ...
The Shaykh : No, if you write your excuse, but you look at what is written in the apparent text. Yes, okay. Demanding the abstention from an act with a sense of superiority. I say that what is meant by "act" here is not the opposite of speech, but rather what is meant is bringing into existence, whether the thing brought into existence is speech or action. So if you say to a person, "Do not say such and such," this is demanding the abstention from speech, but it is a prohibition. Yes.
So it is demanding abstention with a sense of superiority, meaning: that the one demanding feels that he is of a higher rank than the one being demanded from, even if it is assumed that he is of a lower rank in reality, it is still called a prohibition. How does he feel that he is higher when he is of a lower rank? Let us suppose that a man found an emir who had no soldiers with him, and this man was a thief and found him in the desert. Yes, and he said to him, "Come on, do not ride your camel, do not ride the camel." What do we say?
The student: A prohibition.
The Shaykh : A prohibition, even though the one prohibiting is of a lower rank, but in his own mind he sees himself as higher than him. For this reason, they said: "with a sense of superiority," and they did not say: "the demand of the high from the low." It is demanding the abstention from an act with a sense of superiority, even if the one demanding is not?
The student: Of a higher rank.
The Shaykh : Of a higher rank than the one being demanded from in reality. Did you understand?
His saying: "The Messenger of Allah (peace and blessings be upon him) forbade." There is no doubt that the Prophet (peace and blessings be upon him) is of a higher rank than his Ummah, so the prohibition is directed to them. And the scholars differed regarding the word "forbade" from such and such, or the known form of prohibition, meaning: they differed on whether the saying of a Companion, "He forbade," is like his saying: "The Messenger of Allah (peace and blessings be upon him) said: Do not do it?" There are two opinions: The first opinion is that the saying of the Companion, "He forbade," is weaker than his saying: "The Messenger of Allah (peace and blessings be upon him) said: Do not do it?" They said: Because "Do not do it" is explicit in prohibition, because this is the form of prohibition. As for "He forbade," this is the Companion's expression of what he understood from the saying of the Messenger of Allah (peace and blessings be upon him). He may understand from something that is not a prohibition that it is a prohibition. And on this basis, it would be weaker. But even so, it has the ruling of prohibition by form, without doubt, for two reasons:
The first reason is that the Companions (may Allah be pleased with them) know prohibition; they are not ignorant, not knowing the difference between prohibition and news.
And the second is that the Companions have a level of scrupulousness that prevents them from saying "He forbade" when there is a possibility that it is not a prohibition. Did you understand? So whoever says that this does not yield prohibition because it is not in its form, his saying is weak. Rather, we say: Prohibition is yielded from it without doubt, but the form is more explicit. And why did we say: "It is yielded"? For two reasons: Because the Companions know prohibition, and because they are more scrupulous than to say "He forbade" for a matter that may not be a prohibition. And on this basis, if he said "He forbade," it is as if the Messenger said: "Do not marry in shighar."
He says:
He forbade shighar
نهى عن الشغارSo what is shighar, then? The narrator explained it by saying:
which means that somebody marries his daughter to somebody else, and the latter marries his daughter to the former
والشغار أن يزوج الرجل ابنته على أن يزوجه الآخر ابنتهAnd likewise, we say regarding Malik with Nafi', as with Malik with Nafi'. Just as now you say: "O so-and-so, do not intend evil, for indeed deeds are by intentions, and every person will have what he intended." This is attributed to your saying, not to the saying of the Messenger?
The student: From your saying.
The Shaykh : It is attributed to your saying, but it is from the saying of the Messenger of Allah (peace and blessings be upon him). So if Ibn 'Umar explained it, then Nafi' narrated it from him, and then said it while speaking about it, it is not said that this contradicts it being from the saying of Ibn 'Umar, because it is permissible that Nafi' speaks about it without attributing it to Ibn 'Umar, and a listener hears it and thinks it is from the saying of Nafi'. And likewise, we say regarding Malik with Nafi'. In any case: it has not come from the Prophet (peace and blessings be upon him), as far as I know, that he explained shighar with this. But we say: If the Companion explained it, the Companion is the most knowledgeable of people about the intent of the Messenger of Allah (peace and blessings be upon him), because he lived with him and understood his speech. Especially Ibn 'Umar (may Allah be pleased with them both), for he was among the most eager of people for the hadith of the Messenger of Allah (peace and blessings be upon him). For this reason, we find that the most knowledgeable of people about a man's speech are those who had the most intimacy with him. Is that not so?
The student: Yes.
The Shaykh : So we say: If this is from the explanation of Ibn 'Umar (may Allah be pleased with them both), then it is the definitive one, because Ibn 'Umar is a Companion, and the Companions are the most knowledgeable of people about the intent of the Messenger of Allah (peace and blessings be upon him).
Okay, he says:
that a man gives his daughter in marriage on condition that the other gives his daughter to him in marriage [in exchange] without any dowry being paid by either
وأن يزوج الرجل على أن يزوجه الآخر ابنته وليس بنهما صداقOkay, and his saying in the hadith:
His daughter.
ابنتهHe says:
And there is no bridal gift between them.
وليس بينهما صداقThe student: Yes.
The Shaykh : Wealth is beloved to souls, and the beloved is not given up except to reach what is more beloved, because it is not possible to give up the beloved for the sake of the disliked, and it is not possible to give up a beloved for the sake of a beloved of the same kind, because that would be futile. Rather, the beloved is not given up except for what? For the sake of what is more beloved, whether in essence, or in kind, or in description. The important thing is: there must be a factor of preference. There must be a factor of preference. For this reason, the sadaq is called sadaq, why? Because it is proof of the sincerity of the one seeking her. Just as sadaqah (charity) is called sadaqah, because it is proof of the sincerity of the one giving it and that he seeks the reward of Allah. Okay, have you now visualized shighar? He says: "I married you to my daughter on the condition that you marry me to your daughter." He said: "I accepted." Then he married him! This is shighar, on the condition that there is no mahr between them. And the reason for the prohibition of it is very clear, because Allah the Exalted said in His Book:
And lawful to you are [all others] beyond these
وأحل لكم ما وراء ذلكمThe student:
that you seek them [in marriage] with [gifts from] your property
أن تبتغوا بأموالكمThe Shaykh :
that you seek them [in marriage] with [gifts from] your property
أن تبتغوا بأموالكمThe second aspect: If this were permissible, it would be a cause for the loss of trust, because a man might marry his daughter to someone who is not a suitable match, because he will marry his own daughter to him, and thus the trust is lost.
Third: It may lead to forcing a woman into marriage. It may lead to forcing a woman into marriage because the guardian wants to achieve his objective and goal, so he does not care whether she is pleased or displeased.
Fourth: It is generally a cause for disputes and lawsuits that never end, because if one of the two women becomes incompatible with her husband, her husband will try to make the other man’s wife incompatible with him. This happens often; if the wife is angry with her husband for a long time, he goes to his daughter who is with her husband, and she is comfortable with him, and he says, “What do you want from this husband? Is there something wrong with him?” and he turns her against him. This is observed and experienced. So these are four harms, all of which indicate that the marriage of shighar is invalid and Islam does not approve of it. However, the hadith indicates that it is not shighar except with two conditions:
The first condition: That the marriage of the second woman is a condition in the marriage of the first. Where is this taken from?
The student: From “upon.”
The Shaykh :
On the condition that he marries him.
على أن يزوجهThe second: That there be no bridal gift between them, meaning there is no mahr, neither little nor much. Let us look at the concept of these two conditions. If he marries his daughter to him, and we take the wording of the best version of the hadith, and then the other man marries his daughter to him afterwards without a condition, this is not shighar. This is not shighar, and it is valid and there is no problem with it. Now, but is the mahr obligatory for each one or not?
The student: Yes.
The Shaykh : Yes, it is obligatory. The mahr of the like is obligatory for each one as long as it has not been specified, so what is obligatory is the mahr of the like.
Now, another issue: If he marries her on the condition that the other man marries his daughter to him, he marries his daughter on the condition that the other man marries his daughter to him, and they set a bridal gift for each one, this is not shighar, because they set a bridal gift, and the apparent meaning of the hadith is that it is valid even with the minimum bridal gift. What is the minimum bridal gift?
The student: ...
The Shaykh : The minimum amount upon which a sale contract is valid. What is valid for a sale contract. Now... a sale contract is valid upon it.
The student: It is not correct.
The Shaykh : It is valid. We estimated these days in currency... a quarter of a riyal. So a sale contract is valid upon it, or not? A sale contract is valid upon it.
Look (for something), even if it is only an iron ring
التمس ولو خاتماً من حديدThe student: The second.
The Shaykh : The second, without a doubt. In fact, the private parts are much more than the dirham. For this reason, it must be restricted to being the mahr of the like. As for if it is less than that, it is not valid, because if it is less than that, the private parts of one of them become a part of what?
The student: Of the bridal gift.
The Shaykh : Of the bridal gift, and the private parts are not wealth, so it must be restricted to being the mahr of the like.
Now, if one of the two daughters is a young virgin and the other daughter is an older woman who has been married before, does the mahr differ or not? It differs, and let it be so. There is no harm in the one who marries the older woman who has been married before giving a mahr that is the like of hers, and the other giving a mahr that is the like of hers. The important thing is only that it be the mahr of the like.
There is also a second condition that is necessary, which is the consent of the two daughters. This is taken from the previous evidence that the consent of the two spouses is necessary in the marriage, otherwise the marriage is not valid.
A third condition is also necessary, which is that each of them be a suitable match for the woman. If he is not a suitable match, it is not valid. If these conditions are met, then the marriage is valid. But someone may raise an objection and say: If these conditions are gathered, they do not prevent the guardian from betraying his guardianship, because he will get a wife. What is the answer to this? The answer to this is that we say: Even if he betrays, since we have made the consent of the wife a condition, she will not consent except to the one she wants.
If someone says: And if we go beyond this, the second harm is raised against us, which is that if the relationship becomes bad, if the relationship becomes bad with one of the two wives, then her husband will make the other man’s wife incompatible with him. What is the answer to this? In reality, there is no answer to this.