We explained to our
congregation that it is not permissible to perform nikah over the phone.

A sister has contacted
us saying that they had performed their nikah 20 years ago over the phone.
However, she does not remember how the nikah took place. She cannot recall if
whether she appointed someone as her wakil or if someone accepted the nikah on
her behalf or not. Is her marriage valid? They have four children and
therefore, are they legitimate? Lastly, should they do tajdid al-nikah?

Answer: 

From the manner in which the query has been posed, it seems that the woman is unsure and doubtful of her own situation. There seems to be thus a strong possibility of her appointing someone as her Wakeel and Nikah being solemnized (especially as that is the general procedure and norm). It is for this reason that she states that she cannot recall whether someone was appointed as her Wakeel or not. Due to doubt we will assume that someone was possibly appointed as the Wakeel at that time and her Nikah will therefore be considered valid. This is based on the principle that certainty will not fall away due to doubt.

Furthermore, there is a high probability that she queried the validity of Nikah over the phone from some Mufti that she followed at the time (because it is highly unlikely that she will leave the matter suspended for 20 years) and he approved of such a Nikah, in which case, her Nikah was valid based on that Mufti’s view in the matter.

In conclusion, there is no need to renew her Nikah and her children will be considered legitimate.

And Allah Ta'aala knows best

ANSWERED BY: Mufti Mohammed Desai

CHECKED AND APPROVED BY:  Mufti Muhammed Saeed Motara Saheb D.B 

Date: 22 Jumadal Ula 1440 - English Date: 29 January 2019