What is Nikah Misyar, and is this kind of Marriage Permitted according to Shari’a?
<QUESTION>
What is a Nikah Misyar? Is this kind of marriage permitted according to Shari’a?
<ANSWER>
In the name of Allah, Most Compassionate, Most Merciful,
The term “Nikah Misyar” (translated sometimes as “travellers’ marriage” or “marriage of convenience”) is not found in the Qur’an, Sunna or classical works of Islamic jurisprudence. It is a term that has been introduced recently by those discussing a specific type of matrimonial arrangement. However, the concept of such an arrangement can be found being discussed in the works of classical Muslim jurists (fuqaha).
In order to understand the correct Islamic viewpoint regarding Nikah Misyar, it is essential to first be familiar with the exact meaning of this term, as understood by those who have discussed it.
Definition
A Misyar marriage can be defined as an official marriage contract between a man and a woman, with the condition that the spouses give up one, two or several of their rights by their own free will. These include: living together, equal division of nights between wives in cases of polygamy, the wife’s right to housing (sukna) and financial support (nafaqa). In some cases, only one right is relinquished by the spouses, such as living together, but the husband is still required to provide housing for the wife and maintain her financially, whilst in other instances, the wife gives up all her rights including housing and financial support. The bottom line in such arrangements is that the couple agree to live separately from each other, as before their Nikah contract, and see each other to fulfil their needs in a lawful manner when they so desire. At times, a Misyar marriage is contracted on a temporary basis which ends in divorce on the expiration date of the contract.
Islamic Ruling
As for the Islamic ruling concerning such marriages, there are two issues to consider:
1) Validity and permissibility;
2) Appropriateness.
I. Validity and Permissibility
If all the basic requirements for an Islamic marriage contract are fulfilled, then this type of marriage arrangement is permissible and valid, and the couple will not be guilty of being involved in an unlawful illicit relationship. The basic requirements for a valid marriage according to Shari’a are the following:
a) Offer (ijab) from one party and acceptance (qabul) from the other in one session (majlis), and that this offer and acceptance is verbal and thus heard and understood clearly. In other words, the agreement of both parties.
b) The presence of at least two male witnesses (shahidayn), or one male and two female witnesses, who hear and clearly understand the offer and acceptance. (Mukhtasar al-Quduri 2/140 & Fath al-Qadir 3/190)
c) The consent of a legal guardian of the woman (wali) is also a necessary requirement according to the Maliki, Shafi’i and Hanbali Schools of Sunni Islamic Law. However, according to the relied upon position in the Hanafi School, the marriage of a free, sane and adult woman without the approval of her guardian (wali) is valid if the person she is marrying is a “legal” and suitable match (kuf’) for her. Conversely, if the person she is marrying is not a legal match for her, then her marriage would be considered invalid. (Radd al-Muhtar ala ‘l-Durr al-Mukhtar 3/56-57 & I’la al-Sunan 11/69 in the chapter: “Having a guardian is not a pre-requisite for the validity of an adult woman’s marriage”. For more details, please refer to the answer previously posted on this website titled: “Divorced woman marrying without her guardian’s approval”).
d) The absence of a fixed time-period. It is a basic requirement of a valid marriage contract that it does not entail any agreement of it being limited to a specified time such as two moths or five days, since it is essentially the Mut’a marriage that has been explicitly prohibited by the Messenger of Allah (Allah bless him and give him peace).
Classical jurists (fuqaha) have clearly stated the impermissibility and invalidity of time-limited (mu’aqqat) marriages. Imam al-Haskafi, the renowned Hanafi jurist, states:
“A Mut’a and time-limited marriage (nikah mu’aqqat) is invalid, even if the period [of marriage] is unknown to the wife or is prolonged...” (Radd al-Muhtar ala ‘l-Durr al-Mukhtar 3/51. Also see for the Shafi’i School: Mughni al-Muhtaj Sharh al-Minhaj 4/231, for the Hanbali School: Kashshaf al-Qina’ 5/96-97, and the Maliki School: Hashiyat al-Dasuqi ala ‘l-Sharh al-Kabir 2/238-239)
As for when there is no explicit mention of the marriage being limited to a specified time, but both or one of the spouses intend to terminate the marriage some time in the future, the position of the majority of classical scholars is that such a marriage is valid, and the couple will not be guilty of involving themselves in an unlawful relationship.
It is stated in al-Fatawa al-Hindiyya, a renowned Hanafi reference work:
If a man marries a woman unconditionally [i.e. without it being limited to a specified time], and it is in his intention to remain with her for a time that he intends [and then divorce her], then the marriage is valid...” (al-Fatawa al-Hindiyya 1/283)
Likewise, Imam Ibn al-Humam (Allah have mercy on him) states in his Fath al-Qadir:
As for when the husband marries and it is in his intention to divorce her after a period that he intends, then the marriage is valid.” (Fath al-Qadir, 3/152)
The Shafi’is also state that if one marries, and it is in his intention to divorce the wife after a period of time he has in mind, the marriage is considered valid. As for the Hanbalis, they have explicitly stated that if a person marries with the intention of divorcing the woman, even without stating it explicitly in the marriage contract itself, then the marriage is invalid, because it is a temporary marriage, which is invalid by explicit primary texts. (See: al-Mawsu’a al-Fiqhiyya, Kuwait)
Since Islam emphasises upholding marriages, the couple will not be obligated to terminate their marriage according to their intention, rather they must not resort to divorce without a genuine reason. Marrying with the intention of ending the marriage after a given period is disliked according to Shari’a, and as such, a marriage contracted with such an intention in mind is also disliked, although valid per se. (Mufti Taqi Usmani, Fiqhi Maqalat 1/258)
So, the basic minimum requirement in order for a marriage to be considered Islamically valid is that there be a valid offer from one party and a corresponding acceptance from the other, in the presence of two male (or one male and two female) witnesses who are able to hear clearly and understand what is happening. The offer, acceptance and the presence of the witnesses must all take place in the same session and at the same place, and there must not be any explicit mention of the marriage being limited to a specified time. The consent of the woman’s guardian is also necessary according to the three Schools, and in some cases, according to the Hanafi School also. As for the payment of dowry (mahr), this is the woman’s right and should be stipulated at the time of the marriage contract, but it is not a pre-requisite for the validly of the marriage.
As such, if the above necessary factors are met, the marriage is valid according to Shari’a, even if it is a “Misyar” marriage. Thus, if the Misyar marriage is limited to a specified time, it is invalid, and the couple’s relationship will be unlawful and sinful. Men who sometimes enter into a “temporary” Misyar marriage while on holiday must realize that if this is explicitly mentioned at the time of contracting the marriage, then it would make such a marriage invalid and unlawful, and more akin to Mut’a. If there is no explicit mention of this, but the man marries with the intention of divorce, then it is disliked, and unlawful [but valid] if it entails harm to the woman.
404 Replies
59756 Views
February 22, 2015, 07:23:14 PM