#709: Her Father is a Kāfir: Who will stand as Waliy for Her?

QUESTION:

“Assalamu alaikum warahmatullah wabarakaatuhu. I understand that only a believer can act as a wali for a sister during nikah, what are her options if a sister has Christian father? how should she go about getting married? Jazakumullaahu khayran.”

ANSWER

Wa Alaykum Salām Warahmatullāh Wabarakātuh

Alhamdulillāh

First, as you have said, Legal Authority (Wilāyah) is never given to a Kāfir over a Muslim. This is a matter about which the Ulamā have agreed. Ibn Qudāmah Al-Maqdisī – rahimahullāh – said:

“As for a Kāfir, by the consensus of the Ulamā, there is no Wilāyah for him over a Muslimah. Among this Ulamā are Mālik, Ash-Shāfi’ī, Abū ‘Ubayd and the Rationalists .”

Second, in a situation where her father is non Muslim, the next that follows in line of Wilāyah in terms of succession and rank are differed upon by the Ulamā.

To the Hanafī Madh’hab, as mentioned in Fat’hu Al-Qadīr, it goes in the following order:

Son, grandson, Father, Grandfather, Great grand father, Full brother, Father’s Sons (half brothers) etc. And it is not permissible to turn to the next when the earlier is obtainable.

To the Mālikis, as mentioned by Ibn Juzayy, it is Father before Son, and then they agree with the ordering of the Hanafis.

As for the Shāfi’ī Imams, they agree with the Mālikis except that they do not see Wilāyah to be a position that can be held by sons. This was mentioned by An-Nawawī in Al-Majmū’.

Then the Hanbalis share the same position with the Mālikis except that they equate all the half brothers on the same priority level whether paternal or maternal. And Allāh knows best.

It is only in the absence of all of the Male Relatives that the Authority of the Qādī, the Amir, or a known Pious Person can be resorted to.

And Allāh knows best.

Bārakallāhu Fīkum
Jazākumullāhu khayran.

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