Question:
Assalamualaikum ustaz. My younger sister wanted to get married but my father refuses to be the wali for her marriage. When we go and meet him to get his agreement, my father refuses to be the wali for the marriage. Is it permissible for my sister to use a wali appointed by the court?
Answer:
Waalaikumussalam wrt. wbt.,
Alhamdulillah, praise and gratitude to Allah SWT for His countless blessings for us all. Praise and salutations to our beloved Prophet Muhammad PBUH, his family, companions, and all those who follow his footsteps until the Final day.
The presence of wali during the solemnization is one of the requisites of marriage. Marriage of a female, regardless of whether she is an adult or child, a divorcee or virgin, her wali should perform the solemnization for her. This is based in the hadith from Abu Hurairah RA< Rasullullah PBUH said:
لَا تُزَوِّجُ الْمَرْأَةُ الْمَرْأَةَ، وَلَا تُزَوِّجُ الْمَرْأَةُ نَفْسَهَا
“A woman may not give a woman in marriage, nor may she give herself in marriage,” [1]
Wali is one of the requisites of marriage. Without him, a marriage couldn’t happen. Among the roles of a wali is to give his consent for the woman to marry as well as have the authority to prevent his daughter from marrying. Allah SWT states:
فَلَا تَعۡضُلُوهُنَّ أَن يَنكِحۡنَ أَزۡوَٰجَهُنَّ
“Do not prevent them from remarrying their [former] husbands,” [2]
Ibn Kathir in his book Tafsir al-Quran al-‘Azim stated that the above verse is evidence that a woman cannot give herself in marriage and it must be through a wali and the wali in the issue asked here is the father of the woman.
A father who is the wali for his daughter shouldn’t refuse to marry off his daughter without reasons permitted by syarak. This is stated in a hadith, the Prophet PBUH said:
إِذَا جَاءَكُمْ مَنْ تَرْضَوْنَ دِينَهُ وَخُلُقَهُ فَأَنْكِحُوهُ إِلاَّ تَفْعَلُوا تَكُنْ فِتْنَةٌ فِي الأَرْضِ وَفَسَادٌ
“If a man comes to you of whom his religion and character you approve, then let him marry. If not, fitnah and destruction will spread on this earth.” [3]
According to the above question, if the wali refuses even when the wali is her father, the marriage can be performed with the sultan or ruler as the wali. The reason is giving a woman in marriage is the responsibility of the wali. If they refuse to fulfil their responsibility, then the judge will do so.
According to Imam al-Nawawi: “If the owner is absent (freer of the slave) or asobah (lineage wali), the sultan will marry her off. Likewise, the sultan will marry her off if the nearest wali and freer refuse to do so, refusal happens when a woman who has reached puberty and sane who wants to marry a person of kafa’ah (compatible) with her and the wali forbid it.” [4]
Syeikh Muhammad al-Zuhaili said: If the father refuses to give her daughter for marriage, then in this situation, the wali position wouldn’t be passed to the next wali in order, but the person who will be the one giving the woman for marriage by al-Sultan (in the current context it is the judge).
However, if the woman wanted to marry a person who isn’t compatible with her, then her wali can forbid the marriage by refusing to marry her off to the man. The reason is a wali reserve the right to choose a person who is compatible with her. [6]
Judge as the wali or some called it Sultan Wali and the wali appointed for a woman who doesn’t have a wali.
Before we end this discussion, we’d like to advise the wali as well as parents to always maintain good relationships with their children to have a good impact on a family and marriage and ultimately cultivate the value of ‘baiti jannati’ in a family.
Thus, we supplicate to Allah SWT to give us a clear and true understanding in religion. Amin.
We end with the supplication:
رَبَّنَا هَبْ لَنَا مِنْ أَزْوَاجِنَا وَذُرِّيَّاتِنَا قُرَّةَ أَعْيُنٍ وَاجْعَلْنَا لِلْمُتَّقِينَ إِمَامًا
“Our Lord, grant us from among our wives and offspring comfort to our eyes and make us an example for the righteous.”
Wallahu a’lam.
[1] Narrated by Ibn Majah (1882) and al-Daraqutni (3/227) and the rijal is thiqah
[2] Surah Al-Baqarah: 232
[3] Narrated by al-Tirmidzi (1085) and al-Baihaqi (13863)
[4] See Minhaj al-Tolibin, hlm. 207
[5] See al-Mu’tamad fi al-Fiqh al-Syafi’e, 4/66-67
[6] See Mughni al-Muhtaj, 4/253
