Section Two: Testimony

Abū Ḥanīfah, al-Shāfiʿī and Mālik agree that the presence of testimony is a condition of marriage. They differ, however, over whether it is a condition of completion—required at the time of consummation—or a condition of validity—required at the moment the contract is concluded. All three concur that a clandestine (secret) marriage is impermissible.

They further disagree about a case in which two witnesses are summoned but are instructed to keep the matter concealed. Does this render the union clandestine or not? Mālik says that it is indeed clandestine and must be annulled. Abū Ḥanīfah and al-Shāfiʿī hold that it is not clandestine.

The root of their disagreement is whether the function of testimony in this context represents a substantive legal requirement or merely serves to block the avenues to dispute or denial. Whoever regards it as a legal requirement deems it a condition of validity; whoever views it as a safeguard considers it a condition of completion.

The basic proof is the report from Ibn ʿAbbās: “No marriage is valid without two upright witnesses and a competent guardian.” None of the Companions is known to have contested this. Many scholars have treated it as falling under consensus, though that claim is weak. Al-Dāraqutnī transmitted the ḥadīth ascribed to the Prophet, peace and blessings be upon him, but noted that its chain contains unknown narrators.

In the school of Abū Ḥanīfah the marriage is concluded even with the testimony of two openly sinful witnesses, for he sees the sole purpose of testimony as public disclosure. Al-Shāfiʿī considers testimony to encompass both purposes—publicity and acknowledgment—and therefore stipulates that the witnesses be upright. Mālik, by contrast, maintains that testimony does not realise publicity if the witnesses have been instructed to keep the matter secret.

Hence their disagreement turns on whether an event witnessed under a pledge of secrecy can still be called “clandestine.”

The textual basis for requiring publicity is the Prophet’s saying, peace and blessings be upon him: “Proclaim this marriage and beat the tambourines for it,” recorded by Abū Dāwūd. ʿUmar remarked concerning such cases: “This is a clandestine marriage; had I acted beforehand I would have stoned for it.”

Abū Thawr and a number of scholars maintain that witnesses are not a condition of marriage at all—neither for validity nor for completion. Al-Ḥasan b. ʿAlī actually did so: it is related that he married without witnesses and then made the marriage public.

Section Three: The Dowry

First Topic: The Rulings and Essential Elements of the Dowry

Section Three addresses the dowry (ṣadāq) and will be discussed in six topics:

1. Its ruling and essential elements;
2. The circumstances in which the entire sum becomes due to the wife;
3. Cases in which it is halved;
4. Delegation (tafwīḍ) and its legal ruling;
5. Invalid dowries and their rulings; and
6. Disagreements between the spouses regarding the dowry.

Topic One comprises four issues, the first of which concerns its ruling.