A nikāḥ without witnesses and the status of the child

Question

Asalamualaykum

If someone does a nikah without witnesses and the woman then gets pregnant, what is the ruling of the child born?

— Ahsan Khan, Kent, UK

Answer

Wa `Alaykum al-Salām

The nikāḥ that is performed without the presence of witnesses is a fāsid nikāḥ. Meaning, the nikāḥ is improper and defective due to a condition of nikāḥ not being fulfilled. It is stated in al-Durr al-Mukhtār:

(ويجب مهر المثل في نكاح فاسد) وهو الذي فقد شرطا من شرائط الصحة كشهود

(And the Mahr al-Mithl is wājib in the nikāḥ fāsid), and that is such a nikāḥ in which a condition from the conditions of validity is neglected, like the witnesses.

[al-Durr al-Mukhtār, Bāb al-Mahr]

The ruling of such nikāh is that the couple must separate immediately because they are still ḥarām for each other. If they engage in intercourse, or any activity that is only allowed between the husband and wife, they must repent as it is major sin. It is stated in Bahār-e-Sharī`at:

اور نکاحِ فاسد کا حکم یہ ہے کہ اُن میں ہر ایک پر فسخ کر دینا واجب ہے

And the ruling of a nikāḥ fāsid is that it is wājib upon each of the spouses to do faskh [cancel the marriage].

[Bahār-e-Sharī`at, Mahr Mithl ka Bayān]

However, if a child is born from a nikāḥ fāsid, the child is thābit al-nasab, meaning the lineage of the child is established, out of caution. It is stated in al-Durr al-Mukhtār:

(ويثبت النسب) احتياطا بلا دعوة

(And the lineage is established), circumspectly, without [the need of] a claim.

[al-Durr al-Mukhtār, Bāb al-Mahr]

It is also stated in Radd al-Muḥtār:

(قوله في نكاح فاسد) ... فظاهره أنهما لا يحدان وأن النسب يثبت فيه والعدة إن دخل

(His statement regarding the nikāḥ fāsid) … So, its apparent [position] is that both will not deserve the ḥad punishment, and that the lineage is established in it, and [there is] `iddah if intercourse took place.

[Radd al-Muḥtār, Maṭlab fī al-Nikāḥ al-Fāsid]

If the couple do wish to stay together and establish a husband-and-wife relation in a permissible manner, then they must perform a proper nikāḥ fulfilling all the conditions, and Allāh knows best.

Faqīr Salmān al-Nūrī · (May he be forgiven) · Shawwāl 14,1445

Verified by Muftī Zāhid Ḥussain al-Qādirī