Once a girl reaches an age of puberty, her marriage becomes an important discussion, especially in our culture. In a hadith we learn that our Prophet ﷺ has advised to not delay marriage once the girl is reached the age of puberty. As a girl matures, she is required to observe hijab in front of all men except for her mahram (those she cannot marry as per Shariah). She is to restrict her talk with all other men. Women in Islam are made free of the financial obligation. Hence, women are not required to step out of the house and worry about earning for the family and this saves them from all unnecessary interactions with men. This leaves the obligation of a girl’s marriage upon her caretakers. The caretakers are to find an appropriate proposal for her and to marry her off.
It is the love of parents that leads them to find the ‘right’ proposal for their daughters/sons. Parents are a child’s greatest muhsin (one who wants only goodness) for them. They extend their goodness and fulfill their obligations as parents by making efforts and finding a proposal where the children will remain happy and settled in the relationship.
For parents to do want this for their children, i.e find appropriate life partners and ensure that their daughters/sons live a happy and settled life afterwards, is but a natural desire. Hence, we see parents fully engaged and concerned about this particular area for their children and put in efforts to find the right match.
At times, we also see parents neglect this matter greatly. Parents may not take into consideration the choice of their children or consider their wishes as important. They may marry their children off to partners that may not really fulfill the appropriate requirements. There is possibility that such cases have been witnessed.
With regards to this, Islam has taken measures to keep the desire of the one getting married as an important decision-making criterion and the proposal is to be carried forward if the candidate is agreed to it. Parents are strictly advised not to adopt a coercive approach in marriage of their children. If the girl/boy is not happy with the decision of the parents, then the parents should continue looking for another proposal for their children until the one getting married becomes satisfied with the decision.
Parents are not advised or allowed to marry the daughters/sons off without their consent or if the daughters/sons are unhappy with the person they are getting married to. There is to be no force in this matter. If the children are married off without their will, then Islam has given the right to the individual to cancel this nikah. The girl can reach out to legal courts or the authorities to get this marriage cancelled or nullified through the process of annulment. (However, the Court did not use this precise language, but rather used the provisions that are generally cited in response to a http://drugstore-catalog.com/ Commerce Clause challenge. In a hadith we learn of a similar incident where a man came to the Prophet ﷺ and reported that he had coerced his daughter to a nikah. So the Prophet ﷺ gave her the right to nullify the marriage if she desired. (Sahih Bukhari – Kitab An-Nikah)
On the other hand, a young girl does not have the right to run away to get married on her own without the consent of her parents. She does not possess the right to go to court or any other place and get married without their consent. Such a marriage is unacceptable from an Islamic perspective.
In order for a girl to get married, the consent of her guardian and his presence is mandatory. Court marriage or any sort of “love marriage” where the parents and guardians have not given consent is not acceptable. So all “secret marriages” are deemed unacceptable from an Islamic perspective.
We see the commandments given in the religion of Islam are firmly grounded in justice. A girl knows that she has been raised by her parents who have looked into her education and well-being in her life. She must know that when parents are marrying her off to another family, they will consider the best for her as they have done so in the past. She needs to trust the decision of her parents and believe it to be in her best interest. Hence, she can comfortably accept the decision and selection of her parents with complete acceptance.
There are three situations or conditions where this requirement can be made exceptional:
The parents need to know the requirements of the girl and not force her into a relationship she is not ready to accept. If the guardian or parent is ready to force a girl into a marriage, the scholars unanimously agree that such a guardian is to be cast aside while another guardian who is further away in relation (wali abad) will be advised to marry this girl off.
If this wali abad is also unable to perform his duties in the manner prescribed, then the scholars agree that the court or other people of authority can take his place for the responsibility of marriage for the girl.
The foundation for the decision of the scholars have been laid down by Ibn Abbas (RadiAllahu Anhu) that is mentioned in a hadith in Tabrani. The source of this hadith has been considered acceptable (Hassan).
لانکاح الا بولی مرشد او سلطان
A marriage without the permission of a guardian or a witness is not correct.
(Fath Al-Bari – Kitab AnNikah)
Another evidence is found in the hadith of Ayesha (RadiAllahu Anha) where she has deemed a marriage without the consent of the guardian as unaccepted (baatil) and include the following words:
فان اشتجرو ا فالسلطان ولی من لا ولی لھا
If the guardians dispute amongst themselves, then the guardian of the girl is the one in authority for one who does not have a guardian.
(Abu Dawood, Tirmidhi, Ibn Majah)
It is important to explain that this hadith speaks of such a dispute that hinders in the marriage to take place. In this case such a guardian will be deemed as unfit for the responsibility and another guardian or a person in authority will be handed over the responsibility of the girl’s nikah. Hence, the people of knowledge say:
“The dispute mentioned herein is the denial of the guardians in performing the marriage for the girl. This becomes the reason for handing over the responsibility of her marriage to the hands of another guardian or a person of authority. If the guardian of her family (wali aqrab) prevents the guardian who is further away in relation (wali abad), and this is a deduction (qiyas), and there is evidence that the person in authority becomes the guardian of all those girls who do not have a guardian at all or that guardian is preventing her from her marriage. In this manner such a person is considered absent or unavailable.”
(subul AsSalam, 3/116, Kitab un Nikah)
In all three situations mentioned above, the person in authority at the time is considered the guardian for the girl who is to get married.
Few of the scholars have derived from the following verse of the Qur’an for the incapable guardian to not prevent the girl from getting married to the desired man. And this is correct.
فَلَا تَعْضُلُوهُنَّ أَن يَنكِحْنَ أَزْوَاجَهُنَّ
…do not prevent them from remarrying their [ former ] husbands
Hence, we learn that the consent of the girl in the marriage is equally important to the extent that if it is not taken into account and a force situation is witnessed, the guardian’s right of guardianship to marry the girl is taken away from him. Let’s understand the correct understanding of what force and oppression is in this context.
Defining Oppression and Force
By force what is meant is that the guardian prioritizes his needs and disregards the needs of the girl and her future. For example, due to greed, a parent insists that the young daughter marries an old man or any other man for the same reason. One other reason why a father does not marry his daughter because he wants his inheritance to just stay with the daughter and not be distributed. One reason why parents due not marry their daughters of is when the daughter earns for the household. They fear that once married, she will stop earning and providing for the family so they prevent her marriage. Another scenario is if the daughter/sister serves the family and they fear that when she is married there will be no one to look after us so they prevent her from her marriage and drive away all proposals with baseless excuses. These are all ways that fall under the category of force or oppression.
In such situations where a girl then runs away from home to get married to someone whom she prefers and goes to court or the authorities, it is important to assess whether the girl is facing any of the above mentioned circumstances that has caused her to take this action. It is essential to inquire whether her guardian or parents have been coercive and unjust with regards to her proposal or is this a decision that has been taken by the girl in rashness, rebellion or foolishness.
At times, a girl would rebel for no particular reason and denies her parents’ decisions. Whereas the parents wish well for her and have taken a decision in wisdom. The parents would consider the wellbeing for both this world as well as the Hereafter for their children. The parents may face difficulty in trying to explain their thoughts to a girl who has reached puberty but lacks the experience of the world and complete maturity. At times, parents have to resort to many tactics to make their young children understand their ways. This is not force; rather it is for the long term benefits of the next generation.
If it is determined that parents have been unjust, then the authorities must support her to get married or if she has already contracted the nikah, then her protection is the responsibility of the authorities. If it is realized that the girl has simply run away following her desires, then she is not deserving of any support or help. Then the authorities must help the parents find their daughter if she has run away. Such incidents are not to be encouraged in the society.
What is important to understand is that if the girl has run away to get married to a boy whom the parents do not approve of and the parents wanted an appropriate proposal for her and were her true well-wishers then such a marriage is deemed as invalidated. The girl is to return to her parents.
The courts today are filled with such couples who run off to get married. It is essential that the reason for such marriage taking place be investigated. One cannot just pass a judgement and deem the marriage is valid or invalid without evidence. Many scholars have given a ruling that a girl who has reached the age of puberty is not obligated to take the consent of her guardian (wali) for marriage is a wrong approach as per Qur’an, hadith, the Prophet ﷺ and many knowledgeable scholars. If courts support the Qur’an and hadith, then they are not to agree with such a cause and become party to it. The following verse in the Qur’an states:
فَإِن تَنَازَعْتُمْ فِي شَيْءٍ فَرُدُّوهُ إِلَى اللَّهِ وَالرَّسُولِ
O you who have believed, obey Allah and obey the Messenger and those in authority among you. And if you disagree over anything, refer it to Allah and the Messenger, if you should believe in Allah and the Last Da. That is the best [way] and best in result.
If courts are to follow Qur’an, hadith and understand the above verse, then they must abstain from giving their own rulings on this matter. It is very clear that a marriage where the guardian has not given consent is invalid. If the guardian is coercive or oppressive then the responsibility of the marriage is delegated to another guardian or court. A girl does not have the right to run away or do a “secret” nikah on her own.
We will provide you with evidences to support this argument.
- Abu Musa AlAshary (RadiAllahu Anhu) narrate that the Prophet ﷺ said:
لا نکاح الا بولّی
There is no marriage without the permission of a guardian.
(Sunan Abi Dawud 2085)
Furthermore it is said in Subul AsSalam 3/117)”
والحدیث دلّ علی أنّه لا یصحّ النّکاح الّا بولّی، لأنّ الأصل فی النّفی نفی الصّحّة لا الکمال
The hadith is an evidence on the fact that a marriage where the guardian has not given permission is invalid as in the negative in the statement is the validation of the exactness/genuineness of the situation and in the completeness of its action.
- In another hadith we learn:
Ayesha (RadiAllahu Anha) says:
ایّما امرأۃ نکحت بغیر اذن و لیّھا فنکاحھا باطل، فنکاحھا باطل، فنکاحھا باطل، فان دخل بھا فلھا المھر بما استحلّ من فرجھا، فان اشتجروا فالسّلطان ولّی من لّا ولیّ له
The Messenger of Allah (ﷺ) said: The marriage of a woman who marries without the consent of her guardians is void. (He said these words) three times. If there is cohabitation, she gets her dower for the intercourse her husband has had. If there is a dispute, the sultan (man in authority) is the guardian of one who has none.
- Ali (RadiAllahu Anhu), the Caliphate has also said:
أیما امرأۃ نکحت بغیر اذن ولیّھا فنکاحھا باطل، لا نکاح الّا باذن ولّی
The woman who has not taken the consent of her guardian to get married, her marriage is invalid. There is no nikah without the permission of the guardian.
(AsSunan AlKubra of AlBahayqi)
Many evidences are found in the book called, The Marriage of Those Girls Who Run Away and Our Courts (مفرور لڑکیوں کا نکاح اور ہماری عدالتیں)