Q&A (Fatwa)

#1174: Advice To The Muslim Sister Who Got Married Without The Consents Of Her Father

Please I need an urgent response to my question.

I am a Muslimah and I found myself in a situation I don’t understand properly. I have a father and mother and they are both Muslims but it turned out that my dad has some problems with a particular brother in my community that is interested in me so we opted for a nikkah which my mum was aware and her sister was a witness. My dad was not aware and was not informed also neither was any of my uncles from my dad side aware of this development except one of my uncle from mom’s side and he was not presented.
Please note that it was not as if we actually met my dad and talked to him about this and he rejected. So the younger brother of the brother I did the nikkah with stood as wali (guardian) for me and the Nikkah was conducted. So I met someone who informed me that this nikkah is not valid as it was not done properly, that my dad was supposed to be the Wali as he is a muslim and if he can’t stand as a wali for me for whatever reason, it goes to other people from his side like my grandfather, uncles and brother.
So no one from my dad’s side was aware either as a witness or a guardian and my uncle from my mum’s side was only aware.
Ustaadh , is this nikkah valid? Can my brother in-law actually stand as a wali for me even though we are not related?
I was the one that was asked to pick someone as a Wali and I picked his younger brother not knowing if this was right or not and this was because we were not sure that my dad will allow me to get married to him.

Please I need a detailed response on this matter as I noticed that many sisters are in this situation today. The issue of who can be a wali and who is supposed to be the next if the rightful person can’t be the Wali for some reasons should be clearly spelt out so others can benefit. The only people present in this nikkah was myself, my mum, her sister, the brother I did the nikkah with and her brother that stood as wali making it five people.
I didn’t really think of all these until my attention was drawn to it by someone I confided in about this marriage.

Please Ustaadh, I will appreciate your response as soon as possible in a detailed manner. May Allaah reward you abundantly.

ANSWER

Assalāmu Alaykum Warahmatullāh Wabarakātuh.

Alhamdulillāh, Beloved one, it is imperative to know that one of the most important conditions for the attainment and perfection of Nikāh is the consent and indulgence of the Wali in the ‘ Aqd and the Nikāh process and it is the most important Conditions among the Conditions of Nikāh according to some of the Fuqahā. Can’t you see that Allāh placed the responsibility of Making the Nikāh for their subjects on the Wali when He said :

وأَنْكِحوا الأيامى منكم

“And give in marriage the spinster girls among you”

And the Rasūl Salallāhu Alayhi Wasallam said categorically as was recorded by Imām Abū ‘Īsa At-Tirmidhī:

أَيُّمَا امْرَأَةٍ نَكَحَتْ بِغَيْرِ إِذْنِ وَلِيِّهَا فَنِكَاحُهَا بَاطِلٌ فَنِكَاحُهَا بَاطِلٌ فَنِكَاحُهَا بَاطِلٌ

“Any woman or girl who gets married without the permission and indulgence of her Wali, her Nikāh is nullified and not enacted, her Nikāh is nullified, her Nikāh is nullified”

There is no argument after this Statement that is confirmed from the Rasūl Salallāhu Alayhi Wasallam.

What was said by the person who told you that the Nikāh is not enacted is true and there is no mincing words about that.

The Wali that is recognized by the Sharī’ah starts with the Father, then the Grandfather, then the Great grand father and above, then the son, then the grand son and those sons in that order, then the brothers from same father and mother, then the brothers from only the same father, then the brothers from only the same mother, then the Paternal Uncles, then the sons of Paternal Uncles, then the sons of the Brothers… And in that order.

It was entirely wrong for you to take your father out of the picture and this is against the teachings of the Dīn. What was obligatory on you and the brother, though you perceived that your father might not approve of the marriage, nonetheless, was to seek his consent and bring the matter to him. In his presence and his life, provided he is a Muslim and has not done anything that repudiates his authority of Wilāyah over you in the Sharī’ah, there is no one else that has the authority to make and sanction your Nikāh as he is the first of the Awliyā.

What we advise you to do in other to make this up is to return to your father and seek his forgiveness, then seek a reenactment of the marriage in accordance with the Sharī’ah where the conditions are fulfilled.

To make it clearer, the conditions for the fulfillment of Nikāh are:

1. The Walī’s permission and indulgence
2. The Sadāq given immediately or in arrears as agreed or assumed
3. The witnessing of at least two Witnesses aside the Giver of the Marriage (the Walī) and the Acceptor of the Marriage (the Husband or whosoever represents him)
4. The Willful acceptance and involvement in the Marriage by both the Bride and the Groom
5. The Offer and Acceptance (though there is a difference about this Condition).

Seek for Allāh’s forgiveness for what you have done, both of you, and ensure you make up for it. The Rasūl Salallāhu Alayhi Wasallam said in the Hadīth that was narrated by Mu’ādh bn Jabal radiyallāhu’anhu:

وأتبع السيئة الحسنة تمحها

“And follow up vices with good deeds – they will expiate for them”

And Allāh knows best.

Bārakallāhu Fīkum
Jazākumullāhu Khayran.

Abū Asim

28th Shawwal, 1443AH

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