Ibram Uqud al-Nikah Abr Wasail al-Ittisalat al-Haditha - Dirasah Fiqhiyyah Hadithiyyah
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- Ibram Uqud al-Nikah Abr Wasail al-Ittisalat al-Haditha - Dirasah Fiqhiyyah Hadithiyyah
Ibram Uqud al-Nikah Abr Wasail al-Ittisalat al-Haditha - Dirasah Fiqhiyyah Hadithiyyah (Concluding Marriage Contracts via Modern Telecommunication Means: A Juristic and Hadith Study) is a contemporary legal treatise by the Yemeni scholar Abd al-Mannan Ali Muhammad al-Talibi, completed on 15 Rajab 1434 AH (May 2013) . The book examines the Islamic legal rulings regarding the execution of marriage contracts through contemporary telecommunication technologies, such as the internet, email, chat applications, and telephones .
Subject and Structure
The author introduces the work by highlighting the solemnity of the marriage contract in Islamic jurisprudence, noting that technological advancement has produced novel legal issues (nawazil) regarding marital unions concluded remotely .
The study begins with lexical and technical definitions of contract (aqd), marriage (nikah), the internet, and the telephone . It then classifies remote contracts into two main categories:
- Contracts via Written Communication (al-Kitabah): Covers modern textual mediums, including email (such as Yahoo, Hotmail, and Gmail), open marriage forums, and social media platforms .
- Contracts via Voice and Video Communication (al-Muhatafah): Encompasses telephone calls and interactive digital platforms enabling simultaneous audio and visual transmission (such as Skype, Paltalk, and Hotmail Messenger) .
The author reviews the practical merits of these platforms—such as facilitating simultaneous audio-visual interaction, verifying the bride's consent, and simulating the physical gathering of the contract session (majlis al-aqd)—alongside their potential hazards, notably the risk of voice alteration, image manipulation, and sudden technical disruptions that may sever the continuity between offer and acceptance .
Juristic Opinions and Analysis
The treatise surveys both classical and contemporary juristic positions regarding remote contracting:
- Written Contracts: Classical scholars divided into two camps. The majority (Malikis, Shafi'is, and Hanbalis) prohibited written marriage contracts for those capable of speech, citing the necessity of immediate verbal succession (muwalah) and direct in-person witnessing, permitting writing only for the mute in cases of necessity . Conversely, the Hanafis permitted marriage through correspondence for an absent party, considering the constructive session (majlis) to be the moment and place where the written proposal is delivered and read before witnesses who hear the recipient's verbal acceptance .
- Telephonic and Electronic Oral Contracts: The author identifies three contemporary stances:
- Permissibility with conditions: Maintained by scholars such as Mustafa al-Zarqa, Wahbah al-Zuhayli, Ibrahim Fadil al-Dabbu, Muhammad Uqlah, Badran Abu al-Aynayn, Abd al-Rahman al-Sanad, Abd Allah ibn Abd al-Aziz al-Jibrin, Muhammad ibn Yahya al-Najmi, and Usamah al-Ashqar, provided that witnesses listen to both parties simultaneously .
- Prohibition: Adopted by the Permanent Committee for Scholarly Research and Ifta in Saudi Arabia, the International Islamic Fiqh Academy in Jeddah (Resolution No. 52, which excluded marriage from permitted modern electronic transactions due to the requirement of witnessing), Yusuf al-Qaradawi, Ahmad Dhiyab Shuwaydah, Nasr Farid Wasil, Abd Allah ibn Jibreen, Abd Allah ibn Ibrahim al-Nasir, and Ribhi al-Jadili, based on the need for precaution in marital matters and the vulnerability to fraud and audio imitation .
- Conditional validity upon safety from fraud: The position of Abd al-Aziz ibn Abd Allah ibn Baz, who ruled that telephone marriage is valid if genuine and verified without deception .
The author connects witnessing over telecommunication channels to the classical debate regarding the validity of a blind person's testimony based on auditory recognition alone, evaluating the evidence of both schools .
Author's Conclusion and Recommendations
Al-Talibi favors the permissibility of concluding marriage contracts via modern communication tools—both written and spoken—provided that all necessary sharia requirements are met and strict safeguards against fraud and forgery are observed . He emphasizes that the primary and traditional norm remains in-person contracting, advising that remote contracts be restricted to cases of necessity, such as individuals separated by borders or distance . He also recommends appointing a proxy (tawkil) when feasible to avoid scholarly dispute .
In the book's recommendations, al-Talibi calls for collective juristic deliberation in Islamic fiqh academies, joint academic conferences between Islamic jurists and telecommunication specialists, the installation of secure audio-visual technology in Sharia courts to enable judges to conduct remote contracts legally, and the creation of regulated Islamic platforms to facilitate marriage .
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