Monday, August 17, 2009

The Wali (Guardian) in Islamic Marriages According to the Hanafi Jurisprudence

In Islamic marriages, the wali (guardian) has an important role to play. This article discusses the responsibility of the wali according to the Hanafi jurisprudence.

The “wali” or guardian in Islam is a Muslim individual responsible for the well being of the bride before her marriage. His duty is to ensure that the groom is reliable and trustworthy to marry the bride and carry out his obligations as husband.

The Hanafi School of jurisprudence assigns the “wilayah” (guardianship) to the following individuals: the son of the bride if she was previously married, his son, and the grandson’s descendants. If the bride was not married before, the succession of guardianship goes to: the father, her paternal grandfather and above in the paternal succession, the brother from her parents, brother from her father, son of the brother from her parents, his paternal descendants, the uncle from the father’s parents, uncle from the father, her male cousin from his parents, cousin from his father, the cousin’s son, his paternal descendants, father’s uncle from parents, father’s uncle son from father, his paternal descendants, etc.

The above mentioned individuals have “wilayah” (guardianship) over the bride when she is under age. Not only minors could be married off by their guardians, other legal incompetents, including the insane, could be married off too by the guardians. Guardianship ends at the age of legal majority except for the mentally challenged children, male or female.

In the event none of the paternal “wali” listed above is available for guardianship, the Hanafi School allows any member of the family to be guardian, provided that he or she is entitled to inheritance in accordance with Islamic Sharia. In such a situation, the “wilaya” may go to the mother, her daughter, the daughter of the grandson, daughter of the daughter’s daughter, etc.

If there is no family member available, the “sultan” (the ruling sovereign), the “qadi” (religious judge), or whoever the “qadi” chooses, can be assigned to have guardianship.


Types of the “wilayah” (Guardianship)

In Islam, there are two types of “wilayah” (guardianship), one is called “wali mujbar” (or mandated guardianship) and the other is “wali ghayr mujbar” or not-mandated guardian. In the Hanafi jurisprudence, the only guardianship acceptable is the former. Thus, the job of mandated guardian is to protect the well being of their under-age children, to choose the suitable husband for marriage and to negotiate the “mahr” agreement. (See our discussion of the “mahr” at http://gabrielsawma.blogspot.com/2009/07/mahr-provision-in-islamic-marriage.html. It is within the context of guardianship that we may understand the stress it places on the special responsibility of the “wali” of the minor in the process of arranging her or his marriage even before the child reaches puberty.

A “wali” is entrusted with furthering the well-being of his or her child and protects the child’s interests including the arrangement of an early marriage. This role extends to the mentally ill, because like the rest of society, they too benefit from being in the married state.

The “wali’s responsibility is to look that the rule of “kafa’a” (suitability) of the would-be spouse in terms of lineage, legal status, social class, and moral standards are met. A highly educated girl needs to be married to a person who is at her level or better. A girl from rich family should marry a man who is as wealthy as her family is.

Under the rule of the Hanafi School, the father and grandfather may give the minor for marriage, such arrangement is considered legal. If the partner chosen by the father or grandfather turned to be “faseq” (unjust, lack of morality) or “ghayr kafu’” (unsuitable), the marriage will still be considered legal; the minor cannot request separation when he or she reaches puberty. However, should the father or grandfather enters into a marriage contract on behalf of a second minor; the rule is that the second marriage may be dissolved when that minor requests it at the age of puberty.

If the ‘wali mujbar’ (mandated guardian) is someone other than the father or grandfather, who gives the minor for marriage to someone who is known to be “faseq” (unjust, lack of morality) or “ghayr kafu’” (unsuitable), then the minor may request “faskh” (separation) upon reaching puberty; in this case, the “qadi” (religious judge) will order separation.



The Role of the Guardian in the Marriage Contract

According to the Hanafi School, the presence of a guardian in the marriage of the minor is essential and mandatory. His absence during the negotiations leading to marriage causes the marriage to be null. This rule applies as long as the spouse is minor; however, the guardian’s absence does not nullify the marriage if the spouse is no more minor, provided that the he or she is getting married to a person who is considered “kafu’” (suitable). If that person is found to be “ghayr kafu’” (unsuitable), the guardian may step in and requests the annulment of the marriage.



Gabriel Sawma is a Professor of Middle East Constitutional Law, Islamic Shari’a, Arabic and Aramaic. Expert Consultant on Islamic divorce, inheritance, child custody, banking, and finance. A lawyer with Middle East background; admitted to the Lebanese Bar Association of Beirut; Associate Member of the New York State Bar and the American Bar Associations. Editor of International Law website at http://www.gabrielsawma.blogspot.com. Author of “The Aramaic Language of the Qur’an, http://www.syriacaramaicquran.com. Email: gabrielsawma@yahoo.com; Email: gabygms@gmail.com.

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