The Wali or Legal Guardian in Nikah

Hadhrat Maulana Ashraf Ali Thanvi

The person who has the power or choice of getting a boy or girl married is called a wali.

1. 1. The first wali of a boy or girl is their father. If the father is not present, the grand-father becomes their wali. If he is not present, then the great grand-father. If none of them are present, the blood-brother becomes their wali. If he is not present, then the step-brother, i.e. brothers from one father. Thereafter, the nephew, thereafter the nephew's son; and thereafter, the nephew's grand-son. If none of them are present, the blood uncle becomes their wali. If he is not present, then the step-uncle, i.e. the step-brother of their father. Thereafter, the son of the blood uncle and thereafter his grand-son. Thereafter, the son of the step-uncle and thereafter his grand-son. If none of them are present, the father's uncle becomes their wali; and thereafter his children. If the father's uncle, his children and grand-children are not present; then the grand-father's uncle becomes their wali. Thereafter, his children, grand-children, and great grand-children.
   
2. If none of them are present, the mother will be their wali. Thereafter, the paternal grand-mother, then the maternal grand-mother and then the maternal grand-father. Thereafter, the blood-sister and then the step-sister, i.e. sisters from one father. Thereafter, the step-brother and then the step-sister who is from one mother. Thereafter, the paternal aunt, then the maternal uncle, and then the maternal aunt.
3. 2. An immature person cannot become a wali of anyone. A kafir cannot be a wali for any Muslim, nor can a lunatic be a wali for anyone.
4. 3. A mature girl has the choice to marry or not to marry. She can marry whomsoever she wishes - no one can force her to marry a particular person. If she marries a person on her own, the nikah will be valid irrespective of whether the wali is informed or not, and irrespective of whether the wali gives his consent or not. In all cases the nikah will be valid. However, if she does not marry a person who is of the same social standing as her, and instead, marries a person who is of a lower standing than her family, and her wali is not happy about this marriage, then the fatwa in this case is that the nikah will not be valid.
5. If she marries a person who is in the same social standing as her, but the mahr that she receives is less then what is normally fixed in her paternal grandfather’s family, then although the nikah will be valid, the wali will have the right to annul this marriage. The mahr that is normally fixed in her paternal grandfather’s family is known as mahrul mithl. The wali can go to a Muslim court and have such a marriage annulled. However, it should be borne in mind that this right of annulment is only possessed by all those walis whom we had mentioned before the mother. In other words, from the father onwards till the children of the grand-father's uncle.
6. 4. A wali performed the nikah of a mature girl without asking her or without seeking her consent. The validity of such a nikah will be dependent on her permission and consent. If she grants her permission, the nikah will be valid. If she does not grant her permission or is not happy, the nikah will not be valid. The method of granting permission is mentioned in the next mas'ala.
7. 5. The wali came and informed a young virgin girl that he intends performing her nikah with a certain person, or that he has already performed her nikah with a certain person. Upon hearing this, she remained silent, began smiling or began to cry. All these responses of her's will be considered to be a permission and a consent. Now, if the wali performs her nikah, it will be valid. If he has already performed it, it will also be valid. It is not a prerequisite for her to give a verbal permission. Those who force a girl in giving a verbal permission are in error.
8. 6. At the time of seeking her permission, the wali did not mention the name of her future husband, nor did she have any prior knowledge of him. In such a case, her silence will not be considered to be a form of consent, nor will it be considered to be a form of granting permission. It is necessary to mention the boy's name or some other form of identification whereby the girl can understand that the wali is referring to a particular person. Similarly, if the wali performed the nikah without mentioning the amount of mahr to her and it was far less than the mahrul mithl, the nikah will not be valid without her permission. He will have to seek her permission again.
9. 7. The girl is not a virgin, and instead had married previously and this is her second marriage. When the wali asks her or seeks her permission for this second marriage, her mere silence will not be considered to be a form of granting permission. Instead, she will have to give a verbal reply. If she does not give a verbal reply and remains silent, and despite this, the wali performs her nikah, then her nikah will be in abeyance. Later, if she gives a verbal permission, the nikah will be valid. If not, it will not be valid.
10. 8. Despite the father being present, the uncle, brother or any other wali sought the permission of a virgin girl. If she remains silent, it will not be considered to be a form of granting permission. Only when she gives a verbal permission will it be considered. However, if the father sent these persons to seek her permission, her silence will be considered to be a form of consent. In short, the wali who is given the first preference in the Shari‘ah and who has the most right to seek permission from the girl - when he asks her or when someone who has been sent by him asks her, then only will her silence be considered to be a form of consent. If the grand-father had the right of asking her, and instead the brother asked her; or if the brother had the right of asking her and instead she was asked by her uncle, then in such a case her silence will not be considered to be a consent.
11. 9. A wali performed the nikah of a girl without asking her and without obtaining her consent. After the nikah, the wali or his messenger came and informed the girl that her nikah with a particular person has been performed. In such a case, if she remains silent, this will be a permission on her part and the nikah will be valid. But if someone else comes and informs her, and this person is a pious, reliable person, or two persons come and inform her, then by her remaining silent the nikah will be valid. But if there is only one person who informs her and he is an unreliable person, then by her remaining silent the nikah will not be valid. Instead, it will be held in abeyance. When she gives a verbal reply or any other form of granting permission is found, then only will the nikah be valid.
12. 10. Upon being informed of her nikah, the girl did not give a verbal reply although it was necessary for her to give a verbal reply. However, when her husband approached her she did not refuse him from engaging in sexual intercourse with her. Even in this case, the nikah will be valid.
13. 11. The same rules apply to a mature boy, i.e. he cannot be forced into a marriage nor can the wali perform his nikah without his permission. If his nikah is performed without his permission, it's validity will be dependent on his permission. If he expresses his consent, his nikah will be valid. If not, it will not be valid. However, it should be borne in mind that the boy's silence is not considered to be a form of granting permission. He will have to give a verbal reply.
14. 12. If a boy or a girl is immature, they do not have their own choice. Their nikah is not valid without a wali. If a boy (or girl) performs his nikah on his own or someone else performs it, it will be dependent on the permission of the wali. If the wali grants permission, the nikah will be valid. If not, it will not be valid. The wali has full rights over such a boy or girl. He can get them married to whoever he wishes and refuse whoever he wishes. Immature girls and immature boys cannot reject such a nikah at that time. This is irrespective of whether the girl is a virgin or had been married previously and had also been sent to her (first) husband's home - the same rule will apply.
15. 13. If the father or grand-father perform the nikah of an immature girl or boy, they do not have the right to reject or repudiate this nikah even after they become mature. This is irrespective of whether the marriage was executed with a person who is of the same social standing or with a person of a lower class, and irrespective of whether the nikah was performed with mahrul mithl or whether it was far less than the mahrul mithl. In all cases the nikah will be valid and they cannot reject or repudiate this nikah.
16. 14. If a wali other than the father or grand-father performed the nikah, and it was performed with a boy of the same social standing and the mahrul mithl was also given, then in such a case the nikah will be valid. However, after reaching the age of maturity, she has the right to endorse this nikah or to go and complain to a Muslim judge and have this marriage annulled.
17. But if the wali performed her marriage with a person of a lower social standing or accepted a mahr which was far less than the mahrul mithl, the nikah will not be valid from the very outset. Similarly, if the wali performed the nikah of a boy with a mahr which was far more than the mahrul mithl of the girl, the nikah will not be valid from the very outset.
18. 15. A wali other than the father or grand-father had performed the nikah of an immature girl who also had knowledge of this nikah. Thereafter, she became mature and until then her husband hadn't had any sexual intercourse with her. In such a case, the moment she becomes mature, she must mention her discontent with regard to marrying this person. She must clearly state that she is not happy. Alternatively, she could say that she does not wish to continue with this marriage. This could be said in the presence of others or in privacy where she is all alone. But she has to mention it verbally. However, by her merely saying this, the nikah will not be annulled. She will have to go to a Muslim judge, he will annul the marriage, and only then will it be annulled.
19. Once she becomes mature and allows even a moment to pass in which she does not mention her discontent, she will not have the choice of having her nikah annulled.
20. But if the girl did not have any knowledge of this nikah and only learnt of it after becoming mature, then the moment she is informed, she will immediately have the right to reject the nikah. If she remains silent for even a moment, she will forfeit this right to reject the nikah.
21. 16. If her husband engaged in sexual intercourse with her, and thereafter she becomes mature, it is not necessary for her to reject the nikah immediately after becoming mature or after being informed. Instead, as long as she does not express her consent and happiness, she will have the choice of rejecting or accepting irrespective of how much time lapses. However, if she clearly states that she is happy about this marriage, or her consent is made apparent in some other way such as being in solitude with her husband like any other normal husband and wife, then she will have no choice and this nikah will become entrenched.
22. 17. The person who is most entitled of being the wali of an immature girl is gone to a foreign country. He is so far away that if the rest of the family had to await his arrival in order to consult him, the girl will lose this opportunity. Furthermore, the person who has come with the proposal is not prepared to wait for so long and it will be difficult for the girl to receive a similar proposal. In such a case, the person who is next in line to become her wali can also perform her nikah. If he performs the nikah without consulting the girl, it will be valid. But if the first wali is not very far away, her nikah should not be performed without consulting him. If it is performed, it will be dependent on his permission. Once he grants his permission, the nikah will be valid.
23. 18. Similarly, if the second wali performs the nikah of an immature girl despite the most rightful wali being present, it will be dependent on his permission. For example, if the grand-father performs the nikah without consulting the father despite the latter being present, it will be dependent on the father's permission. If the right belonged to the brother but the nikah was performed by the uncle, it will be dependent on the brother's permission.
24. 19. A woman became a lunatic and lost her sanity. She has a mature son and a father as well. If her nikah has to be performed, her wali will be her son because the son is more entitled of being a wali than the father (father of the woman).
    

The Question of Compatibility or Kufu1. The Shar i ‘ah has taken great precautions in ensuring that nikah with an incompatible person or a person of a lower social standing does not take place. In other words, do not perform the nikah of a girl with a man who is not equal to her in status or who is of no match to her.
2. Compatibility or equality is considered in several factors: (1) lineage, (2) Islam, (3) piety, (4) wealth, (5) profession or occupation.
Equality in Lineage
1. Equality in lineage is that the Shaykh, Sayyid, Ansari, and ‘Alawi are all equal to each other. In other words, although the status of a Sayyid is more than the others, if the daughter of a Sayyid marries a Shaykh boy; it will not be said that she did not marry someone who is of her family relations. Instead, it will also be regarded as if she has married one of her relatives.
2. In matters of lineage, the lineage of the father is considered and not the mother. If the father is a Sayyid, the son is also a Sayyid; and if the father is a Shaykh, the son is also a Shaykh - irrespective of what the mother may be. If a Sayyid marries a woman who is not a Sayyid, their son will be regarded as a Sayyid. This son will be equal in status to all other Sayyids. Although the son whose father and mother are both from a noble family is respected more, according to the Shariah they will all be regarded as relatives or of the same social standing.
3. The Moghuls and Pathans are regarded as one nation and are not of the same class as that of the Sayyids and Shaykhs. If the daughter of a Sayyid or Shaykh gets married with one of them, it will be said that she married someone who is of a lower social standing than her.
Equality in being a Muslim
1. Equality in being a Muslim is only considered among the Moghuls, Pathans, and other non-Arab nations. There is no consideration of this among the Shaykhs, Sayyids, ‘Alawis, and Ansaris. A man who accepts Islam and his father was a kafir cannot be on par or equal to a woman who is a Muslim and her father was also a Muslim. The man who is a Muslim, his father is also a Muslim, but his grandfather was a kafir; cannot be equal to a woman whose grandfather was also a Muslim.
2. A man whose father and grandfather were Muslims, but his great grandfather was a kafir will be regarded as equal to a woman whose several forefathers were Muslims. In short, this equality is only considered till the grandfather. Equality beyond the grandfather, such as the great grandfather and beyond him is not considered.
Equality in Piety
Equality in piety means that a man who does not follow the dictates of the Shar i ‘ah - who is a wicked person, a scoundrel, an alcoholic, a shameless person - will not be considered to be equal to a pious, chaste and religious woman.
Equality in Wealth
Equality in wealth means that a person who is an absolute pauper cannot be compatible to a rich woman. If the man is not an absolute pauper, but is capable of giving that amount of mahr that is normally given on the first night and is also capable of giving her maintenance, then he will be regarded to be equal to her in status even if he is unable to give the entire amount of mahr. It is not necessary for the man to be in exactly the same financial position as that of the woman. Nor is it necessary for him to be close to that financial position.
Equality in Occupation
1. Equality in occupation is that, e.g. weavers are not regarded as equal to tailors and are accorded a status that is lower than that of tailors. Similarly, barbers, washermen, etc. are not regarded as being equal to tailors, but are regarded as being lower than tailors.
2. A mad, lunatic person cannot be equal to an intelligent, understanding woman.