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Text and translation
English translation
1104. (Another chain) from Sa’eed bin Abī ‘Arūbah, with similar (narration), and he did not narrate it in Marfū’ form, and this is more correct. (Da’if)
(Abū ‘Eisā said:) This Hadīth is not preserved. We do not know of anyone who narrated it in Marfū’ form except for what has been reported from ‘Abdul-A’lā, from Sa’eed, from Qatādah which is Marfū’.
This Hadīth has also been reported from ‘Abdul-A’lā, from Sa’eed in Mawqūf form.
What is Saḥīḥ is what is reported from Ibn ‘Abbās, as his saying: “There is no marriage except with Bayyinah.”
This is how it has been reported
by more than one (narrator) from Sa'eed bin Abī 'Arūbah, and it is similar, in Mawqūf form.
There are narrations on this topic from 'Imrān bin Huṣain, Anas, and Abū Hurairah.
This is acted upon according to the people of knowledge among the Companions of the Prophet ﷺ and those after them from the Tābi'īn and others. They say that there is no marriage except with witnesses. There is no disagreement over that – according to what we know, from those who were among them – except for those among the latter people of knowledge. And the only disagreement among the people of knowledge on this topic is when it is witnessed by one person, and another one afterwards. So most of the people of knowledge among the people of Al-Kūfah and others said: A marriage is not acceptable until it is witnessed by two witnesses together, at the time the marriage is contracted. Some of the people of Al-Madīnah held the view that when it is witnessed by one person, and then another afterwards, then it is permissible, as long as that is publicized.
This is the view of Mālik bin Anas [and others]. This is what was said by Ishāq bin Ibrāhīm regarding what has been quoted from the people of Al-Madīnah. Some of the people of knowledge said that it is allowed for a man and two women to witness the marriage, and this is the view of Aḥmad and Ishāq.
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Footnotes
1
[1] The Bayyinah referred to here is witnesses as the author explains below.
Commentary
All scholars agree that marriage without witnesses is not possible. According to Imām Mālik it is not necessary that two witnesses should be present at a time, they can witness the marriage at different times, but it is essential to publicize it. According to Imām Aḥmad one male and two females can also stand witnesses for a marriage whereas according to Imām Shafī's view two male witnesses are necessary.
