In the wake of a recent court decision,
The issue of Walī’s
consent in marriage has become a vexed question.
Some important aspects of the issue are
1. ‘No Nikāh [marriage] without Walī’s
consent’, a statement attributed to the Prophet (sws) and
taken by the court to mean No Nikāh is valid without the
Walī’s consent, is actually a statement of decree rather than
of the Divine law. The meaning, therefore, would be somewhat
as follows: No Nikāh shall be allowed (or we shall not allow
any Nikāh) without the Walī’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 Nikāh without the
Walī’s consent as void.
But this consent is not a condition the absence of which makes
the contract void ab initio.
Moreover, socially, the consent of the bridegroom’s Walī is as
essential as is that of the bride’s.
2. The verse of the Qur’ān (4:25) used
by the learned judge for his decision relates specifically to
slave-women. 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’ān for the belief that a
contract of marriage without Walī’s consent makes the contract
void ab inito.
3. Linguistically, the term Nikāh 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 Nikāh.
Marriage must be announced publicly (through any reasonable
means) so that there is no room for any surreptitious sexual
ii) Intention to live
together permanently as husband and wife. Pre-planned divorce
would make the contract prostitution rather than Nikāh.
Of the conditions belonging to the
second category, two important, Islamic conditions, among
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) Walī’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 Walī’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’ānic
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 Walī/Awliyā’ (plural
of Walī) or the man and the woman. This principle is a
corollary of the social directives of Islam and is
corroborated by the following Hadīth [a reported statement or
act of the Prophet (sws)]:
A Nikāh does not solemnise unless it
takes place through the Walī, and, if someone does not have
Walī, the ruler of the Muslims is the Walī (Tirmidhī,
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 Hadīth, [from the
words ‘and if someone does not have a Walī, the ruler of the
Muslims is the Walī] 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 Nikāh as voidable at the
option of the person whose consent was so obtained.
It is reported that a girl once came to
‘Ā’īshah (raa) and said ‘My father has married me to his
nephew to alleviate his poverty through me. I dislike him.’
‘Ā’īshah (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’. (Nisāiy, Kitāb-al-Nikāh)
In Parental Consent in Marriage, Shehzad
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