CHAPTER 4: THE MARRIAGE CONTRACT (2)
The Woman’s Wali
Ruling
A woman may not independently give herself in marriage. Her wall (guardian) should represent her in doing that. He should take her consent if she is a virgin. Otherwise, he should follow her instructions.
Abu Musa al-Ashari, ‘Abdullah Bin ‘Abbas, Jabir Bin Abdillah, and Abu Hurayrah reported that Allah’s Messenger (pbuh) said:
“A marriage (contract) is not valid without a wali.” (Recorded by Abu Dawud, at-Tirmidhi, and others. Verified to be authentic by al- Albani(Irwa’ ul-Ghalil no. 1839).)
Thus, the presence of the wall for the execution of the marriage contract is a condition for its validity.
Who is a Woman’s Wali?
Normally, a woman’s wali is her father. If, for any reason, her father is unable to be her wall, her wall would then be her next closest mahram (grandfather, son, brother, uncle, etc).
If the woman’s close relatives are non-Muslims, they may not be her shar’i guardians. Allah (swt) says:
“Allah will never grant to the unbelievers a way (of authority) over the believers” (Recorded by Abu Dawud, at-Tirmidhi, and others. Verified to be authentic by al- Albani (Irwa’ ul-Ghalil no. 183)
A woman may not take another woman as her wall. Abu Hurayrah reported that Allah’s Messenger (pbuh) said:
“A woman may not give another woman in marriage, nor may a woman give herself in marriage.”
Abu Hurayrah added:
“For, indeed, it is an adulteress who gives herself in marriage (without her wall’s consent).” (Recorded by Ibn Majah, al-Bayhaqi, and others. Verified to be authentic by al-Albani (Irwa’ ul-Ghalil no. 1841).)
If the bride does not have a Muslim blood-relative as wall, the Islamic authority, represented by the ruler or judge, would appoint a wall for her. In many non-Muslim countries, the local imam of a Muslim community carries out the common duties of an Islamic judge, and would therefore be the wall of a woman who has no wall.
‘A’ishah reported that Allah’s Messenger (pbuh) said:
“A marriage (contract) is not valid without a wall. And the (Islamic) authority is the wall of the one who does not have a wali” (Recorded by Ahmad, Abu Dawud, and others. Verified to be authentic by al-Albani (Irwa’ ul-Ghalil no. 1840).)
A Woman May Not Appoint Her Wali
A common practice in many non-Islamic countries is that a woman, having no Muslim mahram as wall, would appoint her own wall. This is wrong, and she has no right to do so. As we saw above, this is the right of the Islamic judge or imam.
This incorrect practice has caused a number of bad consequences, among which are the following:
1. The appointed wall is often found unworthy of the trust invested in him and incapable of properly serving his principal’s interests.
2. Some women take liberty in dealing with the wall. They treat him as an intimate friend or relative, often sharing with him intimate secrets and going into khulwah (complete privacy) with him, which often leads to committing major sins.
3. Some women expect from the wali much more than what is within his capacity. His only duty is representing the woman and serving her best interest in regard to the marriage negotiations and contract. Once that is done, his duty ends and he stops being her wall. Some women, however, think that the wali’s position is permanent, and they contact him for every little or big problem in their life. This results in a relationship that is quite intimate and may lead to serious sinning as in (2) above.
Marriage Without a Wali
From the above, we conclude that the presence of the wall (or his representative) is a required condition for the validity of the marriage contract. Therefore, a marriage that is held without the waifs consent and approval is null and void.
‘A’ishah reported that the Messenger (pbuh) said:
“Whichever woman marries without her wali’s permission, her marriage is void, her marriage is void, her marriage is void. If he (the husband) performs intercourse with her (despite the invalidity of their marriage), the mahr becomes her right because he had access to her private parts. And if they dispute (with the wall about this or other matters), the ruler would then be the wall of the one who does not have a wali.” (Recorded by Ahmad, Abu Dawud, and others. Verified to be authentic by al-Albani (Irwa ul-Ghalil no. 1840).)
A Difficult Wali
A wall is required to represent his principal and serve her best interest. From the above hadith of ‘A’ishah we see that if the wali causes unnecessary harm to his principal or prevents her from doing things that Allah has made permissible for her, she may protest and dispute that before the Islamic authority. In that case, and if her allegations were found true, the Islamic judge may command the wali to change his course of action, transfer his guardianship to another man, or make other decisions as he sees fit in her case.
Ma’qil Bin Yasar reported that he married his sister to a man who subsequently divorced her. After the end of her ‘iddah, he came seeking to remarry her. Ma’qil said to him, “I married her to you, gave you furnishings, and was generous to you, but you divorced her! No, by Allah, she will never go back to you!” But the man was reasonably good, and the woman wanted to go back to him. Allah (swt) then revealed:
“And when you divorce women and they have fulfilled their terms, do not prevent them from remarrying their husbands — if they agree between themselves on reasonable terms.” (Al-Baqarah 2:232.)
Ma’qil then said to Allah’s Messenger (pbuh), “Now I listen and obey, O Allah’s Messenger!” So he let them remarry, and expiate his oath. (Recorded by al-Bukhari, ad-Daraqutni, and others. )
The Wali’s Responsibility
The wall, whether natural or appointed, holds a major responsibility before Allah toward his principal. He should represent her and look after her interest in the best possible way. He should make sure that the man who seeks marrying her is suitable for her. His criteria should be what pleases Allah (as has been outlined in Chapter 2), and not what brings him better social status, wealth, or other worldly gains.
If it is demonstrated that the wall is not worthy of his responsibility, he loses his walayah (position as being wait) according to the procedure outlined earlier.
The Witnesses
Another condition for the validity of a marriage contract is the presence of at least two trustworthy Muslim male witnesses.
‘Aishah, Imran Bin Hasayn, and Abu Musa al-Ashari reported that the Prophet (pbuh) said:
“A marriage (contract) is not valid without a wali and two trustworthy witnesses.” (Recorded by Ahmad, Ibn Hibban, and others. Verified to be authentic by al-Albani (Irwa’ ul-Ghalil no. 1839, 1858, 1860).)
The witnesses should witness and hear all of the contract’s details, including the permission given by the bride to the wall.
The Mahr (Dowry)
Definition and Ruling
In Islam, the dowry is a mandatory marriage gift given by the husband to his wife at wedding. In Arabic, it is called mahr or sadaq.
Allah (swt) commands:
“And give the women (upon marriage) their dowry as a free gift.” (An-Nisa 4:4.)
Commenting on this ayah, al-Qurtubi said:
“This ayah indicates that the woman’s sadaq is mandatory. There is a consensus on this (among the scholars), and there is no difference in its regard …” (Al-Jami’u li-Ahkam il-Quran.)
And Allah (swt) commands:
“And give them (the women that you marry) their compensation as an obligation.” (An-Nisa 4:24.)
And Allah (swt) commands:
“So marry them (slave girls) with their people’s permission, and give them their compensation according to what is reasonable.” (An-Nisa 4:25.)
Even though the mahr is an obligation on the husband, there is no proof to make it a condition for the validity of the marriage contract. As we will see below, a marriage contract could possibly be executed without specifying a mahr. However, that should normally be avoided because it may lead to future complications and disputes.
Who Takes the Mahr
The mahr is the sole right of the wife and no one may take any of it without her permission — not even her parents.
Some people may object to the above by citing the story of the old man who offered his daughter in marriage to Musa and took her dowry in the form of labor work from Musa (see p. 48). However, as- San am indicates, that was possibly permissible in the laws prior to Islam but was abrogated in Islam.(Subul us-Salam.) Furthermore, Musa’s service to the old man may have profited Musa’s wife as well. Also, she may have agreed with her father to take something from him in exchange for Musa’s service, or wanted to give up her mahr as a gift to her father.
The mahr is a compensation that the wife takes in return for making herself available to her husband. Thus, Allah (swt) gives her full right to it, even at the time of divorce — if her husband divorces her without any default on her part. Allah (swt) says:
“If you want to substitute one wife for another, and you have given one of them a qintar (Qintar. According to Lisan ul-Arab, it is a large indefinite quantity of gold or silver. Most commonly, the Arabs used to mean by it four-thousand dinars (or gold coins).) , do not take back any of it. Would you take it in injustice and manifest sin? And how could you take it while you have intimately dealt with each other, and they (your wives) have taken from you a solemn covenant?” (An-Nisa 4:20.)
We will show below that the “qintar” in this ayah does not only refer to the mahr, but also to gifts and other items that the husband gives to the wife who lies then wants to divorce without a serious reason.
Therefore, it is up to the wife if she wants to keep all of her mahr, give some of it to her parents or other people, or even give some of it back to her husband (Note that the way a woman dispenses of any of her property would still be subject to her husband’s approval. This is discussed further in the third part of this series, “The Fragile Vessels”, by the Author.). Allah (swt) says:
“And give the women (upon marriage) their dowry as a free gift. But if they willingly give up any of it to you, enjoy it with pleasure and satisfaction.”(An-Nisa 4:4.)
By Muhammad Mustafa Al-Jibali
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