Mirza Ki Heer - Consent for Nikah
Mirza Ki Heer is a Pakistani drama currently being aired on ARY Digital with a powerful cast exploring romance and family dynamics in a Muslim family. For this reason, it is shaping up to be one of the most talked-about dramas of the year.
There is a crucial point being explored with regards to consent in an Islamic marriage (Nikah) and the impact of undue influence/duress. Consent given freely and willingly by both parties to the marriage contract is essential for a valid Nikah. There can be many misconceptions in public arenas about marriages formed without the valid consent of one person or both. This article examines the essentials that must be present for validly formed marriage contracts.
Nikah – valid consent
In Islam, both the bride and groom must consent to the Nikah ceremony by agreeing to marry the other person. It is usual practice for the men to be present and give their consent at the attended ceremony (where close family and friends partake in celebrations).
In some cultures, the bride is not present at the ceremony itself, and her consent is conveyed by her Wali (guardian).
If a parent or guardian contracts a Nikah without obtaining the bride’s freely given consent, it would deem the Nikah void (this means as though it had never taken place).
Where an adult Muslim is vulnerable or their mental capacity to consent is unclear, it must first be established that they have the mental capacity to understand the situation and make decisions and willingly enter a marriage with understanding of what that entails. Without this, they are unable to consent to marry.
Whilst at the Nikah ceremony, the Imam would confirm the acceptance of the Nikah from both parties and ensure that the ceremony is compliant with Shariah rulings. However, they will not be aware of any external factors impacting either party’s consent. It is within their duty of care/familial obligations for close family and friends to keep an eye on this and deal with any concerns appropriately preferably before everyone gets to the point of the ceremony if possible.
Valid Nikah
A Nikah is a sacred and formal contract of marriage between a man and woman conducted in accordance with Shariah principles.
Conditions for a valid Nikah include the following:-
- Mutual consent of the Bride and Groom.
- Proposal (Ijab) and acceptance (Qabool). This is the most essential part of the Nikah and must be clearly communicated.
- The Nikah must take place in the presence of at least two reliable (trustworthy and not known for lying or wrongdoing) Muslim witnesses (the witness must be a Muslim adult, who is of sound mind).
- The Mahr (gift/consideration) that is provided to the wife as a sign of commitment. The amount and type of Mahr (money, jewellery or something valuable), should be mutually agreed upon and stated in the marriage contract.
Nikah – other matters to consider
Besides consent, there are other crucial aspects that should be considered by the couple when entering a Nikah.
With a Nikah contract, the couple can discuss and agree terms in relation to any matters relating to the functioning of their marriage and this could be incorporated into the contract. The conditions can be about financial support, living arrangements, divorce conditions, arrangements for any children they may share and the option for the man to take another wife or wives whilst the marriage being contracted continues.
The conditions are intended to protect the rights of both parties and to hopefully facilitate the enjoyment of a harmonious marriage. It is important that the conditions are communicated openly and, preferably in advance, so that the couple can make well informed and well-advised (preferably with a Family Lawyer such as Aysha Chouhdary working alongside a religious scholar) decisions so that legal and religious points can be looked at as to how they might interact.
If the couple are considering a civil marriage too, then it would be helpful for any terms relating to the financial aspects to be covered off in a Pre-Nuptial Agreement (you can find out more about pre-nuptial agreements here).
Advice before you set a date
When a Muslim couple seek to marry, there are a variety of religious, cultural and legal aspects that need careful consideration. For UK-based couples, there is the additional overlap between religious and civil marriage laws. If you require assistance with such matters or would specifically like to discuss the preparation of your Nikah contract (alongside a Pre-Nuptial Agreement if needed), then please do contact us.
Aysha Chouhdary is an experienced, award winning, Family Law Solicitor and Heads the Faith and Cultural Family Law service at Geldards. Aysha is multilingual and can speak several languages to include Urdu, Mirpuri, Punjabi and Hindi which can help overcome any communications barriers with clients and third parties. She is committed to providing holistic advice to clients and strives for the best outcome, whilst working alongside the Shariah Council, and international experts, where so required.