Fatwa: # 17560
Category: Misc. Fiqh
Country: United States
Date: 22nd February 2009

Title

Q1. I have been engaged for almost a cpl of years now. I live in a country where it’s hard to control yourself, since it’s easy to commit zina...Q2. What are the rules for those Muslims who are in jails in non-Muslim countries. I mean the food they get is not halal...

Question

Q1. I have been engaged for almost a cpl of years now. I live in a country where it’s hard to control yourself, since it’s easy to commit zina, and hard and sometimes impossible to find halal means of fulfilling your natural desires. I have started talking to my fiancé over the phone to keep myself focused. She lives back home and I am in states. And we will get married as soon as I go back home. However under the shariah  we are still non-mehrem to each other until we get married and my fiancé keeps reminding me that. Since our parents have already agreed to the marriage can we have nikah over the phone without the presence of any witnesses. The reason I want to do this nikah is so at least  I can talk to her over the phone and not feel guilty of actually committing a sin. 

Q2. What are the rules for those Muslims who are in jails in non-Muslim countries. I mean the food they get is not halal, sometimes the ingredients and sometimes the meat, they have to take shower in open showers where there is no privacy and other inmates are taking shower at the same time,  the prayer timings, Ramadan, Eid prayers etc. I mean almost everything. And since they are in jail they will get what everyone else gets. What are the ruling for them?

Jaza K'Allah

Answer

In the name of Allah, Most Gracious, Most Merciful

Assalaamu `alaykum waRahmatullahi Wabarakatuh

1) Firstly, it is important to mention that there is no concept of engagement in Shari'ah. If the parties of the girl and boy agree that marriage should take place between them, they will still be non-mehram to each other until the actual nikah takes place. Any form of contact between them will not be permissible until then.

That being said, many times when both parties agree to have a marriage in the future, it is difficult for the girl and boy to control their desires and hold off all contact until the nikah, especially in cases when the nikah is delayed for a long period of time.

Shari'ah encourages having the nikah done as soon as possible for this very reason so that these types of instances may be avoided. If for some reason the nikah cannot take place until a later period, the boy and girl should then fast in order to control their nafs.

In principle, nikah conducted over the telephone is not permissible since it does not fulfill the criteria needed for acceptance. In order for nikah to take place, both ijaab (proposal) and qabool (acceptance) must take place in the presence of at least two witnesses. Even with the presence of witnesses, they will not be there to physically witness both the proposal and acceptance.

However, as an alternative, it will be permissible for you to appoint someone living in the country of the girl as an agent on your behalf to contract the marriage and to pronounce the proposal and acceptance on your behalf. For example, if you are person ‘a’, the girl is person ‘b’, and your appointed agent is person ‘c’, then ‘c’ will initiate the offer to ‘b’ on behalf of ‘a’. Person ‘c’ can address ‘b’ in words such as:

“Being an authorized agent of ‘a’, I marry ‘a’, son of so-and-so to you.”

Thereafter, ‘b’ will reply:

“I accepted this marriage.”

This process must take place in the presence of at least two Muslim, sane, mature male witnesses or one male and two female witnesses. This will be considered as a valid marriage contract and the boy and girl will be husband and wife according to Shari’ah.

(Al-Hidayah, 2/306, Maktabah Shirkah)

(Contemporary Fatawa, P. 132, Idara-e-Islamiat)

2)  Prisoners are given basic rights. Muslims who are in prison in a non-Muslim country should kindly request the authorities to give them alternative vegetarian meals due to their religious practice, or at a minimum give them their food without the meat portion. If possible, he should eat foods which are assured permissible, such as fruits and vegetables. If there is no alternative and the person must eat foods which are doubtful, then the following Fiqhi principle will come into effect:

الضرورات تبيح المحظورات

"Cases of need are restricted to the actual need"

Therefore, he may in that case eat a minimal amount and thereafter make tawbah and istighfaar. 

If the bathing facilities are open showers, the person should bathe while wearing a lungi or some sort of sheet covering his awrah (from the navel to the knee) at a minimum.

For prayer timings, he should request a salah timetable or at least a list of the sunrise and sunset times for the year. Thereafter he should estimate the timings of salah in accordance to the position of the sun. It is not compulsory on prisoners to pray Jumuah and Eid salah.

(Al-Ashbah wa-Nazaair, P. 87, Qadimi Kutub Khana)

 

And Allah knows best

Wassalam u Alaikum

Ml. Asif Umar,
Student Darul Iftaa

Checked and Approved by:

Mufti Ebrahim Desai
Darul Iftaa

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