A young man proposed to a girl, but when the marriage contract was
done, the girl's father had a disagreement with his daughter's fiancé,
and refused to do the marriage contract. But the girl, her mother and
her brother wanted the marriage to go ahead, so they left their house
and rented an apartment, and they left the father who refused to do
the marriage contract, and the marriage contract was done; the
maternal uncleof the girl was the one who acted as her guardian (wali)
in this marriage contract, in thepresence of her brother. They argued
that the father does not pray andthey did not want him tobe the wali
of his daughter. How valid is this marriage contract?
Answer:
Praise be to Allah.
Firstly:
In order for the marriage contract to be valid, it is stipulated
thatit should be done by the woman's wali (guardian) or wakeel
(proxy), because of the hadeeth in which the Prophet (blessings and
peace of Allah be upon him) said: "There is no marriage except with a
wali."
Narrated by Abu Dawood, 2085; at-Tirmidhi, 1101; Ibn Maajah 1881 –
from the hadeeth of Abu Moosa al-Ash'ari; classed as saheeh by
al-Albaani in Saheeh at-Tirmidhi. He also said: "Any woman who gets
married without the permission of her wali, her marriage is invalid,
her marriage is invalid, her marriage is invalid."
Narrated by Ahmad, 24417; Abu Dawood, 2083; at-Tirmidhi, 1102; classed
as saheeh by al-Albaani in Saheeh al-Jaami', 2709
The wali of the woman is her father, then his father (paternal
grandfather), then her son, then his son (this is if she has
children), thenher brother through her father and mother (full
brother); then her brother through her father only (half brother),
then their (brothers') sons, then the paternal uncles, thentheir sons,
then the paternal uncles of the father, then the ruler.
See al-Mughni, 9/355
Secondly:
With regard to the one who does not pray, if he does not pray at all,
thenhe is a kaafir according to the more correct of the two scholarly
opinions. See the answer to questions no. 2182and 5208
Based on that, it is not valid for him to be a walifor marriage,
because the kaafir cannot be a wali in the marriage of aMuslim woman,
according to scholarly consensus.
Ibn Qudaamah (may Allah have mercy on him) said: With regard tothe
kaafir, he has no wilaayah (guardianship)over a Muslim woman under any
circumstances, accordingto the consensus of the scholars, including
Maalik, ash-Shaafa'i, Abu'Ubayd and ashaab ar-ra'y. Ibn al-Mundhir
said: All of the scholars from whom we acquiredknowledge are
unanimously agreed on that.
End quote from al-Mughni, 9/377
Shaykh Ibn 'Uthaymeen (may Allah have mercy on him) said: If he does
not pray, it is not permissible for him to do the marriage contractfor
any of his daughters. If he does so, then the marriage contract is
invalid, because one of the conditions of being the wali (guardian) of
a Muslim woman is that heshould be a Muslim.
End quote from Fataawa Noor 'ala ad-Darb
Thirdly:
If her brother was an adult of sound mind, then he is her wali. If he
appointed her maternal uncle to do the marriagecontract, then the
marriage is valid. However the maternal uncle is not one of the 'asbah
(male relatives onthe father's side), so he cannot be the wali in
thecase of marriage and his giving the woman in marriage is not valid
except in two cases:
(i) If the wali appointed him as his representative. If
he did not appoint him, but he was present when the marriage contract
was done and he approved of it, then perhaps this takes the place of
(explicit) appointment and permission, becausesilence in such a
situation constitutes approval.
(ii) if the marriage contract has been done and was
officially documented in a Muslim country that adopts the [scholarly]
view that it is permissible for the maternal uncle to give his
sister's daughter in marriage, or the view that it is permissible to
do the marriage contractwithout a wali, then the marriage contract is
valid, because the ruling of the judge in matters that are subject to
differences of scholarly opinion is to be implemented and not
annulled.
And Allah knows best.
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