The Muslimah ... Her Marriage, her Decision (II)

 

When Compelled Against her Consent

Khansaa bint Khidaan aI-Ansaari (RA) reported that "her father married her out while she was a non virgin (she was a Widow) and she was displeased with it. She came to the Messenger (sallallahu alayhi wa sallam) and he rejected the marriage (Bukhaari). Thus based on this hadeeth al-Imaam al-Bukhaari (RAH) said, When a father forces his daughter into marriage, the marriage is rejected." (Bukhari)

Also, Buraydah bn Husayb (RA) said a young girl came to the Messenger (sallallahu alayhi wa sallam) and said her father married her to his nephew and the Messenger (sallallahu alayhi wa sallam) gave her the choice (to retain or terminate the marriage). So, she said, "I am pleased with what my father did but I wanted the females to know that the final decision does not lie with the fathers." (Ibn Maajah). Commenting on these narrations al-Imaam Ibn al-Qayyim al-Jawziyyah (RAH) said, "The implication of this ruling is that the matured virgin girl is not to be forced into marriage and she is not to be married except with her consent.

And this is the position of the majority of the pious predecessors and is the position of Abu Haneefah, Ahmad (in one of the reports from him) and is the position with which we worship Allaah and we do not believe other than it and it is the ruling of the Messenger (sallallahu alayhi wa sallam) ... "(Zaad al-Maaad)

When the Wali is Difficult

There are also cases when the wali just refuses to accept the choice of Muslimah regarding the man she likes to marry Sometimes, this refusal is based on considerations that run contrary to Islamic principles. The wali does not have the right to prevent a woman from marrying on the basis of his own whims and with no shari reason. It was reported that al-Hasan said: Maqil ibn Yassaar told me that [this aayah] was revealed concerning him. He said: "I married a sister of mine to a man, and he divorced her. When her iddah was over, he came and asked to marry her. I said to him, I married her to you and I treated you well and honoured you, then you divorced her. And now you come asking to marry her! No, by Allaah, she will never go back to you! He was a man who had nothing wrong with him, and the woman wanted to go back to him, Then Allaah revealed this aayah: "do not prevent them (Q2[Baqarah]:232). So I said, Now I will do it, O Messenger of Allaah." So he married her to him. (Bukhaari).

The Muslimah may be torn between keeping the ties of kinship and marrying the right person that Islam recommends (against the wish of her father). It is crucial to state that ties of kinship should be well protected and to this end, all available means should be explored to earn the pleasure of the wali and make him change his mind. If her wali still prevents her from marrying the person she wants with no shari reason for doing so, the guardianship passes to someone who is fit to be a wali, so it may pass from her father to her grandfather, for example.

If all her guardians prevent her for no shari reason, then the (Muslim) ruler will be her wali, because of the hadeeth,...If she does not have a wali, then the (Muslim) ruler is the wali of anyone who does not have a wali." The "ruler" here means the judge who rules according to shareeah. If there is no wali and no shari judge, then her case should be referred to the ruler or whoever is acting in his stead. If there is no such person, then her case should be referred to the shareeah courts. If there is no shareeah court, then her case should be referred to a man who holds a position of leadership among his people and is committed to Islam. If there is no such man, then her case should be referred to any trustworthy and religiously committed man who is fit to be a wali. Ibn Qudaamah said: if a woman does not have a wali and there is no ruler, then according to Ahmad, any religiously committed man may arrange her marriage with her permission. (al-Mughni,7/352).

All of this [transferring guardianship to someone other than the girl’s father] must be with the consent of the girl and should not result in greater corruption than the one the Muslimah is trying to solve. It should also be on the condition that the reason for [the fathers] refusal is clearly invalid according to the shareeah. And all parties concerned should remember that their Lord is always watching them.

 

This article was culled from the publications of Deen Communication Limited

 

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