Considerable confusion has been caused by the gradual distortion - by popular customs, and legal engineering - of the original substance and form of “Nikah”, the Muslim counterpart of the Christian “Marriage”. Whie nikah is not exactly “marriage” in essence, in popular usage the term “nikah” is used interchangeably with “marriage” – and it is in this current popular sense of the term “marriage” as applied to Muslims – that I use the term here.
This, not to condone this laxity of usage of words, but only to be accessible – at this point – to the popular readership. As a result of the double distortion of the very simple, yet sublime institution of the Muslim marriage, marriages have become increasingly difficult for young men and women of marriageable age, and – as a consequence – doors of zina, as well as many other abominations and harmful activities are opened. The purpose of this article is to draw attention to the fact that, under religion, the minimums of nikah are simple and easy enough an alternative for the single to avoid the religiously haram, individually dangerous and socially devastating avenues of zina or similar activities.
In the times we are in, when, often guardians or the community put obstruction to nikah for reasons not accepted as valid reason for obstructing nikah under Shari’ah – and zina is on the increase for people being prevented from nikah by all kinds of non-Shar’ah resons – it might be advisable for people to know the possible permissibility of nikah without guardian and witness as a rukhsah to facilitate nikah and thereby help shut the doors of zina.
By Shari’ah, a nikah without guardian and without witness is not azimat – normal - nor good, but still, is valid and halal. First, we need to know two very important things about nikah, that, (i) An official registration, or involvement of any officially appointed person like a “qazi”, “imam”, “mufti”, etc., is not at all a requirement of a halal nikah under Shari’ah – it may be only a legal requirement in some countries if one wants to take any benefits from the government based on the nikah – such as “social security” payments calculated on the basis of nikah, immigration status based on nikah, legally recognized inheritance or maintenance derived from nikah, etc. Even under Law, as different from Religion, “Registration under Muslim [persons’ marriage] law is not essential for the validity of the marriage. ... registration is optional only and not mandatory“ – under Indian Law, from which Bangladesh
Law in general derives, legally. (ii) Public functions for nikah, also is not an essential Shar’I requirement for the nikah to be valid – though, if done without wastage and sinful practices nowadays attached to public functions for nikah, it is encouraged. According to a hadith, "Laa nikaaha illa bi waliyin wa shaahidaiy 'adlin" ...” – meaning, "No marriage except with a guardian and two non-discredited witnesses. It seems to mean that there is no sahih i.e., perfectly valid nikah without a guardian and two “’adil” witnesses ", but still such a nikah is not batil (“void” , i.e. “basically defective” ) either; it is “fasid”, i.e., “secondarily defective”, i.e. “irregular”. But an irregualr nikah, by Shari’ah, still remains a valid nikah – even though is not perfect. Thus, as mentioned in a very recent court case judgment, referring to Shari’ah rulings - Judgment, based on “Mohammedan Personal Law”, in Aisha Bi (Died) & Others Versus Saraswathi Fathima & Others, 29- 03-2012, at the High Court of Judicature at Madras , “An irregular marriage is one which is not unlawful in itself”.
Defective marriages are classified into the two categories. In case the defect is of a radical and serious nature the marriage may be nugatory and void ab initio. So, in the eye of law, as well as Shari’ah, it is no marriage at all. Such a marriage is called “batil” - or “void” - marriage. However, quite different from the batil or void marriage, there is the “fasid” or “irregular” marriage – which is neither perfectly valid nor altogether void. In such a case the irregularity or defect in the marriage is not fatal to its existence or hillat (permissibility under Shari’ah).
Guardian’s permission pot needed for Baligh’s Nikah. There is no disagreement or even ambiguity about the fact that an adult sane male needs no guardian or guardian’s permission for his nikah. There is no disagreement or ambiguity about the fact that non-baligh male and female both must have guardian’s permission for that. Thus, the question that remains to be clarified is, about the nikah of a baligh woman without permission of a guardian. It is this, involving which much of the fitnah regarding nikah rages today – so we need to know the permissibility on this.
Some, e.g., the Maliki, hold that the bride’s guardian’s permission is necessary for nikah – basing this on the famous hadith, reported in Jami’ Tirmidhi, Kitab an-Nikah, “Abu Musa (ra) reported that Allah’s Messenger said, ‘Marriage is not performed if (consent of the) guardian is not there.” But, as Imam al-Tahawi explains in Sharh Ma’ani al-Athar vol.3 - as the famous Muhaddith faqih, Shaykh Abdul Haq Muhaddith al-Dehlawi points out in Ashi‘-‘at al-Lama’aat, Sharh Mishkat - this hadith is not sahih. And a principle of the Shari’ah is that, in matters of holding or declaring something fardh (e.g., if one wants to say, permission of the bride’s guardian is a condition, i.e. fardh, for the validity of nikah,) orharam (e.g., if someone wants to say a nikah without the bride’s guardian’s permission is invalid, i.e. haram,) that must be based either on an ayah of the Qur’an or a sahih hadith.
Another point is if witness is absolutely essential for Nikah? For a normal, i.e., perfect nikah, in Shafi’i and Hanbali madhabs there must be two witnesses who should be males and have not publicly known sins; in the Hanafi madhab it is compulsory to have two Mulsim witness - or prescribed equivalent - whilemaking the nikah, i.e. during making the offer and acceptance – meaning, two Muslim men or prescribed equivalent, i.e., one Muslim man and two Muslim women who are baligh, i.e., have reached puberty or are 15 years of age by the lunar Hijri calendar, should hear the offer and acceptance of the nikah; and in the Maliki madhab a witness is not necessary at all - but the wali must be present at nikah and the nikah must be announced and acquaintances must be informed about the nikah", and the Maliki madhab allows secret marriages - even though, according to madhab Maliki, nikah without witnesses is valid but they must declare/inform their nikah  – and even just that declaration or informing of the nikah is apparently just azimat, i.e., high standard of religiousity, not a condition, as Malikis say secret marriages is halal: the correct opinion is that secret marriages is [halal, even though ] makrooh – for the Maliki, as well as across the board - in all madh’habs.
Thus, for example from other madh’habs, by the rule regarding public announcement of nikah is that, if any of the parties ask the witnesses to keep it secret, keeping silent; Hanbali school also holds that such a marriage is not invalid although it is disliked to do so - even if the bride and the bridegroom – being the nikah’s two parties and witnesses are bound to keep it quiet in attempts to keep a marriage a secret it – even though a wrong practice, does not necessarily invalidate the marriage. Further, for example, Ahmad Shakir, a well-known Egyptian scholar, two wives; the first wife did not know about the second wife until after Ahmad Shakir died, and this seems to be the minimal position on secrecy of nikah in Islam– it is makrooh, but not haram.
In a marriage without witness, even by Hanafi fiqh, like in any kind of fasid nikah, i.e., in “irregular Marriage “ ... cohabitation is lawful and the children are legitimate and can inherit the properties of their parents. .. [but] Mutual rights of inheritance [between the husband and the wife,] do not arise... [and] After consummation only, can the wife claim dower... [but,] The wife does not have to observe Iddat if the marriage is not consummated.”  Warning!
The minimum of marriage – allowing halal intimacy – under the Shari’ah, and even under the law is so easy notwithstanding all the money and time-wise wasteful, silly customs developed in the society lately. But, that does not mean any and everybody can secretly agee between themselves to have intimacy and start the so-called “living together”: that is haram. What the permissibility of minimums of the Muslim marriage means is that, in dire circumstances, a baligh Muslim man and a baligh Muslim woman may agree to do nikah between themselves – with adequate knowledge of the of essence of “Nikah” under the Shari’ah as distinct from the western/ Christian concept of “Marriage” or the Hindu concept of “Bibaha” (“Biya”/ “Biye”), all its significance, rules, shar’i consequences in terms of physical, mental and spiritual relationships, financial and social responsibilities, e.g. regarding children and inheritance, etc. Since nowadays it is almost impossible to find an ordinary Muslim without adequate relgious education who has the above mentioned “adequate knowledge” of “Nikah”, any two persons wishing to enter nikah by such minimums of “Muslim marriage” would need the assistance and authorisation, even if informal, of a mustanad (religiously authorised) mufti, faqih or similar expert of the said kind knowledge, to first educate the two persons involved into the adequate level of that kind of knowledge, before authorising them to go ahead and practice the knowledge they are given and examined on.
If at least one of the two person’s involved himself/ herself happen to be himself/herself such an expert in the knowledge of nikah, this assistance by a third person is not needed. Despite its permissibility, such a nikah is “fasid” – irregular – and may be entered into and consummated, only with a sincere intention to regularise it as soon as practically possible. And sincerity is in heart, and in front of Allah the Most-Knowing. Until such a nikah is regularised by adding any of the missing basic requirements of a full-fledged nikah under Shari’ah – e.g. required kind of witnessing/publicity, fixing or payment of the minimal mahr (10 dirham weight of silver or equivalent) – only intimacy, legitimacy of any children born of the nikah, their right of inheritance from the parents, and the woman’s right to specified mahr or the minimal mahr if mahr is not specified will be permissible, not any other aspects of a normal nikah.
Involving the parents of the persons entering the nikah, and walima are sunnah, which must be bought in, sooner or later, for the blessings and the social good involved. An warning also for the society: if, for any valid reason, a couple enter into nikah by the above minimal benchmarks – ijab, qabul, and the knowledge of the minimum fardh and wajib nikah under Shari’ah - none has a right to regard their nikah invalid or rebuke or even harbour the slightest negative feeling even in the heart, simply because it could not be “perfect” by Shari’ah, or did not fit into social customs. Perfection is not condition of permissibility, and what Allah the Most High permitted by making that halal, no created being has the right to regard it anything less than that.
This article is neither a fatwa nor legal advice – both of which can not be given without specific consideration of specific case of specific real individuals in specific real situation; instead, it is only an academic expose for popular education in the basics of fiqh and law on the subject, for social good.