Question:
Assalamualaikum ustaz. Is a marriage valid if the wali is a smoker?
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 as 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, of which it 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]
Moreover, there are several characteristics or criteria that is necessary for a wali. We state several of the conditions as the following:
- Islam
A wali in a marriage has to be a Muslim. The reason is Islam doesn’t allow a non-Muslim to hold any authority or decide for Muslims. This is baes on the statement of Allah SWT:
وَلَنْ يجْعَلَ اللهُ لِلْكَافِرِينَ عَلَى الْمُؤْمِنِينَ سَبِيلا
“And never will Allah give the disbelievers over the believers a way [to overcome them].” [4]
- ‘Adalah (العدالة) (Fair and just)
In madhhab al-Imam al-Syafie, it is conditioned that a wali should be fair and juts. This means that he mustn’t be a fasiq. Just like the words of al-Imam al-Bujairimi: Indeed, the validity of a marriage occurs with the attendance of fair witnesses and also the fairness of a wali. [5]
We state the definition of ‘adalah as the following: Do not commit any major sins and isn’t continuous in committing minor sins. As well as not committing something that degrades him such as peeing by the road and others.
We agree with the words of Imam Ibn Hamdan Rahimahullah: Every major sin, even if it is just once, made a person a fasiq. While a minor sin, if he committed it thrice then he is considered fasiq. [6]
In answering the above question, we are inclined towards marriage with a wali who is a smoker is valid. On the condition that the wali first increases his good deeds and repented until the day of the wedding arrives. The reason is a wali who is a smoker means his ‘adalah (fair and just) trait is deficient.
To conclude, the attributes of ’adalah and fasiq aren’t permanent characteristics until the day he dies. The reason is a person’s faith fluctuates. It increases with obedience and decreases with sins and transgressions. Hence, a person who commits sins will make him a fasiq but by repentance, he can change into an ‘adalah.
Taking this opportunity, we advise all Muslims to stop smoking. There are numerous data that explain the harms of smoking compared to the benefits. Among the data published by the Health Education Division, Ministry of Health Malaysia regarding the dangers of smoking is that it can causes stroke, heart attack and lung cancer. [7]
Thus, we pray that Allah SWT grant us all the correct understanding in religion. Amin
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, hlm 9
[3] See al-Fiqh ‘ala al-Madzahib al-Arba’ah, 4/29
[5] See Hasyiah al-Bujairimi, 15/135
[6] See Sifat al-Fatwa wal-Mufti, pg. 13
[7] See https://www.infosihat.gov.my/isu-semasa/43-bahaya-merokok.html
