#600: Can a Woman appoint another Waliy for Herself aside her Father?

QUESTION

“Assalamu alaykum admin pls can a woman appoint for herself another wali apart from her daddy??”

ANSWER

Wa alaykum Salām Warahmatullāh Wabarakātuh

Alhamdulillāh.

Beloved one, may Allāh be merciful to us and to you altogether, it is not permissible for anyone to stand as the Wali of a Muslim Sister in the lifetime of her Muslim father unless he deputes someone else to be on his behalf (__Wikālah__) her Wali or he is not Muslim.

This is a matter about which majority of the Ulamā have agreed.

In a situation where the Wilāyah moves from the father, then the Ulamā formed a consensus that it goes in the followng order:

It was mentioned by the Hanafi Imām Al-Kamāl Ibn Al-Humām in Al-Fat’hu Al-Qadīr:

“Therefore the Men kins by way of family are put first. The first of them is the son and his son though of the lower generation…then the father then the grand father, then the sibling brother with same father and mother then the paternal nephew, then the Paternal Uncle who is same father and mother with father, then the father’s paternal uncle, then the cousin from an uncle who is same father and mother with father, then any of the father’s paternal cousins, then any other father’s uncles. Same other then applies to other siblings, then the sons of siblings…”

This is because the Hanafis gave preference to the son over the father in order of Wilāyah if a woman already has a son.

Imām Ibn Juzayy Al-Mālikī – rahimahullāh – said:

“The third matter: On the matter of the Order of Wilāyah: as for the one that has the right (to marry out without) consultation, it is the father and then whomsoever he leaves with this legacy. As for those that don’t have this right, then they are in the order of the close of relative then the relationship of protection (Mawlawī) and then the Sultān. Then the foremost among the relatives is the son then his son even though low in generation then the father then the brother then the nephew then the grandfather then the paternal uncle then the paternal cousin. And it was said, the father takes precedence over the son.”

Imām An-Nawawī Ash-Shāfi’ī – rahimahullāh – said in the Majmū’:

“And the most rightful of the Awliyā is the father then the grandfather the the great grand father, then the brother with same father and mother, then paternal brother then maternal, then male cousin even if younger, then the rest of the male relatives like is the situation in inheritance. And the brother from same father and mother is given preference over the brother from same father only, this is the more right position. And the son has no right to marriage.”

This is because the Shāfi’īs considered that the son should not give his mother out in marriage because of his emotional attachment.

As for the Hanbalis, they agree with the Mālikī position except that they unrestrictedly put the father before the son whereas there is a difference of opinion within the Mālikī School on whether the son should precede the father even though they agree that only the father can marry her out without consultation.

And the majority of the Ulamā within the Mālikī and the Hanafi Schools held that the father must get precedence over the son in the order.

It should be known also that the minority that gave precedence to the son over the father held that position because they considered that once a woman has a son, the father’s unique guardianship over her is weakened by the son’s attachment to her and he should be in the best position in protecting her and standing for her rights, and Allāh knows best.

However, this position is weak as we have stated.

From what has preceded, it becomes clear that what some sisters do of taking the right of Wilāyah away from their families is entirely out of Islām and unacceptable.

And Allāh knows best.

Bārakallāhu fīkum
Jazākumullāhu Khayran

20th Ramadān, 1439A.H.

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