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Thursday, 22 September 2011

Can a mature women marry without a Wali.

Q;If a mature woman marries a person on her own, the nikah will be valid irrespective of whether the wali is informed or not, and irrespective of whether the wali gives his consent or not. In all cases the nikah will be valid.can you please provide xact reference to this, i wud b thankful if u wud plz. because women is refers to a mature one i think so..??

A; All-Praise is due to Allah,

Islam forbids a woman to get married without a wali (guardian), and it regards a marriage contract done without a wali as invalid. A kaafir cannot be the wali of a Muslim woman, so if none of her family are Muslims, then the leader or mufti of the Muslims, or the imam of the Islamic center, should stand in as her wali.

Ibn Qudaamah said: A kaafir cannot be the wali of a Muslim woman under any circumstances, according to scholarly consensus.

Sheikh Muhammed Salih Al-Munajid said, in regerds to this matter; Marriage without a wali is not valid, because the Prophet (peace and blessings of Allaah be upon him) said: “There is no marriage except with a wali (guardian).” Narrated by Abu Dawood (2085), al-Tirmidhi (1101) and Ibn Majaah (1881) from Abu Moosa al-Ash’ari; classed as saheeh by al-Albaani in Saheeh al-Tirmidhi.

And he (peace and blessings of Allaah be upon him) said: “Any woman who gets married without the permission of her guardian, her marriage is invalid, her marriage is invalid, her marriage is invalid.” Narrated by Ahmad (24417), Abu Dawood 92083) and al-Tirmidhi (1102); classed as saheeh by al-Albaani in Saheeh al-Jaami’ (2709).

If the guardian refuses to marry his daughter (or female relative under his care) to a compatible man with whom she is pleased, then he is regarded as preventing her from marriage, and guardianship passes to the next closest male relative, then to the qaadi (judge).

Ibn Qudaamah (may Allaah have mercy on him) said:

What is meant by preventing marriage is not allowing a woman to marry one who is compatible with her, if she agrees to that and if each one wants to marry the other. Al-Ma’qil ibn Yasaar said: A sister of mine married a man, then he divorced her. When her ‘iddah was over he came and proposed marriage to her (again), and I said to him: “She married you, was intimate with you and honoured you, then you divorced her, and now you come to propose marriage again! No, by Allaah, she will never go back to you.” He was a man with whom there was nothing wrong, and she wanted to go back to him. Then Allaah revealed these words (interpretation of the meaning):

“do not prevent them from marrying”

[al-Baqarah 2:232]

I said: Now I will do it, O Messenger of Allaah. He said: So he married her to him. Narrated by al-Bukhaari.

This applies whether she asks to be married with a mahr (dowry) like that of her peers or less. This was stated by al-Shaafa’i, Abu Yoosuf and Muhammad.

So if she wants to marry a specific person who is compatible, and he wants to marry her to someone else who is also compatible, and refuses to marry her to the one she wants, then he is preventing her marriage.

But if she asks to marry someone who is not compatible, then he has the right to prevent her from doing that, and he is not (willfully) preventing her in that case.

Al-Mugni (9/383).

Shaykh Ibn ‘Uthaymeen (may Allaah have mercy on him) said:

If the guardian refuses to arrange the marriage of a woman to a suitor who is compatible in terms of his religious commitment and good character, then guardianship passes to the next closest male relative on the father’s side, then the next closest. If they refuse to arrange her marriage, as usually happens, then guardianship passes to the shar’i judge, and the shar’i judge should arrange the woman’s marriage. If such a case comes to him and he knows that the woman’s guardians refused to arrange her marriage, then he is obliged to arrange her marriage, because he has general guardianship so long as family guardianship was not achieved.

The fuqaha’ (may Allaah have mercy on them) mentioned that if the guardian repeatedly refuses compatible suitors, then he becomes a faasiq (evildoer) as a result; he is no longer regarded as being of good character and his guardianship is waived. According to the well known view of Imam Ahmad, he is no longer qualified to lead prayers, and it is not valid for him to lead a group of Muslims in prayer. This is a serious matter.

As we have referred to above, some people reject the suitors who come to propose marriage to the women over whom Allaah has given them guardianship, even though they are compatible, but the girl may be too shy to go to the qaadi (judge) to ask him to arrange her marriage. This is something that really happens. But the woman should weigh up the pros and cons, and see which is worse: staying without a husband and letting this guardian who fools about and is careless control her life, then when she grows old and has no desire for marriage, he marries her off, or approaching the qaadi with a request to arrange her marriage, which is her shar’i right.

Undoubtedly the second alternative is preferable, which is going to the qaadi and asking him to arrange her marriage, because she is entitled to that, and because going to the qaadi and having the qaadi arrange her marriage is in the interests of other women as well, because other women will come as she has come, and because her coming to the qaadi is a rebuke to those wrongdoers who do wrong to the women whom Allaah has placed under their guardianship by refusing to marry them to compatible suitors. So this serves three interests:

- The woman’s own interests, so that she will not be left without a husband

- The interests of others, as it will open the door for other women who are waiting for someone to set a precedent for them to follow

- Preventing these unjust guardians who are controlling the lives of their daughters and other women whom Allaah has placed under their guardianship, on the basis of their whims and wishes.

It also serves the purpose of establishing the command of the Messenger (peace and blessings of Allaah be upon him) who said: “If there comes to you one with whose religious commitment and character you are pleased, then marry (your female relative under your care) to him, for if you do not do that there will be tribulation in the land and a great deal of corruption.”

And it also serves a specific interest, which is making it easy for those men who propose marriage to women, whose are compatible in terms of religious commitment and character.

End quote from Fataawa Islamiyyah (3/148).

As for a proper Marriage to be valid there are conditions to be meet and they are as followed-
Sheikh Muhammed Salih Al-Munajjid said;
There are three pillars or conditions for the marriage contract in Islam:

Both parties should be free of any obstacles that might prevent the marriage from being valid, such as their being mahrams of one another (i.e., close relatives who are permanently forbidden to marry), whether this relationship is through blood ties or through breastfeeding (radaa’) etc., or where the man is a kaafir (non-Muslim) and the woman is a Muslim, and so on.

There should be an offer or proposal (eejaab) from the walee or the person who is acting in his place, who should say to the groom “I marry so-and-so to you” or similar words.

There should be an expression of acceptance (qabool) on the part of the groom or whoever is acting in his place, who should say, “I accept,” or similar words.

The conditions of a proper nikaah (marriage contract) are as follows:

Both the bride and groom should be clearly identified, whether by stating their names or describing them, etc.

Both the bride and groom should be pleased with one another, because the Prophet (peace and blessings of Allaah be upon him) said: “No previously-married woman (widow or divorcee) may be married until she has been asked about her wishes (i.e., she should state clearly her wishes), and no virgin should be married until her permission has been asked (i.e., until she has agreed either in words or by remaining silent).” They asked, “O Messenger of Allaah, how is her permission given (because she will feel very shy)?” He said: “By her silence.” (Reported by al-Bukhaari, 4741)

The one who does the contract on the woman’s behalf should be her walee, as Allaah addressed the walees with regard to marriage (interpretation of the meaning): “And marry those among you who are single…” [al-Noor 24:32] and because the Prophet (peace and blessings of Allaah be upon him) said: “Any woman who marries without the permission of her walee, her marriage is invalid, her marriage is invalid, her marriage is invalid.” (Reported by al-Tirmidhi, 1021 and others; it is a saheeh hadeeth)

The marriage contract must be witnessed, as the Prophet (peace and blessings of Allaah be upon him) said: “There is no marriage contract except with a walee and two witnesses.” (Reported by al-Tabaraani; see also Saheeh al-Jaami’, 7558)

It is also important that the marriage be announced, as the Prophet (peace and blessings of Allaah be upon him) said: “Announce marriages.” (Reported by Imaam Ahmad; classed as hasan in Saheeh al-Jaami’, 1027)

The conditions of the walee are as follows:

He should be of sound mind

He should be an adult

He should be free (not a slave)

He should be of the same religion as the bride. A kaafir cannot be the walee of a Muslim, male or female, and a Muslim cannot be the walee of a kaafir, male or female, but a kaafir can be the walee of a kaafir woman for marriage purposes, even if they are of different religions. An apostate (one who has left Islam) cannot be a walee for anybody.

He should be of good character (‘adaalah – includes piety, attitude, conduct, etc.), as opposed to being corrupt. This is a condition laid down by some scholars, although some of them regard the outward appearance of good character as being sufficient, and some say that it is enough if he is judged as being able to pay proper attention to the interests of the woman for whom he is acting as walee in the matter of her marriage.

He should be male, as the Prophet (peace and blessings of Allaah be upon him) said: “No woman may conduct the marriage contract of another woman, and no woman can conduct the marriage contract on behalf of her own self, because the zaaniyah (fornicatress, adulteress) is the one who arranges things on her own behalf.” (Reported by Ibn Maajah, 1782; see also Saheeh al-Jaami’, 7298)

He should be wise and mature (rushd), which means being able to understand matters of compatibility and the interests of marriage.

The fuqahaa’ put possible walees in a certain order, and a walee who is more closely-related should not be ignored unless there is no such person or the relatives do not meet the specified conditions. A woman’s walee is her father, then whoever her father may have appointed before his death, then her paternal grandfather or great-grandfather, then her son, then her grandfathers sons or grandsons, then her brother through both parents (full brother), then her brother through her father, then the sons of her brother through both parents, then the sons of her brother through her father, then her uncle (her father’s brother through both parents), then her father’s brother through the father, then the sons of her father’s brother though both parents, then the sons of her father’s brother through the father, then whoever is more closely related, and so on – as is the case with inheritance. The Muslim leader (or his deputy, such as a qaadi or judge) is the walee for any woman who does not have a walee of her own. End of quote.
Reference-(Islam Q&A Fatwa: 2127)

With regards to a male having a Wali this is not necessary,
Shaykh Khaalid al-Mushayqih said, A man does not have to have a wali at the time of the marriage contract, rather the man is the one who enters into the marriage contract by himself. It is the woman who needs to have a wali, because the Prophet (peace and blessings of Allaah be upon him) said, according to the hadeeth narrated by ‘Aa’ishah: “Any woman who gets married without a wali, her marriage is invalid, invalid, invalid.” Narrated by al-Tirmidhi, 1102; classed as hasan by Abu Dawood, 2083; Ibn Maajah, 1879.

But if a man is insane or feeble-minded, he has to have a wali (guardian). If he is of sound mind, however, he does not need a wali. End of quote.

And Allah knows best...

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