Batil and Fasid Contracts In Marriage

প্রশ্ন · Question

Bismillah Ar-Rahman Ar-Raheem
Assalam Alaikum Wa Rahmatullah Wa Barakatuh

Our Ameer, May Allah protect you.
My question is what is the difference between the conditions of the
validity of marriage and the conditions of the contracting of
marriage? What effects do they have on the contract; when do they
make the contract Batil and when do they make fasid? Jazak Allah
Khair and May Allah grant you victory over your enemy, may Allah
protect always.

উত্তর · Answer

Wa Alaikum Assalam Wa Rahmatullah Wa Barakatuhu
1- We have explained this and in its details in the Social System in
Islam book:
“(…The marriage is contracted by legitimate proposal and
acceptance. The proposal is what originates initially from the
statement of one of the two contracting parties. The acceptance is
what originates secondly from the statement of the other contracting
party,
The sound contracting of marriage stipulates four conditions:
The first condition is the occurrence of the offer and acceptance in
the same sitting, where the sitting in which the offer was given is the
same sitting in which the acceptance took place. This is if the two
contracting parties are present together. If the two parties are in two
different countries and one of them writes a letter to the other with
an offer of marriage and the recipient of the letter accepts, then the
marriage has been contracted. However, in such a situation, it is
stipulated that she read s or lets someone read the letter out to two
witnesses who are made to hear its wording. Or she should say to
them so-and-so person has sent me a letter in which he has proposed
to me and calls upon them in the same sitting to bear witness that
she has given herself in marriage to him.

The second condition for the contracting of marriage is that each of
the two contracting parties should hear the statement of the other
and understand it to mean that he wants to contract the marriage
with this statement. If he did not know, either because he did not
hear or did not understand, the marriage will not be valid. For
example, if a man dictated to a woman the meaning of 'I have
married you to myself‟ in French whilst she did not understand the
language, and she repeated the expression without kn owing that the
purpose of what she said was the contract of marriage, and the man
subsequently accepted it, then the marriage will not be valid. If,
however, she knew that the purpose of what she had said was a
contract of marriage, then the marriage would be valid.
The third condition is that the acceptance should not object to the
offer, whether the objection is to the whole offer or part of it.
The fourth condition is that the Shariah has allowed the marriage of
one contracting party to the other, such as when the woman is a
Muslim or from the People of the Book and the man is a Muslim and
nothing else. If the contract meets these four conditions, the
marriage will be valid. If any of the conditions is not met, the
marriage will not come into effect. It will be void from its very basis.
When the marriage is contracted, it must, in order for the marriage to
be correct, satisfy the conditions of cor rectness which are the
following:
The first condition is that the woman should be suitable for the
contract of marriage. “Like not marrying two sisters at the same
time”.
The second condition is that the marriage will not be correct without
a guardian (wali) since the woman does not possess the right to give
herself or give others in marriage. Similarly, she does not have the
right to delegate anyone other than her guardian to give her in
marriage. If she does this, the marriage will not be correct.

The third condition is the presence of two sane, mature Muslim
witnesses who hear the statements of the two contracting parties
and understand that the purpose of the offer and acceptance
statements is to contract in marriage. When the contract satisfies
these conditions it will be correct. If any of these conditions are
lacking, the marriage will be improper (fasid).) After that, we have
made the evidence for these conditions clear in the book (The Social
System). Based on this, it becomes clear that if on e of the conditions
of contracting marriage isn’t met, the contract will be batil, and if one
of the conditions of validity isn’t met, the contract will be fasid.
2- We need to understand the difference between Fasid (improper)
and Batil (void). Batil (void) is what contradicts the Shariah rule in
origin, i.e. it is prohibited, or that the contract lacks a required
condition that its absence violates origin of the action (i.e., marriage
in this case). Fasid (improper) is in agreement with the Shariah rule in
origin; however, its attributes that do not violate the origin is what
contradicts the Shariah.
Fasid (contracts) are not found in the acts of worship; but Batil is
found because the person who follows the conditions and elements
finds them all related to the origin (of the rule). Rather, Fasid
contracts can be present in the transactions. In the contracts, for
example selling what is impregnated, which is in the stomachs of
animals, is Batil from the basis because it is prohibited in origin,
unlike someone who sells the one who is unaware of the price, like
someone from the country side, it is a fasid sale; for ignorance of the
price, and when he is in the market he will be given a choice; he can
proceed with the sale or cancel it. In the example of shares in
companies, they are Batil in origin because they don't have the
Badan (physical effort) partner; they are free from a condition
related to the original (rule), but if the partners participate in
accordance with the conditions of the Shariah, but one of the
partners insists that he gets an amount as a condition, the contract of

the company is Fasid because it involves Garar (unknown element) in
the attribute (detail) and not in the original (rule) because the
partner has a proportion of the profit and not a certain amount; the
company may lose. If they agreed on the percentage of profit, the
contract will not be fasid any longer, and it will be a correct contract.
Thus, there is no difference between Batil and Fasid in the acts of
worship. Act of worship could be either valid (removing a sin) or
invalid (not involving removing the duty). Prayer is either valid or
invalid. However, in financial contracts that result in corresponding
obligations or transfers of ownership, such as contracts of sale,
leasing, transfer, companies and the like .
As for marriage, Batil and Fasid contracts are both contrary to
Shariah, but the Batil contract is annulled from the basis and is
separate from its effects. If intercourse occurs, it takes the rule of the
zina (adultery), and the child is not associated with the man who did
zina; there will be no laws of Idda, nor the entitlement to dowry, nor
women prohibited by marriage: It is Batil in origin. As for the Fasid
contract, its violation of Shariah is in the conditions of validity and
not in the conditions of the contract. Therefore, despite the sin that
was inflicted on the two contracting parties, it has consequences if
there was intercourse but if there wasn’t intercourse, there wouldn’t
be any consequences. The consequences of fasid contracts that has
intercourse include:
The Dowry: Dowry is required in the Fasid Marriage on the condition
that the marriage is consummated (i.e., by intercourse); the evidence
for this is the saying of Prophet Muhammad ﷺ :ةٍ نَكَحَتْ بِغَيِْْ إِذْنِ
َ
يُّمَا امْرَأ
َ
«
وَلِيرهَا فَنِكَاحُهَا بَاطِلٌ فَنِكَاحُهَا بَاطِلٌ فَنِكَاحُهَا بَاطِلٌ فَإِنْ دَخَلَ بِهَا فَلَهَا الْمَهْرُ بِمَا اسْتَحَ لَّ مِنْ
فَرْجِهَا Any woman who gets married without the permission of her
guardian (wali), her marriage will be void, her marriage will be void,
her marriage will be void; if he (husband) consummates with her, she

is entitled to the dowry due to his making permissible her private
parts.” [Tirmithi] and it is said it is Hassan Hadith.
In this Hadith the Prophet ﷺ entitled the dowry to the woman who
is married through a Fasid Nikah (i.e. without the permission of her
wali (guardian)) on the condition that the marriage is consummated
because the Prophet linked the dowry to the consummation (i.e.,
intercourse): «“If he (husband)
consummates with her, she is entitled to the dowry due to his
making permissible her private parts.”
There are other effects of the fasid marriage if there is
consummation. But these entail details and differences in the school
of thoughts, such as Iddah, lineage, inheritance and the prohibition of
marriage (to certain women). Whoever wishes to learn more, they
can go back and refer to the relevant references .
Allah is Most Knowledgeable and Most Wise
Your brother,
Abu Yasin
29 Jumada I 1439 AH
15/2/2018 CE