Tuesday, 4 October 2011

Ascendants and descendants of the couple acting as witnesses to their marriage


Is it permissible for the woman’s maternal or paternal grandfather to act as a witness to the marriage contract?.

Praise be to Allaah.

In order for the marriage
contract to be valid, according to the majority of scholars it is essential
that it be witnessed by two Muslim witnesses of good character. It is
acceptable for the witness to be the woman’s grandfather on her mother’s or
father’s side, according to the more correct opinion. 

Some of the fuqaha’ did not
allow the ascendants or descendants of the couple or wali (guardian) to act
as witnesses. 

It says in Kashshaaf
al-Qinaa’ (5/66): The marriage contract cannot be valid if the witness
is biased, such as the sons of the couple or the sons of one of them and the
like, such as their fathers, or the son of one of them and the father of the
other, because of the risk of bias. End quote.  

i.e., he may be suspected
of being biased, because he is likely to testify in favour of his father or

It says in Sharh
al-Muntaha (2/648): The testimony of the wife’s father or grandfather
concerning [the marriage contract] is not valid, nor that of her son or
grandson. The same applies to the father, grandfather, son and grandson of
the husband, because of the risk of bias. The same applies to the father and
son of the wali. End quote.  

It says in al-Mawsoo’ah
al-Fiqhiyyah al-Kuwaitiyyah (41/300), discussing the conditions of the
two witnesses to marriage: The witnesses should not be sons of the couple. 

The Hanbalis stated – as
al-Mardaawi said: That it is stipulated that neither of the two witnesses to
marriage should be a son of one of the partners. So the marriage contract
cannot be witnessed by sons of the couple or by the son of one of them. 

The same conclusion may be
understood from the general views of the Hanafis and Maalikis, that the
testimony of a father for his son cannot be accepted, or of a son for his

The Shaafa’is have several
views, the soundest of which is that the marriage contract is valid (when
witnessed by the relatives discussed above). End quote.  

One report is narrated from
Imam Ahmad (may Allaah have mercy on him) which says that the witness of
ascendants and descendants is valid. This view was favoured by a number of
his companions. Al-Insaaf (8/105). 

Shaykh Ibn ‘Uthaymeen (may
Allaah have mercy on him) said: The second view concerning this issue is
that it is valid for the witnesses or one of them to be one of the
ascendants or descendants. This is undoubtedly the correct view, because the
testimony of ascendants and descendants is not allowed when it is testimony
in favour of a person, because of the risk of bias. But when it is testimony
for or against him, as is the case with a marriage contract, it is not

The marriage contract in
fact is not exclusively about rights for the husband or wife, nor is it
exclusively about duties, rather it includes both rights and duties for the
one who enters into it. So the correct view is that the contract is valid.
This was also narrated from Ahmad (may Allaah have mercy on him) and was
favoured by many of our companions. End quote from al-Sharh al-Mumti’

And Allaah knows best.

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