Guardians ( waliy ) in marriage

1. Guardians (waliy) in marriage

2. What is a waliy? • A waliy is a relative that Islam had assigned to act on someone’s behalf, in cases where s/he cannot pursue a matter on their own. • A waliy can be in cases for: • women young or old • Someone young • Someone with partial mental disability male or female • Someone with complete mental disability, male or female • Someone with financial disability سفيه, such as a gambler male or female

3. The wisdom behind a waliy • The people that are most likely to be abused by others, Islam assigns a waliy for them to help them make life decisions. • A waliy is to help make decisions • Be responsible if something goes wrong, whether financially, psychologically or other means. • Give morale, and financial support • Research all the reasonable related issues to the matter that require a waliy. Such as searching the background of a person coming to ask for marriage • Marriage is not just one person’s matter, it’s a whole family’s matter and must be responsible for.

4. Who needs a waliy? • NOTE: a waliy is not just for marital issues, but may include financial, and other legal issues. • But for women that are full in mind, they only need a waliy for marriage and not any other legal issue. • As for traveling its mahram, and not wali. • The difference is: a mahram is someone she cannot marry, but a waliyis a relative that holds certain legal responsibility and its only one waliy at a time depending on the case.

5. Can someone with a mental disability get married? Do they need a waliy? • Defining mental disability: often inconsistency between actions, mind and words. Or unable to control mind, actions and words. • عته: a mental disability that affects one’s words, actions, concentration in where they seem to be abnormal on different occasions. • Most scholars do permit that a waliymay get someone with a mental disablity married if it is for their sake. • Other scholars do obligate a judicial consent that looks into the case and considers the situation as needed depending on the case. The other party that is getting married to this person MUST be informed about the disability. • Note the mental disability must not be at the level where that person may cause personal or harm others.

6. A waliy for a سفيه (misuses his money) • A سفيه: is someone that constantly misuses his money in ways that are contradictory to Islam and mind. • Such as: someone that gambles, or buys trivial stuff with a lot of money. Or sells expensive things for little money. • A سفيه is different than a person with a mental disability, since he is complete in his mind, but has wrong financial actions. • Shafi’ee scholars do obligate that a person in such case, must have a waliy in order to get married, buy, sell or do financial transactions. • Other scholars as Hanafi don’t consider a waliy for marriage, but do consider a waliy for transactions. • The Maliki’s consider that a waliy’s consent is obligatory موقوف • Hanbali considers depends on the way it was done, an whether he was in need for marriage or not. • Preponderant: his marriage is not in need for a waliy, but a waliy’s supervision is highly recommended in order to protect the family.

7. Does a women need a waliy? • Majority of the scholars: Maliki, Shafi’ee and Hanbali do consider that a waliy is obligatory to have for virgin or non virgin women. • Abu Hanifa said that it was liked. • Maliki do say in one of their opinions that its best if she can have a considerable Muslim man help her in her marriage. • DawoodAlthahiree does consider a waliy as obligatory for a virgin and not a non virgin.

8. Evidence on a waliy • Allah Almighty says الرجال قوامون على النساءmen are qawamoon (protectors, maintainers…) over women. (Alnisa 34) • Allah Almighty directs the words at men when speaking about marriage, in order to take the responsibility of marriage for women in the following ayat. • وأنكحوا الأيامى منكم (النور 32) ( and marry directing the words at men those that were married before from amongst you) • (ولا تنكحوا المشركين حتى يؤمنوا) (البقرة 221) ( and do not marry (directing the words at men) the polytheists until they believe. • «فانكحوهن بإذن أهلهن» (النساء 25) : “and marry them with their family's permission” • «وإذا طلقتم النساء فبلغن أجلهن فلا تعضلوهن أن ينكحن أزواجهن إذا تراضوا بينهم بالمعروف» (البقرة 232) • “and if you divorce women, and their waiting periods ends do not prevent them from going back to their husbands, if they agreed in good kinship) • What the ayah was forbidding is the waliy in taking his opinion over his daughter or sister’s opinion and not what she sees or what is beneficial for her. In other words the waliy going far in enforcing his opinions. Which is called عضل الولي as in ) سورة البقرة 232

9. Evidence from Sunnah on Waliy • The prophet peace be upon him said: “أيما امرأة نكحت بغير إذن وليها فنكاحها باطل، فنكاحها باطل، فنكاحها باطل، فإن دخل بها فلها • المهر بما استحل من فرجها، فإن اشتجروا فالسلطان ولي من لا ولي له). • رواه الترمذي وحسَّنه ( 1102 ) وأبو داود ( 2083 ) ابن ماجه ( 1879 ) من حديث عائشة ، صححه الألباني في "إرواء الغليل" (1840) . • “ any woman that gets married without her waliy’s consent, her marriage is invalid, invalid, invalid, if he had intercourse with her, then he must pay her dowry for transgressing her private part, if they dispute, the judge is the waliy for who doesn’t have a waliy” • The prophet peace be upon him said: “لا تزوج المرأة المرأة، ولا تزوج المرأة نفسها، فإن الزانية هي التي تزوج نفسها» • “a women does not get a woman married, or marry herself, the adulteress is the women that gets herself married” • The prophet peace be upon him said: “لا نكاح إلا بولي” (no marriage without a waliy”, Al’albany has made long research on the hadith, and in brief, the hadith is authentic. أرواء الغليل 6/ 243

10. عضل الولي : is a waliy taking advantage of his position • Cases of عضل الولي • If someone qualified comes asking for marriage, but the waliy refuses him for no good reason, such as: tribe, color, race, heights, weight. Such is an act of “jahiliya” and is rejected. • Note: culture, politics, time, may have thier impact in considering what is a qualified reason and what is not in case of law suit. • A married woman, that gets divorced and insists that she wants to go back to her husband, but they refuse for good or bad reasons. • Based on the hadith narrated by Bukhari that معقل بن يسار prevented his sister from going back to her husband after divorcing her, and finishing her waiting period. Her ex-husband came back to her asking for her hand in marriage, but her brother insisted that he cannot marry her, the ayah (ولا تعضلوهن أن ينكحن أزواجهن) (and don’t prevent them from going back to their husbands), the prophet then called onto her brother, and asked him to get them married to each other. (sahihAlbukhari no. 5130)

11. Preponderant ruling on waliy • We can see from the Ayat and hadiths, that the waliy is actually obligatory to have on all women, as the hadith generalizes أيما امرأة.

12. Responding to the evidences that were said to support the no waliy opinion • The ayah: “وإذا طلقتم النساء فبلغن أجلهن فلا تعضلوهن»” they said that the ayah was ordering the waliys not to take advantage over the women, and the response was this was referring to those that take advantage, but it was still directing responsibility to them. • They also depended on a non authentic narration on Omar IbnAlkhattab: “لا يصح لامرأة أن تنكح إلا بإذن وليها، أو ذي الرأي من أهلها، أو السلطان» • No women can get married without the permission from her waliy’s permission, or the permission from a qualified person from her family, or the judge” • They also depended on an authentic hadith narrated by Muslim: “الأيم أحق بنفسها من وليها، والبكر تستأذن في نفسها وإذنها صماتها” “the non virgine women, is more responsible of herself than her waliy, the virgin is asked about herself, and her silence is an answer” --- the response to this is that, it does not contradict the hadiths that obligate a waliy, it just is preferring her opinion in what she wants, but is not neglecting the waliy, and that is why the virgin’s silence is accepted, since her waliy known more about her situation, but may still not force her into something she does not want.

13. Can women consummate the marriage themselves? • Although majority of scholars do say that a waliy is obligatory, this question in this slide is speaking about whether a woman can issue the offer of marriage in a contract. • Majority of scholars have said that women can not start the offer during a marriage contract, except Hanafi scholars. • But that is not to mean that Hanafis consider that women are not in need of a waliy, but they considered the contract to being موقوف not consummated until approved by the waliy.

14. HanafiMadhab and Waliy clarified • Abu Hanifa does not say that marriage without a waliy is permissible, but he considers is موقوف (not consummated) until the waliy approves it. • The Hanafis therefore, have widened the qualifications in a groom, and therefore had given the waliy the right to void the marriage if the groom is not qualified. • Qualification in a groom for the Hanafi is in: • Progeny (ethnicity), Islam, freedom, wealth, piety, occupation.