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Right of an Adult Muslim Woman to Enter a Marriage Without Consent

5220 words (21 pages) Essay in Law

23/09/19 Law Reference this

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“Some sunni muslim schools of thought believe that an adult Muslim woman has the unqualified right to enter into marriage without the consent of her male guardian while others contest this right. Discuss critically in light of legal implications of these interpretations.”

INTRODUCTION

Shari’a, or shari’a law, is a jurists’ law, which means that the jurists had exclusive rights to formulate the rules. This Islamic legal tradition is done through debates and discussions, resulted in different and often conflicting viewpoints among the jurists. It is worth noting that Islamic legal scholars derived different opinions from the same source of law, such as Qur’an & hadith. This diversity however, is accepted by the jurists, as they were aware that fiqh was human understanding of the divine shari’a and therefore, the interpretations of the sources could be different. It has then resulted in the emergence of the madhhabs (school of thought) that institutionalized difference of opinion. This doctrinal diversity is regarded as an essential part of Islamic legal tradition. [1]

One of the obvious examples of conflicting views resulting from the plurality of Islamic legal tradition appears in the role of guardian in Islamic marriage. Marriage in Islam (nikah) is regarded as a sacred institution and conveys religious duties. Nikah has then consequently institutionalized as a moral gatekeeper as well as a part of social necessities.[2] Islam also recognizes the role of guardians in creating a marriage institution. Guardians in Islam will solemnize the marriage contract and have the power or authority to act as an advisor on behalf of the brides. The emphasis of having a male guardian in Islamic marriage has always been on the brides instead of the groom.

This essay will examine whether the presence of male guardian in Islamic marriage is a socially constructed concept by discussing the nature of Islamic marriage, role and concept of male guardian in the lens of kafa’ah and wila’, wisdom of having it and the legal implications of the rights given to them.

NATURE OF ISLAMIC MARRIAGE & THE CONCEPT OF GUARDIANSHIP IN ISLAM ACCORDING TO SCHOOLS

Before we begin the discussion on the requirements in Islamic marriage, it is particularly important to discuss the nature of Islamic marriage. The arguments whether Islamic marriage is a contract or a religious sacrament rises from the nature of a contract in relations to the position of women in Islam and their rights to negotiate it independently of their male relations. In Saima Waheed, it is noted that marriage in Islam is an ibadat and may be best called social contract. This is because, it is emphasized that a marriage can only be a valid social institution when a male guardian (wali) negotiated it. 

However, the presence of wali as one of the requirements in Islamic marriage differ between Sunni schools of thought. According to Shafi’i and the majority of the schools, the requirements for a nikah to be valid are a male and a female party, a male guardian (wali), two witnesses and the pronouncement of ijab and qabul.[3] Based on this, it is clear that these schools assert that there is no marriage without a guardian, and the guardianship is a condition of validity.[4] These opinions are believed to be derived based on Qur’an & hadith.

In the verses 221 and 232 of Al-Baqarah, Allah says “do not marry men until they believe”, directing to men not to marry the polytheistic men to their women, and “do not prevent them” indicating that the male guardians have the power to prevent their women from marrying a man. [5]

Narrated by Al-Dawood, Prophet Muhammad (pbuh) said “There is no marriage except with a wali (guardian)”.[6] The Prophet Muhammad (pbuh) also said “Any woman who gets married without the permission of her guardian, her marriage is invalid, her marriage is invalid, her marriage is invalid”.[7]

Besides Qur’an and hadith, Tafsir Al-Qurtubi by Imam Qurtubi also strengthened the view hold by these schools. By writing a commentary of the Qur’an, Imam Qurtubi said that the verse 221 from Al-Baqarah is a proof that without wali, marriage is invalid.[8] Based on these primary and secondary sources, these schools hold a view that has a strong and legitimate base in Islamic law.

Hanafi’s school, on the other hand, departed from the majority, arguing that an adult and sane woman, whether a virgin or previously married, has a right to enter into a marriage of her own accord.[9] However, the man she is marrying must be suitable, or kafa’ah to her.[10] The opinion hold by Hanafi’s school is said to be derived from verse 234 of Al-Baqarah. When Allah says, “they dispose themselves of in a just and reasonable manner”, there is a clear indication that Muslim women have full rights of marrying themselves and do not require the approval of their guardian.[11]

Rebutting the hadith “there is no marriage except with a wali (guardian)”, Imam Zafar Ahmad al-Uthmani in I’la al-Sunan said that such hadith is to be understood in light of other hadiths. The generality of the two hadiths discussed earlier is said to be restricted to pubescent and slave women, while adult and free women are excluded from this ruling as some evidences are found to favour the validity of their marriages without the guardian’s approval.[12]

It is therefore clear that the position held by Hanafi’s school is not baseless as some people would consider. It is also important to note that both of the views held by these schools of thought are derived from the same primary sources of Islamic law; which are the Qur’an and hadith.

However, the doctrine of kafa’ah as hold by Hanafi’s school has sparked some arguments on whether this doctrine is socially or legally constructed, especially when it is highlighted in Saima Waheed that it was the socially unacceptable match and the way that the marriage was conducted made her father objected to it, not her marriage per se.  It is to this subject now we turn our discussion; the concept of guardianship in Islamic marriage as hold by Hanafi’s and Shafi’e schools of thought.

THE CONCEPT OF GUARDIANSHIP IN ISLAMIC MARRIAGE – A SOCIALLY CONSTRUCTED CONCEPT?

Based on Hanafi’s position in the presence of wali in Islamic marriage, it is shown that Hanafi’s construction of the concept of guardianship in Islamic marriage was based on kafa’ah. Judgment in Saima Waheed highlighted that according to Hanafi’s school, kafa’ah means, inter alia, that the man should come from a similar background as the woman, in the matters of education, wealth and family background.[13] It is also highlighted that the wali is entitled to approach the Court of Law to demand for invalidity of the marriage if he is dissatisfied with the conditions relating to kafa’ah and dower money.[14] This essentially means that Hanafi’s school is giving the Muslim women rights to marry at her own will without interference of their male guardians on one hand, and taking it away on another hand when it gives rights to their male guardian to approach the court if they think that the men are not suitable to their daughters.

The need of a male guardian to interfere with the marriage according to Hanafi’s school is explained by Al-Sarakshi:

“Marriage is a contract for the whole life and is founded on aims and objectives like companionship, familiarity, living together and building relationship. That can be accomplished only between the equals (kafa’ah). The principle of ownership of a woman is a kind of humility.”[15]

Al-Sarakhsi mentions the five ground of equality (kafa’ah) as nasab (patronymic), freedom, wealth, vocation and lineage (hasb).[16] This explanation subtly relates to the concept of protection of the women who have no capacity to rightly choose an equal husband and need protection from their male guardian.

The authority of a male guardian from the perspective of women’s vulnerability and incapacity in a male dominated society is explained by Hammoudah Abd al-Ati:

“Marriage guardianship is the legal authority invested in a person who is fully qualified and competent to safeguard the interests and rights of another who is incapable of doing so independently. It is the authority of a father or nearest male relative over inexperienced persons who need protection and guardianship”.[17]

This has arisen complications in Hanafi’s school of thought in regard to the balance of intersecting rights given to Muslim women and their male guardians. The concept of kafa’ah underlined in the case of Saima Waheed and the grounds of equality as mentioned by Al-Sarakhsi are also purely based on material things.

This has, in turn, risen a question of whether the concept of kafa’ah in Islamic marriage is legally or socially constructed. Recent studies of the doctrine of kafa’ah challenge its deep roots in social norms, especially in patriarchy and the resulting concept of limited capacity of women. The legal reforms done without change in social norms have also been unsuccessful. In Pakistan, although the marriage guardian laws are governed by Hanafi fiqh, the influence of custom has been very strong. The landmark case of Saima Waheed illustrates the conflict between legal and social norms in the concept of kafa’ah in Islamic marriage.

In Saima Waheed, the advocates for petitioner argued in the High Court on the moral grounds by highlighting that marriages done without the consent of wali offend the norms of a Muslim society.[18] It is also argued on the ground of parent’s right of obedience when it is highlighted that “virgin girls stepping out of her house without the consent of her parents” as a violation to Islamic family practices.[19]

Further judgment by the High Court strengthen the view that the presence of wali is deeply influenced by social norms. It is highlighted that wali’s consent as one of the requirements for nikah is a common knowledge among the Muslim society, and disturbing this arrangement would completely disturb the structure of the society rather than strengthening it.[20] Although the dissenting judge allowed the marriage, he also endorsed the argument that children should obey their parents as the parents sacrificed their rights and pleasures so that their children flourished.[21] It was then held that the obedience of the parents could be enforced by courts.[22]

This essentially means that marriage without the consent of wali is deemed by the society as destroying Islamic family institution. This is because, the purpose of marriage in Islam is to strengthen the bond between two families and nikah is uniting not only two individuals, but also two families.[23]

Although the opinions hold by Shafi’I and the majority of the school are said to be strongly based on the Qur’an and hadith as previously discussed, it is also worth discussing social concept of wila, which is the basis of the construction of the concept of guardianship in Islamic marriage as hold by Shafi’I and the majority of school. Wila, derived from the term of wilaya, means control and authority, help (relations, succession, and alliance).[24] Imam Malik, the founder of Maliki school justifies that the doctrine of guardianship in Islamic marriage is a social practice and points to the incapacity of a female as a ground guardian’s authority and wali al-mar’a (guardian to a woman) means “authority to conclude her marriage and to not allow her to proceed to marriage contract independently without him”.[25]

In Malaysia, the provision on requirement of wali in Islamic marriage based on Shafi’i school is incorporated in all state enactments.[26] Marriages done without the consent of male guardians are seen as destroying the family institution as it is clearly against the societal norms of Muslims in Malaysia whom in majority follow the Shafi’i school. Failure to get the consent of wali leads to secret marriage syndicate existing in Malaysia.[27]

Jurisdictions as to what conditions needed to validate a marriage are however, given to state to declare whether a marriage fulfill the conditions of a ‘valid marriage’. Kelantan, a state in Malaysia with 95.2% Muslim is one of the states in Malaysia that is deeply influenced by traditional Islamic law.[28] One example of this is reflected by imposing stricter obligations on Muslim women to wear headscarf and enacting it under Kelantan Enactments of Shari’a Criminal Code.[29] Similarly, under Enactment of Muslim Family, marriage done without wali is declared to be void and cannot be registered under the state.[30]

While in Pulau Pinang, a state with the perception of it being dominated by the Chinese and a total of 44% Muslim population[31], Enactment of Muslim Family 2004 states that a marriage is void “unless it fulfils all the requirements according to shari’ah laws to make it valid.”[32] None of the sections in the enactments explains what is a ‘valid or void nikah’, resting the duty upon the shari’a court to decide whether a nikah is valid.

Although there is no research done as to prove whether the state enactment of the Act is influenced by the percentage of Muslim population in the specific demography, inconsistency between state’s jurisdictions shows that the presence of male guardian, though majority of Malaysian follows the Shafi’i school, is still deeply influenced by societal norms. The inconsistency then leads to the difficulties in registering the marriage for the husband and wife who has done their nikah without the consent of wali as some enactments may declare it invalid and disallow them to be registered under the state’s enactments.

Failure to register their marriage under Malaysian Shari’a law will then lead to other legal implications. When they fail to register their marriage, the husband and wife can be charged of seclusion for living together[33], or worse can be accused of zina.

Another obvious implication of unregistered marriage due to failure to get the consent from wali is the difficulties for women to claim their rights in their marriage. The court will not entertain the claim for nafkah, mutaah and other rights if the marriage is not registered under Malaysian Shari’a Law. The children from the marriage without consent of wali will also be difficult to get a birth certificate and registered as a Malaysian citizen.

Although the marriage is said to be valid under Islamic law, it is not an overstatement to say that shari’a law in Malaysia is legislated in a way that put parties who get married without consent of their male guardian in a difficult situation. This is due to the societal and moral influences affecting how the law is legislated.

If it is indeed a socially constructed concept, how can it legally affect the marriages done without the consent of wali? How can the concept of guardianship in Islam put both men and women in vulnerable positions when their marriage is declared invalid due to unequal status? What are exactly the importance of having a male guardian in Islamic marriage at the first place? Are the roles of wali in Islamic marriage purely based on material things, i.e. to make sure that the husbands are as rich as the wives? All of these questions are to be answered with regard to discussion on the wisdom of having a wali in Islamic marriage according to the scholars.

WISDOMS OF HAVING A WALI IN MARRIAGE

The scholars in Islamic jurisprudence have highlighted several reasons on the importance of having a wali, especially in relation to a woman’s position. The guardian is said to be an advisor for the Muslim women as he is in the position to recommend or to give suggestion for women under his care. This to be understood in light of verse 28 of Al-Qasas. This verse reflects that wali is in the position to advise the women under their care to marry a person with such characteristic of piety, has a strong knowledge of Islam and committed of Islamic teachings. None of these are material things as highlighted under the doctrine of kafa’ah in Saima Waheed, and it is such a regret that this verse is not referred in the judgment in Saima Waheed.

However, it still cannot be denied that the presence of wali in Islamic marriage is slightly influenced by social and moral norms. The existence of wali is said to be vital to guard the women under their care from marrying a person who is socially and morally unfitted for her, as the purpose of marriage is the acquisition of those benefit which it produces, such as procreation and so forth[34], and marrying those of equal social and moral status is important in order to protect their progeny from any problems and shame in the future. Islamic laws have imposed an obligation on the close relatives of the women to be their wali because they are among those who love them the most and know the value of dower for marriages.

Besides that, as Muslim women are not allowed to mix with men, it is feared that this will jeopardize their rights to negotiate her own marriage contract as they may not fully know the men of their choice. Therefore, the presence of wali is essential as protectors, mediators and negotiators for women and their rights.[35]

From the discussion, it can be summarized that the emphasis on the role of wali and the wisdom of having a wali in Islamic marriage reflects the role of male guardians as protectors to Muslim women. However, it is also true that the belief of women’s as weak creatures as deemed by the society has deeply influenced the concept of guardianship in Islamic marriage.

CONCLUSION

It is therefore, can be concluded that the presence of wali, though mentioned in the Qur’an and hadith, still largely influence by societal norms. Although the marriage is religiously valid, the difference in the interpretation between schools has consequently placed the parties in difficult positions on the validity of their marriage according to state’s law. The presence of male guardian is deeply influenced by social norms and gives legal effect as laws in countries like Pakistan and Malaysia are legislated according to societal norms relating to what women should be and how children should obey their parents. Legal reforms in Muslim countries without change in social norms, however, are undeniably difficult to be done in modern legal environment.

Although the wisdoms of having male guardian are justified by the Islamic legal scholars, the concepts of wila in relation to tribal patriarchal systems that cannot be the basis of modern concept of family and irrationality of kafa’ah as the basis of male guardian in Islamic marriage are inapplicable in the social systems today.

 

BIBLIOGRAPHY

 

PRIMARY SOURCES

 

Religious Texts

  • Al-Qur’an
  • Hadith

Cases

  • Abdul Waheed v Asma Jehangir, PLD1997, Lahore 317

Legislation

  • 1965 Laws of Islamic Administration (Undang-Undang Pentadbiran Ugama Islam 1965)
  • 1983 Kelantan Enactment of Muslim Family (Enakmen Keluarga Islam Negeri Kelantan 1983)
  • 1985 Kelantan Enactment of Shari’a Criminal Code (Enakmen Kanun Jenayah Syariah Negeri Kelantan 1985)
  • 2004 Pulau Pinang Enactment of Muslim Family (Enakmen Keluarga Islam Pulau Pinang 2004)

 

SECONDARY SOURCES

Books

  • Abdul Rahman I. Doi, Women in Sharia’ah (5th edn, AS Nordeen 2006)
  • Al-Qurtubi, Tafsir Al-Qurtubi
  • Al-Sarakhsi, Kitab Al-Mabsut (1986)
  • C. Hamilton, The Hedaya (Premier Book House 1982)
  • Durr al-Mukhtar
  • H. ‘Abd al- ‘Ati, Family Structure in Islam (1977)
  • Ibn Manzur, Lisan al-‘Arab (First Published 1883, Beirut 1960)
  • Imdad ul-Mufteen
  • Rudolf Peters, Body and Spirit of Islamic Law: Madhhab Diversity in Ottoman Documents from the Dakhla Oasis, Egypt. in A. Kevin Reinhart and Robert Gleave (eds), Islamic Law in Theory: Studies on Jurisprudence in Honor Of Bernard Weiss (2014)
  • Zafar Ahmad al-Uthmani, I’la al-Sunan

Journals

Working Paper

Conference Paper

  • Muhammad Khalid Masud, Gender Equality and The Doctrine of Wilaya’ (Islamic Family Law Workshop by Oslo Coalition, Cairo, January 2010)
  • Yusuf Abdul Azeez and others, ‘Codification of Islamic Family Law in Malaysia: The Contending Legal Intricacies’ (Asia International Conference, Kuala Lumpur, 2015)

Websites


[1] Rudolf Peters, Body and Spirit of Islamic Law: Madhhab Diversity in Ottoman Documents from the Dakhla Oasis, Egypt. in A. Kevin Reinhart and Robert Gleave (eds), Islamic Law in Theory: Studies on Jurisprudence in Honor Of Bernard Weiss (2014)

[2] Abdul Razak, ‘A Sociolegal Study Of Marriage Without Guardian (Walī) In Selangor And Federal Territory‘ (International Islamic University Malaysia) https://lib.iium.edu.my/mom/services/mom/document/getFile/z8uAyXijUpDq4bncDNdxXq4et7ExrXJY20160302085641436 accessed date 2 January 2019

[3] Abdul Rahman I. Doi, Women in Sharia’ah (5th edn, AS Nordeen 2006) 31

[4] ibid

[5] Qur’an 2:221, 2:232

[6] Abu Dawood (no. 2085)

[7] Al-Tirmidhi (no. 1102)

[8] Al-Qurtubi, Tafsir Al-Qurtubi

[9] Imdad ul-Mufteen, pg 440: “Nikah of a woman without permission of father is valid but if this woman marries without permission in the absence of a valid legal reason, then she is sinful. Firstly, it is a sin to displease the father without any valid cause. Secondly, to marry without permission of the wali is also a shameless act and not void of sin.”

[10] Durr al-Mukhtar, Vol.2 pg 29: “If a woman marries a ghair kufu’ (unsuitable) man without the permission of her wali, then this is invalid.”

[11] Qur’an 2:234

[12] Zafar Ahmad al-Uthmani, I’la al-Sunan Vol.11 pg.69

[13] Abdul Waheed v Asma Jehangir, PLD1997, Lahore 317

[14] ibid

[15] Al-Sarakhsi, Kitab Al-Mabsut (1986) 23

[16] Al-Sarakhsi, Kitab Al-Mabsut (1986) 24-25

[17] H. ‘Abd al- ‘Ati, Family Structure in Islam (1977) 70

[18] Abdul Waheed v Asma Jehangir, PLD1997, Lahore 317

[19] ibid

[20] ibid

[21] ibid

[22] ibid

[23] ibid

[24] Muhammad Khalid Masud, Gender Equality and The Doctrine of Wilaya’ (Islamic Family Law Workshop by Oslo Coalition, Cairo, January 2010)

[25] Ibn Manzur, Lisan al-‘Arab (First Published 1883, Beirut 1960)

[26] Yusuf Abdul Azeez and others, ‘Codification of Islamic Family Law in Malaysia: The Contending Legal Intricacies’ (Asia International Conference, Kuala Lumpur, 2015)

[27] ‘Marriage syndicates preying on gullible Malaysians’ (NewStraitsTimes), <https://www.nst.com.my/news/2017/03/224366/marriage-syndicates-preying-gullible-malaysians> accessed on 2 January 2019

[28] ‘Population & Demography’, (Department of Statistics Malaysia) <https://www.dosm.gov.my/v1/index.php?r=column/ctwoByCat&parent_id=115&menu_id=L0pheU43NWJwRWVSZklWdzQ4TlhUUT09> accessed on 2 January 2019

[29] 1985 Kelantan Enactment of Shari’a Criminal Code (Enakmen Kanun Jenayah Syariah Negeri Kelantan 1985)

[30] 1983 Kelantan Enactment of Muslim Family (Enakmen Keluarga Islam Negeri Kelantan 1983). Clause 11 states that marriage is voided if it does not fulfil the conditions set under Table 4. Table 4 reads that the presence of male guardian is one of the requirements for a valid marriage and failure to comply with this will result in a void marriage.

[31] ‘Population & Demography’, (Department of Statistics Malaysia) <https://www.dosm.gov.my/v1/index.php?r=column/ctwoByCat&parent_id=115&menu_id=L0pheU43NWJwRWVSZklWdzQ4TlhUUT09> accessed on 2 January 2019

[32] Section 11, 2004 Pulau Pinang Enactment of Muslim Family (Enakmen Keluarga Islam Pulau Pinang)

[33] Section 154, 1965 Laws of Islamic Administration (Undang-Undang Pentadbiran Ugama Islam 1965). Under this section, a man and a woman who lives together and fails to prove the legitimate of their relationship through blood relations or Malaysian marriage certificate can be charged on seclusion.

[34] C. Hamilton, The Hedaya (Premier Book House 1982)

[35] A. Mohd and others, ‘Protecting Women’s Interest (Maslahah) in Marriage Through Appointment of a Guardian (Wali) Under Islamic Law‘ [2015] 23(S) Pertanika Journal Social Science & Humanities <http://www.pertanika.upm.edu.my/Pertanika%20PAPERS/JSSH%20Vol.%2023%20(S)%20Nov.%202015/07%20JSSH%20Vol%2023%20(S)%20Nov%202015_pg75-84.pdf> accessed 2 January 2019

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