بَابُ إِعْلَانِ النِّكَاحِ وَالْخُطْبَةِ وَالشَّرْطِAnnouncing the Marriage, the Sermon, and the Conditions

¹ The statement: "The Prophet (ﷺ) prohibited beating the tambourine": Therefore, the Hanafis explicitly stated that the tambourine is also forbidden, which is the apparent narration. In "Radd al-Muhtar," it is said: Listening to the beating of the tambourine, pipe, and similar is forbidden. In "Sharh al-Wiqayah": Listening to the beating of the tambourine, pipe, singing, and the like is forbidden. Abu al-Makarim said: Amusement like beating the tambourine and pipe is disliked (prohibited). In "Fatawa al-Bayhaqi": Singing, listening to it, beating the tambourine, and all types of entertainment are forbidden, as in "Fatawa al-Aziziyyah." In "Al-Nihayah": Singing, the lute, the harp, the tambourine, and similar are forbidden, as stated in "Ma la Budd Minhu." Ibn Hajar al-Makki, the Shafi‘i, said in his book "Kaff ar-Ru‘a ‘an Muharramat al-Lahw wa as-Sama‘," Section Four on the tambourine: The relied-upon opinion in our school is that it is permissible without dislike at weddings and circumcisions, and abandoning it is better. Likewise, its ruling outside these occasions is permissible according to the sounder opinion. In "Al-Minhaj" and others: A group of our companions said it is forbidden outside these occasions. Shaykh As-Sahrawardi, the Shafi‘i, said in "‘Awarif al-Ma‘arif": As for the tambourine and flute, although there is leniency in the Shafi‘i school, it is preferable to abandon them and take the safer path to avoid disagreement. The details are mentioned in "Imdad al-Fatawa," Part Five, for those who wish to refer to it, as it is valuable in its field. In "Al-Bahr," quoting "Adh-Dhakhirah": Beating the tambourine at weddings is disputed, as stated in "Radd al-Muhtar." In "Tafsir al-Ahmadiyyah" under the verse: And of the people is he who buys the amusement of speech [Luqman: 6], it is mentioned in "Fatawa al-Hammadiyyah" and "‘Awarif": Mujahid said that the verse: And incite whoever you can among them with your voice [Al-Isra: 64] indicates the prohibition of singing, as it is addressed to Iblis, cursed be he, meaning: Stir whomever you can of the children of Adam with your voice, which is the voice of singing, pipes, tambourines, and the like. The complete discussion will come, God willing, in the Chapter on Explanation and Poetry, so refer to it, as it is also valuable in its field, and I have not seen anything better than it. ² The statement: "Hold it in mosques": Ibn al-Humam said: It is recommended to conduct the marriage contract in the mosque, as it is an act of worship, and on Friday, as in "Al-Marqah."

¹ The statement: "The Messenger of Allah (ﷺ) married me, etc.": In "Al-Bazaziyyah": Marriage and consummation between the two Eids are permissible, but the procession is disliked. The preferred opinion is that it is not disliked, as he married the truthful one (Aishah) in Shawwal and consummated in it. The interpretation of the statement: "No marriage between the two Eids," if authentic, is that he refrained from the Eid prayer in the shortest winter days on Friday, so it was said to him to not miss the preferable time for attending Friday prayer, as in "Radd al-Muhtar."

¹ The statement: "The most rightful conditions, etc.": The conditions here refer to the dowry, as it is stipulated in exchange for intimacy. It is also said: All that a woman is entitled to by virtue of marriage, such as dowry, maintenance, and good companionship, as the husband commits to them by the contract, as if they were stipulated in it. It is also said: All that the husband stipulates to encourage the woman for marriage, as long as it is not prohibited, as in "Al-Marqah." In "Umdat al-Qari": Scholars differed regarding a man marrying a woman and stipulating for her that he will not take her out of her house, or not marry another, or not take a concubine, or similar permissible conditions, on two opinions. The first: He is obligated to fulfill it, which is the opinion of Al-Awza‘i and Ahmad. The second: The husband is ordered to fear Allah and fulfill the condition, but it is not enforced judicially. If he insists on going against it, he has the most right to his family. This was the opinion of Ata, Ash-Sha‘bi, Sa‘id ibn al-Musayyib, An-Nakha‘i, Al-Hasan, Ibn Sirin, Rabi‘ah, Abu az-Zinad, Qatadah, and it is the opinion of Malik, Abu Hanifah, and Ash-Shafi‘i. In summary: Conditions that do not contradict marriage are permissible and must be fulfilled morally, but not judicially according to Abu Hanifah.

¹ The statement: "A man should not propose over his brother’s proposal, etc.": The prohibition according to the Hanafis is only after acceptance; otherwise, it is not, based on Fatimah bint Qays’ Hadith, where she mentioned that three proposed to her, and he did not object to some proposing over others. According to others, the prohibition is absolute. This is the summary of what Al-Tahawi said in "Sharh Ma‘ani al-Athar."

¹ The statement: "Shighar is when a man, etc.": In "An-Nahr": It is when a man engages in shighar, meaning he marries his woman on the condition that the other marries his woman to him, with no dowry except this. As in "Al-Mughrib," meaning that each woman’s intimacy is the dowry for the other. This condition is necessary for it to be called shighar. If he does not say this or its meaning, but says: "I marry you my daughter on the condition you marry me your daughter," and it is accepted, or "on the condition that my daughter’s intimacy is the dowry for your daughter," and the other does not accept but marries his daughter without making it a dowry, it is not shighar but a valid marriage by consensus. The dowry of peers is required in all cases because something unsuitable was named as dowry. In summary: Merely omitting the dowry does not necessitate invalidity according to them, as marriage is valid without naming a dowry. The reason for invalidity is making intimacy a dowry. Shighar is prohibited due to the absence of a dowry, so we require the dowry of peers, and it is no longer shighar.

¹ The statement: "Prohibited temporary marriage, etc.": Know that temporary marriage is forbidden by consensus of scholars and the four Imams. Attributing its permissibility to Malik, as occurred in "Al-Hidayah," is a mistake, as clarified by its commentators. How could it be when the Malikis agree on it, and none of their books permit it, but are filled with its prohibition? Malik cited in his "Muwatta" Hadiths that decisively prove its prohibition forever, and he only cites what is acted upon, as in "Tansiq an-Nizam" and "Fath al-Qadir."

¹ The statement: "Shayyahu": Meaning his cooked food, as in "Al-Qamus": He cooked the meat, shayyahu, and it was cooked.

¹ The statement: "He taught us, etc.": This Hadith of Ibn Mas‘ud is used as evidence for the legitimacy of the sermon at the marriage contract and for every need. Tirmidhi said in his "Sunan": Scholars said marriage is permissible without a sermon, which is the opinion of Sufyan ath-Thawri and others among the scholars. This is supported by the Hadith of Ismail ibn Ibrahim, coming later. Thus, the sermon in marriage is recommended, as in "Nayl al-Awtar" and "Ad-Durr al-Mukhtar."

¹ The statement: "She belongs to the first of them": Tirmidhi said after citing this Hadith: This is a good Hadith, and this is acted upon among the scholars. We know of no disagreement among them that if one of the guardians marries her before the other, the marriage of the first is permissible, and the marriage of the other is invalid. If they marry her simultaneously, both marriages are annulled, which is the opinion of Ath-Thawri, Ahmad, and Ishaq. I say: This is also the Hanafi position on this issue. In "Al-Bada’i‘": If they are of equal rank, like two brothers or two paternal uncles, each has the right to marry her independently, whether the other agrees or not, provided the marriage is to a suitable match with a sufficient dowry. Malik said: None of the guardians has the authority to marry her unless they agree, based on the guardianship being a shared one according to him. According to us and the majority, it is an independent guardianship. His reasoning: The cause of this guardianship is kinship, which is shared among them, so the guardianship is shared, like the guardianship of property. If a slave girl is shared between two, one marrying her without the other’s consent is not permissible. I say: For us, guardianship is indivisible, as it is established by an indivisible cause, which is kinship. What is established by a collective, indivisible cause is established for each perfectly, as if there were no other, like the guardianship of trust. This differs from property guardianship, as its cause, ownership, is divisible and proportionate to the ownership. If each guardian marries her to a different man, both contracts are invalid, as there is no way to combine them, and neither is preferred over the other. If it is unknown which was first, the same applies, as we said, and because if one were valid, it would require speculation, which is not permissible in matters of private parts. If the earlier is known, the first is valid, and the later is not, as in "Badhl al-Majhud."

¹ The statement: "Those whom your fathers married, etc.": Marriage here means intercourse, meaning do not have intercourse with those your fathers had intercourse with. This indicates the prohibition of all women a father had intercourse with, whether by marriage, ownership, or adultery, as is our position and that of many exegetes, as in "Al-Madarak." According to Ash-Shafi‘i: A woman a father committed adultery with is not prohibited, as adultery is inherently reprehensible, so it cannot be a cause for lawful prohibition, which is a blessing, and a blessing is not attained by the prohibited. For us: Intercourse is a cause of partial kinship through the child, so it is attributed to each as complete, making her ascendants and descendants like his ascendants and descendants, and vice versa. Prohibited intercourse is a cause of the child, not as adultery. Similarly, the disagreement regarding a touched woman, one who touched, or one whose private part was looked at with desire is prohibited according to us, not according to him. For further verification, see "Al-Hidayah" and books of principles. The author of "At-Tawdih" said at the beginning of the book: An example of analogy derived from consensus is the analogy of prohibited intercourse to permissible intercourse in the prohibition of affinity, like the analogy of prohibiting the mother of an adulteress to prohibiting the mother of a slave woman he had intercourse with. The prohibition in the original case is established by consensus, with no text, but the text came regarding wives’ mothers without requiring intercourse. This is his statement, very beneficial, as in "Tafsir al-Ahmadiyyah." ² The statement: "Your mothers who nursed you, etc.": In "Tafsir al-Ahmadiyyah": According to Ash-Shafi‘i, nursing prohibition is not established except with five sucklings, based on the saying of the Prophet (ﷺ): "One or two sucklings do not prohibit, nor one or two sips." According to us, it is established with one suckling if it occurs within the nursing period, due to the generality of the verse: Your mothers who nursed you without distinguishing between little or much, as mentioned in "Al-Hidayah" in the Chapter on Nursing. Malik agrees with Abu Hanifah, and Ahmad ibn Hanbal with Ash-Shafi‘i, as stated in "Al-Husayni." The complete discussion will come, God willing, in this chapter under An-Nasa’i’s Hadith, so refer to it, as it is valuable in its field. ³ The statement: "That you combine two sisters, etc.": In "Tafsir al-Ahmadiyyah": The text indicates prohibition of combining only two sisters, but scholars added to the Book with the well-known Hadith: "Do not marry a woman with her paternal or maternal aunt, nor with her brother’s or sister’s daughter," so they made combining these prohibited and established a rule: It is prohibited to combine two women like two sisters, such that if one were assumed male, the other would be unlawful to him, like a paternal aunt with her sister’s daughter. If the aunt were male, they would be a father and a brother’s daughter, prohibited in marriage. If the brother’s daughter were male, they would be an aunt and a nephew, prohibited in marriage, so combining them is prohibited for a man, as with two sisters, and so by analogy. This differs if it is from one side, like a woman and her husband’s daughter, as combining them is permissible, contrary to Zufar, as is known. ⁴ The statement: "Except those your right hands possess, etc.": Its explanation will come in the Hadith of Awtaas. ⁵ The statement: "Two complete years, etc.": There is a disagreement regarding the nursing period between the Hanafis, Abu Hanifah’s two companions, and Ash-Shafi‘i. Abu Hanifah held it is two and a half years, while his companions and Ash-Shafi‘i held it is two years only. Zufar said three years. Abu Hanifah relied on what will come in Surah Al-Ahqaf: And his gestation and weaning are thirty months [Al-Ahqaf: 15], and they relied on this verse. The sounder opinion is theirs, which is Al-Tahawi’s choice. The verse: For whoever wishes to complete the nursing [Al-Baqarah: 233] by consensus explains to whom the ruling applies or relates to shall breastfeed, meaning this ruling is for those who wish to complete the nursing, or they breastfeed for the sake of those who wish to complete it. Thus, it is known that the complete nursing period is two years, as Al-Baydawi said under this verse, which indicates that the maximum nursing period is two years, and it has no effect after that, and it may be less. Summarized from "Tafsir al-Ahmadiyyah" and "At-Ta‘liq al-Mumajjad." ⁶ The statement: "And his gestation and weaning are thirty months": Abu Hanifah held that the maximum nursing period is two and a half years. Its explanation, as in "Al-Hidayah": The verse thirty months informs about each of gestation and weaning, as if it said: The gestation period is thirty months, and the weaning period is thirty months, so the verse indicates the maximum of both periods. But since a reduction was found for the gestation period, based on Aishah’s saying: "By Allah, a child does not remain in the womb more than two years," and no reduction was found for the nursing period, Abu Hanifah ruled that the maximum gestation period is two years, and the weaning period is thirty months. Or gestation refers to carrying in arms, not in the womb. Abu Yusuf, Muhammad, and Ash-Shafi‘i held that the maximum nursing period is two years, as thirty months informs about the total of gestation and weaning, meaning their total is thirty months, so it is unclear which applies to each. The verse elsewhere: And his weaning is in two years [Luqman: 14] and Two complete years clarify that the weaning period is two years, and the remaining six months are the gestation period, as the minimum gestation period is that by consensus. Thus, this verse clarifies the minimum gestation period and the maximum nursing period. Al-Qadi said: Perhaps specifying the minimum gestation and maximum nursing is due to their regulation and the establishment of lineage and nursing rulings. This is his statement, taken from "Tafsir al-Ahmadiyyah" and "Al-Madarak." I say: Their opinion is supported by Ad-Daraqutni’s Hadith: "There is no nursing except what is in the two years." ⁷ The statement: "They are not lawful for them, nor are they lawful for them": Due to the separation between them by her becoming Muslim, as in "Al-Madarak," meaning due to the separation by the difference in abodes.