The phenomenon of public figure weddings is often in the spotlight on social media, not only in terms of its glamour, but also in terms of the procedures for its implementation. One example is the marriage contract that recently occurred; the social media universe was enlivened by the marriage of an artist who drew debate because of the time gap between ijab and qabul in the marriage contract.
The title is advantages and disadvantages, and naturally, there are two perspectives on this issue. Some individuals challenge the legitimacy of the marriage agreement, arguing that it fails to achieve the element of unity between the recitation of ijab and qabul. In contrast, others maintain that the pause is still within acceptable boundaries and does not undermine the validity of the agreement.
Nonetheless, in practice, marriage agreements frequently manifest as a pause. Numerous elements could play a role, including the groom’s anxiety, corrections from the officiant, or pronunciation errors that require repetition.
Therefore, what is the jurisprudential stance on this issue? What criteria do jurisprudence scholars use to assess the validity of a marriage contract when a pause exists between ijab and qabul?
This paper will systematically discuss the concept of ittishal (continuity) in the contract.
It should be noted that one of the conditions for the validity of marriage in Islam is the existence of a contract, or what is called shighat in fiqh terms, namely the recitation of ijab (statement of marriage from the guardian) and qabul (acceptance/agreement from the groom) which indicates an agreement between the guardian and the groom. One of the important requirements in the execution of this contract is that there is a direct connection and without a long pause between ijab and qabul.
The scholars maintain that if the bride’s guardian proclaims, ‘I bestow you in marriage to my daughter,’ and the groom remains silent for an extended period before ultimately stating, ‘I accept the marriage,’ then the agreement is deemed invalid. This is due to the lengthy silence allowing for the possibility that the guardian might reconsider or retract his approval, resulting in the breakdown of the contract’s continuity.
In contrast, brief pauses, such as inhaling, sneezing, or minor interruptions typical in conversation, do not nullify the agreement. (Musthafa al-Khin et al, Al-Fiqhul Manhaji, [Damascus, Darul Qalam: 1992], volume four, page 57). It is indeed correct that a marriage will not be valid without ijab and qabul, and these must occur without a significant pause.
Regarding a brief pause, such as taking a breath, this is acceptable and does not impact the agreement’s validity. However, to deepen our understanding of pauses in the marriage contract, particularly in this instance, when does a pause qualify as long or extended (al-fashlut thawil)? Let’s continue our exploration.
The interpretation of a long pause in the contract, as explained by Imam Jalaluddin As-Suyuthi, refers to al-fashlut thawil (long pause) that nullifies agreements like marriage and transactions. This long pause reflects a demeanor of detachment or a lack of seriousness in accepting the contract.
This indicates that as long as the interval is deemed acceptable and does not suggest that the individual requested to say qabul has declined or turned away, the agreement remains legitimate. Nevertheless, when the silence or procrastination extends long enough to imply disinterest in the contract, it then becomes void. This distinction lies between a minor delay (fashlun yasir) that is permissible and a prolonged delay (fashlun thawil) that nullifies the agreement.
Imam As-Suyuthi said:
وَأَمَّا الْبَيْعُ وَالنِّكَاحُ وَنَحْوُهُمَا، فَضَابِطُ الْفَصْلِ الطَّوِيْلِ فِيْهَا: مَا أَشْعَرَ بِإِعْرَاضِهِ عَنِ الْقَبُوْلِ
It means: ‘With regard to buying and selling, marriage and the like, the limit for a long pause is something that gives the impression of turning away from the contract.’ (Al-Ashbah wan Nazhair, [Beirut, Darul Kutub Al-‘Ilmiyah: 1403], volume I, page 409). However, Imam Ar-Ramli gives more details about the meaning of the pause that cancels the ijab and qabul.
According to him, in addition to the fact that there should not be a long pause indicating an attitude of turning away from acceptance, it should also not be punctuated by other words that are not included in the context of the contract, even if only a little. These are words that are not part of the consequences of the contract, nor are they part of the benefits of the contract, and they are not included in the recommendations that are prescribed in the contract itself.
If the insertion is something that is recommended in sharee’ah, then it does not invalidate the contract. Imam Ar-Ramli said:
أَلَّا يَطُوْلَ الْفَصْلُ بَيْنَ الْإِيْجَابِ وَالْقَبُوْلِ؛ بِأَنْ يُشْعِرَ بِإِعْرَاضِهِ عَنِ الْقَبُوْلِ. وَأَلاَّ يَتَخَلَّلَ بَيْنَهُمَا كَلَامٌ أَجْنَبِيٌّ عَنِ الْعَقْدِ وَلَوْ يَسِيْرًا، بِأَلَّا يَكُوْنَ مِنْ مُقْتَضَى الْعَقْدِ وَلاَ مِنْ مَصَالِحِهِ وَلاَ يَكُوْنَ مِنْ مُسْتَحَبَّاتِهِ
“That is, “”And there should be no long pause between the ijab and qabul, roughly impressing the attitude of turning away from acceptance.” Ijab and qabul should not be interspersed with foreign speech from the akad, though few, that is, that is not part of the consequences of the accad, not for the sake of its goodness, and excludes the things recommended in the implementation of the commitment. (Fathurrahman bi Sanarhi Zubad ibn Rustalan, [Beirut, Darul Minhaj: 2009], page 557).
Now, what exactly is the foothold to determine that someone has shown signs of turning away from acceptance of a commitment? This discussion is very important and cannot be ignored, because this is where the legal size or continuity between the dijab and qabul.
This discussion is very important and cannot be ignored, because this is where the legal size or not continuity between the dijab and qabul.
What is the Size in Pause? The scholar actually differs in opinion about what is the foothold in determining whether a person has turned away from acceptance of the acad with a long separator. There are at least two opinions recorded by Sheikh Sulaiman Al-Jamal.
The first opinion, according to Al-Qaffal is to assume that the two persons who will remain silent in a long time, then the answer or acceptance (qabul) is no longer considered a continuation of the previous statement. That is what is called the length of the pause that cancels the akad.
While stronger opinions state that the size of the pause is returned to the ‘urf or community habits. That is, as long as the break is still considered reasonable, then the will remains legitimate. Conversely, if according to ‘urf pause it has shown a turnover attitude, then the will is illegal.
ضَبَطَ الْقَفَّالُ الطُّولَ بِأَنْ يَكُونَ زَمَنُهُ لَوْ سَكَتَا فِيهِ لَخَرَجَ الْجَوَابُ عَنْ كَوْنِهِ جَوَابًا وَالْأَوْلَى ضَبْطُهُ بِالْعُرْفِ
That is, “Al-Qaffal sets the length of the pause (in the acad) as a time that if both were to remain silent during that time, then the answer (qabul) is no longer considered an answer. However, the main thing is to set it based on the ‘urf’ habits. (Hashiyatul Jamal’ala Syarhil Minhaj, [Beirut, Darul Fikr: t.th .], volume IV, page 132).
With the above explanation it can be understood that ‘urf plays an important role in determining that the pause falls into a long or brief category.
‘Urf itself is a habit that has been accepted and understood in general by society, both in the form of deeds and the meaning of a certain speech that becomes a common understanding without causing another interpretation. (Al-Mawardi, Al-Hawil Kabir, [Beirut, Darul Kolar Al-‘Ilmiyah: 1994], volume I, page 102).
Consequently, if the interval surpasses the typical duration widely recognized by the general public and they perceive it as an extended silence, then the intention is deemed invalid. An extensive pause contradicts the common understanding and established societal norms. However, if it is still regarded as standard or fleeting, then the interval does not invalidate the akad.
Among the various interpretations by scholars regarding pauses in ijab and qabul, there exists an intriguing perspective worth mentioning. This viewpoint comes from Iraqi scholars as referenced by Imam Badruddin Az-Zarkasyi.
According to their stance, the criteria for the validity of the akad do not rest solely on the promptness of the qabul following the ijab, but rather on the presence in the same gathering. That is to say, as long as both parties remain in one assembly, and the assembly is not considered dispersed, the statement of qabul remains legally tied to the ijab, despite any interruption. He states:
Az-Zarkasyi explains:
فَإِنْ طَالَ الذِّكْرُ الْفَاصِلُ لَمْ يَصِحَّ بِلاَ خِلاَفٍ لِإِشْعَارِهِ بِالْإِعْرَاضِ. وَإِنَّمَا الْخِلاَفُ فِي خُطْبَةٍ قَصِيْرَةٍ، كَذَا نَقَلَهُ الرَّافِعِيُّ عَنِ الْأَئِمَّةِ، ثُمَّ حَاوَلَ تَخْرِيْجَ خِلاَفٍ فِيْهِ. قُلْتُ: وَهُوَ قَضِيَّةُ مَا حَكَاهُ عَنِ الْعِرَاقِيِّيْنَ بَعْدُ مِنَ الْاِكْتِفَاءِ بِوُقُوْعِ الْقَبُوْلِ فِي مَجْلِسِ الْإِيْجَابِ، وَقَالُوْا: حُكْمُ نِهَايَةِ الْمَجْلِسِ حُكْمُ بِدَايَتِهِ
“That is, “”If the speech of the dhikr that separates too long, then the will is not valid without any disagreement, because it indicates the presence of a turn.”
The difference of opinion only occurs in a short sermon. Thus is the description of Ar-Rafi’i of the priests.
Then he tried to compose the possibility of a chilaf in it.
I (Az-Zarkasyi) said: “This is in line with what is quoted from the Iraqi scholars afterwards, it is enough to receive qabul while still in one assembly of the ijab.” They say: ‘The final law of the assembly is the same as the original law.’ (Az-Zarkasyi, As-Sirajul Wahhaj Takmilatu Cafilil Muhtaj ila Syarhil Minhaj, [Beirut, Darul Scientific Pole, t.th .], volume VI, page 43).
The Ulama’s Conclusion on the Limits of Interruption in the Akad and Its Effects on the Akad can be summarized as follows: An interruption in the process, whether in marriage, purchase, or other akad, comes with stipulations that directly influence the legitimacy of the akad.
The Ulema concur that if the delay between ijab and qabul is prolonged enough to suggest a lack of intention or seriousness in accepting the akad, it will be rendered void. This is not the case for the anxious individual, as they are not seen to have withdrawn from qabul.
The duration or presence of the interruption significantly relies on the social norms of the community.
Beyond the time factor, the interruption may also manifest as remarks that are irrelevant to the context of the akad. According to Imam Ar-Ramli, greetings that do not pertain to the outcomes of the akad, its benefits, or recommended practices can also nullify the akad.
On the other hand, some scholars from Iraq have differing views, asserting that as long as both parties remain in a gathering that has not yet been disbanded, then remarks of qabul maintain their validity despite the interruption.
Wallahu a’lam bus shawab. Ustadz Sunnatullah, Educator at Al-Hikmah Pesantren Al-Hikmah Darussalam Durjan Kokop Bangkalan East Java, and Awardee Non-Degree Kemenag-LPDP Program of Scientific Turots Work in Morocco.
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