Part 11

A passive approval is expressed by the bride’s remaining silent, nodding her head, or making any other motion to indicate that she does not object to the marriage. On the other hand, if she does object, she must declare that with a clear action or statement.

The bride’s passive approval is the minimum required permission. However, it is possible for her to express her approval in a more assertive way, such as saying, “Yes, I would like to marry him.”

Abii Hurayrah (44%) reported that the Prophet (8%) said:

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<A non-virgin woman (i.e., widow or divorcee) may not be married without her instruction; and a virgin may not be married without her permission, and her

<Take the women’s permission in regard to themselves (i.e., marriage). A non-virgin expresses herself with her tongue; and a virgin’s silence is (a sufficient proof of) her acceptance. *

Ibn ‘Abbas (i) reported:

“A virgin woman came to the Prophet (&$) and told him that her father gave her in marriage against her will. The Prophet (&) then gave her the choice (of maintaining or terminating the marriage).” *

A non-virgin bride (in Arabic: thayyib) is a woman who has had at least one sexual intercourse with men — whether it was in regular marriage or zind.

A thayyib normally has more experience in life and more ability to make a decision in regard to her marriage. Thus, she should be allowed to voice her opinion and make her decision, and her decision must be honored by her wali. This is clearly expressed in the above hadiths. Similarly, Ibn “Abbas (t) reported that Allah’s Messenger (8%) said:

BBLS Say Les oe Gals Gel (GN) Cela

Recorded by al-Bukhari, Muslim, and others.

2 Recorded by Ahmad, Ibn Majah, and others. Verified to be authentic by al-Albant (Sahih ul-Jami no. 13, 3084 & Irwa’ ul-Ghalil no. 1836).

3 Recorded by Ibn Majah. Verified to be authentic by al-Albani (Sahih Ibn Majah

Al-Khans@ Bint Khithim al-Ansariyyah (>) reported that her father gave her in marriage (without her permission). At that time, she was non-virgin, She disliked that marriage and complained to the Prophet (4) who invalidated the contract. *

An orphan girl is a virgin who lost her father. Thus, her walz is not her father. In regard to the permission for marriage, she is given more say than a normal virgin.

Abi Misa al-Ash‘ari (4) reported that Allah’s Messenger (8) said:

Abii Hurayrah (4) reported that Allah’s Messenger (8) said:

<A (virgin) orphan girl’s permission should be sought in regard to herself (i.e., in marriage); if she remains

1 Recorded by Muslim, Abi Dawid, and others.

2. Recorded by al-Bukhari, Ahmad, and others.

3 Recorded by at-Tabarani, Ahmad, and others. Verified to be authentic by al-Albani (Sahih ul-Jami‘ no. 14 & as-Sahthah no. 656).

‘Abdullah Bin “Umar (t) reported that when ‘Uthman Bin Maz‘tn (4) died he left behind a daughter from his wife Khuwaylah Bint Hakim. In his will, “‘Uthman had appointed his brother Qudamah Bin Maz‘tin as her guardian. Ibn ‘Umar asked for the orphan girl’s hand from Qudamah (who was his maternal uncle), and Qudamah agreed to marry her to him. However, al-Mughirah Bin Shu‘bah (4) approached her mother and beguiled her with money. The mother thus leaned toward him, and her daughter followed her mother’s inclination and refused to marry Ibn ‘Umar. They disputed and went before the Prophet (8). Qudamah said:

“O Allah’s Messenger! She is my brother’s daughter. He appointed me as her guardian, and I gave her in marriage to ‘Abdullah Bin ‘Umar — forsaking neither righteousness nor compatibility, However, she is only a woman, and she now leans according to her mother’s inclination.”

Ibn ‘Umar added: “Thus, by Allah, she was taken away from me, even

after I had taken charge of her (by marriage), and was married to al-Mughirah Bin Shu‘bah.” *

1 Recorded by Aba Dawiid, an-Nasa’i, and others. Verified to be authentic by alAlbani (Sahih ul-Jami‘ no. 1349, 8194 & Irwa’ul-Ghalil no. 1834). 2 Recorded by Ahmad, ad-Daraqutni, and others. Verified to be hasan by al-Albani

Quest for Love & Mercy 63 The Marriage Contract

A FREED SLAVE WOMAN

If a married couple were both slaves, and the woman is freed first, she would be given the option of staying with her husband or leaving him. If she makes the first choice, she remains married to him and would have no further chance in that regard.

Batirah was a slave woman owned by some of al-Ansdr. She was married to a black slave called Mughith.

Barirah’s departure broke Mugith’s heart. Tbn ‘Abbas. (ws) narrated, “Tt is as if I still see him following her in the streets of al-Madinah, crying until his tears wet his beard.” Allah’s Messenger (8%) said:

Bia Sandee Co bye Lod VW ule Un (Skee Ba ade coy

<O ‘Abbas! Does it not surprise you how much Mughith loves Barirah, and how much Barirah dislikes Mughith?>

(Irwa’ ul-Ghalil no. 1835).

1 Recorded by al-Bukhari, Muslim, and others.

2 Recorded by Abi Dawid. Verified to be authentic by al-Albani (al-Mishkat

3 Recorded by al-Bukhari and others.

The Woman’s Wali RULING

A woman may not independently give herself in marriage. Her wali (guardian) should represent her in doing that. He should take her consent if she is a virgin. Otherwise, he should follow her instruction. Abi Misa al-Ash‘ari, ‘Abdullah Bin ‘Abbas, Jabir Bin ‘Abdillah, and Abii Hurayrah (2) reported that Allah’s Messenger (8) said:

(de VW a WY <A marriage (contract) is not valid without a wali !

Thus, the presence of the wali for the execution of the marriage contract is a condition for its validity.

Wnuo Is a Woman’s WaLi?

Normally, a woman’s wal7 is her father. If, for any reason, her father is unable to be her wali, her wali 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‘ guardians. Allah (8%) says:

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A woman may not take another woman as her wali. Abi Hurayrah () reported that Allah’s Messenger (8) said:

1 Recorded by Abii Dawid, at-Tirmithi, and others. Verified to be authentic by alAlbani (Jrwa’ul-Ghalil no. 1839).

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Abt Hurayrah (5) added:

“For, indeed, it is an adulteress who gives herself in marriage (without her wali’s consent).” '

If the bride does not have a Muslim blood-telative as wali, the Islamic authority, represented by the ruler or judge, would appoint a wali 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 wali of a woman who has no wali.

‘Nishah (>) reported that Allah’s Messenger (#8) said:

A WomaAN May Not Appoint HER WALT

A common practice in many non-Islamic countries is that a woman, having no Muslim mahram as wali, would appoint her own wali. 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 Recorded by Ibn Majah, al-Bayhaqi, and others. Verified to be authentic by alAlbani (/rwa’ul-Ghalil no. 1841).

2 Recorded by Ahmad, Abii Dawiid, and others. Verified to be authentic by al-Albant (Irwa’ul-Ghalil no. 1840).

The appointed wali is often found unworthy of the trust invested in him and incapable of properly serving his principal’s interests,

Some women take liberty in dealing with the wal7. 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.

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 wal7. 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 wali (or his representative) is a required condition for the validity of the marriage contract. Therefore, a marriage that is held without the wali’s consent and approval is null and void.

‘Kishah (5) reported that the Messenger (8) said: GEIR DL SIRS eds 5h poy COS aL al eho Jaca Le Sell Yl ly JB ob BL YIK LbL