—and that the contract be concluded in the presence of a prudent guardian, with witnesses to be called in due course.
If litigation later arises concerning the marriage, the claim cannot be proved by mere testimony; no counter-oath is demanded, and, in Mālik’s view, this is not a situation in which an oath is even admissible.
Mālik further requires that the marriage be publicly announced in order to safeguard lineage; both the guardian and the dowry are essential pillars of the contract. We shall, God willing, devote a separate and adequate chapter to each.
A secret marriage is invalid. It must be annulled, whether before or after consummation, unless it is publicly announced before its concealment becomes known. Should the marriage first be kept hidden—neither spread nor proclaimed—then later be publicly declared, it is sound and is not annulled.
Mālik stated that if two men witness the marriage but are told to keep it secret and they do so, the union is still deemed a clandestine marriage. Some of his associates, however, hold that once two upright witnesses have testified, the contract is no longer secret, and this is the majority opinion among the jurists.
The man must either conclude his own marriage contract or have it concluded by an agent acting on his behalf. Agency in marriage is permissible when the principal specifies a particular woman and fixes the dowry. If he authorises the agent to marry him to whomever the agent deems suitable, the arrangement is valid only if the agent chooses a woman who could plausibly be one of his wives; otherwise it is invalid.
Likewise, when a woman authorises her guardian to contract her marriage to a specific man and names the dowry, or grants him permission to marry her to whomever he sees fit, that is valid provided he marries her to a compatible match and she consents once he has informed her; otherwise it is not valid. The guardian may not marry her to himself until he informs her and she accepts.
If a father appoints someone to contract the marriage of his virgin daughter, the agent may not take possession of the dowry unless the father has expressly authorised him to do so; the same ruling applies to a master regarding his slave woman.
Every agent is bound by the limits of his mandate and may not exceed them. He must stop at what has been entrusted to him, except for one commissioned to sell, for such an agent may demand the price even without explicit authorisation, so long as he has not been forbidden to do so.
Whoever contracts a marriage through an agent and then a divorce occurs—