I saw in an IslamQA Fatwa yesterday that marriage of a virgin without a wali was invalid, turns out a majority of important sites hold this view, with only Islamonline offering at least a hint of an alternate explanation.
Here are the fatwas:
Islamweb's Fatwa:
Fatwa No. : 82103
Fatwa Title : Marriage without parents' permission
Fatwa Date : 19 Shawwaal 1421 / 15-01-2001
Question
I am a marriage celebrant for Muslims. A man and woman want to marry, both are adults. Father of the man refuses to agree unless he completes his PhD degree, in about two more years. Father of the woman refuses to agree out of fear of antagonizing the father of the man. There is pressure of Shaitan overcoming both man and/or woman in this society. Can the woman marry without her father's permission? My opinion is to marry as soon as possible. There is no financial problem for the marriage to go ahead.
Fatwa
Praise be to Allah, the Lord of the Worlds; and blessings and peace be upon our Prophet Muhammad and upon all his Family and Companions.
We ask Allah to grant you good reward for what you undertake i.e. arranging matches between Muslim young men and young women. But you should not try to help a girl to get married without the consent of her guardian, as marriage without al-Wali (guardian) is invalid. If you do so, you will participate in committing a sin. Allah Says (Interpretation of meaning): (Help you one another in Al?Birr and At?Taqwa (virtue, righteousness and piety); but do not help one another in sin and transgression. And fear All?h. Verily, All?h is Severe in punishment).[5:2]. The majority of scholars believe that marriage without a guardian is invalid because of the evidence from the Qur'an and the Sunnah. Allah Says (Interpretation of meaning): (And do not marry Al-Mushrik?t (idolatresses, etc.) till they believe (worship All?h Alone). And indeed a slave woman who believes is better than a (free) Mushrikah (idolatress, etc.), even though she pleases you. And give not your daughters in marriage to al-Mushrikin till they believe in Allah).[2:221]. Allah, then, has put marrying the girls into the hands of al-Waly. Allah, also, says: (And when you have divorced women and they have fulfilled the term of their prescribed period, do not prevent them from marrying their (former) husbands, if they mutually agree on reasonable basis). [2:232]. This is yet another evidence that the woman can not marry herself. There is also sound evidence from the Sunnah that the marriage that lacks the consent of the al-Waly is invalid. It is narrated from Ahmad, Abu Dawood, al-Termizi and Ibn Majah from the Hadith of Ibn Abbas that the Prophet Muhammad (Blessings and peace of Allah be upon him) said: "Marriage is invalid without the al-Waly". Aisha ( ) said: "Any woman, who gets married without the consent of her Waly, her marriage is invalid, her marriage is invalid, her marriage is invalid". Narrated by Abu Dawood and al-Termizi. Ibn Majah and al-Daraqutni narrated from Abu Hurairah that the Prophet said:"A woman has no right to marry another woman nor has she the right to marry herself as an adulterer / fornicator woman is the one who marries herself ".
It is a fact that the woman is very emotional by nature, this is why the Shari'a gives her guardian the right of marrying her. On the other hand, you should help in guiding people to submission to Allah, the Almighty, and beware of opening a gate of sins for yourself when your intention was to preach the good. As a result, you should try to convince this girl to obey her parents first and not to do anything that goes against their consent and will.
Allah knows best.
So this fatwa says that marriage without a wali is invalid-coz women are
emotional in nature!
Fatwa from
Muttaqunonline:
What is a Wali?
Protector, Guardian, Supporter, Helper, Friend etc. [plural 'Auliy?] see 33:17
The wali is the represention/mediator/guardian for women seeking marriage.
Who Needs a Wali for Marriage?
Men do not need a wali.
Women who have previously had marital relations with a man, can represent themselves and do not have to have a wali for seeking the husband, but they WILL need a wali for the actual marriage contract, i.e. Regardless, she still must not be alone with a non-mahram man, and she MAY of course, and is encouraged to, have a wali be involved to whatever level she is comfortable with. All of this is for her protection, so that she may be protected from inquiries by inappropriate men and possibly "fall in love" and regret it later. This way, the men's character is first screened for her, still leaving her with the ultimate decision.
Note that it may be argued that new reverts to Islam are as innocent as a virgin (since all sins are forgiven upon embracing Islam) and is recommended for new muslimahs have a wali for seeking marriage.
? The Prophet (sallallahu aleihi wa sallam) said: "A guardian has no concern with a woman previously married and has no husband, and an orphan girl (i.e. virgin) must be consulted, her silence being her acceptance." [Sunan of Abu Dawud 2095, Narrated Abdullah ibn Abbas]
? Malik bin Anas told us from 'Abdallah bin yazid- freed slave of al-aswad bin sufyan- from Abu Salma bin AbdalRahman from Fatimah, daughter of Qays who said,: Her husband divorced her and the Apostle of Allah ordered her to fullfil the 'Iddah in the house of Ibn Umm Maktum before she could lawfully remarry, and told her to let him know when she had become lawful for remarriage. When the time had come, she told him that Mu'awiyah bin Abu Sufyan and Abu Jahm had proposed to her.......
? Umm Salamah, r.a., a widowed woman, was proposed in marriage by Abu Bakr, and refused. Then she was proposed to by Umar and she refused. Then she was proposed to by Prophet Muhammad saaws and accepted. [source: The Alim for Windows release 4.51, Biography of Umm Salamah]
In all cases, the woman must consent to the marriage or the marriage can be ruled invalid. Virgins need not speak up to declare that they want a marriage; simply not speaking out against the marriage (her silence) is sufficient consent for a virgin.
? Malik related to me from Abdullah ibn al-Fadl from Nafi ibn Jubayr ibn Mutim from Abdullah ibn Abbas that the Messenger of Allah, SAAWS, said, "A woman who has been previously married is more entitled to her person than her guardian, and a virgin must be asked for her consent for herself, and her consent is her silence " [Malik's Muwatta, Book 28, Number 28.2.4]
? The Prophet saaws said, "A matron should not be given in marriage except after consulting her; and a virgin should not be given in marriage except after her permission." The people asked, "O Allah's Apostle! How can we know her permission?" He said, "Her silence (indicates her permission)." [Sahih Al-Bukhari 7.67]
? Narrated Khansa bint Khidam Al Ansariya "...that her father gave her in marriage when she was a matron and she disliked that marriage. So she went to Allah's Apostle and he declared that marriage invalid." [Sahih Al-Bukhari 7.69]
? "...Her guardian should not make a promise (to somebody to get her married to him) without her knowledge..." [Sahih Al-Bukhari 7.56]
Women who are virgins must have a wali when getting married.
? "No marriage is valid without a wali." [related by Ahmed and others and deemed sound by Ahmed, Ibn Hajar and others]
? The Prophet SAAWS said: "There is no marriage without the permission of a guardian." [Sunan of Abu Dawood 2080, Narrated Abu Musa]
? "When a woman marries without the permission of her wali, then her marriage is not valid, not valid, not valid." [Related by Ahmad, Tirmidhi and others. Tirmidhi said, this is a hasan Hadith] If the woman does not have a male mahram relative, the Imam closest to her locality, of the same faith as her, becomes her wali.
? "If they dispute, then the sultan (man in authority) is the wali of those who have no wali." [Dawud 2078, Narrated 'Aisha , also related by Tirmidhi and others. Tirmidhi said, this is a hasan Hadith. Ibn Majah and Imam Ahmad, Hadith number 1880; also in Salih al-Jaami', hadeeth number 7556.) Shaykh Al Albaanee declares it authentic in Saheeh Al Jaami' vol. 2, no. 7556. ]
? "The believers, men and women, are awilyaa?a (allies and protectors) of one another." [The Noble Qur'an 9:71]
? "...And never will All?h grant to the disbelievers a way (to triumph) over the believers. [The Noble Qur'an 4:141]
? "O you who believe! Take not for Auliy?' (protectors or helpers or friends) disbelievers instead of believers. Do you wish to offer All?h a manifest proof against yourselves?" [The Noble Qur'an 4:144]
? "And those who disbelieve are allies to one another..." [The Noble Qur'an 8:73]
If the wali is non-mahram, such as is the case with many new reverts to Islam, she should avoid ever being alone with him.
? "A man is never alone with a woman except that shaitan will be the third." (Related by Ahmed and Tirmidhi)
This fatwa also says that marriage without a wali is invalid.
Fatwa from
Islamonline:
Name of Questioner Nada - United Kingdom
Title The Wali (Guardian) in Marriage: Role & Responsibilities
Question Dear scholars, As-Salamu `alaykum. May Allah bless you in all your efforts to answer the following questions: What is the role and responsibilities of a wali? Can a wali be female? Does the wali have to be one's parents? Jazakum Allah khayran.
Date 24/May/2000
Name of Counsellor A Group of Islamic Researchers
Topic Marriage
Answer
Wa `alaykum As-Salamu wa Rahmatullahi wa Barakatuh.
In the Name of Allah, Most Gracious, Most Merciful.
All praise and thanks are due to Allah, and peace and blessings be upon His Messenger.
Dear sister in Islam, we would like to thank you for the great confidence you place in us, and we implore Allah Almighty to help us serve His cause and render our work for His Sake.
Islam stipulates that in order to conclude her marriage, a Muslim woman should have a guardian or wali, who is usually her father. Since the woman ? despite her Islamically granted independence ? was always subject to the desires of the ill-hearted and evil opportunists; Islam decreed certain legislations which would maintain her rights and deter those whom carry ill-aims and desires.
Therefore, Islam gave great importance to the approval of the woman's guardian in a manner, which reflects the significance of the marriage contract. Islam?s insistence on the guardian's involvement in the selection process is to ensure that the woman exercises her choice correctly.
The responsibility of a guardian in marriage is to help a female in selecting her husband. Usually, a female can hardly dig into essential information about a man, so a guardian, like a father, does his best for the interest and welfare of that woman. A guardian should be a Muslim male. The father is the guardian, next to the father comes the closest male.
If the girl wants to marry a certain person, but the wali is against it, then the judge will consider, why that guardian object the marriage; if the he has a good legitimacy in objecting that certain marriage, then the court will enforce his opinion. If he gives an incorrect and illegitimate reason, the guardian will have no power for marriage. The judge will give the girl the right to marry that person. No one can force the girl to marry anyone that she doesn't like to marry.
Elaborating on the role and requirements of a wali, we'd like to cite the following quotation from the course "Family Law I" offered by the American Open University:
"The wali is a Muslim man charged with marrying the one under his charge to a man who will be good for her. There is no disagreement that the first wali is her natural father if he is Muslim and that the last in line is the ruler. Between those two, there is some disagreement about the order but agreement that they come from the girl's paternal male relatives - no one from her mother's side enters into the picture. The order, according to many is: father, paternal grandfather, son, grandson, full brother, paternal half-brother, paternal uncle. The wali is an absolute requirement for a marriage, and any marriage done without him is null and void according to the majority of scholars based on the following hadiths:
"No marriage except with a guardian and the ruler is the guardian of she who has no guardian." (Reported by Abu Dawud & others and classed as sahih)
"If any woman marries without the permission of her guardian, then her marriage is void, then her marriage is void, then her marriage is void." (Reported by Abu Dawud & others and classed as sahih)
[However, according to Imam Abu Hanifah, a lawful gaurdian is not required if the woman is non-virgin (i.e. married before) or a virgin. Dawud Az-Zahiri, however, holds that a lawful guardian is needed in case of a virgin, and not the non-virgin woman who got married before. Yet still, the opinion of the majority is more correct and preferable especially under the now-a-days circumstances where marriages without the permission of the brides? families often lead to problems and bring about considerable harms. Editor]
It is the job of the wali to marry the woman under his charge to the best possible marriage candidate. He must not be guided by his own desires nor by her own desires. If the person is acceptable in both his religion and his character and appropriate to her in some other way discussed by the scholars, then he must facilitate the marriage and not refuse it for his own desires or biases. If the conditions are not right, then he must refuse the marriage, even if both the woman under his charge and the man desire it. This is a grave trust and he must do his best to fulfill it properly and not bring harm to the woman and/or to society. Almighty Allah says: "O, you who believe, do not commit treachery against Allah and against the Prophet nor betray your trusts though you know." (Al-Anfal: 27)
What about the case where the wali refuses someone on a non-Islamic basis? As was stated earlier, it is the job of the wali to act in the best interest of the woman according to the standards established by Islam. If a qualified person asks to marry the woman and he turns him down, then he is not doing his job. In such a case, the woman can complain to the judge or ruler and have her wali "fired" (removed).
The wali must be the same religion as the woman. A non-Muslim father cannot be the wali for his Muslim daughter."
Thus this fatwa also says that a virgin can't marry without a wali, although it still leaves a leeway that a Court can give her the right to marry, but it can also prohibit her.
So two young people,deeply in love
can't marry if the father of the bride objects?
If the woman elopes with her paramour & gets married without her wali, the marriage is invalid?
Topic: Multiple Fatwas! No Wali, No Marriage!