It is also remarkable that Allah commanded “having witnesses when taking back a divorced wife,” but did not command this for marriage. Yet they require it for marriage, while most of them do not require it when taking a wife back. Allah commanded witnesses when taking a wife back lest the husband’s marital relationship be denied while he continues to live with his wife, leading to his living with her unlawfully. He did not command witnesses to a divorce in which the wife is not taken back, because the husband then releases her graciously once the waiting period ends, making the divorce publicly apparent.

For this reason, Yazīd ibn Hārūn said, criticizing the adherents of juristic opinion: “Allah commanded witnesses for sales, but not for marriage; yet they require witnesses for marriage, but not for sales.” It is as he said. Having witnesses to a sale must be either obligatory or recommended, and the Quran and Sunnah indicate that it is recommended. As for marriage, the revealed law has prescribed neither obligatory nor recommended witnessing. Rather, marriage is to be publicly announced, and its public announcement, together with its continuing nature, makes witnesses unnecessary. A woman lives with a man, and people know that she is his wife. This enduring public visibility dispenses with witnesses, just as with lineage: a man need not call anyone to witness his wife giving birth. Rather, this becomes apparent, and it is known that his wife gave birth to this child, making witnesses unnecessary. A sale is different: it may be denied, and establishing proof of it may prove difficult.

Thus, if a marriage takes place somewhere it would not become publicly known, it is publicized by calling witnesses. Having witnesses to a marriage may therefore become obligatory because this makes it public and known—not because no marriage can be validly contracted without two witnesses. Rather, if a guardian marries his ward to a man, and the two then go out and speak about it within people’s hearing, or witnesses and other people arrive after the contract and are told that he has married her, that is sufficient. This was the practice of the early generations: they did not insist on bringing two witnesses or putting the dowry in writing.