2.The applicant, a Kenyan of married Saido Farah Yusuf, a Swedish national residing and working for gain in the United Kingdom on 21st October, 2020. The marriage was done in Kenya while the bride was physically in the United Kingdom. The bride and her walii or guardian gave their consent to the marriage. Their marriage certificate was registered and issued by the Kadhi’s Court at Nairobi. On presentation of the certificate to the High Commission of the United Kingdom, questions were raised on how the marriage could have been celebrated while the bride was not present at the ceremony. He was requested to provide formal legal position on the issue, hence the application.
Requirements of a Muslim Marriage
4.A valid marriage under Islamic law must fulfil five key requirements: consent of bride and her waliy, husband and wife free from legal impediments, offer and acceptance, witnesses and dowry. Al Sharbini Al Khatib in his Al Mughni al Muhtaj, a commentary on Imam Nawawi's al Minhaj at pg. 139 [Al Babi al Halabi edition] states:
5.Ibn Juzzy in his Al-Qawanin al Fiqhiyah (2010), 329, Ministry of endowments and Islamic Affairs Kuwait, concurs with other scholars on the requisites of an Islamic marriage. He states:
6.Strictly under Islamic law, the presence of the bride, though highly encouraged, is not a requirement to the validity of a marriage provided her consent has been authenticated. The waliy or guardian has the original locus standi to solemnize the marriage of his daughter, granddaughter or niece as the case may be. He may however, delegate this power to a Sheikh, Muslim Marriage officer or Kadhi. Section 240 of the Kadhi’s Court Bench Book (2020) provide:
7.A marriage in the presence of the groom, bride’s guardian and witnesses, but in the absence of the bride satisfies all the requirements of a valid marriage under Islamic law provided the bride gave her free consent. The presence of the groom is however, mandatory for validity of a Muslim marriage but his presence may be expendable with his appointment of an attorney or proxy to represent him at the marriage ceremony.
8.Islamic law allows representation in transactions generally and in marriage contracts specifically. The Qur'an provides for permissibility of representation at Nisa' 4: 35 and Al Kahf 15:19.
9.There is recorded juristic consensus among all Muslim scholars that marriage by proxy is legal. (Ref: Takmilatul Fath el Qadir 8/4, Al Mughni 5/87, Encyclopedia of Islamic Jurisprudence, Kuwait 41/241). In emphasis of its validity, none other than the Prophet [may peace and blessings be upon him] married several of his wives through proxy. Al Baihaki (6/139), Abu Daud (2/569) and AL Nasa'iy (6/119) report that Um Habiba [ may Allah be pleased with her] was in Ethiopia where they had migrated with her husband Ibn Jahsh, when he passed away. She was married to the prophet through proxy in Ethiopia by Al Najashy, the King of Ethiopia while the prophet was in Makka.
10.Al Baihaki (4/119) reports that the prophet [may peace and blessings be upon him appointed Umeiya al Dhumry as his proxy in his marriage to Umu Habiba [may Allah be pleased with her]. Al Tirmidhi (4/191) reports that the prophet [may peace and blessings be upon him] sent Abu Rafi' to accept his marriage to Maimuna.
11.One of the key strategies adopted by the judiciary to enhance access to justice is the harnessing technology solutions. These include but are not limited to e-filing and virtual courts. Alternative to proxy marriage through, the husband may also participate in the marriage virtually through video platforms. Marriage so celebrated is also deemed to have satisfied the requirements of Islamic laws of marriage.
12.Marriage through proxy are valid and legal under Islamic law and is settled practice in Kadhi’s Courts in Kenya.