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In the wake
of a recent court decision1,
The issue of Wali’s2 consent
in marriage has become a vexed question.
Some important
aspects of the issue are discussed here.3
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.4 For that reason,
the court may declare a Nikah without the Wali’s consent as void.5
But this consent is not a condition the absence of which makes the contract
void ab initio.6 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.7
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.8
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, Kitab-al-Nikah)
In his article
on Parental Consent in Marriage, Shehzad Saleem 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, Shehzad Saleem 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.
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