This kind of marriage is considered valid, whether the witnesses are righteous or unrighteous. Even if no witnesses at all have signed the marriage contract, the marriage is still deemed valid as long as it has been made publicly known and was witnessed at the time of contracting. This is because the point of having witnesses is to assure the publicity and declaration of the marriage.
In this regard, Sheikh Sayyed Sabiq (may Allah have mercy on him), author of the well-known book Fiqh Us-Sunnah and one of the eminent Muslim scholars of Al-Azhar, states:
“As for stipulating the righteousness of the witnesses, the Hanafi scholars maintain that it is not a condition, and that the marriage contract is deemed valid even if with unrighteous witnesses. They also view that whoever can be a legal guardian (of the bride) in a certain marriage can be a witness in the same marriage. On the other hand, the main purpose of the presence of witnesses is to assure the publicity of the marriage.
The Shafi`i scholars view that there must be righteous witnesses of the marriage contract, for the Prophet (peace and blessings be upon him) is reported to have said, “No marriage (is valid) unless there are a legal guardian and two righteous witnesses.” According to them, there are two different opinions in case the marriage contract is witnessed by two men whose righteousness is unknown or unverified; the sound opinion of the two is that the marriage contract is valid. This is because marriage can be concluded in villages and deserts and often attended by the populace, whose righteousness cannot be verified. Thus, stipulating the righteousness of the witnesses will be a kind of difficulty, so a witness’s apparent state of righteousness is sufficient in this case, as long as he is not notorious for being unrighteous. Then, if a witness is discovered to be unrighteous after concluding the marriage contract, this does not affect its validity, for the condition of a witness’s righteousness is not to be publicly notorious for being unrighteous, which is fulfilled in this case.”
The Maliki scholars are the simplest and easiest regarding the issue of witnesses of the marriage contract. According to them, the presence of witnesses is just desirable when concluding the marriage contract, yet it is a must when consummating the marriage (that is, the consummation must be known to have happened). Pointing out the Maliki opinion, the eminent Muslim scholar Sheikh Yusuf Al-Qaradawi states:
“According to the Maliki scholars, the most important thing for the validity of the marriage contract is the presence of two righteous witnesses excluding the legal guardian. Rather, they stipulate the signature of two witnesses on the contract only as a matter of desirability, just to avoid the juristic disagreement in this concern. In his book entitled Ash-Sharh As-Saghir, the em
inent Muslim scholar Sheikh Ad-Dardir, states: “The signature of witnesses is desirable when concluding the marriage contract just to avoid the juristic disagreement in this regard, for there are many imams who view that the marriage contract is invalid without witnesses. However, we view that the marriage contract is valid in itself, just like a sale contract, even if without witnesses, yet its validity is not stated and its fruits, like the lawfulness of sexual intercourse, are not fulfilled without the presence of witnesses to be acquainted with the consummation of the marriage. Accordingly, it is permissible to conclude the marriage contract secretly then inform two righteous men of it.” What is stated by Sheikh Ad-Dardir shows that it is desirable to make the marriage publicly known to avoid any suspicion of adultery or fornication. So, he states that the publicity of the marriage is just a matter of desirability, not obligation.”
In this connection, Sheikh of Islam Ibn Taymiyah states the following:
“If the marriage is witnessed by two Muslims, it is deemed valid, even if the two witnesses are not considered just, righteous ones according to the Muslim judge, that is, as long as the witnesses are not notorious for being unrighteous. That is to say, the marriage is deemed valid as long as it is made public and not hidden according to the apparent opinions of the four schools of fiqh. On the other hand, if the marriage is witnessed by two unrighteous witnesses, it is still deemed valid according to Imam Abu Hanifa, and Imam Ahmad in one of the two opinions attributed to him. Moreover, if the marriage is without witnesses and the bride’s legal guardian made her marriage public, the marriage is also deemed valid according to Imam Malik, and Imam Ahmad in the other opinion attributed to him. This is the more preponderate opinion of the two, as the Muslims used to give their women in marriage during the lifetime of the Prophet (peace and blessings be upon him) and he never stipulated the signature of witnesses to the marriage contract. In addition, the stipulation of the signature of witnesses to the marriage contract is not stated in a confirmed hadith, nor in the sahih (sound) books of Hadith, nor in the sunan, nor in the musnads (other collections of Hadith).”