Home / Culture & Heritage / Freedom of Marital Choice in the Light of the Qur’an and A hadith and its Relevance to Muslim Civil Laws – Asiff Hussein

Freedom of Marital Choice in the Light of the Qur’an and A hadith and its Relevance to Muslim Civil Laws – Asiff Hussein

This paper deals with a much disputed aspect of Islamic civil law, namely, the position of the wilayat (marriage guardianship) and the legal capacity of Muslim women to contract marriage in accordance with the rules laid down in the Qur'an and the Sunnah or the Prophetic Tradition. The purpose of this paper is to elucidate that Muslim women are conceded the right to contract a marriage at their own discretion even sans the consent of their awliya or agnatic guardians. It will take into consideration the views of the two main schools of Sunni Muslim jurisprudence, namely, the Hanafi and the Shafi'i in this matter and examine their respective positions from an Islamic standpoint.

Marriage in Islam could be defined as a civil contract entered into by a contract of offer or proposal (ijab) and acceptance (qabul) by the mutual consent of the bridegroom and the guardian or agent (wali) of the bride in the presence of two adult male witnesses. The wali or marriage guardian is, in the first instance, the father and in the second instance, the paternal grandfather, according to both the Hanafi and Shafi'i schools. This is followed by other close male relatives on the agnatic side, depending on the position of the madhhabs (schools of law) regarding the matter. According to the Hanafis the right of jabr (i.e. the power to impose the status of marriage on a ward) applies to all minors, whether male or female, and no sooner they attain puberty (bulughiyyah), which in the absence of evidence to the contrary is fixed by law at 15 years, they are freed from their wali's right of jabr and may validly enter into a marriage contract at their own discretion.

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4 comments

  1. Assalamu Alaikum ALL. Even though we have conveniently overlooked this anomaly. it is about time that we immediately rectified it . We should do this by quoting this relevant Quran and Sunnah and channel it through Jamathjul Ulema so that they in turn inform the Registrats of Muslim marriages.? Mulaffer

  2. Since Islam requires the consent of the bride, it is only proper that the nikah certificate should require her signature. Unfortunately there is no such provision in Sri Lankan Muslim marriage certificates as it is the wali of the bride who signs for her. There are many interested organisations that have been campaigning to incorporate a requirement for the bride's signature as an expression of her consent including the Muslim Women's Research and Action Forum which has proposed some amendments to the present Muslim Marriage and Divorce Act. let us hope that the new draft act will incorporate this provision and make it a legal requirement.

  3.  

    I just happened to experience even in Canada, the bride's signature is a must for the Muslim wedding certificate.
     
    The Imaam explained it to me that the consent has to be direct to the one who is performing the ceremony and not through a second or third party as being practiced in Sri Lanka.
    In my opionion too it is better for the bride and groom to give her consent by signing the marriage certificate form to increase the onus of the marriage on both,
    Wassalaam
    AGA Barrie
  4. This is with regard to the Sri Lankan nikah marriage certificate. All over the  Islamic world, the nikah certificate requires the bride's signature for it to be valid. In Sri Lanka however, the certificate contains no space for the bride's signature. This is contrary to Islamic teachings which require consent of both parties for a marriage to be complete. I propose an amendment to the nikah certificate and hope Sailan Muslim will help introduce this change by contacting the relevant authorities.

    In fact, an article in your site mentions that the nikah document is signed by both the bride and groom :
    https://sailanmuslim.com/an-nikah-the-marriage-by-mohammad-mazhar-hussaini/#respond

    However, this has not been happening in Sri Lanka and the bride is excluded from the entire nikah ceremony.