Mu' meneen Brothers and Sisters,

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One of our brothers/sisters has asked this question:

Reference Question No:5665

Dear Brother Burhan, Salaam

In the referred question, writing about the requirements of a Nikah to be valid, you have stated that "The consent of the ‘wali’ or guardian of the bride to the marriage contract. " as one of the requirements. I have some reservations about this clause and would ask you to discuss it further and provide proof from Quran and Hadith as the basis for this requirement.

I am a personal witness to the exploitation of this requirement in the Pakistani society. Quite often the Girl and Boy want to marry each other but their elders because of worldly reasons do not allow this. Some of these common reasons are cast issues, difference in social status, not liking the girl/boy, not marrying outside their families, having their personal choices of girl/boy for their child etc. At times the girl and boy then run away from their homes and marry in the courts or in private gatherings. The parents then file cases against such couples and try to get them divorced. In the recent past, in many cases, the courts have ordered that if the girl and boy are `Aaqil and Balig` (adults) then they can make their own decision about marriage.

While the consent of Wali for the sake of marriage looks very appropriate; making it a requirement does not serve the purpose rather opens the door for exploitation. Would you be kind enough to address this issue based on your knowledge of Shariah.

Dua Go.

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Answer:

Consent of the wali guardian

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Your Question: In the referred question, writing about the requirements of a Nikah to be valid, you have stated that "The consent of the ‘wali’ or guardian of the bride to the marriage contract. " as one of the requirements. I have some reservations about this clause and would ask you to discuss it further and provide proof from Quran and Hadith as the basis for this requirement.

Dear and beloved brother in Islam, in a moral and righteous society that Islam strives to build, it is inconceivable and there is absolutely no concept that a believing woman, who sincerely fears Allah and the Last Day, would seek to marry someone herself without the prior consultation and consent of her parents/guardians (wali).

Allah Says in the Holy Quran Chapter 2 Surah Baqarah verse 221:

221 Do not marry unbelieving women (idolaters) until they believe; a slave woman who believes is better than an unbelieving woman even though she allure you. Nor marry (your girls) to unbelievers until they believe: a man slave who believes is better than un unbeliever even though he allure you. Unbelievers do (but) beckon you to the fire. But Allah beckons by His grace to the Garden (of Bliss) and forgiveness and makes His Signs clear to mankind: that they may celebrate His praise.

Although there is no specific mention of the ‘wali’ for marriage in the Glorious Quran, their presence and consent is virtually implied.

For example in the above quoted verse of Surah Baqarah, when Allah prohibits the believing men from marrying idolatrous women, His Command to the men is: ‘Do not marry idolatrous women until they believe.’ But when the Lord Most High prohibits the believing women from marry idolatrous men, His Command is directed and addressed towards the parents/guardians (wali) of the girl: ‘Nor marry (your girls) to disbelievers until they believe.’

Thus, in light of the absolutely clear guidance of the Holy Quran, the consent of the parents/guardians (wali) of the bride is clearly implied; and there are several specific commands and guidance in the established and authentic Sunnah of the Messenger of Allah (saws), whereby the consent of the ‘wali’ is specifically mentioned.

The absolute majority of the scholars in Islam are of the opinion that under normal circumstances the consent of the bride to her marriage is an obligatory condition of an Islamic marriage; but under some specific circumstances (like when the girl has accepted Islam but her parents or guardians are disbelievers, etc.), the ‘Judge’ or anyone else may be appointed the ‘wali’ of the girl, who would give her hand in marriage to the suitor.

Sunan of Abu-Dawood Hadith 2078 Narrated byAisha, Ummul Mu'minin

The Messenger of Allah (saws) said: ‘The marriage of a woman who marries without the consent of her guardians (wali) is void.’ (He (saws) said these words) three times.

Al-Tirmidhi Hadith 3137 Narrated by Abu Hurayrah

Allah's Messenger (saws) said, "A woman may not give another woman in marriage, nor may she give herself in marriage; for the immoral woman is the one who gives herself in marriage."

Under normal circumstances, especially when the parents of the girl are alive and are believers, it would not behove and befit a believing woman who sincerely fears Allah and the Last Day, to marry someone without the prior consent of her parents/guardians.

Your Statements: I am a personal witness to the exploitation of this requirement in the Pakistani society……..While the consent of Wali for the sake of marriage looks very appropriate; making it a requirement does not serve the purpose rather opens the door for exploitation. Would you be kind enough to address this issue based on your knowledge of Shariah.

Dear and beloved brother in Islam, every law and guidance of Allah and His Messenger (saws) is based upon wisdom and only for the good of man and society. If some ignorant amongst the society exploit a law and do injustice, one cannot blame the law but it is the practice of exploitation and injustice of the ignorant which should bear the burden of the blame.

Secondly, as much as Islam guides the believing woman who seeks to marry to consult and seek the consent of her guardians/parents; the absolute final decision and right of whether to agree to marry a person or not is in the hands of the bride herself alone. Islam has given the believing woman the absolute right to decide whether she wills to marry a person or not; and that is precisely why her agreement and acceptance to her marriage at the time of ‘nikaah’ is also an absolutely obligatory condition for a marriage to be legal in the Sight of Shariah.

Sahih Al-Bukhari Hadith 9.101 Narrated by Aisha

Allah's Messenger (sws) said, "It is essential to have the consent of a virgin (for her marriage).’ I (Aisha) said, "A virgin feels shy." The Prophet (saws) said, "Her silence means her consent."

Sahih Al-Bukhari Hadith 9.98 Narrated by Abu Huraira

The Prophet (saws) said, "A virgin should not be married till she is asked for her consent; and the matron (divorcee, widow, etc.) should not be married till she is asked whether she agrees to marry or not." It was asked, "O Allah's Messenger (saws)! How will she (the virgin) express her consent?" He (saws) said, "By keeping silent."

It is an absolutely obligatory condition of a marriage to be legal in the Sight of Shariah for the bride to consent to her marriage. If the bride is a virgin, and she feels shy to declare or respond her approval, her silence will be accepted as her approval; but if a matron (one who is divorced, or a widow, etc.) is married, her silence will not be accepted as her approval, but she must verbally declare her acceptance to the Judge conducting the marriage.

If for any reason the girl who is forced to marry a person against her will, or she does not wish to marry the said person….all she ever has to do is verbally decline and declare to the Judge conducting the marriage that she is unwilling to marry the said person; thus a marriage in Islam can never be valid without the prior consent of the ‘bride’.

Islam guides that a marriage is not a simple union between just two people, but rather a union of two families….thus neither should the parents/guardians force their daughters into a marriage she does not consent to; nor should the girl seek to marry someone without prior consultation and consent of her sincere best well-wishers in all of mankind, ie. her parents/guardians.

Your Statement: In the recent past, in many cases, the courts have ordered that if the girl and boy are `Aaqil and Balig` (adults) then they can make their own decision about marriage.

If a Judge or Qadi of a Shariah Court determines that the right of the bride are being violated or injustice is done towards her by her guardians, then that would constitute an ‘unusual circumstance’ and the Shariah Court Judge has the power to waive the condition of the prior consent of the bride’s guardians; and the Court would then appoint a guardian with the girl’s consent, and that court-appointed guardian would then give away the bride in marriage. Such a marriage would be deemed legal and valid in the Sight of Shariah Law.

If one trusts, obeys, and follows the guidance and commands of Allah and His Messenger (saws), one can be assured of never ever being misled; but if one believes, obeys and follows any other guidance, other than that of Allah and His Messenger (saws), one can be assured of being led astray.

Whatever written of Truth and benefit is only due to Allah’s Assistance and Guidance, and whatever of error is of me alone. Allah Alone Knows Best and He is the Only Source of Strength.

Your brother and well wisher in Islam,

Burhan