Previous Posts of this series: Cousin Marriage and Forced Marriage in Pakistan.
I did some research for this post. Actually, I asked my sister to tell me what Abdur Rahman Al-Jazairi had to say about the topic in his book “Kitab-ul-Fiqh alal-Madhahib al-Arba’a” (Book of fiqh according to the four schools [mentioned in this post] of jurisprudence). So thanks to her as she translated the Urdu text (the original book is in Arabic but my parents have the Urdu translation for the benefit of my Dad and us since my Mom’s mother tongue is Arabic) over Yahoo Messenger.
We’ll start with our friend the modernist Moiz Amjad.
As far as the teachings and recommendations of the Shari`ah regarding a Nikah (marriage) ceremony are concerned, the basic necessary ingredients that should be present in a marriage, according to the recommendations of Islam, are:
- Marriage should primarily be a contract that materializes from the expression of the intent of a man and a woman to live the rest of their lives as husband and wife. This contract should be based on the free consent of the man and the woman. In other words, it should not be a temporary contract (i.e. a marital contract for a specified period of time) or one, which is based on coercion and force.
- There should be a general declaration of the marriage in the society. Islam does not recognize a secret marital contract. The declaration of the marriage may take any shape or form that is generally adopted in the society. For instance, inviting friends and relatives to the marriage ceremony is an acceptable method of this declaration. Holding two or more persons as witnesses to the marriage contract is also a legislated method for such declaration adopted in various societies and cultures.
- The man should give a mutually agreed upon amount as what the Islamic Shari`ah (law) terms as ‘Mehr’ to the woman. The factors that may be considered in the settlement of the amount of ‘Mehr’ include the financial position and the social status of the man and the woman. A woman may refuse marriage merely on the basis of the fact that she considers the amount of ‘Mehr’ to be inadequate. ‘Mehr’ is a basically a token from the man, given to his wife, to express and symbolize the fact that he is willing and capable to fulfill the financial responsibility of the family that would be formed subsequent to the marriage contract. It may be mentioned here that although Islam does not prohibit a woman to take up a financial activity of her choice, yet puts the ultimate responsibility of providing for the family on the husband.
Now that seems simple and reasonable. But we don’t call him modernist for nothing. Let’s now hear from Sheikh Muhammed Salih Al-Munajjid.
There are three pillars or conditions for the marriage contract in Islam:
- Both parties should be free of any obstacles that might prevent the marriage from being valid, such as their being mahrams of one another (i.e., close relatives who are permanently forbidden to marry), whether this relationship is through blood ties or through breastfeeding (radaa’) etc., or where the man is a kaafir (non-Muslim) and the woman is a Muslim, and so on.
- There should be an offer or proposal (eejaab) from the wali or the person who is acting in his place, who should say to the groom “I marry so-and-so to you” or similar words.
- There should be an expression of acceptance (qabool) on the part of the groom or whoever is acting in his place, who should say, “I accept,” or similar words.
The conditions of a proper nikaah (marriage contract) are as follows:
- Both the bride and groom should be clearly identified, whether by stating their names or describing them, etc.
- Both the bride and groom should be pleased with one another, because the Prophet (peace and blessings of Allaah be upon him) said: “No previously-married woman (widow or divorcee) may be married until she has been asked about her wishes (i.e., she should state clearly her wishes), and no virgin should be married until her permission has been asked (i.e., until she has agreed either in words or by remaining silent).” They asked, “O Messenger of Allaah, how is her permission given (because she will feel very shy)?” He said: “By her silence.” (Reported by al-Bukhaari, 4741)
- The one who does the contract on the woman’s behalf should be her wali, as Allaah addressed the walis with regard to marriage (interpretation of the meaning): “And marry those among you who are single…” [al-Noor 24:32] and because the Prophet (peace and blessings of Allaah be upon him) said: “Any woman who marries without the permission of her wali, her marriage is invalid, her marriage is invalid, her marriage is invalid.” (Reported by al-Tirmidhi, 1021 and others; it is a saheeh hadeeth)
- The marriage contract must be witnessed, as the Prophet (peace and blessings of Allaah be upon him) said: “There is no marriage contract except with a wali and two witnesses.” (Reported by al-Tabaraani; see also Saheeh al-Jaami’, 7558)
It is also important that the marriage be announced, as the Prophet (peace and blessings of Allaah be upon him) said: “Announce marriages.” (Reported by Imaam Ahmad; classed as hasan in Saheeh al-Jaami’, 1027).
Now who is this wali and why is his consent needed?
The conditions of the wali are as follows:
- He should be of sound mind.
- He should be an adult.
- He should be free (not a slave).
- He should be of the same religion as the bride. A kaafir cannot be the wali of a Muslim, male or female, and a Muslim cannot be the wali of a kaafir, male or female, but a kaafir can be the wali of a kaafir woman for marriage purposes, even if they are of different religions. An apostate (one who has left Islam) cannot be a wali for anybody.
- He should be of good character (`adaalah —- includes piety, attitude, conduct, etc.), as opposed to being corrupt. This is a condition laid down by some scholars, although some of them regard the outward appearance of good character as being sufficient, and some say that it is enough if he is judged as being able to pay proper attention to the interests of the woman for whom he is acting as wali in the matter of her marriage.
- He should be male, as the Prophet (peace and blessings of Allaah be upon him) said: “No woman may conduct the marriage contract of another woman, and no woman can conduct the marriage contract on behalf of her own self, because the zaaniyah (fornicatress, adulteress) is the one who arranges things on her own behalf.” (Reported by Ibn Maajah, 1782; see also Saheeh al-Jaami’, 7298)
- He should be wise and mature (rushd), which means being able to understand matters of compatibility and the interests of marriage.
The fuqahaa’ put possible walis in a certain order, and a wali who is more closely-related should not be ignored unless there is no such person or the relatives do not meet the specified conditions. A woman’s wali is her father, then whoever her father may have appointed before his death, then her paternal grandfather or great-grandfather, then her son, then her grandfathers sons or grandsons, then her brother through both parents (full brother), then her brother through her father, then the sons of her brother through both parents, then the sons of her brother through her father, then her uncle (her father’s brother through both parents), then her father’s brother through the father, then the sons of her father’s brother though both parents, then the sons of her father’s brother through the father, then whoever is more closely related, and so on —- as is the case with inheritance. The Muslim leader (or his deputy, such as a qaadi or judge) is the wali for any woman who does not have a wali of her own.
So it seems that the bride and the groom have to consent to their marriage. However, the hadith cited by the Sheikh equating silence with consent is misused a LOT in practice. There might be cases where the bride clearly refuses to marry but in most of the the forced marriages she only has to stay quiet. That is a low hurdle and should be unacceptable. There are maulvis/Nikah registrars in Pakistan that insist on a clear verbal reply from the bride. Obviously those are not called for the Nikah ceremony by people bent on forcibly marrying someone.
We will return to the wali issue later. Let’s first hear Moiz Amjad’s clear reply to a woman who had been forcibly married by her parents.
No one, not even the parents, have a right to force marriage upon any boy or a girl. Without the free consent of the woman (as well as the man), a marriage contract would be deemed void. Forcing marriage upon a woman is clearly against the teachings of the Prophet (pbuh).
According to a narrative reported by Abu Dawood, once when a case of forced marriage was reported to the Prophet (pbuh), he allowed the woman (who was forced into marriage) the option to revoke the marriage, if she desired to do so (Abu Dawood, Kitaab al-Nikah, Narrative No. 1797).
The free choice of the woman is a necessary condition for a valid Nikah. In view of this fact, if it is found out that a woman has been coerced into a Nikah, then such a Nikah can be revoked or even invalidated by the competent legal authority.
Nevertheless, considering the fact that you have signed the Nikah contract, you will now have to seek legal help to invalidate the Nikah, if your parents do not accept your basic moral and legal right.
Because you have been forced into marriage, therefore, your apparent husband does not have any moral or legal rights over you, till the time that you give him such rights, with the willingness of your heart. Under the stated circumstances, I do not consider it sinful on your part to refuse talking to him or to seek legal help in revoking the said marriage contract.
Back to the matter of the wali. There is this reply to a question about court marriage on Moiz Amjad’s site:
The Islamic Shari`ah does not prohibit any two adult persons from entering the bonds of marriage. However there are certain conditions, which need to be met. First, the consent of both the male and the female partner is necessary. Second, the Nikah should be declared in the society and must not be kept hidden. The Qur’an guides us that the contract of Nikah should be undertaken in the manner that is recognized, supported and followed by the honorable and noble people of a society. Social norms usually demand a consent and backing from the parents. However, if a parent does not give the right of entering the bond of marriage to their children and shows excessive unfounded resistance then the matter may be dealt as the situation demands. One may, under such circumstances, turn to the court and make the marriage contract there. Nevertheless, the best course would be to do every effort to get the parents’ consent so that the step of going to the court may be avoided.
If wali’s consent is not required, then what is the deal? Here’s how Shehzad Saleem explains it on Moiz’s site (Moiz does not necessarily endorse this opinion).
Islam on the other hand, as mentioned earlier, has always insisted that the institution of family is the basic building block of the society and it is in the interest of humanity to adhere to a family oriented society. Consequently, it has given a number of directives for the protection and preservation of the family.
[…]Among these directives also comes the Prophet’s hadith the interpretation of which has become the centre of controversy these days:
A Nikah does not solemnise unless it takes place through the guardian and if someone does not have a guardian the ruler of the Muslims is his guardian. (Tirmizii Kitaab-un- nikah)
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, 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 liaison. 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.
This is the law as far as this issue is concerned. However, it is evident that laws mostly cater for extreme situations as their nature is preventive not reformatory. In other words, they prevent the spreading of anarchy and disorder in a society but have no role in positively building a society on a certain ideology. It is the utmost goal of Islam to build a society in which traditions are so deeply rooted that various affairs are settled and resolved within the social structure without taking them to the courts. Family affairs, if taken to the courts, become the talk of the town and severely damage the standing and reputation of the parties involved. Consequently, it is in the interest of the parties involved to settle their differences mutually by giving due importance to the ultimate goal of protecting the institution of family.
The society which, we believe, Islam wants to build is one in which the relationship between parents and children is based on such norms and values as protect the family set up. In such a society, if an individual has to select a life partner for himself or herself, he or she must make the utmost effort to convince the parents. 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:
A girl once came to ‘A’isha and said ‘My father has married me to his nephew to alleviate his poverty through me. I dislike him.’ ‘A’isha replied ‘Wait here until the Prophet comes.’ The Prophet arrived shortly and she informed him of the matter. At this, the Prophet sent for her father. When he arrived the Prophet 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’. (Nisaii, Kitab-un-nikaah)
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.
The Sheikh is more adamant about obeying parents, though he thinks there is some leeway.
Consent is essential in the case of the husband, and also in the case of the wife. The parents have no right to force their son or their daughter to marry someone they do not want.
But if the person whom the parents have chosen is righteous, then the child, whether male or female, should obey the parents in that, because the Prophet (peace and blessings of Allah be upon him) said: “If there comes to you one with whose religious commitment and character you are pleased, then marry (your daughter) to him.” (Narrated by al-Tirmidhi, 1084; Ibn Maajah, 1967. Classed as hasan by al-Albaani in Saheeh al-Tirmidhi, 865).
But if obeying them will lead to divorce later on, then the child does not have to obey them in that, because consent is the foundation of the marital relationship, and this consent must be in accordance with sharee’ah, which is approval of the one who is religiously committed and of good character.
A child is not considered to be disobedient or sinful if he does not obey his parents in this regard.
Shaykh al-Islam Ibn Taymiyah said: The parents do not have the right to force their child to marry someone whom he does not want, and if he refuses he is not being disobedient towards them, as is the case when he does not eat what he does not want.
Now let us see the Sheikh present some evidence for his case:
It is not permissible for a man to marry a woman without the permission of her guardian, whether she is a virgin or previously-married. This is the view of the majority of scholars, including al-Shaafa’i, Maalik and Ahmad. This is based on evidence which includes the following:
The verses in which Allaah says (interpretation of the meaning): “do not prevent them from marrying their (former) husbands” [al-Baqarah 2:232]
“And do not marry Al-Mushrikaat (idolatresses) till they believe (worship Allaah Alone)” [al-Baqarah 2:221]
“and marry those among you who are single” [al-Noor 24:32]
The point here is that these verses clearly stipulate that there be a guardian in marriage, because Allaah is addressing the guardian with regard to the marriage of the woman under his care. If the matter were up to her and not him, there would be no need to address him.
It is indicative of Imam al-Bukhaari’s deep understanding of issues of sharee’ah that he quoted these verses in a chapter which he entitled “Baab man qaala la nikaaha illa bi wali (Chapter on those who say that there is no marriage without a guardian).”
It was narrated that Abu Moosa said: The Prophet (peace and blessings of Allah be upon him) said: “There is no marriage without a guardian.” (Narrated by al-Tirmidhi, 1101; Abu Dawood, 2085; Ibn Maajah, 1881. Classed as saheeh by Shaykh al-Albaani (may Allaah have mercy on him) in Saheeh al-Tirmidhi, 1/318)
It was narrated that “Aa’ishah (may Allaah be pleased with her) said: The Messenger of Allah (peace and blessings of Allah be upon him) said: Any woman who gets married without the permission of her guardian, her marriage is invalid, her marriage is invalid, her marriage is invalid. But if the marriage is consummated then the mahr is hers because she has allowed him to be intimate with her. If they dispute, then the ruler is the guardian of the one who has no guardian.” (Narrated by al-Tirmidhi, 1102; Abu Dawood, 2083; Ibn Maajah, 1879. Classed as saheeh by al-Albaani in Irwa’ al-Ghaleel, 1840)
Secondly: If her guardian prevents her from marrying the person she wants for no valid reason according to sharee’ah, then the role of guardian passes to the next closest relative, so it passes from the father to the grandfather, for example.
Thirdly: if all of her guardians prevent her from getting married for no valid reason according to sharee’ah, then the ruler is her guardian, because of the hadeeth quoted above (“…If they dispute, then the ruler is the guardian of the one who has no guardian”)
Fourthly: if there is no guardian and no ruler, then her marriage is to be arranged by a man who has authority in the place where she is, such as the head of a village, or the governor of a province, and so on. If there is no such person, then she should appoint a trustworthy Muslim man to arrange her marriage.
Shaykh al-Islam Ibn Taymiyah (may Allaah have mercy on him) said: If there is no relative who can act as her guardian, then the position of guardian passes to the one who is most fit among those who have any kind of authority in matters other than marriage, such as the head of a village, the leader of a caravan, and so on.
Ibn Qudaamah said: If a woman does not have a guardian and there is no ruler, then there was narrated from Ahmad that which indicates that her marriage should be arranged by a man of sound character, with her permission.
Shaykh `Umar al-Ashqar said: If there is no ruler of the Muslims, or if the woman is in a place where the Muslims have no ruler, and she has no guardian at all, like the Muslims in America and elsewhere, if there are Islamic institutions in that country that take care of the Muslims’ affairs, then they should arrange her marriage. The same applies if the Muslims have a leader who is in charge or someone who is responsible for their affairs.
So can a woman decide who her wali should be? According to the Sheikh, it depends on whether her closer relative is acting wrongfully or not.
If she wants to marry someone of equal standing, and the wali wants to marry her to a different person of equal standing, and he refuses to marry her to the person whom she wants to marry, then he is preventing her from marrying [wrongfully — ed]. But if she wants to marry someone of different standing, then he has the right to stop her, and in this case he is not preventing her from marrying in the wrongful sense.
[…]If the wali refused to let a woman marry a man whose religious commitment and character are good, then guardianship passes to the next closest male relative on the father’s side, then the next closest and so on. If they refuse to arrange her marriage, as usually happens, then guardianship passes to the qaadi, and the qaadi should arrange the woman’s marriage. If the matter is referred to him and he knows that her guardians have refused to arrange her marriage, then he should do that, because he is the wali in cases where there is no specific wali.
The fuqaha’ (may Allaah have mercy on them) stated that if the wali repeatedly refuses marriage proposals from suitable men, then he is a faasiq (evildoer) and is no longer regarded as being of good character or as being a wali, rather according to the best known view of the madhhab of Imam Ahmad, he also forfeits the right to lead prayers and it is not valid to offer any congregational prayer behind him. This is a serious matter.
Some people, as we have referred to above, refuse offers of marriage from compatible men, but the girl may feel too shy to come to the qaadi to ask for her marriage to be arranged. This is something that does happen. But she should weigh the pros and cons, and decide which has the more damaging consequences, staying without a husband and letting her wali control her life according to his mood or his whims and desires, and when she grows old and no longer wants to get married, then he will arrange her marriage, or going to the qaadi and asking him to arrange her marriage because that is her right according to sharee’ah.
Undoubtedly the second alternative is preferable, which is that she should go to the qaadi and ask him to arrange her marriage, because she has the right to that.
The four schools of jurispendence differ in the details on this aspect. The Hanafis (whose followers are the most numerous) are the most lenient. According to Kitab-ul-Fiqh, an adult woman has the right to marry of her own choice. The wali (guardian) has no say whatsoever if the bride and groom are of equivalent social standing. However, if they are not of equal standing, then the guardian has a very powerful veto. He can not only refuse to marry the woman, he can also get the marriage invalidated within a year of the wedding or before the couple have a child. The other schools (Shaafi, Hanbali and Maliki) are more strict. Some of them allow a veto to the wali in all cases and some allow it only if it is the woman’s first marriage. That means that they consider widows and divorcees to be independent women.
The issues about the consent of the wali have raised their ugly head in Pakistani courts a number of times with different judgements. Here is a description of two such cases:
On 25 September 1996, a single bench of the Lahore High Court consisting of Justice Abdul Hafeez Cheema ruled that a Muslim woman may not marry without the consent of her wali or male guardian – usually the father or grandfather – and that any marriage contracted by her without this consent is void. The judgment implies that men are free to marry or re-marry without anybodys consent except that of the prospective wife while no woman, whatever her age, may validly contract her own marriage without the consent of the wali or act as the wali for her daughter.
The judgment came in cases brought by two women, Ayesha Ijaz of Toba Tek Singh and Shabina Zafar of Faisalabad who had married men of their choice. Their fathers registered cases against the two women alleging that since they had married without their walis consent, the marriages were void and they had committed the offence of zina. The two women then moved the court to have the cases quashed, arguing that they were sui juris (i.e. had the legal capacity to act independently after attaining majority) and competent in law to get married with partners of their choice. The judgement upheld that the couples be prosecuted for zina as the marriages had been consummated. The Supreme Court on 23 October 1996 suspended the judgement following the admission of the appeal; the court returned the women to their fathers custody but restrained the fathers from arranging their daughters marriage to anyone else before a Supreme Court decision. The appeal is still pending.
However, in another similar case, a three-member bench of the Lahore High Court on 10 March 1997 split 2-1 in a majority decision that the consent of the wali is not required for a marriage to be valid. Saima Wahids marriage to Arshad Ahmad had been challenged by her father whose consent she had not obtained when she contracted her marriage. She spent 11 months in a womens shelter for fear that her father might kill her.
The cases have generated extensive debate in Pakistan. Judge Cheemas ruling conflicts with previous judgments which had viewed Muslim marriage as a civil contract between men and women who were free to enter the contract if they had attained puberty and were sui juris and had the marriage performed in the presence of witnesses and on payment of dower by the groom to the bride. Women activists have argued that marriages of Pakistani Muslims are governed by the Muslim Family Laws Ordinance of 1961 which in section 5 dealing with the registration of marriages does not require the consent of the wali. The standard marriage contract, the nikahnama, prepared and printed under the Muslim Family Laws Ordinance, requires only the signature of the bride and groom and of two witnesses and makes no provision for the signature or recording the consent of the wali.
You should also remember that under Pakistan’s laws, a woman convicted of zina (fornication) receives severe punishment.
So what is my opinion of this? Honestly, the Hanafi position does not look lenient at all to me. It all seems so ridiculous. A woman has the full right to marry anyone she chooses to, just like a man does. Obeying and respecting parents is a good idea but marriage is quite frankly a personal matter and parents should not interfere.
Next: Having looked at cousin marriages and forced marriages, I’ll discuss an interesting intersection of the two, arranged marriages.