Islamic Fiqh > Marriage and family > The pillars and conditions of nikah > The witnesses of nikah: status, conditions and cases
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Updated on 27 September 2026 at 3:52 AM
The witnesses (shuhud) form the third pillar (rukn) of the nikah (marriage contract), after the wali (marriage guardian) and the offer and acceptance. All scholars agree that a nikah concluded with a wali and two upright witnesses ('adl) is valid.
The schools then differ on the exact status of this requirement (pillar or validity condition), on the qualities required of the witnesses (Islam, probity, being male, sanity, hearing, understanding) and on a series of cases: dhimmi witnesses, probity, the secret nikah, witnesses heard in one sitting, the spouses' sons. This page follows the order of the mawsu'a leaves.
The majority of fuqaha' (jurists), namely the Hanafis, the Shafi'is and the Hanbalis in the most widespread opinion, require the witnesses for the validity of the nikah: there is no nikah without testimony.
"There is no nikah without a wali and two upright witnesses, and any nikah concluded otherwise is void; if the spouses dispute, the sultan (the authority) is the wali of the one who has no wali."
reported by Ibn Hibban in his Sahih (4075), al-Daruqutni (3533) and al-Bayhaqi in al-Sunan al-Kubra (13496, 13497); authentic hadith
"The nikah cannot do without four: the wali, the husband and the two witnesses."
reported by al-Daruqutni (3529); weak hadith
"There is no nikah without a wali and two upright witnesses."
reported by Abd al-Razzaq in the Musannaf (10473) and al-Tabarani in al-Kabir (14/142); authentic hadith
"The women of ill repute are those who marry themselves without any witness."
reported by al-Tirmidhi (1103); sound as a statement of Ibn Abbas, weak as a statement of the Prophet
This testimony was required to ward off from the woman the accusation of zina (fornication): that accusation is repelled only by the notoriety of the marriage, and such notoriety exists only through the words of the witnesses. Here lies the difference from other contracts: in a sale, testimony serves to ward off, after the fact, forgetfulness or denial, since nothing publicizes the transaction; the marriage, by contrast, spreads by itself through the crowd of those present who heard both contracting parties. With two witnesses nothing remains secret: with one man your secret stays with you, and the secret of three is no longer hidden, as the poets quoted by the fuqaha' say.
The nikah also differs from the sale in its purpose: the sale pursues wealth, the marriage pursues enjoyment and offspring; the contract involves the right of a third party, the child to come, whose lineage would be lost if the father denied the marriage. Requiring an addition in this contract to display the worth of the private part resembles requiring additional proof to establish harm to what is owned through the nikah; and just as that addition was set at two witnesses, this transfer of ownership was distinguished from similar contracts by the addition of two witnesses. As for the Prophet's marriage without a wali or witnesses, it belongs to his exclusive traits and sets no rule for others. (al-Hawi al-Kabir 9/58, al-Muhadhdhab 2/40, al-Mughni 7/7, al-Kafi 3/21, al-Mabd' 7/46-47)
The Malikis, and Ahmad in one narration, hold the nikah valid without witnesses, on condition of no concealment. Ibn Qudama reports from Ahmad its validity without witnesses: Ibn Umar, al-Hasan b. Ali, Ibn al-Zubayr, Salim and Hamza, the two sons of Ibn Umar, married without witnesses; it is also the view of Abd Allah b. Idris, Abd al-Rahman b.
Mahdi, Yazid b. Harun, al-'Anbari, Abu Thawr and Ibn al-Mundhir, and the opinion of al-Zuhri and Malik when the marriage is announced.
Ibn al-Mundhir writes that no authentic report establishes the two witnesses in the nikah. Ibn Abd al-Barr states that the hadith "no nikah without a wali and two upright witnesses" is transmitted on the authority of Ibn Abbas, Abu Hurayra and Ibn Umar, but that its transmission is weak, which is why he did not retain it. He also reports that the Prophet freed Safiyya bint Huyayy and then married her without witnesses.
"I was riding behind Abu Talha. The Messenger of Allah bought a slave girl for seven qurush. The people said: we do not know whether he married her or made her a mother of a child. When he wanted to ride, he veiled her; then they knew he had married her.
They drew from his veiling the proof of the marriage.
reported by al-Bukhari and Muslim; a hadith agreed upon (muttafaq 'alayh)
Yazid b. Harun argued: Allah commanded witnessing in the sale, not in the nikah. Abu Bakr Ibn al-Mundhir develops: Allah commanded witnessing in the sale:
Take two upright witnesses from among you when you conclude a transaction.
Sourate al-Baqara, 282
and He commanded the nikah without commanding witnessing for it; yet the people of opinion (ashab al-ra'y) hold the sale valid even without witnesses, and invalidate the nikah for which Allah did not command witnesses. Against the report of Ibn Abbas: Ibn Umar, Ibn al-Zubayr and al-Hasan b. Ali, Companions of the Prophet, allowed the nikah without witnesses; and the authentic report of Anas shows the validity of a marriage without witnesses present.
Abu Umar Ibn Abd al-Barr exposes Malik's proof: the sales in which Allah mentioned witnessing show that He did not make it a pillar of them; all the more is the nikah, in which Allah did not mention it, free of it as a condition of its obligations; what is obligatory is the announcement and the publicity, to preserve the lineages; the testimony serves afterwards, in case of dispute, to settle what arises between the spouses. Malik reports from the Prophet: "Announce the nikah"; his view is that of Ibn Shihab (al-Zuhri) and most of the people of Medina.
The qadi Abd al-Wahhab holds that the nikah is concluded without witnessing, contrary to Abu Hanifa and al-Shafi'i, by Allah's word:
O you who believe, fulfill the contracts.
Sourate al-Ma'ida, 1
The nikah is a contract among contracts, and witnessing conditions its conclusion no more than in other contracts, as with the rahn (pledge) and the kafala (surety); no one is required for the offer and the acceptance, as the wife herself or strangers; and whoever is not required in the contract of sale is not required in the nikah, like the notorious sinner. He adds: mutual consent to conceal the nikah voids the contract, contrary to Abu Hanifa and al-Shafi'i, because of the hadith:
"Announce this nikah and beat it with the sieve (make it widely known)."
reported by Ibn Maja (1895); weak hadith, the first part "announce the nikah" is reported by Ahmad (16175) and Ibn Hibban in his Sahih (4066), and judged hasan
It is also reported that the Prophet forbade the secret nikah: a weak hadith, reported by al-Tabarani in al-Awsat (6874) and Abu Nu'aym in Hilyat al-Awliya (6/93), weakened by Ibn Hazm in al-Muhalla (9/466). Zina takes place in secret: the nikah must therefore be its opposite, otherwise it would become a pathway to its banalization; anyone caught with a woman would claim to have married her, his witnesses being absent. The announcement also preserves the lineages from denial: the husband may deny the marriage while the woman is pregnant and has no means of proof; with witnesses and announcement this becomes impossible for him. (al-Ishraf 3/296-298 no.
1130-1131, al-Ma'una 1/494-495)
Ibn al-Mundhir summarizes the opinions on contracting without witnesses: a first group requires two upright witnesses and a discerning wali, like Ibn Abbas, with no known Companion opposing, along with 'Ata' and, on the mere requirement of two witnesses, Sa'id b. al-Musayyab, Jabir b. Zayd, al-Hasan al-Basri, al-Nakha'i, Qatada, al-Thawri, al-Awza'i, al-Shafi'i and Ahmad; a second group allows the nikah without witnesses: Abd Allah b. Idris, Abd al-Rahman b.
Mahdi, Yazid b. Harun, Ubayd Allah b. al-Hasan and Abu Thawr; a third, al-Zuhri, Malik and the Medinans, allows it without witnesses if the marriage is announced, the witnesses coming later whenever one wishes; a fourth, the people of opinion, requires two witnesses who may be blind, accused of qadhf (slanderous imputation) or notorious sinners, but not slaves. He reports that Ibn Umar married with no witness attending, that al-Hasan b.
Ali married the daughter of Ibn al-Zubayr with no one with them, then they announced it, and that Hamza b. Abd Allah asked Salim for his son and married them with no one besides the two of them.
The same Abu Umar reports: al-Shafi'i, Abu Hanifa and their companions, al-Thawri and al-Hasan b. Salih require witnesses for every nikah; the minimum is two upright witnesses according to al-Shafi'i, al-Hasan and al-Thawri; al-Shafi'i requires their probity until a proven criticism (jarh) arises at the time of the contract; Abu Hanifa allows contracting through two blind men, two accused of qadhf or two sinners. These scholars make the announcement commanded in the nikah the witnessing at the time of the contract, without requiring probity for that announcement. As for the hadith on the women of ill repute, it is an encouragement to witnessing and a criticism of neglecting it: if the profligate woman announced herself with her lover she would be punished, as it is said that breaking a dead man's bone equals breaking it while alive, although there is neither qisas nor diya for the dead man's bone.
Umar's stance illustrates the rule: a marriage was brought to him at which only a man and a woman had attended; he said: "this is the nikah of secrecy, I do not allow it; if I had come before, I would have stoned. This statement targets a marriage with incomplete testimony, not a marriage with full witnesses later concealed. Among the Malikis, as the Mukhtasar of Khalil and its commentaries state: witnessing at the contract is recommended and the contract without it is valid; but witnessing becomes a religious obligation at the time of consummation (dukhul): if the husband consummates without witnesses, the nikah is dissolved between the spouses by an irrevocable talaq, pronounced by compulsion to close the door to corruption; otherwise two people in secret would claim a prior marriage and the hadd of zina would give way to ta'zir (discretionary punishment). Publicity is achieved through the banquet (walima), the drum (duff) and smoke.
No hadd strikes the spouses if the marriage and the consummation are public, or if a single witness besides the wali attended the contract or the consummation, even if each spouse knew the obligation of witnessing and the prohibition of consummating without it. The nikah is thus not valid without witnesses, nor with a man and two women, nor with two notorious sinners, nor with two upright witnesses one of whom is the wali, since he is suspected of wanting to cover his ward. (Mawahib al-Jalil 5/32-35, al-Taj wa-l-Iklil 2/483-484, Sharh Mukhtasar Khalil 3/168, Sharh al-Kabir ma'a Hashiyat al-Dasuqi 3/6-7, Tathbir al-Mukhtasar 2/536-537, Hashiyat al-Sawi 4/398-399)
Among the Hanafis, witnessing is a condition specific to the chapter of the nikah: the nikah of Muslims is concluded only through the presence of two witnesses, free, sane, adult, Muslim, who heard together the two words (offer and acceptance) and understand their meaning; whether two men, or a man and two women; whether upright or not, accused of qadhf or blind; even the sons of the two spouses or the son of one of them, since whoever can exercise the wilaya (guardianship) can testify, the only missing thing being the fruit of performance, which does not matter. This presence is required at the time of the contract, not at the time of the ratification (ijaza). If they heard separately, the contract is not valid: one attended then left and the contract was repeated before the other, or one heard the offer and the other the acceptance before repetition; there are then two contracts, each without two witnesses. According to Abu Yusuf, if the sitting (majlis) is one, the contract is valid by istihsan; another opinion is content with the mere presence of the two witnesses.
The madhhab moreover requires understanding: a contract concluded before two foreign-speaking men who do not understand the words is not valid; another opinion holds it valid if the contractors speak Arabic, even if the witnesses ignore that language. (al-Mabsut 5/31, Bada'i' al-Sana'i' 2/253, Fath al-Qadir 3/199, al-Ikhtiyar 3/103, al-Jawhara al-Nayyira 4/266-267, al-Lubab 2/18, al-Hidaya 1/190, al-'Inaya 4/321-322)
The Shafi'is: the nikah is not valid without the presence of two witnesses, and nothing substitutes for their mention; the purpose is to protect the marriage bed from denial. Their presence may be intentional or by chance; if they heard the contract, it is valid even if they did not hear the mahr; and it is sunna to bring, beyond the two witnesses, an assembly of people of goodness and religion. (al-Umm 5/168, al-Hawi al-Kabir 9/58, al-Muhadhdhab 2/40, al-Najm al-Wahhaj 7/55-56, Mughni al-Muhtaj 4/242-243, Tuhfat al-Muhtaj 8/555-556, al-Dibaj 3/187)
The Hanbalis, in the most widespread opinion: the nikah is concluded only through two witnesses, Muslim, upright, male, adult, sane, hearing and able to speak, even if slaves, or deaf-mute if the emission of sound is established with certainty; even if enemies of the spouses, of one of them or of the wali. Not valid are the witnesses suspected by kinship: the sons of the two spouses, the son of one of them, their fathers, the son of one being the father of the other, because of the suspicion; nor two deaf men, nor two mutes, nor one of them being so. (al-Mughni 7/7, al-Kafi 3/21, al-Mabd' 7/46-47, Kashshaf al-Qina' 5/70-71, Manar al-Sabil 2/565-566)
The nikah is not voided by an instruction to conceal it: with witnesses it cannot remain hidden. If the spouses, the wali and the witnesses conceal it intentionally, the contract is valid and their concealment is disapproved, for the sunna is to announce the marriage. (al-Mughni 7/7, Kashshaf al-Qina' 5/71)
No disagreement: the nikah is valid through two upright male witnesses. The fuqaha differ over one man and two women.
The Hanafis allow it: by analogy with testimony about property; because the woman can exercise the wilaya in this contract; and because women hold original testimony alongside men. Yet a suspicion of error and forgetfulness creeps in, as Allah says:
For fear that one of the two should err and that one should remind the other.
Sourate al-Baqara, 282
The association of the two women reduces that suspicion without removing it, womanhood remaining; hence this testimony is not received in what is repelled by presumptions, like the hudud (legal punishments) and qisas; but the nikah and the talaq are established despite suspicion, and this testimony there resembles that of men. The text, however, establishes that two women count as one witness: the woman is thus half a witness, and nothing is established with half; if two men and a woman testify then retract, the woman completes nothing. (al-Mabsut 5/32-33, al-Hidaya 1/190, al-'Inaya 4/321-322, Fath al-Qadir 3/199, al-Ikhtiyar 3/103, al-Jawhara al-Nayyira 4/266-267, Mukhtasar al-Wiqaya 1/344, al-Lubab 2/18)
The majority (Malikis, Shafi'is, Hanbalis) refuse it: al-Zuhri said: "The sunna has passed from the Messenger of Allah that the testimony of women is not admitted in the hudud, nor in the nikah, nor in the talaq", reported by Abu Ubayd in al-Amwal; for this contract bears on no property, men usually attend it, and it is not established through their testimony as the hudud are; this is what distinguishes it from the sale. Ibn Qudama reports from Ahmad: marrying through the testimony of women is not allowed; if a man is with them it is lighter; it may be understood as another narration on concluding the contract by it, the view of the people of opinion, transmitted from al-Sha'bi, since the nikah is a contract of exchange; or that Ahmad said "lighter" because of the existing disagreement, in which case it is not a narration. Ibn al-Mundhir: al-Sha'bi and the people of opinion allow it; al-Nakha'i, al-Awza'i, al-Shafi'i and Ahmad refuse it.
Ibn Abd al-Barr: the Kufans allow it, like al-Sha'bi; al-Shafi'i, al-Awza'i and Ahmad allow nothing less than two men, like al-Nakha'i; women's testimony has no entry in the nikah and the talaq, as in the hudud for everyone; it is allowed only for property. Malik: it is not admitted in the nikah, nor in the talaq, nor outside property; yet he allows the contract without witnesses if the marriage is announced, the witnesses coming later whenever one wishes. (al-Kafi of Ibn Abd al-Barr 1/469, al-Mughni 7/8, Sharh al-Zarkashi 2/322-323, al-Ishraf 5/32, al-Istidhkar 5/472)
Al-Kasani: the Islam of the witness has become a condition of the nikah between two Muslim spouses, by consensus (Bada'i' al-Sana'i' 2/253-255, al-Jawhara al-Nayyira 4/266, al-Lubab 2/18, al-Mughni 7/7). No disagreement: a Muslim who marries a woman of revealed religion (kitabiyya) with two Muslim witnesses: the contract is valid. They differ if he marries her, a dhimmiyya, with two dhimmi witnesses (non-Muslims under protection).
First opinion, that of the majority (Malikis, Shafi'is, Hanbalis, plus Muhammad and Zufar among the Hanafis): invalid. The general hadith requires two upright witnesses, and there is no probity with unbelief, the greatest of injustice; witnessing was required to establish the marital bed in case of mutual denial, which the testimony of unbelievers cannot establish; their testimony equals the absence of testimony, leaving the nikah empty of it; their testimony about the Muslim regarding the rights of marriage (mahr, nafaqa, lodging) would then be heard, which is impossible; and it is the nikah of a Muslim, not concluded through two dhimmis as that of Muslims is. Muhammad and Zufar read the hadith as requiring religious probity and not probity of conduct, since the sin of conduct does not, by consensus, prevent concluding the contract; the unbeliever's testimony counts against the unbeliever, not against the Muslim: it becomes as if there had been no witnesses on the husband's side.
(Bada'i' al-Sana'i' 2/253-255, Bidayat al-Mubtadi 1/58, al-'Inaya 4/328, al-Dhakhira 4/400, Mawahib al-Jalil 3/408, Ahkam ahl al-Dhimma 1/297, al-Insaf 8/104)
Second opinion: valid; it is the view of Abu Hanifa, of Abu Yusuf, which prevails in the madhhab, and of Abu al-Khattab among the Hanbalis. In reality the witnesses testify for the Muslim, establishing that the private part of the kitabiyya belongs to him: their testimony amounts to that of an unbeliever over an unbeliever, which we accept; the rights of marriage are established incidentally, and what is established in the accessory need not be established in the principal. Al-Kasani invokes for them the general texts of marriage:
So marry the women who seem good to you.
Sourate al-Nisa', 3
Beyond that, it is lawful for you to seek wives by means of your wealth.
Sourate al-Nisa', 24
and hadiths like "marry and do not divorce" and "marry", absolute without condition; only the witnesses and their Islam have become a condition by consensus when both spouses are Muslims; whoever claims that condition for the Muslim marrying a dhimmiyya must produce the proof. Reported hadiths say: "no nikah without witnesses", "no nikah without two witnesses"; yet the exception drawn from the negation is an apparent affirmation. Witnessing, linguistically, is informing and explaining, within the reach of the unbeliever; only his testimony against the Muslim is excluded from the generality of the texts; and witnessing belongs to the wilaya: the unbeliever may act as wali for himself in this contract, as acceptor for himself, hence as witness; the judge may even rule by such testimony for the Muslim, a matter of ijtihad; if he rules, his ruling is not executed, but the nikah is concluded through the presence of the witness. The hadith is judged weak; if established, it is understood as bearing only on the recommended character of the announcement, to reconcile the proofs.
To Muhammad's objection (the contract remains without witnessing on the husband's side, the unbeliever's testimony having no force against the Muslim), al-Kasani answers: if the unbeliever's testimony does not serve the unbeliever against the Muslim, it serves the Muslim against the unbeliever; it has no force against the Muslim because it belongs to the wilaya, and making it valid against the Muslim would establish the unbeliever's wilaya over him, which is forbidden; that meaning does not exist here.
Does the marriage of the Muslim with the dhimmiyya appear in court through two dhimmi witnesses? If the woman claims the marriage and the Muslim denies: no, by consensus, for it is the testimony of unbelievers against a Muslim. If the husband claims and the woman denies: according to Abu Hanifa and Abu Yusuf, yes, whether the witnesses state that two Muslim men were with them at the contract or not; the shaykhs differ over Muhammad's view: for some the marriage is established as they say, for others it is not in either case, and that is the sound position of his madhhab, for this testimony stands on a corrupt nikah and establishes the Muslim's act through the testimony of unbelievers, like the Muslim who claims a slave held by a dhimmi and produces two witnesses with two dhimmi witnesses: their testimony is not received.
If the witnesses were unbelievers at the taking to witness and Muslims at the giving, their testimony for the husband is accepted according to Abu Hanifa and Abu Yusuf, since it would be accepted had they remained unbelievers at both moments; the shaykhs differ again over Muhammad's view: some accept it, looking at the moment of the giving, others refuse it, looking at the taking to witness. (Bada'i' al-Sana'i' 2/253-254)
The fuqaha agree: two upright witnesses make the nikah valid. They differ if the witnesses are notorious sinners (fussaq).
The Hanafis, and the Hanbalis in one narration, validate the contract through two sinful witnesses: whoever can accept the contract for himself, his testimony concludes the nikah; whoever can act as wali in a marriage can testify in it; sin does not exclude from the imamate and authority, the imams after the rightly guided caliphs being rarely free of sin; being fit for the imamate entails fitness for judgment, which is granted by the imam, and fitness for judgment entails fitness for testimony. The governor may rule by such testimony in general; if he rules, his ruling is not annulled, a matter of ijtihad; but he is not obliged to it and it is permitted to him only after verifying the truthfulness of the witness. Not being accused of qadhf is likewise not a condition of conclusion: the contract is concluded in the presence of one so accused. (al-Mabsut 5/31-32, Bada'i' al-Sana'i' 2/255, al-Hidaya 1/190, al-'Inaya 4/321-322, al-Ikhtiyar 3/103, al-Jawhara al-Nayyira 4/266-267, Mukhtasar al-Wiqaya 1/344, al-Lubab 2/18)
The Malikis, the Shafi'is and the Hanbalis in the madhhab require probity: the hadiths cited require it, and the nikah is not established through two sinners, as through two madmen. The Malikis: the non-upright man, a known sinner or one concealing his conduct (mastur), counts for nothing so long as upright men exist; in their absence, two men of irreproachable outward standing suffice; another opinion multiplies the witnesses. Al-Shafi'i says: "The witnesses are presumed upright until a criticism is known on the day the nikah took place." (Sharh al-Kabir ma'a Hashiyat al-Dasuqi 3/6, Hashiyat al-Sawi 4/398)
Al-Mawardi states: the probity considered in the witnesses of the contract is outward probity, unlike testimony establishing rights before the judge, where inward probity is also sought: establishing rights involves a denying opponent, hence the examination of the inward, absent from the contract; and only the judge can probe the inward, beyond the spouses. The outward probity required amounts to avoiding major sins and minimizing minor ones.
Four cases for the witnesses: upright in outward and inward: the contract is valid and establishing it before judges is permitted; upright in outward only: the contract is valid, but establishing it in court requires verifying the inward at the time of the giving, not of the contract; if it verifies, the judge rules, otherwise not, the marriage remaining valid so long as no prior sin appears; notorious sinners: the contract is void, even if their probity appears later, the sin having preceded the contract; unknown standing: presumed upright, the contract is permitted, and the judge verifies their state in outward and inward before ruling on the contract. If the spouses acknowledge before the judge that they contracted with a discerning wali and two upright witnesses, he rules the marriage valid on their acknowledgment, without questioning the witnesses' standing or the wali's discernment; if they deny afterwards, or one alleges the wali's incapacity and the witnesses' sin, it profits them nothing: their earlier acknowledgment binds them more than a testimony they could fabricate.
(al-Hawi al-Kabir 9/64-65, al-Bayan 9/222-223, al-Najm al-Wahhaj 7/57, Mughni al-Muhtaj 4/243, Tuhfat al-Muhtaj 8/556, al-Dibaj 3/188)
Ibn Qudama reports two narrations on contracting through two sinners: not concluded, the view of al-Shafi'i, because of the hadith and since the nikah is not established through their testimony, as through two madmen; or concluded, the view of Abu Hanifa, testimony being a taking to witness (tahammul), valid from the sinner like other takings. Under both narrations, real probity is not considered: the contract is made through two men of irreproachable outward standing, for marriages occur in villages and among common people who do not know inward probity; seeking it would be too burdensome.
If the witness's sin appears after the contract, the contract is unaffected: the condition is outward probity, which was fulfilled; the view saying "the marriage is corrupt for lack of the condition" is not sound, for were inward probity a condition, verifying it would be obligatory and the contract would never be concluded in case of doubt, the woman not becoming lawful under doubt about her marriage; and sin arising later in the witnesses does not affect validity, the condition being appraised at the state of the contract. The joint acknowledgment of a man and a woman that they married with a wali and two upright witnesses is accepted and establishes the marriage. (al-Mughni 7/7-8, Kashshaf al-Qina' 5/71, Manar al-Sabil 2/565)
No disagreement: the secret nikah, in which the spouses agree to conceal it and no one testifies, is void according to all the scholars (Majmu' al-Fatawa 33/158, Bidayat al-Mujtahid 2/13). All also agree that the announcement is a condition of validity. The divergence lies beyond: is the required announcement achieved by mere witnessing, so that the instruction to keep silent harms nothing; or is a real announcement needed even with two witnesses?
The majority (Hanafis, Shafi'is, Hanbalis, Zahiris): the nikah concluded with two witnesses is not a secret nikah, even if the witnesses are asked to keep silent: their presence achieves the announcement and takes the marriage out of secrecy; there is no authentic prohibition of the secret nikah when two upright men have testified; and the marriage attended by the husband, the wali, the wife and the two witnesses is not a secret. The hadith "announce the nikah" is satisfied by the two witnesses; the "even with the drum (duff)" is a mere encouragement to wider announcement. (Bada'i' al-Sana'i' 2/252-253, Sharh Fath al-Qadir 3/200, Tabyin al-Haqa'iq 2/98, al-Muhalla 9/466, al-Hawi al-Kabir 9/59)
"Umar was informed of a marriage at which only a man and a woman had attended. He said: this is the nikah of secrecy, we do not allow it; if I had come before, I would have stoned."
reported by Malik in the Muwatta in the riwaya of Muhammad b. al-Hasan (2/446, no. 533)
Muhammad b. al-Hasan draws the rule: the nikah is not allowed with less than two witnesses; the marriage reported by Umar had only a man and a woman, an incomplete testimony, hence the secrecy; if the testimony is completed by two men, or a man and two women, the marriage is lawful even if concealed: what corrupts the secret nikah is the absence of witnesses; complete testimony makes it a public marriage, even if hidden.
Ibn Qudama: contracted with a wali and two witnesses then concealed, or with an instruction of silence, the marriage is disapproved in its concealment yet valid; this is the view of Abu Hanifa, al-Shafi'i and Ibn al-Mundhir. Those who disapproved the secret nikah: Umar, Urwa, Abd Allah b. Ubayd Allah b. Utba, al-Sha'bi and Nafi', the freedman of Ibn Umar.
Abu Bakr Abd al-Aziz declares it void, relying on Ahmad's word: with a wali and two witnesses, no, until he announces it; this is the madhhab of Malik. The defenders of validity answer: the hadith "no nikah without a wali" implies conclusion even without publicity; the nikah is a contract of exchange in which publicity is not required, like the sale; the reports on the announcement aim at recommendation, the proof being the command to accompany it with the drum, which is not obligatory; and the announcement usually takes place after the contract, whereas a condition is appraised at the time of the contract. (al-Mughni 7/63-64)
Al-Buhuti: the nikah is not voided by an instruction to conceal it; with witnesses it cannot remain hidden; if the spouses, the wali and the witnesses conceal it intentionally, the contract is valid and their concealment disapproved, the sunna being the announcement. (Kashshaf al-Qina' 5/71) The Malikis, by contrast, void the marriage accompanied by an instruction of concealment.
Abu Umar Ibn Abd al-Barr defines the secret nikah according to Malik and his companions: asking the witnesses to keep silent, or taking as witnesses only a man and two women, and every device aimed at concealment instead of announcement. Ibn al-Qasim reports from Malik: marrying with witnesses while ordering them to silence is not permitted; marrying without witnesses without concealment is permitted, and the spouses have them testify later as they wish. Ibn Wahb reports from Malik, for the man who marries with two witnesses then silences them: the spouses are separated by a divorce, the marriage is not permitted, the woman has her mahr if consummation occurred, and the two witnesses are not punished if they were unaware of the prohibition, but are punished if they acted knowingly. Al-Shafi'i and Abu Hanifa: marrying with two witnesses while telling them "conceal" is lawful; Yahya b.
Yahya: every marriage attested by two men has left the rank of secrecy, perhaps after al-Layth b. Sa'd. For al-Shafi'i and the Kufans, the secret nikah is every marriage without at least two male witnesses, and it is dissolved in all cases. (al-Istidhkar 5/470, al-Dhakhira 4/401)
The qadi Abd al-Wahhab: mutual consent to conceal the nikah voids the contract, contrary to Abu Hanifa and al-Shafi'i, for the proofs already cited: the commanded announcement, the reported prohibition of the secret nikah, the opposition to hidden zina, the preservation of the lineages from denial. (al-Ishraf 3/297-298 no. 1131, al-Ma'una 1/494-495)
Abu Bakr Ibn al-Mundhir: Allah made lawful the nikah and forbade zina, and the Prophet said "announce the nikah"; those who disapproved the secret nikah: Umar b. al-Khattab, Urwa b. al-Zubayr, al-Sha'bi, Nafi' and Abd Allah b. Utba.
Divergence on the marriage concluded with upright testimony but in secret: Malik separates the spouses and allows the contract without witnesses if the marriage is announced; al-Shafi'i allows it and sees in it a non-secret marriage; al-Nu'man does not separate the spouses; Abu Bakr allows it, concluded by what the nikah is concluded by. (al-Ishraf 5/32-33)
Ibn Rushd: all agree that the secret nikah is not permitted; they differ over the marriage with two witnesses asked to keep silent: for Malik it is a secret and is dissolved; for Abu Hanifa and al-Shafi'i it is not a secret. The cause: is witnessing there a legal prescription, hence a condition of validity, or a means of guarantee (tawaththuq), hence a condition of completeness? The origin is the athar of Ibn Abbas: "no nikah without two upright witnesses and a discerning wali", with no Companion opposing; many saw in it an internal consensus, judged weak; the corresponding marfu' hadith is mentioned by al-Daruqutni with unknown men in the chain. Abu Hanifa concludes the contract through two sinful witnesses, witnessing meaning for him only the announcement; al-Shafi'i sees in it both the announcement and the guarantee, hence the required probity; Malik no longer sees the announcement in it if the witnesses are asked to keep silent.
The origin of the required announcement is the hadith:
"Announce this nikah and beat for it the drum."
reported by Abu Dawud (cited in Bidayat al-Mujtahid 2/13)
Umar comments on the case it arose from: "this is the nikah of secrecy; if I had come before, I would have stoned."
Among the Malikis, al-Dardir specifies the cases of dissolution: dissolved is the marriage accompanied, at the time of the contract or before, by an instruction to conceal it from the husband's wife (the co-wife), the concealer being the husband alone or with his new wife, and those instructed being the witnesses; or to conceal it from the people of the household; or for a set number of days, three or more according to Ibn Habib, al-Lakhmi saying two days like the days; the dissolution takes place if there was no consummation, or if the consummation was not followed by a sufficient length of time, appraised by custom and not by the birth of children, which usually secures notoriety; the spouses are punished (ta'zir) if there was consummation without the excuse of ignorance and without coercion, otherwise their wali is, as well as the witnesses. The instruction harms nothing if it concerns only the wali, or the wife, or if the spouses and the wali agree to conceal without instructing the witnesses, or if the instruction comes after the contract.
Two internal schools: al-Baji holds secret also the marriage concealed by the spouses and the wali without instructing the witnesses, a view favored by al-Qarafi; Ibn Arafa, followed by al-Mawaq, holds that secrecy requires the instruction given to the witnesses, the husband being the one who gives it, alone or accompanied; the text of Khalil lends itself to both readings. (Sharh al-Kabir ma'a Hashiyat al-Dasuqi 3/38-40)
All agree: two witnesses present at the contract, having heard it with the intention of testifying, in one sitting (majlis), make the nikah valid. They differ if the witnesses heard separately, or if the contract took place before people without a clear intent.
The Hanafis require that the two witnesses be present, have heard together the two words and understand them. If they heard separately (one attended then left and the contract was repeated before the other; or one alone heard, the contract was repeated and heard by the other; or one heard the offer, the other the acceptance, then repetition), it is not valid: there are two contracts, each without two witnesses. Abu Yusuf allows it by istihsan if the sitting is one; another opinion is content with the mere presence of the two witnesses; and if they did not attend the sitting of the contract together, it is not valid by unanimous view. Understanding is required according to the sounder opinion: a contract before two non-Arabic-speaking men who do not understand is invalid; another opinion holds that hearing suffices and the contract concluded in Arabic before witnesses ignorant of Arabic is valid.
The contract is not concluded before two sleeping men, and were it judged valid it would be weak; the sounder choice is the absence of conclusion if the witnesses did not hear the words, as before two deaf men; if one witness is deaf and the other, having heard, goes out to repeat to his companion, it is not admitted; the contract is not concluded through two mutes either, unless they hear. Al-Sughdi validates it, the condition for him being the presence of the two witnesses without hearing, without understanding of the meaning. Al-Kasani: the witnesses must hear the words of both contractors together; whoever hears the words of one without the other, or one hearing one part and the other the other part, voids the contract, for the presence of the witnesses is a condition of the rukn (offer and acceptance): without common hearing, the condition of the rukn is missing. (Bada'i' al-Sana'i' 2/255, al-Hidaya 1/190, al-'Inaya 4/321-322, Fath al-Qadir 3/199, al-Ikhtiyar 3/103, al-Jawhara al-Nayyira 4/266-267, al-Lubab 2/18, Mukhtasar al-Wiqaya 1/345, Majma' al-Anhar 1/473)
The Shafi'is: no validity without two witnesses present, intentionally or by chance; having heard the contract, even without hearing the mahr; hearing is required since the object of testimony is a word; no contract with a deaf man; the witnesses must know the language of the contractors, according to the sounder opinion, the contract not being concluded before one who ignores it; it is sunna to bring beyond them people of goodness and religion. (al-Najm al-Wahhaj 7/56-57, Mughni al-Muhtaj 4/242-243, Tuhfat al-Muhtaj 8/556-557, al-Dibaj 3/188)
The Hanbalis: two witnesses, Muslim, upright, male, adult, sane, hearing and speaking, even if slaves, or deaf-mute if the sound is grasped with certainty; no contract with two deaf men, who do not hear the contract so as to testify to it, nor two mutes, unable to give testimony, nor if one of them is so. (Kashshaf al-Qina' 5/71, Manar al-Sabil 2/565)
The fuqaha differ: may the two witnesses be the sons of the two spouses, or the son of each of them?
The Hanafis, the Shafi'is according to the sounder opinion and the Hanbalis according to one view: it is valid, whether one is the son of the husband and the other the son of the wife, or the sons of each of them, or their two sons together, as after the separation of a man and a woman who remarry before their two sons: the contract is concluded through the testimony of the husband's sons, not of the husband, or of the wife's sons, not of the wife; by the general hadith "except with a wali and two upright witnesses"; those witnesses validate the nikah of other spouses, hence this one like the upright ones; they belong to the people of testimony; likewise count the peripheral relatives, like brothers and uncles, if the wali is someone other than them. The principle: whoever can act as wali by his own wilaya can testify, and whoever cannot, cannot. (al-Mabsut 5/33, Bada'i' al-Sana'i' 2/256, Durr al-Hukkam 4/52, al-Lubab 2/19, Mukhtasar al-Wiqaya 1/346, al-Muhit al-Burhani 3/107, al-Hindiyya 1/267, Durr al-Mukhtar 3/24)
The Shafi'is according to one view and the Hanbalis in the madhhab: not valid with a witness suspected by kinship: the sons of the two spouses, the son of one of them, their fathers, the son of one being the father of the other, because of the suspicion: the son's testimony for his father is not admitted. The same disagreement applies if the witnesses are enemies of the spouses or of one of them. (al-Hawi al-Kabir 9/61, al-Najm al-Wahhaj 7/56-57, Mughni al-Muhtaj 4/243, Tuhfat al-Muhtaj 8/557, al-Dibaj 3/188, al-Mughni 7/8, al-Furu' 5/142, al-Mabd' 7/48, al-Insaf 8/104-105)
In practice: the majority position requires two Muslim witnesses, outwardly upright, adult and sane, present and hearing the offer and the acceptance in one sitting. The nikah without witnesses remains valid among the Malikis, but witnessing becomes obligatory before consummation, on pain of dissolution. The secret nikah without witnesses is void according to all, and announcing the marriage is strongly recommended.