Reciting Nikah formula in non-Arabic, allowed?

These days, marriage ceremonies are conducted by 'Shaikhs' (also called 'Maulana' in the Indo-Pak region) who recite the Nikah formula in Arabic. This article seeks to determine, whether this tradition is a religious necessity, or (with regards to religion) does it only serve to make the act of marriage even harder than it already is? This article also applies to Mut'ah marriages, especially as mut'ah marriages are not as common and culturally acceptable as permanent marriages, therefore making it harder to arrange a 'Shaikh' for it.

مستمسك العروة - السيد محسن الحكيم - ج ١٤ - الصفحة ٣٦٨

"Mustamassakul Urwatil Wuthqah" by Ayatullah Mohsin al Hakim, Volume 14 Page 368

قال في التذكرة: " فلو تلفظ بأحد اللفظين بالفارسية أو غيرها من اللغات غير العربية مع تمكنه ومعرفته بالعربية لم ينعقد عند علمائنا. وهو قول الشافعي وأحمد ". ونحوه عن المبسوط. وعلل في التذكرة: بأن غير العربي بالنسبة إليه كالكناية، فلا يعتبر به. وفي الجواهر: بأنه مقتضى الأصل، الذي لا يعارضه الاطلاق، لانصرافه إلى المتعارف، وفي كشف اللثام: بأنه مقتضى الأصل، والاحتياط في الفروج. والمناقشة في ذلك كله ظاهرة، إذ كونه كالكناية ممنوع، كعدم الصحة في الكناية إذا كانت الدلالة ظاهرة. والأصل والاحتياط لا مجال لهما مع الاطلاق. والانصراف إلى العربية - لأنه المتعارف - بدوي، لا يعول عليه في رفع اليد عن الاطلاق.
مع أن كون المتعارف مطلقا العربية ممنوع، بل المتعارف عند أهل كل لغة ما هو بلغتهم، فلو بني على تقييد المطلق بالمتعارف كان اللازم اعتبار كل لغة عند أهلها، فلا يصح بالعربية لغير العربي - فالبناء على جواز غير العربي - كما عن ابن حمزة - غير بعيد، بل هو المتعين

Allama Hilli wrote in his 'Tadhkiratul Fuqaha': "If one of the words (in the nikah formula) is pronounced in Farsi or some other non-Arabic language, while having the capability and knowledge of reciting it in Arabic, then the Nikah is not established as per our scholars. This is also the view of Imam al Shaf'i and Imam Ahmad ibn al Hanbal." Shaikh Tusi wrote likewise in his 'Mabsoot'.

The reason provided by Allama Hilli in 'Tadhkiratul Fuqaha" is that; 'compared to reciting the formula in Arabic, reciting it in non-Arabic is only hinting towards the intention of nikah, therefore it is not relied on'. Shaikh Muhammad Hasan al Najafi reasoned in "Jawahirul Kalam": 'It is a necessity to the way Nikah was originally recited (in the shariah of Prophet Muhammad), nor is it hindered by applicability, due to its sticking to the known customs.' And Allama Fadil al Hindi reasoned in his "Kashful Litham": "It is a necessity to the way Nikah was originally recited, and a necessary precaution in the sensitive issue of Nikah.".

The fallacy of these claims is self-evident. Regarding the first claim that non-Arabic recitation serves only as a hint towards intention of nikah; this is invalid as non-Arabic recitation can definitely be explicit enough. As for Arabic recitation being a necessity to the way Nikah was originally recited, and this being a matter of precaution; then this contradicts applicability (in current times). 

As for sticking to Arabic due to it being the tradition, this is completely primitive reasoning; which cannot be relied upon to ignore the issue of practicality. After all, the absolute tradition is by no means Arabic recitation, because the tradition of each community is in their own language. So if the absolute is to be qualified by custom/tradition, it is obligatory to consider each community's own tradition and rely upon their own language, therefore it would in fact be incorrect to recite in Arabic for non-Arabs.

Therefore, allowing recitation in non-Arabic, as was decreed by Shaikh Ibn Hamzah al Tusi (in "al Waseela"), is not far off. In fact that is the most correct opinion.

"Al Ahwal al Shakhsiah (al Nikah)" by Ayatuallah Muhammad al Najafi al Yazdi, Page 69 (original Arabic page posted at bottom of the post)*

The fifth issue: Is it a condition that Nikah be conducted in Arabic, with regards to the Nikah formula recitation being in Arabic? Or is it allowed in other languages as well?

Answer: There are two views regarding this. The first is the former (i.e. that Nikah should be in Arabic), and that is the famous view. In fact Allama Hilli and Shaikh Tusi have claimed an ijma' on it, that Nikah should be in Arabic when it is possible to do so, in their "Tadhkiratul Fuqaha" and "Mabsoot" respectively. Shaikh Muhammad Hasan al Najafi in his "Jawahirul Kalam" has also supported this view, reasoning that this is sticking to the tradition, which is Arabic.

But Ayatullah Mohsin al Hakeem has challenged this view in his "Mustamassak", by rejecting the need to stick to tradition for the sake of it, as well as dismissing the claim that the absolute tradition is in Arabic; because the tradition of each community is their in own language so if the requirement is to stick to tradition then it is obligatory to consider each community's own tradition and rely upon their own language. Thereby, reciting in Arabic would not be correct for non-Arabs.

Some others have favoured recitation in Arabic due to precaution, by Ayatullah Muhsin al Hakim has rejected this as well.

The second view, proposed by Shaikh Ibn Hamza al Tusi as well as a number of modern scholars, is that it is allowed to recite in non-Arabic. The reason for this is quite obvious. After all, the contract of Nikah is like any other agreement (for example, trade agreements do not need to be conducted in Arabic, even though they are regulated by Islamic law) and has been ordained in a general manner despite the people being so much in need of it and Allah has not revealed any specific order regarding the obligation of Nikah formula in Arabic; while encouraging people towards Nikah aggressively.

* "Al Ahwal al Shakhsiah (al Nikah)" by Ayatuallah Muhammad al Najafi al Yazdi, Page 69