Wali's
Consent In Marriage
In the wake of a recent court decision1, The issue of Wali's 2
consent in marriage has become a vexed question.
Some important aspects of the issue are discussed
here.
1. 'No Nikah [marriage] without Wali's
consent', a statement attributed to the Prophet (sws) and taken by the court to mean
No Nikah is valid without the Wali's consent, is actually a statement of decree
rather than of the Divine law. The meaning, therefore, would be somewhat as follows: No
Nikah shall be allowed (or we shall not allow any Nikah) without the Wali's consent.
The reason for the decree? Family values. Marriage of a man and a woman is a marriage
between two families. The consent and the good wishes of the families involved are highly
important. Disparaging this reality would amount to undermining the foundation on which
the edifice of an Islamic society rests. For that reason, the court may declare a Nikah
without the Wali's consent as void.3 But
this consent is not a condition the absence of which makes the contract void ab initio.4 Moreover, socially, the consent of the
bridegroom's Wali is as essential as is that of the bride's.
2. The verse of the Qur'an (4:25) used by the
learned judge for his decision relates specifically to slave-women.5 It is obvious from the context of the verse that the verse
allowed such Muslim men to marry slave-women as could not afford to marry 'free'
Muslim ladies, provided they did that with the consent of the ahl (owners) of those
slave-women. Therefore, there are no grounds in the Qur'an for the belief that a
contract of marriage without Wali's consent makes the contract void ab inito.6
3. Linguistically, the term Nikah has always been
used in an Islamic society to mean an openly declared contract of marriage between a man
and a woman made with their intention to live together as husband and wife for the rest of
their lives.
There are certain conditions for this contract which,
if not fulfilled, make the contract void ab inito. And there are some other conditions
which, if unfulfilled, make the contract voidable. Of the conditions belonging to the
first category, two important, Islamic conditions are:
i) Open declaration of the Nikah. Marriage must be
announced publicly (through any reasonable means) so that there is no room for any
surreptitious sexual relationships.
ii) Intention to live together permanently as husband
and wife. Pre-planned divorce would make the contract prostitution rather than Nikah.
Of the conditions belonging to the second category,
two important, Islamic conditions, among others, are:
i) Dowry (to be paid by the man) in accordance with
the conventions of the society and in due consideration of the woman's status and the
ability of the man to pay. The amount is a token of the man's seriousness to take up
the responsibility towards his wife-to-be.
ii) Free consent of the man and the woman entering
into the contract of marriage.
iii) Wali's consent.
It seems that the underlying object of the honourable
court's verdict (on 25 September 1996) was a check on extra-marital relationships,
whereas the reasons for having Wali's consent in marriage are a stronger and
healthier relationship between the families involved and greater security and privilege
for the bride and the bridegroom. It is the condition of open declaration which serves as
a check on clandestine relationships. However, even when this condition is not met, there
is room - especially when the parties involved are ignorant of the correct legal
procedure and there is an absence of a general awareness of the correct law - for
sentences much lighter than automatic imposition of hadd (Qur'anic punishment) for
fornication and, in some cases, there is room even for exoneration.
4. In case a man and a woman have reasonable bases
for marriage against the wishes of their families, they can take the matter to the court,
which has the right to decide in favour of either the Wali/Awliya' (plural of Wali)
or the man and the woman. This principle is a corollary of the social directives of Islam
and is corroborated by the following Hadith [a reported statement or act of the Prophet
(sws)]:
A Nikah does not solemnise unless it
takes place through the Wali, and, if someone does not have Wali, the ruler of the Muslims
is the Wali (Tirmidhi, Kitaab-al-Nikah)
In his article on Parental Consent
in Marriage, the author writes:
This Hadith is actually a corollary
of the social directives of Islam pertaining to the institution of family and is based on
great wisdom. Since the preservation and protection of the family set up is of paramount
importance to Islam, it is but natural that each marriage take place through the consent
of the parents who are the foremost guardians. It is obvious that a marriage solemnised
through the consent of the parents shields and shelters the newly formed family. For
reasons stated earlier, it is essential that the newly formed family be part of another
larger family.However, as is evident from the
Hadith also, there can always be an exception to this general principle. If a man and a
woman feel that the rejection on the part of the parents has no sound reasoning behind it
or that the parents, owing to some reason, are not appreciating the grounds of this union,
they have all the right to take this matter to the courts of justice. It is now up to the
court to analyse and evaluate the whole affair. If it is satisfied with the stance of the
man and woman, it can give a green signal to them. In this case, as is apparent from the
Hadith, [from the words 'and if someone does not have a Wali, the ruler of the
Muslims is the Wali] the state shall be considered the guardian of the couple. On the
other hand, if the court is of the view that the stand of the parents is valid, it can
stop the concerned parties from engaging in wedlock. Similarly, if a case is brought
before the judicial forums in which the marriage has taken place without the consent of
the parents, it is up to the court to decide the fate of such a union. If it is not
satisfied with the grounds of this union, it can order for their separation and if it is
satisfied, it can endorse the decision taken by the couple.
5. If the court finds that the consent of the man or
the woman was obtained through undue influence or coercion, it may declare the Nikah as
voidable at the option of the person whose consent was so obtained.
It is reported that a girl once came to
'A'ishah (raa) and said 'My father has married me to his nephew to
alleviate his poverty through me. I dislike him.' 'A'ishah (raa) replied
'Wait here until the Prophet (sws) comes.' The Prophet (sws) arrived shortly and
she informed him of the matter. At this, the Prophet (sws) sent for her father. When he
arrived the Prophet (sws) gave the girl the choice to do whatever she liked. She said:
'I accept my father's decision. I only wanted to know whether a girl has authority in
this regard or not'. (Nisaiy, Kitab-al-Nikah@)
In Parental Consent in Marriage,
the author comments:
In differences of opinion it
seems proper that the individual accommodate the opinion of the parents as far as
possible, and only in extraordinary circumstances should he persist in his decision. An
individual no doubt has total freedom in decision making in this regard but he should give
top priority to the protection of the institution of family. This freedom is so absolute
that Islam disapproves of parents who forcibly marry their sons and daughters and makes it
clear that it is the concerned man and woman who have the final say in this regard….
If in a society envisaged by Islam it is important
that an individual give due regard to the opinion of the parents in marriage, it is even
more important that the parents be extra cautious in this matter since they hold moral
authority over their children. Misuse and abuse of such authority can produce grave
consequences. Parents must give deep consideration to the inclinations and tendencies of
their children in deciding their future in an affair as delicate as marriage. They should
understand that once their children become mentally mature they must not impose their
ideas on them.
Copyright (c) 1997. All Rights Reserved with the
Author
Footnotes
1. That is in the
honourable court of Justice Abdul Hafeez Cheema of the Lahore High Court on 25 September
1996.
2. Parent (or
guardian), who represents the whole family as its head and who is therefore usually a man
in most societies. The Plural (Awliya') may connote all the people responsible for
the person (man or woman) entering into a contract of marriage.
3. And it may, if
it deems it appropriate, impose some other penalty for example, a fine.
4. There is a
difference in a contract's being void and in its being voidable. In the first case, a
contract, owing to some reason, is not regarded as valid per se and is therefore deemed to
be non-existent ab inito. In the second case, the contract, owing to some reason, is
regarded as revocable at the option of one or either of the parties involved and therefore
may be revoked by the court. For example, in case of an unwritten business contract
between two person to which there are no witnesses, it is not necessary (especially, when
it is obvious from circumstantial evidence that the contract did take place) for the court
to declare the contract as void simply on account of the fact that it was not written and
there were no witnesses. The Qur'anic directive (2:292) that contracts be written
down and there be two witnesses is a social directive rather than a legal condition.
However, the court can impose a penalty, which may go to the extent of revoking the
contract, for violation of a social norm beneficial to the interests of all parties
involved.
5. See
Tadabur-i-Qur'an, Amin Ahsan Islahi, volume II, Faran Foundation, Lahore, 1983.
6. Though, as already explained, the court has the right
- on the basis of maintenance of order in society and the doctrine of common good - to
declare such a marriage void.