Chapter: Conditions and Defects in Marriage

His statement: “Conditions and defects in marriage.” The author has combined conditions and defects because a defect is the absence of a condition: the implication of an unrestricted marriage contract is that it be free of defects. It is as though, by concluding the contract without qualification, the contracting party has stipulated that the subject of the contract be free of defects. This is why he has combined the two.

We have previously discussed the conditions of marriage. We therefore need to know the difference between them and conditions stipulated in marriage. We say: linguistically, a condition is a sign, as in Allah’s saying: “Are they only waiting for the Hour to come upon them suddenly? Its signs have already come.” [Muhammad 47:18] That is, its indications. The difference between the conditions of marriage and conditions stipulated in it is found in four respects:

First: the conditions of marriage are prescribed by the Lawgiver; it is Allah who has laid them down and made them conditions. Conditions stipulated in marriage, however, are laid down by one of the contracting parties, who stipulates them.

Second: the validity of a marriage depends upon the conditions of marriage. Its validity, however, does not depend upon conditions stipulated in it; rather, their binding force depends upon them. Whoever is deprived of a condition stipulated in his or her favor has the right to annul the marriage.

Third: the conditions of marriage cannot be waived, whereas conditions stipulated in marriage may be waived by the person in whose favor they were made.