Question:
Assalamualaikum ustaz. Is a marriage valid if the judge who acts as the wali made a mistake in pronouncing the name of the bride’s father?
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.
Wali or in Arabic al-Wali (الوَلِي) lexically means “near or close by”. It is stated as “walyyahu, walyan” which means near or in its proximity. And “wali al-Amr”, when one is dealing with him and “Tawalla al-Amr” which means he is appointed.
The terminology, al-Wilayah is used as the highest leader, qadi, army and others. There are various meanings for the word wali or wilayah, it also means a proxy or representative or guardian that is likened to the wali in someone’s lineage, proxy in inheritance division and others. [1]
Furthermore, the other meaning al-Wilayah is it is the antonym of al-A’dawah, which originally means love and closeness. While the meaning of al-A’dawah is hatred and distance. [2]
Whereas wali in marriage is a person who determines the validity of the solemnization (marriage). The solemnization is invalid when he is absent. A wali can be the father, a person who is bequeathed, a close family member (al-Qarib al-Ashib), a person who freed a slave, a ruler and a king. [3]
The presence of a wali is obligatory during the solemnization. A marriage of a female regardless of whether she is an adult or a child, widow or virgin must be officiated by her wali. A woman shouldn’t be married, give herself in marriage or marry off another woman, whether it is with permission or not, even if there are ijab and qabul from the woman. This is based on a hadith from Abu Hurairah RA, Rasullullah PBUH said:
لاَ تُزَوِّجُ الْمَرْأَةُ الْمَرْأَةَ وَلاَ تُزَوِّجُ الْمَرْأَةُ نَفْسَهَا
“A woman may not give a woman in marriage, nor may she give herself in marriage,” [4]
Wali is one of the requisites of marriage. Without him, marriage cannot happen. Among the roles of a wali is to give his consent for the marriage to occur and the wali has a right to prohibit his daughter from marrying. Allah SWT states:
فَلَا تَعۡضُلُوهُنَّ أَن يَنكِحۡنَ أَزۡوَٰجَهُنَّ
“Do not prevent them from remarrying their [former] husbands,” [5]
Ibn Kathir in his book Tafsir al-Quran al-‘Azim stated that the above verse is evidence that a woman isn’t permissible to offer herself in marriage (without her wali) and it must be through her wali and the wali meant in this question is her father.
According to Imam al-Nawawi: In the absence of the owner (a person that has a right to free a slave) or asobah (wali due to lineage), the sultan will marry her off. Likewise, the sultan will marry her off if the close wali and freer refuse to marry her off, the refusal is when the woman has reached puberty rational and wanted to marry a man who is compatible (kafaah) and her wali prohibits it. [6]
According to the above question, according to Syeikh Muhammad al-Zuhaili, in madhhab al-Syafie, the ta’yin (determination) of the bride and groom in the solemnization ruling is obligatory. Ta’yin is sufficient with the name, signal or specific characteristics. If they aren’t determined, then the marriage is invalid. For example, a man begins the solemnization by saying, “I’m marrying off my daughter,” when he has two daughters and the daughter that he is marrying off isn’t specified. Thus, ta’yin doesn’t occur and the marriage is invalid. [7]
An Islamic legal maxim states:
الْأُمُور بِمَقَاصِدِهَا
“Every matter is based on the intention.”
Following this maxim, a certain act is evaluated by its intention and purpose. In this matter, the purpose of the marriage is determined by the bride even if the judge wali mistakenly pronounced the name of the father of the bride. Indeed, this matter is related to the intention as stated in a hadith narrated by Umar al-Khattab RA, who said he hear Rasullullah PBUH say:
إِنَّمَا الأَعْمَالُ بِالنِّيَاتِ، وَإِنَّمَا لِكُلِّ امْرِىءٍ مَا نَوَى فَمَنْ كَانَتْ هِجْرَتُهُ إِلَى اللهِ وَرَسُوْلِهِ فَهِجْرَتُهُ إِلَى الله وَرَسُوْلِهِ وَمَنْ كَانَتْ هِجْرَتُهُ لِدُنْيَا يُصِيْبُهَا أَوْ اِمْرَأَةٍ يَنْكِحُهَا فَهِجْرَتُهُ إِلَى مَا هَاجَرَ إِلَيْهِ
“Deeds are but by intentions and each man will have but that which he intended. If a man’s migration was for the sake of Allah, then his migration was for that for which he migrated, but if his migration was to achieve some worldly aim or to take some woman in marriage, his migration was for that for which he migrated.” [8]
An intention is one of the requisites in direct worship (العبادة المقصودة) such as prayer, hajj and fast. Such worships aren’t considered valid except if they are done with intention. Whereas indirect worship is just a wasilah such as ablution and bath, scholars of madhhab Hanafi hold the opinion that intention is only a perfect condition to receive the rewards. While scholars of madhhab Syafie and others state that intention is a valid condition for worship. Hence, indirect worships aren’t valid without intention.
Thus, in our opinion, if a judge wali mistakenly pronounced the name of the father of the bride during the solemnization, then the marriage is still valid if the bride has determined it in terms of the groom, wali, and two witnesses with only the name, signal and specific characteristics. A mistake with the father’s name isn’t such a major mistake if the ta’yin is supported with the original name of the bride, signal and known characteristics in the solemnization ceremony.
Wallahu a’lam.
[1] See al-Mausu’ah al-Fiqhiyyah al-Kuwaitiyyah, 45/135
[2] See al-Furqan Baina Aulia’ al-Rahmah wa Aulia’ al-Syaitan, pg. 9
[3] See al-Fiqh ‘ala al-Madzahib al-Arba’ah, 4/29
[4] Riwayat Ibn Majah (1882) dan al-Daraqutni (3/227) and the rijal are thiqah
[5] Surah Al-Baqarah: 232
[6] See Minhaj al-Tolibin, pg. 207
[7] See al-Mu’tamad fi al-Fiqh al-Syafie, 4/58
[8] Narrated by al-Bukhari at the beginning of his book Sahih, Muslim (1907), Abu Dawud (2201), al-Tirmizi (1646), Ibn Majah (4227), al-Nasaie (1/59-60), Ahmad in al-Musnad (1/25 and 43), al-Daruqutni, Ibn Hibban and al-Baihaqi.
