#809: Advice to Muslim Sister on Marriage

809. QUESTION

Salaamun alaykum ustaadh. May Allaah preserve you upon goodness.

Am asking this on behalf of a sister.
She presented a broda she wanted to marry to her mother, her mum went to browse (soothsayer) about it and refused the offer of this broda. This broda and his family has gone there several times to persuade this woman but she refused and the elders of this sister were mute and even discouraging the sister to forget the broda bcoz their mother has the final say and their father was late. No body is ready to assist this sister even from maternal side bcoz her mother has influence over everyone. Before now, this woman had frustrated the effort of her first daughter with objections as she refuse the man she brought to her and now she is a single mother out of wedlock as a result of frustration.
Our sister is a practising sister whose condition demands that she married in time bcoz of her peculiar natural urge but her mother is frustrating her life and she don’t wanna suffer the same fate with her sister. She had even thought of committing Zina till i encouraged her to be patient and stop such thinking. To cut the story short, she cant trace her paternal people as they were deprived of knowing them from childhood under the saying that the paternal pple didn’t cares about them and that they usurped their father’s properties after death.
This sister is emotionally traumatised and she is thinking of leaving the house to this broda family house and this could be a fitnah.
Please she need justice in her case.
Can they do the nikkah in shariah court despite her mother disapproval?
What is the way out for her?

ANSWER

Wa Alaykum Salām Warahmatullāh Wabarakātuh

Alhamdulillāh, I ask Allāh to bless this Sister and the brother who is asking these questions on her behalf, amīn.

First, It is a rule in the Sharī’ah that a Mother does not have the right to give or refuse to give her daughter out in marriage in terms of Wilāyah because Wilāyah. Ibn Hazm Al-Andalusī mentioned in Al-Fasl that it is a matter of agreement among the Ulamā. However, it may not be her right, a child or the people possessed of the right of Wilāyah may accord her the right to make a final say in that regard, this should be known. Inference here is to say that there is nothing wrong in a situation where the mother has a final say, as long as she doesn’t be the one to do the actual giving out, especially given the situation where she was responsible for the upbringing of the children.

Second, the Ulamā are agreed that the Father has the superior authority of Wilāyah in terms of the Nikāh of his daughter. There is no dispute in that. However they are also agreed that whenever the father genuinely oppresses his daughter by forbidding her a husband by withholding to give her out to a man of right attitude, reasonable situation and Dīn who has presented himself for marriage, without a justifiable reason, if this is deemed oppressive and unnecessarily hard, he loses his right to Wilāyah automatically and that right moves to the nearest of Wilāyah authority among the Male relatives of the father’s family. With respect to the order of who has the superior right after the father among the Male relatives of the Father’s, the Fuqahā have differed. We have referred to this differences in Question 739 on our Telegram Channel, you may refer to that for better understanding.

Likewise, they are agreed, as Ibn Qudāmah Al-Maqdisī mentioned in Al-Mughnī that whichever woman has no sound Walī among her father’s relatives or if they are all involved in oppressing her and unnecessarily preventing her from Nikāh, that the Muslim Leader becomes her Walī. In his absence, the Muslim Judge in a Sharī’ah Court has that Prerogative.

If this is established and agreed upon concerning the father who has the supreme right to Wilayah, then that it should apply to the mother whose right to Wilayah is agreed upon to be invalid is more established. She had no right to it in the first place but may only be accommodated by way of Ih’sān and respect. Why then should she be oppressive and unnecessarily stubborn on such a matter.

However, you are advised to thread carefully and with wisdom. Do not take any foolish steps on this. And your using your elder sister’s situation as a proof does not change anything. In this matter and any matter that has to do with marriage and it’s matters, Ulamā are agreed that Fatwah is not passed without clearly Understanding the matters that abound. So this is not a Fatwah to be careless, it’s a Fatwah to be cautious.

Do not be carried away by the plot of Iblīs and begin to think of moving to this house. This is Zinā and steps toward it.

Do not throw yourself to any Sharī’ah Court without thinking, this could break your relationship permanently with your family and may not be mendable after that.

My advise: invite Scholars you think your mother respects or neighbours to speak to her that is if you think that will help and will not worsen the situation. Or your mother’s friends who are sensible. If that does not work, then you may approach the courts and seek Allāh’s help.

As for the brother who wants to marry her, this goes to warn you to fear Allāh and do not take advantage of her or her situation. Realise that Allāh will ask you and you will be punished severely on the Last Day if you are careless and reckless on this. Keep the distance the Sharī’ah commanded of you and seek to help her through the situation by taking the Legal Steps commanded by the Sharī’ah as we outlined above.

Lastly, may Allāh see her through this challenge and keep her steadfast upon the Dīn, amīn.

Bārakallāhu Fīkum
Jazakumullāhu Khayran.

6th Shawwal, 1440AH.

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