By KH. Muhyiddin Abdushomad
Assalamu alaikum wr. wb.
Dear Kyai, how does Islam view about the sirri marriage (unregistered marriage—literally in Bahasa called ‘nikah sirri’)? Some say that the sirri marriage is permitted. Whilst, many cases indicate that the sirri marriage has a high risk, especially when one of the couples is dishonest. A lot of cases show that the sirri marriage has made women as the victim of violence. Can you please explain Kyai! Thank you very much for the answer.
Wassalamu ‘alaikum wr. wb.
Aida Nur Hasanah
Marriage or establishing a household is a wish for everyone. It is certainly expected to be a harmonious relationship. The couple is supposed to trust, protect and support each other. Mitsaqan ghalidan (a very strong agreement), that is how the Qur’an describes the relationship of marriage between a husband and a wife. The term gives an indication that a husband-wife relationship should be nurtured within a reciprocal relationship that could reinforce each other. One party has to support the other, and none of the parties are harmed nor their rights threatened.
For that purpose, to create a family that really portrays Mitsaqan ghalidan, Islam as a religion sets some rules in the marriage. And it starts from the first process in which the institution of marriage is formed that is at the moment of the marriage contract. The necessity of one guardian and two witnesses is a preventive action to protect the bride and groom, especially the bride if unexpected problems appear in their future domestic life. The Prophet Muhammad Sallallahu Alayhi Wa Sallam said in a Hadith:
From Aisha RA, she narrated that Rasulullah SAW said: “There is no marriage except with a guardian and two just witnesses “(HR Daruquthni)
In the contemporary context, especially in Indonesia, there is an obligation to register the marriage to the Office of Religious Affairs (KUA), with the purpose that the couple has “legal protection” if something happens in the future. They will get legal assistance if unexpected problems appear in their domestic life.
From the viewpoint of ushul fiqh (Principle of Islamic Jurisprudence), such case—registration of marriage—is called mashlahah mursalah, that is a provision which is not set in religion (fiqh) but it is not contrary to the Islamic law stipulated in the Qur’an and the Hadith. That is, the obligation to register the marriage in the KUA is never regulated in the fiqh but the spirit of the application of such rule is not contradictory and even in line with the necessity of two witnesses as one of the pillars of marriage.
Regarding to the sirri marriage (also known as “marriage under the hands”), there are two understandings related to the term of sirri marriage. First, the sirri marriage defined in the fiqh is a marriage which is not registered or concealed and only known by the parties associated with the contract of the marriage. In this contract, two witnesses, guardian and the bride and groom are asked to keep the secrecy of the marriage, and none of them are allowed to tell the contract to others. (al- Fiqh al-Islami wa Adillatuh, part VII, 81). From this first definition, any couple who registers their marriage to KUA is called sirri marriage according to fiqh if all the parties are asked to keep the secrecy of the marriage.
Second, the sirri marriage perceived by our society is the marriage which is not registered to KUA/unregisterd marraiage. The society still considers that any marriage though it is not concealed is categorized as a sirri marriage as long as it has not been registered yet officially to the Office of Religious Affairs.
Regarding the ruling of the secret marriage, Imam Malik stated that such marriage is void because the marriage must be announced to the public. While according to Imam Syafi’i and Imam Abu Hanifah, the sirri marriage is lawful, but it is abominable (makruh). (al-Fiqh al-Islami wa Adillatuhu, part VII, p. 71, Bidayatul Mujtahid, part II, p. 15)
From the aforesaid opinions of the ulama, it seems that there is an “objection” from them regarding the sirri marriage. Given that the Prophet Sallallahu Alayhi Wa Sallam disagreed with this type of marriage. In the Hadith, it is mentioned:
From Amr bin Yahya al-Mazini, Indeed Rasulullah SAW is not happy with sirri marriage until the wedding is celebrated with a sound of tambourine “(HR Ahmad)
Therefore the Prophet Muhammad Sallallahu Alaihi Wa Sallam strongly recommends to announcing the marriage to the public, as his saying:
From Amir ibn Abdillah RA, from his father, the Prophet SAW said, “Announce the marriage” (HR Ahmad)
Why should it be announced to the public? The purpose of the announcement of marriage is to show that the people also can be “the witnesses” on the occasion of the love binding between the bride and the groom. To let the people know that the couple has been bound by legitimate marriage with all its consequences. If one of the parties violates the commitments of marriage, at least the people can give “moral sanctions” to the party who violates it.
While the ruling for the marriage which is not registered to the KUA (sirri marriage) though considered legitimate according to religion, because all the requirements and principles of marriage have been fulfilled, such marriage is still leaving some problems behind. At least the couple who conducts such marriage is declared doing a sin as they have neglected the command of the Qur’an to follow the regulation made by the government (ulil amri), as stated by Allah SWT:
“O you who have believed, obey Allah and obey the Messenger and those in authority among you”. (al-Nisa’, 4: 59)
On the other hand, the unregistered marriage also causes a big risk and very harmful, especially for the women who cannot do anything when there is a dispute in their domestic lives. There are many cases where the women are abandoned by their husbands as a result of sirri marriage without knowing where to seek a protection. They cannot prosecute their husbands to the Religious Courts for not having a letter of evidence of marriage.
Therefore, for the purposes of public interest (mashlahah), especially for women, the tradition of sirri marriage—with the two aforesaid definitions—which is still conducted in our society is not in line with the guidance of marriage stipulated by Islam because of its potential to cause a lot of negative impacts (mafsadah), especially for women. Those are my answer about the sirri marriage and hope it can be understood and considered.