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Nikah with witnesses on video call and no wali in hanafi maslaq

Last updated: 18th April 2020
Question ID: #4557
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Assalaam alaikum. I need urgent answer to my question if possible please, with authentic hadith with proper isnaad and fatawas. I am a woman of hanafi maslaq. I married my first cousin, also hanafi, (paternal uncle’s son) in the following manner. We sat together at a place and and made a video call to his younger brother and one of my other cousins, who although the same age as my husband, is actually an uncle in relation. Now, they both were made aware of the situation beforehand that they are going to be witnesses to my nikah. Also, they both know me well and recognise my voice and can attest to hearing the offer and acceptance of the proposal. Now, my husband read the khutbah and nikah and offer. I accepted and the witnesses were asked if they heard it. Similary my husband accepted and it was confirmed if the witnesses heard it. Both the witnesses had eyes on us and were aware that me and my husband were in the same place. I had confirmed this manner of nikah online as well before attempting it. It was from another similar nikah. After the nikah and consummation I informed my father and my other family members about the nikah all within a week or two and asked them to keep silent about it for a little while till we could convince my husband’s parents first. So they are not aware of it. I even got my mehr. Now, I am being told that since my witnesses were physically not present in the same room, even though they heard everything and can testify, my nikah is invalid. Please explain on this matter. I have even contacted the UAE online fatawa centre but I am not getting clear elaborate answers. Also, my cousin sister also married my husband two months later in somewhat similar manner. Mu husband was sitting with two witnesses in one country and my cousin was in another country and these two parties were on video call. Although one witness was a fellow cousin and family the other one was a stranger who did not know her or recognise her in any way and she is not even sure of who he was exactly because his full name was not taken while naming the witnesses. And that nikah was a secret between the two of them for 3 years. No one knew about it and nor did they consummate their marriage. Neither did she get her mahr. But they were under the impression that they were married. Now, please tell me 1.Are these two nikahs valid? 2.And if they are not valid, is it mandatory that both of us conduct the nikah again, even if now one of the sisters feels that she cannot stay married to the man? Please explain with fatawa and hadith in detail. I even mailed mufti menk about this in detail but the only answer I got was that nikah without wali is valid. But here the question is not of the wali but of the witnesses being present on video.



بسم الله الرحمن الرحيم

الجواب حامداومصليا

It is necessary that the contract of Nikah takes place in the same Majlis (gathering) with two parties wherein two witnesses are present and they listen to the Offer and Acceptance.

Therefore, with regards to the above scenarios both Nikah is invalid, because witnesses are not in the same place as the contractors are.

However, if A sends his representative C to B in front of witnesses then Nikah will be valid whether A sees it done via video call or not.

As the Nikah was invalid. Your husband verbally needs to separate from you or a Qadhi will separate you. If you wish you can remarry after passing Iddat which begins from the separation if you have consummated the marriage, and Mahr need to be given whichever amount is less from the Mahr Mithl and the stipulated Mahr, this amount cannot be claimed back. If, however, he gave more than this amount, then he may claim back the extra amount.

If you have not consummated the marriage then there's no need to pass Iddat and no Mahr.

فأما اذاكان أحدهما غائبا لم ينعقد حتي لوقالت امرأة بحضرة شاهدين زوجت نفسي من فلان وهوغائب فبلغه الخبر فقال قبلت أوقال رجل بحضرة شاهدين تزوجت فلانة وهي غائبة فبلغها الخبر فقالت زوجت نفسي منه لم يجز وان كان القبول بحضرة ذينك الشاهدين وهذا قول أبي حنيفةومحمد
(بدائع الصنائع,2\232)

قوله: اتحاد المجلس) قال في البحر: فلو اختلف المجلس لم ينعقد
(ردالمحتار،٣/١٤،سعيد)

اذا وقع النكاح فاسدا فرق القاضي بين الزوج والمرأة فان لم يدخل بها فلا مهر لها ولا عدة وان كان قد دخل بها فلها الأقل مما سمي لها ومن مهر مثلها ان كان ثمة مسمي وان لم يكن ثمة مسمي فلها مهر المثل ...وتعتبر العدة من حين يفترق بينهما عند علمائنا الثلاثة كذا في المحيط

والمتاركة في الفاسد بعد الدخول لا تكون الا بالقول كخليت سبيلك أو تركتك.....وقال صاحب المحيط وقبل الدخول أيضا لا تتحقق الا بالقول.....
(فتاوي قاضيخان ، ١/٣٣٠،دار النوادر

And Allah knows best

14 Jumadal Ula Akhar 1442/ 28 January 2021

Mufti
Answer last updated on:
16th May 2021
Answered by:
Ulamaa ID 04
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Location: London