The Wali or Legal Guardian Part 01


Beliefs & Practices, Part 4-Nikah (Marriage) in Islam / Wednesday, March 31st, 2010

The person who has the power or choice of getting a boy or girl married is called a wali .

1. The first wali of a boy or girl is their father. If the father is not present, the grand-father becomes their wali . If he is not present, then the great grand-father. If none of them are present, the blood-brother becomes their wali . If he is not present, then the step-brother, i.e. brothers from one father. Thereafter, the nephew, thereafter the nephew’s son; and thereafter, the nephew’s grand-son. If none of them are present, the blood uncle becomes their wali . If he is not present, then the step-uncle, i.e. the step-brother of their father. Thereafter, the son of the blood uncle and thereafter his grand-son. Thereafter, the son of the step-uncle and thereafter his grand-son. If none of them are present, the father’s uncle becomes their wali ; and thereafter his children. If the father’s uncle, his children and grand-children are not present; then the grand-father’s uncle becomes their wali . Thereafter, his children, grand-children, and great grand-children.

If none of them are present, the mother will be their wali . Thereafter, the paternal grand-mother, then the maternal grand-mother and then the maternal grand-father. Thereafter, the blood-sister and then the step-sister, i.e. sisters from one father. Thereafter, the step-brother and then the step-sister who is from one mother. Thereafter, the paternal aunt, then the maternal uncle, and then the maternal aunt.

2. An immature person cannot become a wali of anyone. A kâfir cannot be a wali for any Muslim, nor can a lunatic be a wali for anyone.

3. A mature girl has the choice to marry or not to marry. She can marry whomsoever she wishes – no one can force her to marry a particular person. If she marries a person on her own, the nikâh will be valid irrespective of whether the wali is informed or not, and irrespective of whether the wali gives his consent or not. In all cases the nikâh will be valid. However, if she does not marry a person who is of the same social standing as her, and instead, marries a person who is of a lower standing than her family, and her wali is not happy about this marriage, then the fatwâ in this case is that the nikâh will not be valid.

If she marries a person who is in the same social standing as her, but the mahr that she receives is less then what is normally fixed in her paternal grandfather’s family, then although the nikâh will be valid, the wali will have the right to annul this marriage. The mahr that is normally fixed in her paternal grandfather’s family is known as mahrul mithl . The wali can go to a Muslim court and have such a marriage annulled. However, it should be borne in mind that this right of annulment is only possessed by all those walis whom we had mentioned  before  the mother. In other words, from the father onwards till the children of the grand-father’s uncle.

4. A wali performed the nikâh of a mature girl without asking her or without seeking her consent. The validity of such a nikâh will be dependent on her permission and consent. If she grants her permission, the nikâh will be valid. If she does not grant her permission or is not happy, the nikâh will not be valid. The method of granting permission is mentioned in the next mas’ala .

5. The wali came and informed a young virgin girl that he intends performing her nikâh with a certain person, or that he has already performed her nikâh with a certain person. Upon hearing this, she remained silent, began smiling or began to cry. All these responses of her’s will be considered to be a permission and a consent. Now, if the wali performs her nikâh , it will be valid. If he has already performed it, it will also be valid. It is not a prerequisite for her to give a verbal permission. Those who force a girl in giving a verbal permission are in error.

6. At the time of seeking her permission, the wali did not mention the name of her future husband, nor did she have any prior knowledge of him. In such a case, her silence will not be considered to be a form of consent, nor will it be considered to be a form of granting permission. It is necessary to mention the boy’s name or some other form of identification whereby the girl can understand that the wali is referring to a particular person. Similarly, if the wali performed the nikâh without mentioning the amount of mahr to her and it was far less than the mahrul mithl , the nikâh will not be valid without her permission. He will have to seek her permission again.

7. The girl is not a virgin, and instead had married previously and this is her second marriage. When the wali asks her or seeks her permission for this second marriage, her mere silence will not be considered to be a form of granting permission. Instead, she will have to give a verbal reply. If she does not give a verbal reply and remains silent, and despite this the wali performs her nikâh , then her nikâh will be in abeyance. Later, if she gives a verbal permission, the nikâh will be valid. If not, it will not be valid.

8. Despite the father being present, the uncle, brother or any other wali sought the permission of a virgin girl. If she remains silent, it will not be considered to be a form of granting permission. Only when she gives a verbal permission will it be considered. However, if the father sent these persons to seek her permission, her silence will be considered to be a form of consent. In short, the wali who is given the first preference in the Sharî‘ah and who has the most right to seek permission from the girl – when he asks her or when someone who has been sent by him asks her, then only will her silence be considered to be a form of consent. If the grand-father had the right of asking her, and instead the brother asked her; or if the brother had the right of asking her and instead she was asked by her uncle, then in such a case her silence will not be considered to be a consent.

9. A wali performed the nikâh of a girl without asking her and without obtaining her consent. After the nikâh , the wali or his messenger came and informed the girl that her nikâh with a particular person has been performed. In such a case, if she remains silent, this will be a permission on her part and the nikâh will be valid. But if someone else comes and informs her, and this person is a pious, reliable person, or two persons come and inform her, then by her remaining silent the nikâh will be valid. But if there is only one person who informs her and he is an unreliable person, then by her remaining silent the nikâh will not be valid. Instead, it will be held in  abeyance. When she gives a verbal reply or any other form of granting permission is found, then only will the nikâh be valid.

10. Upon being informed of her nikâh , the girl did not give a verbal reply although it was necessary for her to give a verbal reply. However, when her husband approached her she did not refuse him from engaging in sexual intercourse with her. Even in this case, the nikâh will be valid.

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