عضل الولي the waliy refusing the qualified

1. عضل الولي the waliy refusing the qualified

2. If the waliy refuses a qualified man proposing for the women, the waliy becomes someone else more qualified to help in taking decisions. • Other scholars says that it becomes in the hands of the judge.

3. Court’s, imam’s, judges roll «السلطان» • Sultan in hadith refers to the Muslim authority: • Imam, Islamic centers, licensed judges مأذون • If she was in a place that had no Muslim authority, and no waliy, she may chose a pious Muslim man to be her waliy. • If the waliy was not present for strong reasons such as: • Living in a different country • Or wait time for his presence may take a while, which may have her lose her opportunity.

4. Evidence on authority being a waliy • The prophet peace be upon him acted as a leader/ authority and told the man زوجتكها بما معك من القرآن» “I got her married to you for the Quran you had memorized”.

5. The list of waliys • Waliys are actually her relatives from her father’s side. If its not available the judge takes the responsibility. • Abu Hanifa considers that it depends on the close relations, and may even go to the mother’s side. • The waliy does not go to the farther side, unless the closer is not available.

6. So who and what sets the list? • There is no text that assigns the persons and who comes first and second • Scholars had different opinions on the list since Allah Almighty actually said • «آباؤكم أو أبناؤكم لا تدرون أيهم أقرب لكم نفعاً» • سورة النساء 11: “Your fathers and sons, you do not know is closer to you in benefiting you.” • But they agreed that the fathers takes first position on the list, then the grandfather, the brothers then the uncles. • But they had disagreed on the son, or father comes first, and grandfather or brothers come first.

7. Maliki Hanafi • Son • Father • Brothers • Grandfather • Uncles • Cousins. • Son • Father • Grandfather • Full brothers • Step brothers from fathers side • The nephews from full brothers • The nephews from fathers side • Uncles • cousins List of waliy degree

8. Shafi’ee Hanbali • Father • Grandfather, from fathers side • Children (sons) are never part of the list, unless they were عصبة relatives from another side. • Brothers • Nephews, • Uncles • Cousins. • Father • Grandfather • Sons • Brothers • Nephews • Uncles • Cousins.

10. The preponderant ruling on waliy list • Father, grandfather, brothers, uncles after that, the list is dependent on culture. • Scholars had different opinions on the mother’s side and whether they can be part of the waliy on not. Majority said that it cannot be from the waliy group.

11. What if more than one waliy had the same status? • Such as several brothers? • Answer: any of them can be the waliy, but they did have different opinions on whether it should be dependent on the more pious or the older. • Note these differences are really based on culture.

12. What if they disagreed • If one gets her married, and she accepted, the marriage is considered. • قال رسول الله صلى الله عليه وسلم: «أيما امرأة زوجها وليان، فهي للأول منهم» • “any women that had to waliys getting her married, the first contract is the one that takes place”. • If she was interested in one of the waliys (in a case when they were equal in status), she can choose one, if they disagree and dispute the judge may choose one, or act on the behalf of the waliy. • If the waliy refuses for no good reason, she may sue the waliy, and then the judge takes the roll of the waliy.

13. Power of attorney on waliy • The waliy may assign a power of attorney on his behalf during his life only. He cannot make a will on who becomes the waliy after his death.

14. Conditions and qualifications of a waliy • Some qualifications they agreed on • Male hood • Mental state • Reached the age of puberty • Islam • ولن يجعل الله للكافرين على المؤمنين سبيلاً (النساء 141) • 3: 141: “Allah almighty will not give authority to the non believers over the believers.” • “إن الذين آمنوا وهاجروا وجاهدوا بأموالهم وأنفسهم في سبيل الله والذين آووا ونصروا اولئك بعضهم أولياء بعض» (الأنفال 72) • يا أيها الذين آمنوا لا تتخذوا اليهود والنصارى أولياء، بعضهم أولياء بعض» (المائدة 51) • لا تجد قوماً يؤمنون بالله واليوم الآخر يوادون من حاد الله ورسوله ولو كانوا آباءهم أو أبناءهم أو إخوانهم أو عشيرتهم (المجادلة 22)

15. What if the married woman was not Muslim, does she need a waliy? • Scholars had different opinions on that is the legal authority or the her waliy or herself. • But the kafir cannot be the person to conduct the marriage contract.

16. Other conditions for a waliy, that scholars had different opinions on: • Not a slave/ freedom • Piety • Be able to speak • Be able to see • The waliy be someone that inherits. • The preponderant ruing on these conditions, is that: being able to speak, and see is not a valid condition.