Question: How do we, as teachers in the West, deal with sisters who come to us to act as their guardian (wali) in marriage, especially in cases when they do not
20 May 2024 • 3.8K views
Sheikh Muḥammad Al-'Ansi ḥafidhahullāh responds:
"The basic principle, may Allāh protect you all, is that a woman must be married off by her guardian, based on the saying of the Prophet, peace be upon him, "There is no marriage except with a guardian," and the words of Allāh Almighty, "And do not marry polytheistic men [to your women] until they believe." This directive is addressed to the guardians, I.e. "Do not marry off." similarly, Allāh Almighty said, "And marry off the single among you and the righteous among your male slaves and female slaves." He further said, "Do not prevent them from marrying their [former] husbands if they agree among themselves in a lawful manner." Preventing marriage usually comes from the guardian. There are numerous evidences indicating that a woman does not marry herself off; rather, her guardian does so.
The primary guardian is typically the father. The order of guardianship in marriage is the same as in inheritance: first the father, if not the father, the grandfather, then the son, if not the son, the brother, if not the brother, the uncle, and so on. The Prophet, peace be upon him, also said, "A virgin is asked for her consent, and her consent is her silence, and a previously married woman should be asked for her explicit consent." All these evidences indicate that a guardian is necessary for marriage, and a woman cannot marry herself off.
If there is a dispute or the guardian prevents the woman from marrying an appropriate match and it is not possible to transfer guardianship to another guardian or there is no other guardian, the judge or ruler takes on this role, as the Prophet, peace be upon him, said, "The ruler is the guardian of one who has no guardian." The judge represents the ruler. That is if a woman is in a country where she has no guardian, perhaps her guardian is a disbeliever. But if he (the guardian) is a Muslim, she cannot go to a judge in this while her guardian is not preventing her from marrying.
However, if she is in a non-Muslim country and her guardian is a disbeliever with no Muslim guardians and no Muslim judges available, some scholars suggest referring to what is known as the Islamic community council or an equivalent institution that looks after the affairs of Muslims in that place. The authority in that council acts as a judge in Muslim countries. This is the view of some contemporary scholars. If such a council is not available, then the issue returns to the matter of delegation, and there is no harm if the woman delegates a righteous and just man to find her a suitable husband to marry her off to, or she may choose a specific man and then delegate a righteous man to marry her to this man.
Scholars mention this with relation to the marriage contract, but regarding the matter of looking at the woman, as far as I know, it is unclear whether scholars have addressed this, and it needs further research. In any case, if the man requests to see the woman, as long as the woman delegates someone else to marry her off, it is not necessary for her to unveil in front of the delegate, as he is a non-relative. However, regarding the suitor, it is said, and Allāh knows best, and the matter requires further consideration, that she may be present herself due to the necessity in front of the delegate with the suitor, but revealing herself only to the suitor. The delegate should not look at her face or beauty, as this is reserved for the willing suitor. A mere admirer [with no interest in marriage] should not be allowed to see her.