#271: Syighar Marriage

Question:

Assalamualaikum ustaz. Is syighar marriage permissible in Islam?

Answer:

Waalaikumussalam wrt. wbt.,

Alhamdulillah, praise and gratitude to Allah SWT for His countless blessings for us all. Praise and salutations to our beloved Prophet Muhammad PBUH, his family, companions, and all those who follow his footsteps until the Final day.

Marriage according to the 4th Edition of Kamus Dewan means a solemnization (aqad – agreement) that contains the ijab and qabul phrase that ruled the relationship between man and woman for intercourse permissible. [1]

 The word marriage is mentioned in the statement of Allah SWT:

فَانْكِحُوا مَا طَابَ لَكُمْ مِنَ النِّسَاءِ

“Then marry those that please you of [other] women,” [2]

In this verse, Allah SWT sanctioned the permissibility of marriage for the whole Muslim ummah and even encourages it [3]. It can also be seen in the statement of the Prophet Muhammad PBUH:

يا مَعْشَرَ الشَّبابِ، مَنِ اسْتَطاعَ مِنكُمُ الباءَةَ فَلْيَتَزَوَّجْ، فإنَّه أغَضُّ لِلْبَصَرِ وأَحْصَنُ لِلْفَرْجِ، ومَن لَمْ يَسْتَطِعْ فَعليه بالصَّوْمِ فإنَّهُ لَهُ وِجَاءٌ.

“O young men, those of you who can support a wife should marry, for it (marriage) controls the gaze and preserves one from immorality. And whoever cannot (marry) should fast, for it is a means of reducing the sexual desire.” [4]

Marriage is definitely encouraged in Islam on the condition that it must follow the shariah set. A valid and complete marriage is a marriage that fulfils the requisites and conditions placed by syarak. There are also several types of marriages prohibited in Islam such as mut’ah marriage (practised by the followers of Syiah teachings), muaqqat marriage (contract marriage) and others. [5]

Regarding the above question, Ibn Daqiq al-Eid stated that syighar marriage () is a form of marriage where a man marries his daughter or women under his authority such as his daughter or sibling to another man on the condition that the man married his daughter or sibling to him. Among the meanings of syighar is the act of a dog lifting one of its legs to urinate. Hence, some scholars hold the opinion that the disgusting act of syighar marriage is the same as the disgusting condition of the dog. [6]

Syighar marriage is prohibited according to syarak and this is based on a sahih narrations. Among them is a narration from Saidina Abdullah Ibn Umar R.Anhuma, who said:

أَنَّ رَسُولَ اللَّهِ صلى الله عليه وسلم نَهَى عَنِ الشِّغَارِ، وَالشِّغَارُ أَنْ يُزَوِّجَ الرَّجُلُ ابْنَتَهُ عَلَى أَنْ يُزَوِّجَهُ الآخَرُ ابْنَتَهُ، لَيْسَ بَيْنَهُمَا صَدَاقٌ‏

“Allah’s Messenger (ﷺ) forbade Ash-Shighar, which means that somebody marries his daughter to somebody else, and the latter marries his daughter to the former without paying Mahr.” [7]

The above evidence clearly describes syighar marriage and also the prohibition from Rasulullah PBUH regarding this matter. The prohibition in this hadith clearly shows this act is prohibited. This is based on a famous Islamic legal maxim:

النَّهْيُ يَقْتَضِي التَّحْرِيم

A restriction leads towards its prohibition ruling.

Imam Ibn Daqiq al-Eid stated in his commentary: This hadith is clearly regarding the prohibition on syighar marriage. And scholars agreed on the restriction and prohibition on this action. However, jurists have differing opinions on whether after the marriage took place does the aqad becomes fasid (damaged) or not. Some of them are of the opinion that the aqad is sahih and that it is obligatory to give mahar misil (dowry). While Imam al-Syafie holds the opinion that the aqad is batil. [8]

Imam al-Nawawi stated in his commentary: Syighar marriage is a form of marriage during the time of jahiliyyah. Scholars agreed that it is a prohibited act. [9]

Likewise, there is a narration that also comes from Ibn Umar R.Anhuma where Rasullullah PBUH said:

لاَ شِغَارَ فِي الإِسْلاَمِ

“There is no Shighar in Islam.” [10]

Ibn Hajar al-Asqalani in his commentary said: Ibn Abd al-Barr said that scholars agreed on the impermissibility of syighar marriage, but they differed regarding the validity of the marriage. Jumhur of the scholars holds the opinion that this marriage is invalid. In a narration from Malik, the marriage is fasakh before they had intercourse and not afterwards. This narration is supported by Ibn al-Munzir from al-Auzaie. While madhhab Hanafi said the marriage is valid and mahar mithil is obligated for it. This opinion is supported by al-Zuhri, Makhul, al-Thauri, al-Laith and narrated from Ahmad, Ishaq and Abu Thaur. [11]

From the above hadith, it is clear to us that there is no form of syighar in Islam. The reason is the denial of syighar in the above hadith comes in the form of Nakirah fi siyaq al-Nafy, which means a generality.  The same for the phrase La Al-Naafiyah in the above hadith means nafyu al-sihhah which denies the authenticity of the practice of syighar marriage. This means al-syighar marriage is a batil marriage.

This form of marriage was previously practised by the salaf. This is stated in a narration from Abd al-Rahman bin Hurmuz al-A’raj, he said:

أَنَّ الْعَبَّاسَ بْنَ عَبْدِ اللَّهِ بْنِ الْعَبَّاسِ، أَنْكَحَ عَبْدَ الرَّحْمَنِ بْنَ الْحَكَمِ ابْنَتَهُ وَأَنْكَحَهُ عَبْدُ الرَّحْمَنِ ابْنَتَهُ وَكَانَا جَعَلاَ صَدَاقًا فَكَتَبَ مُعَاوِيَةُ إِلَى مَرْوَانَ يَأْمُرُهُ بِالتَّفْرِيقِ بَيْنَهُمَا وَقَالَ فِي كِتَابِهِ هَذَا الشِّغَارُ الَّذِي نَهَى عَنْهُ رَسُولُ اللَّهِ صلى الله عليه وسلم

“Al-Abbas ibn Abdullah ibn al-Abbas married his daughter to Abdur Rahman ibn al-Hakam, and AbdurRahman married his daughter to him. And they made this (exchange) their dower. Mu’awiyah wrote to Marwan commanding him to separate them. He wrote in his letter: This is the shighar which the Messenger of Allah (ﷺ) has forbidden.” [12]

The above evidence clearly shows that syighar marriage still occurs and is prohibited whether it is accompanied by a dowry or otherwise. For this, Mu’awiyah’s fiqh at the time commanded for both the couples to be separated.

The following are several reasons and factors, why syighar marriage is prohibited according to syarak, among them, are:

  • The marriage gives an advantage and prioritizes the maslahah for the wali over the maslahah of the woman. Such is a mungkar and oppression on women.
  • This act also prevents a woman from receiving mahar mithil (dowry) which is their right.
  • The marriage leads to forcing a woman to marry someone she doesn’t like.

According to the above question, we have analyzed this issue accordingly and we’re inclined towards the opinion that states such marriage is a prohibited matter. The reason is we take into consideration the elements of forcefulness and oppression towards the woman at the same time neglecting the woman’s rights of receiving dowry which is her right. May Allah SWT grant us all a clear understanding in religion. Amin.

Wallahu a’lam.

 

[1] See https://prpm.dbp.gov.my/cari1?keyword=nikah

[2] Surah Al-Nisa’: 3

[3] See al-Majmu’ Syarh al-Muhazzab, 16/125

[4] Narrated by al-Bukhari (5066) Muslim (1400)

[5] See al-Mausu’ah al-Fiqhiyyah al-Kuwaitiah, 41/325

[6] See Ihkam Al-Ahkam Syarah Umdah Al-Ahkam, 2/559

[7] Narrated by Al-Bukhari (5112)

[8] See Ihkam Al-Ahkam, 2/559)

[9] See Syarah al-Nawawi ‘ala Sahih Muslim, 9/544

[10] Narrated by Muslim (1415)

[11] See Fath al-Bari, 9/163

[12] Narrated by Abu Dawud (2075)

 

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