Guardianship

اﻟوﻻﯾﺔ ﻓﻲ اﻹﺳﻼم Guardianship in

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Guardianship

In The Name of , The Most Gracious, The Most Merciful

All praise is for Allah. We praise Him and seek assistance in Him and seek His forgiveness. We seek refuge in Allah from the evil in of our own selves. Whomever Allah guides, there is none to misguide and whomever He leads astray, there is none to guide him a right. I openly bear witness that none has the right to be worshiped except Allah alone without any partners and I bear witness that is His Messenger.

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INTRODUCTION:

The woman in Islam is a very unique and delicate part of the Muslim community. Allah distinguished her from the male species giving her a separate realm in which she should be dealt with:

“And the male is not like the female” (3:36)

It is imperative for men to understand this so that they fall into trying to change the woman into something that she is not. Event the Sharee’ah (legislation) of Islam has adjusted some of the religious tenets and obligations to accommodate the feminine nature of the woman such as;

One: Placing the financial burden of the family on the shoulders of the man, as Allah says:

“The men are the protectors and maintainers of the women because of the strength which Allah has given one of them over the other and because the men spend from their wealth…” (4:34)

Two: Alleviating the physical burden of from the women and directing their attention and energy to more important aspects of the religion that are commensurate with her delicate nature. A’isha Radiyallahu anha asked the Prophet Sallallahu alaihi wa salam “Can the women fight jihad?” So the Prophet Sallallahu alaihi wa salam responded:

“Yes, but the type of jihad that doesn’t involve fighting— and .” (Collected in Sahih Al Bukhari)

Three: Not allowing her to pray or engage in other acts of religious devotion (e.g. fasting and Tawwaf) while she is menstruating or going through the post partum bleeding process. Unlike the man who is never allowed such a concession irrespective of situation and circumstance. The Prophet Sallallahu alaihi wa salam was on hajj with his A’isha and he saw her crying and asked are you on your menses? And she replied in the affirmative and so he instructed her to do as the rest of the pilgrims with the exception of Tawwaf.

Authors Note: If you notice A’isha was crying because the menses interfered with the continuity of her worship. So this is not a “resting period” for the women, nor should they rejoice at such an opportunity because it only sets her back in her relationship with Allah.

Four: Making her entry into paradise easier and simpler than that of the man’s. The Prophet Sallallahu alaihi wa salam said:

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“If the woman prays her five daily prayers, fasts her month (of Ramadan) and protects her private area and obeys her it will be said to her, renter into paradise from any gate you wish.” (Collected in Musnad of Ahmad)

And other concessions the legislation of Islam has made for the woman to accommodate the delicate nature Allah created her with, as He describes her dainty upbringing:

“Can he who was brought up amongst trinkets and who can barely express herself clearly in debate…” (43:18)

Thus their upbringing is a bit more complex unlike that of the men. And this is why in the pre- Islamic society of Arabia women were seen as a burden and therefore demeaned and belittled. And it is because of this, when the Prophet Sallallahu alaihi wa salam said to the women on the Day of the E’id:

“O women give in charity for indeed I saw you all as the majority of the inhabitants of the Hell-fire!” (Collected Sahih in Al Bukhari)

One of the women stood and asked very boldly, “Is it because we are women?!” This was out of fear that perhaps Islam had not yet liberated women from the societal marginalization and the clutches of vilification which they had experienced prior to the advent of Islam. And to counteract this degrading outlook on women there were many textual evidences from both the Qur’an and the revealed which speaks to the honor and dignity that Islam gave the women. One of such texts is the statement the Prophet Sallallahu alaihi wa salam said to A’isha:

“Whoever is tested with anything while raising these daughters, but still manages to do good to them they will be a protection for him from the fire.” (Collected in Sahih Al Bukhari)

He made this comment to her after A’isha informed him that there was a woman who came to visit her earlier that day and she had two daughters with her. So A’isha gave her a date that she had and the woman cut the date in half and gave each one of her daughters a piece, The Prophet Sallallahu alaihi wa salam described the women as delicate when he said to one of his companions by the name of Anjasha Radiyallahu anhu who, while riding with his in the caravan began to recite poetry in a beautiful voice to make the animals go faster

“Slow down Anjasha! Don’t break the fragile vessels.” (Collected in Sahih Al Bukhari)

The scholars explain that the reason he told Anjasha to stop was either because the fast movement of the caravan would harm the delicate nature of the women or because the beauty of his and the poetry would have an effect on their hearts—this was the opinion of Al Qadhi Iyadh.

Another indication of the delicate nature of the women is the fact that they are easily broken. Hence the Prophet Sallallahu alaihi wa salam encouraged the men to treat the women with kindness, He (Sallallahu alaihi wa salam) said in his farewell khutbah:

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“Treat the women kindly for indeed the woman was created from a rib and the most crooked part of the rib is the uppermost part (i.e. her mouth)…” (Collected in Sahih Al Bukhari and Muslim) in another narration he said, “She will never be as straight as you would like her to be. And if you draw any benefit from her, you will do so while she has this crookedness and if you try to straighten her you will break her and to break her is to divorce her.” (Collected in )

And just like anything precious and delicate it needs protection. In a dog eat dog society like the one we live in today, weakness is considered vulnerability and will be preyed on by the vulture- like nature that is fostered in the men that reside in such an environment. And maybe this is the cause for the aggressive demeanor which many of the women have succumbed that continues to disrupt or completely interfere with the happiness of their relationships. This is why the woman in Islam always has someone to care for her and to look after her well-being from her birth to her death. This is also the reason that the daughter is obligated to live with her father when she reaches the age of 7, in the event of divorce— because he is her primary guardian (i.e. ).

There are certain Islamic injunctions that have been legislated to protect the woman, such as the statement of the Prophet Sallallahu alaihi wa salam:

“The woman should not travel except with her , nor should a man enter upon her in private unless she is with her Mahram. So a man said: “O Messenger of Allah, I want to go on an expedition such and such but my wife wants to go and make Hajj? The Prophet Sallallahu alaihi wa salam said to him: “Go and accompany your wife” (Collected in Sahih Al Bukhari)

When we consider the community of the Prophet Sallallahu alaihi wa salam, we would like to believe it was complete utopia but the fact of the matter is that it was multi-cultural due and economically diverse. Multi-cultural in the sense that the companions came from very different environments with diverse cultural practices and customs. The Muhajireen were from Makkah and the Anasar were from . In addition to this, there were three different tribes of living in Medinah during the initial stages of its development as a community: Bani Quraydha, Bani Qayna Qa’ah and Bani Nadhir, who also had their own religious and cultural customs dissimilar to that of Islam and the .

There was also another more precarious, yet equally perilous, element that existed in his community, which was the presence of the Munafiqoon (i.e. hypocrites). These were individuals who outwardly exhibited belief in Islam but inwardly detested it and in essence they are disbelievers as Allah describes them:

“And from amongst mankind are those who say, “We believe in Allah and the Last Day” but they are in fact not believers. They seek to deceive Allah and those who believe however they only deceive themselves and realize it not. In their hearts is a disease and Allah increases their disease and for them is a painful punishment because of the lies they used to forged” (2:6-10)

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The chief of the hypocrites was Abdullah Ibn Ubay Ibn Salul, the same individual who spearheaded one of the greatest scandals in the history of the prophets and messengers—the slander of A’isha Radiyallahu anha. The danger in this is that many of the community members did not know who the hypocrites were, evidenced by the statement of the Prophet Sallallahu alaihi wa salam to Umar Radiyallahu anhu when he asked to chop off the head of the individual who disrespected him by saying, “Fear Allah Muhammad and be fair!”

“No Umar! I fear that people will say that Muhammad kills his companions.” (Collected in Sahih Al Bukhari)

This individual was obviously not his companion however, others in the community were not aware of this. So by allowing Umar to kill him, the people who deemed him a believer would have thought that the Prophet was killing his own companion. However the Prophet Sallallahu alaihi wa salam hand selected an individual from his community and secretly disclosed to him the names of all the hypocrites and he was Huthayfah Ibn Yamaan Radiyallahu anhu. The matter was so secretive but, at the same token, one of great concern that even Umar Radiyallahu anhu came to Huthayfah after the death of the Prophet and asked him, “I ask you by Allah! Did the Messenger of Allah mention me amongst the hypocrites?!” Nonetheless this added another dynamic to the community which prompted the fathers/guardians of the women to take additional precautions to ensure their protection.

Fast forward to the communities we reside in currently wherein people accept Islam for a number of reasons and create an environment within our communities reminiscent the lifestyle(s) they came from previously because they have yet to commit themselves to real change. This fundamentally conflicts with the spiritual dynamic the legislation of Islam came to establish irrespective of time, place and circumstance. The women in our communities are literally preyed upon by men who come as wolves in sheep’s clothing. Some of whom we are not able to ascertain whether or not they are even Muslim because there is no systematic structure in the local Islamic institutions and Masjids by which an individual’s Islamic identity can be verified. It seems that, as Muslims, we tend to give people the benefit of the doubt in matters wherein conviction should be top priority (like giving away our daughters, sisters and mothers in ) and we give precedence to conviction in matters wherein the benefit of the doubt should be extended effortlessly (such as the honor and dignity of every Muslim).

There should be a more efficient and organized process for individuals wishing to take Shahadah (i.e. testimony of faith) in which their Islamic identity can be officially affirmed through the leadership of our communities. This is not just for the sake of marriage but for other important religious obligations such as Hajj and Umrah. Even the Saudi consulate in Washington, DC. requires an official “Shahadah Certificate” from the local masjid of the individual before they will issue him/her a visa for Hajj or Umrah—for Islamic identity verification purposes. This is also important for other social and communal obligations such as keeping a standardize record of community members etc.

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Nonetheless fathers have to take the necessary precautions to ensure the protection and preservation of the women in our communities, just as the companions of the Prophet Sallallahu alaihi wa salam did with the women in their communities. Therefore when it comes to matters such as , the woman has to have guardian, which is known in the legislative terminologies of the Shari’ah as the Wali. This term derives its meaning from one of the lofty and beautiful names of Allah, Al Wali (i.e. The Guardian). Allah is the guardian over His obedient servants and shoulders the responsibility of their guidance, provision and protection in the life of this world as well as in the hereafter. Allah says in the Qur’an:

“Allah is the Wali guardian over those who believe He brings them from darkness to light while those who disbelieve their guardians are the false gods (i.e. Taghut), who take them from light to darkness…” (2:256)

And although Islam gives some degree of autonomy to the matron, considering the fact that she has experience in the realm of marriage and should be a bit more decisive about what she wants in a spouse, as the Prophet Sallallahu alaihi wa salam said:

“The matron has more right to herself than her Wali (i.e. male guardian).” (Collected in Sahih Muslim)

However it does not completely absolve her of the responsibility of having a Wali. The dilemma we are faced with today in our communities with many women who have either recently converted to Islam, or who have lost faith/ trust in the , or whose fathers are not at all concerned with whom they select as a potential mate, is that they have had their own individual experiences with men and relationships. Albeit some of the relationships have not been Islamically sound and in many instances completely haram, nonetheless it was a previous exposure that creates an attitude of callous disregard for the Islamic instructions that have been given to them in regards to the process of selecting a potential mate— namely that of the Wali.

The Sahabiyaat (i.e. female companions of the Prophet) who were converts to Islam and had no Wali from the male members of their families turned to the leadership of their community (e.g. the Prophet Sallallahu alaihi wa salam for advice and direction in these very delicate matters. One example of this is an incident with a woman by the name of Fatimah Bint Qays who came to the Prophet Sallallahu alaihi wa salam and informed him that Mu’awiyah Ibn Abu Sufyan and Abu Jahm both proposed to her. She trusted that the Prophet would guide her in the right direction with the impartiality and fairness that a leader should be characterized with. The Prophet instructed her with the following:

“As for Mu’awiyah, he’s a poor man who has no money and as for Abu Jahm, he beats his wives, but marry Usamah Ibn Zayd!” (Collected in Sahih Al Bukhari)

Although the Prophet was no kin to Fatimah Bint Qays other than being her Wali—by default of being the leader of the community— he still instructed her with what he saw to be the best

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choice for her. The religion of Islam is one of sound and sincere advice: The Prophet Sallallahu alaihi wa salam said:

“The religion is sincere advice.” They asked him, “To whom O Messenger of Allah?” So he said: “To Allah, His Book, His Messenger, to the leaders of the believers and the general masses of the Muslims.” (Collected in Sahih Muslim)

The Prophet Sallallahu alaihi wa salam also said:

“The rights of a Muslim over another Muslim are six: …If he seeks your advice and counsel, then advise him…” (Collected in Sahih Muslim)

Guardianship (i.e. Wilayah) in Islam should be viewed as a responsibility just like any other religious obligation and not as an opportunity to exploit the vulnerability of someone who trusts that you have their best interest at heart. Every responsibility comes with accountability before Allah, therefore the men in our respective communities who take it upon themselves to shoulder this task should understand the magnitude of it. The ironic thing is that it is intrinsically characteristic of us as human beings to take on responsibilities that are above our moral capacity. Allah mentions in the Qur’an:

“Indeed We offered the Ammanah (e.g. trust of free will) to the heavens and the earth and the mountains but they all declined to bear it and were afraid of it, but man bore it, verily he was unjust (to himself) and ignorant (of the accountability).” (33:72)

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Chapter One

Guardianship: A Prerequisite for the Validity of Marriage

Marriage, much like any act of worship in Islam, has certain prerequisites that render it valid, or conditions by which it is considered a marriage Islamically. These conditions are pertinent because marriage in Islam involves the individual right(s) of each spouse conferred to them by Allah, and this is not something to be taken lightly. Allah says in the Qur’an:

“O Mankind be dutiful to your Lord, who created you from a single person (Adam) and created from him his wife and from them spread many men and women and fear Allah through whom you demand your mutual rights…” (4:1)

If this were not the case, the institution of marriage in Islam would have been devalued and disregarded as well as the values of people involved in the marriage bond. The legislation of Islam was designed to procure and preserve the rights of every individual in the following areas:

The First: Religion

The Second: Intellect

The Third: Wealth

The Fourth: Honor

The Fifth: Life

Thus Islam’s approach to marriage is one of protection and preservation of the rights of both spouses through measures such as; the marriage contract. The legislation of Islam views marriage as a type of transaction, and much like any transaction in Islam (e.g. debt, business, divorce etc.), we are encouraged to secure the rights of everyone involved with a written contract. Although the marriage contract works mostly in favor of the wife— considering that divorce is in the hands of the man—it is a condition of the marriage that affects the validity of it.

According to the legislation of Islam (i.e. Sharee’ah), Guardianship (i.e. Wilayah) is another condition by which the validity of the marriage is solidified. The term Wali (i.e. Guardian) actually derives its meaning from one of the beautiful names of Allah which is Al Wali—The Guardian. Allah is the one and true guardian over His creation, and more specifically, those of His servants who believe. Allah says:

“Allah is the Wali (i.e. Protector or Guardian) of those who believe. He brings them out from darkness into the light. As for those who disbelieve, their guardians (Awliya) are the

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false deities they worship and extol. They bring them out from light into darkness…” (2:257)

One of the beauties of Islam is that the Muslim woman is never left to fend for herself. From her birth to her death she is always under the authority and care of a man whose chief responsibility regarding her is look after her rights in the five areas highlighted previously. Allah describes the delicateness of the woman in the when he said:

“Do they then liken Allah to a creature who was brought up in trinkets and adornments and who, in a dispute, cannot articulate herself?” (43:18)

The Prophet Sallallahu alaihi wa salam compared the condition of the Muslim woman in the marriage bond to a captive in order to indicate how delicate her position is under such circumstances and the courtesy and compassion that should be extended her in such a situation.

“And treat the woman with kindness for they are like captives under your authority.” (Collected in Sahih Bukhari)

The Prophet Sallallahu alaihi wa salam also indicated how deeply obedient a woman should be to her husband under such conditions as a marriage bond, in a manner almost resembling servitude when he said:

“If I were to command a person to prostrate to another it would command the wife to prostrate to her husband.” (Collected in Sahih Bukhari)

And with such an intense level of obedience, it is imperative that her rights, in such a situation, be secured in order to protect her from oppression. These rights are protected before the marriage contract and before there is any discussion of marriage between the two through the institution of the Wali. The Wali is such an integral part of the marriage that any marrirage conducted without the presence and approval of such is invalid. The Prophet Sallallahu alaihi wa salam said:

“Any woman who marries without the permission of her Wali, then her marriage is invalid.” (Collected in Sahih Bukhari)

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Chapter Two

The Importance of the Wali

Guardianship is a religious obligation in Islam and just like any other religious obligation/responsibility it should be treated with the utmost reverence and fear of accountability. One of the recent atrocities that we are experiencing in our communities is when a brother takes it upon himself to assume the role of Wali over a sister— in many instances he is illegitimate and fundamentally ill equipped to assume such a role— and creates more turmoil in the life of the woman than what she had initially. This is characteristic of mankind, as Allah stated:

“Truly, We did offer Al Ammanah (i.e. the trust of freewill) to the heavens and the earth and the mountains but they declined to bear it and were afraid of it, but man bore it. Indeed, he was unjust to himself and ignorant of its results.” (33:72)

The Wali’s role in the life of the woman is important because the validity of her marriage depends on it. There are some conditions of the marriage which are ineffective like the witnesses or the , but then there are those elements that affect the validity of the marriage like guardianship. All throughout the Qur’an Allah mentions that the women are protected and maintained by their guardians and therefore married by their permission. Allah says:

“Men are the protectors and maintainers of the women because Allah has made one of them to excel more than the other and because the men spend from their wealth.” (4:34)

This, of course, would include a daughter and her father, a sister and her brother as well as a son and his mother, or in any instance where a man would be responsible for the woman under his auspices. Allah mentions in another verse:

“Marry the women with the permission of their guardians and give them their (i.e. dowry) according to what is reasonable…” (4:25)

Allah mentions in another verse:

“And when you have divorced the women and they have fulfilled the term of their prescribed period, do not prevent them from marrying their former , if they mutually agree on reasonable basis…” (2:232)

Imam As Sa’di mentioned in his tafseer of this verse: “This address was to the Awliyaa’ (guardians) of the woman who was divorced less than three times. When her period is finished and her former husband desires to remarry her, then it is not permissible for her Wali,

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whether her father or other than him, to prevent them from remarrying either due to being angry at him or appalled at the fact that he divorced her the first time.

In this verse is clear evidence that solidifies the obligation of a Wali in the event of marriage, which is clear from the fact that Allah prohibited the guardians of the woman from standing in the way of the man remarrying his ex wife. And Allah wouldn’t have prohibited them except if her affair was under their authority and they had a right over her in relation to marrying her off.

Imam Shafi’ee said: “This verse is the clearest text in the book of Allah pointing to the fact that the woman does not have the authority to marry herself.” Zainab Bint Jahash Radiyallahu anha used to brag to the other wives of the Prophet Sallallahu alaihi wa salam, “Your guardians married you to the Prophet, but Allah married me to him from above the seven heavens!” And this is because Allah says in the Qur’an:

“So when Zayd divorced her, We gave her to you in marriage…” (33:37)

The scholars mention that the reason the woman needs a Wali is primarily due to the probability that her desire will entice her to engage in behavior(s) that are not permissible prior to the marriage. So the Wali is there to ensure that this doesn’t happen. The Prophet Sallallahu alaihi wa salam stated very clearly:

“If two people are alone, the Shaytan is the third party.” (Collected in…)

In addition to this, the Prophet Sallallahu alaihi wa salam mentioned that Shaytan flows through the son of Adam like blood and in our ignorance we tend to overestimate ourselves and underestimate the Shaytan and thus we find ourselves in a situation using marriage as a means to legitimize it. The statement of the Prophet Sallallahu alaihi wa salam in the aforementioned hadeeth, “Any woman who marries without the permission of her Wali, her marriage is invalid” means that the marriage is null and void, except if she remarries in the correct manner (with a Wali), as it should have been from the beginning. And this type of marriage is not, and will never be, permissible Islamically, even if the Wali permits it afterwards simply because an invalid marriage contract will never be valid under any circumstances unless it is done again anew in a manner consistent with the legislation of Islam.

Author’s Note: However if the man consummated the marriage based upon the belief that this was the correct way to get married, then he has to carry through with the dowry (i.e. Mahr), however he/she escapes the capital punishment in Islam for fornication which is 100 lashes. This is because the Prophet Sallallahu alaihi wa salam never mentioned a particular punishment for the one who does it.

Imam Malik Rahimahullah said when he was asked about a woman who marries herself without her Wali. So he reprimanded those who witnessed it for participating/attending such a marriage, however, he did not hold the opinion that the two getting married should be punished, so as long

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as the man did not consummate such a marriage, but if he did, they should all be punished: The woman, the man and the one that married them.

Ibn Qudamah Rahimahullah said: “The Nikah (i.e. marriage) is not valid except with a Wali because the woman is not the sole authority over her affair to the degree that she can marry herself or anyone else. There is no guardianship in her marriage excerpt through her Wali, and if she marries herself then the marriage is not valid.”

This opinion was also held by Umar Ibn Al Khattab, , Ibn Masud, Ibn Abbas, Abu Hurairah, , Sa’eed Ibn Al Musayyib, Hassan Al Basree and Umar Ibn Abdul Aziz. However, Abu Haneefah, took a position that she can marry herself and other than herself without a Wali, because Allah says:

“And don’t prevent them from marrying their former husbands…” (2:232)

None of the other scholars agreed with this opinion, however Abu Haneefah believed that this opinion was the most preferable simply because Allah placed marriage in the hands of the woman by forbidding the guardian from preventing her from remarrying her ex-husband. This is because marriage her right solely and she is the one who manages her own rights exclusively, independent of anyone else. She has the right to marry herself just as she has the right to sell and manage her own property.

Ibn Qudamah Rahimahullah said: “As for the verse (2:232), what is understood is that “preventing them” is to stop her from marrying which is an indication that her marriage is in the hands of the Wali, not herself. And this verse was actually revealed about a companion by the name of Maqil Ibn Yasaar Radiyallahu anhu. Imam Ahmad collected in his Musnad on the authority of

“There is no (valid) marriage except with a Wali.” (Collected in Musnad Imam Ahmad)

Aisha Radiyallahu anha said: “Any woman who marries herself without the permission of her Wali, her marriage is invalid, invalid, invalid! If she consummates the marriage, then for her is the dowry (i.e. Mahr) because the private parts were thought to be permissible (i.e. ), and if there is any debate and the Wali prevents her from marriage, the Sultan (i.e. Muslim leader) is the Wali for the one who has no Wali.” (Collected Abu Dawud & At Tirmithi)

The scholars mention that this is so because the woman is not responsible with her private area due her vulnerability and due to how easily and quickly she can be deceived. So it is not fitting that her private parts be left to her discretion and it was mentioned in the hadeeth “with the permission of her Wali” because he is the one, in most instances, if he is pleased, then he will be the one to facilitate the marriage, not her.

Shaykh ul Islam Ibn Taymiyah said: “The obligation of the Wali was mentioned in the Qur’an and the Sunnah in more than one place. It was also a regular practice of the Sahabah that the men married the woman off, and it was never known to be a practice amongst them that a woman

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would marry herself without a Wali and this is what distinguished the Islamic marriage from traditional courting. And it was because of this Aisha Radiyallahu anha said, “The Muslim woman doesn’t marry herself, for the Baghi (i.e. lewd woman), she is the one who marries herself.”

Abu Hurairah Radiyallahu anhu said: “The woman does not marry another woman off. Nor does she marry herself without a Wali. The fornicating woman (i.e. Zani) is the one who marries herself.”

Imam At Tirmithi Rahimahullah said: “We (scholars) don’t know any differing amongst the scholars in this matter.”

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Chapter Three

Conditions for the Validity of the Wali

There are certain conditions legislatively by which a man is considered a valid Wali. Here in this chapter we will explore these conditions. And Just like any condition, the absence of it, renders the guardianship invalid.

The First: Takleef: This is a legislative term used in the Sharee’ah of Islam and it refers to: the following:

v : This term refers to the individual who has reached the age of puberty, which is determined by the following:

1. Pubic hair 2. Seminal discharge 3. Menstrual cycle 4. Fifteen years of age, if none of the above is present.

v Aqil: This term refers to the individual who is intellectually competent

The Second: Thukooriyah: This term refers to the gender of the indivual, and in the case of the Wali, it can only be a male.

The Third: Hurriyah: This term refers to the individual who is a free man. Someone who has the authority to govern his own social affairs. Included in this are those whose autonomy was taken away from them through incarceration, etc. – those who don’t have authority over themselves or anyone else.

The Fourth: Rushd: This term refers to the individual who is intellectually apt, possesses sound judgment and understands the intricate details of marriage as well as those matters that will be of benefit to the one getting married.

Therefore the child cannot be a Wali for the woman even if she is his mother. The child’s guardianship is not legitimate Islamically because in order for the guardianship to be valid, the guardian has to be in complete authority over himself due to the fact that it involves disposing the rights of someone else. Even as it relates to their own rights, the child is someone who is guarded and cared for and therefore in no position to manage the affairs of anyone else. And Islamically he has to have reached the age of sound judgment (i.e. Rushd) to administer his own

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affairs, so how much more is it required when it comes to the rights of someone else. Allah says in the Qur’an:

“And test the orphans (as it relates to their intellectual aptitude) until they reach the age of marriage, if then you find sound judgment in them release their property/wealth to them…” (4:6)

Consequently the child himself is guarded and thus resembles the woman in that regard and cannot be the guardian over anyone’s affair. Ibn Hazim Rahimahullah said: “The male child of the woman cannot be a guardian for her.” Included in this category is the male who has reached the age of sound judgment however he still has no autonomy over his own affairs like the individual who is incarcerated. In the event of incarceration, if there is no other Muslim male relative to oversee the affair of the woman, the Imam of her local community becomes her Wali.

The Fifth: Islam: This means that the Wali must be Muslim. The Wali’s religion must be consistent with the religion of the one he is a guardian over.

“And never will Allah give the disbelievers authority over the believers.” (4:141)

Allah also states very clearly:

“The believers are protectors and maintainers of one another…” (8:73)

This is because allowing the Muslimah to be represented by her non Muslim father defeats the purpose of instituting the Wali to begin with which is to preserve and protect the rights of the Muslim woman in a manner consistent with the religion of Islam. If the man is does not share the same faith or religion as the woman he is representing, how can he protect her?

Imam Ash Shafi’ee Rahimahullah stated that Sa’eed Ibn Al As married the Prophet Sallallahu alaihi wa salam to Umm Habeebah, the daughter of Abu Sufyan, not Najashee, the Christian Emperor of Abyssinia (Ethiopia). Najashee later accepted the religion of Islam, but at the time of this incident he was still a Christian, and he only paid the dowry for the Prophet Sallallahu alaihi wa salam as (as Imam Al Baihaqi stated) as a gesture of reverence and mutual respect for him. Her own father, Abu Sufyan, did not have any guardianship over her because he was still a non-Muslim at that time, and Allah eliminated any form of authority of the non-Muslim over the Muslimah with the Shahadah (i.e. testimony of faith). This even applies to her non-Muslim husband the moment she utters the Shahadatain as Allah says:

“O you who believe! When believing women come to you as emigrants, examine them. Allah knows best as to their faith. Then if you ascertain that they are true believers do not send them back to the disbelievers, they are not lawful (wives) for them nor are the disbelievers lawful (husbands) for them. And return to the disbelievers the amount which they have spent (i.e. Mahr)…” (60:10)

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Ibn Qudamah Rahimahullah said: “The guardianship of the non- Muslim over a Muslimah will never be recognized in the religion and this is the opinion of the vast majority of the people of knowledge.” Ibn Munthir Rahimahullah said: This is the consensus of every individual scholar I have memorized from.

So the question now would be is: What are the parameters in which the non-Muslim father can actively participate in the marriage process of his daughter, who is a Muslim? This is particularly important for us as Muslim minorities living in America who lack sound, relevant information regarding these issues, the result of which is due to a detailed study of the intricate particulars that constitute the environment that govern them.

In light of what Najashee did of paying the dowry for the Prophet, we can say that at least the non-Muslim father can help with the financial burden of the marriage. However, he has no binding jurisdiction over the decision of the woman to marry Islamically. Although, if he disagrees with the decision of his daughter in relation to the one whom she is marrying due to Islamically legitimate moral/religious issues, he can bring his complaints to the Imam of the woman’s local Islamic community for further investigation and

Sixth: : This term refers to the trustworthiness of the indivual, and is a prerequisite for almost every act of worship in Islam that involves the rights of others. Allah says in the Qur’an regarding divorce:

“Then when they are about to fulfill their appointed term (i.e. iddah), either take them back on good terms or part with them on good terms. And take two trustworthy witnesses from amongst you and establish the witness for Allah…” (65:2)

Allah also says in the Qur’an regarding business transactions:

“But if the debtor is of poor understanding or weak or is unable to dictate himself, then let his guardian dictate with honesty. And bring two witnesses from your own men and if there are not two men available then a man and two women, such as you agree for witnesses. And if one of the two women errs the other can remind her. And the witnesses should not refuse when they are called on for evidence…” (2:282)

Allah also says about the wealth and property of the orphans:

“And when you release their property to them, take witnesses in their presence; and Allah is All-Sufficient in taking account.” (4:6)

The opposite of trustworthiness is insincerity and irresponsibility (Fasiq), and if these are qualities that are characteristic of the Wali, then he should not engage in the marriage process alone. There should be another family member or the Imam to assist him due to the fear of neglect and the likelihood that the interests of the woman he is responsible for will not be given its due of attention and consideration.

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Chapter Four

The Sequence of the ‘Awliyaa

One of the scholars of Islam by the name of Al Kharqi Rahimahullah said: “The one who is most deserving of marrying the woman off is her father, then his brother (i.e. her paternal uncle), then her son, and her grandson, then her brother from the same mother and father (i.e. Shaqeeq), then the brother from the father’s side and his sons (her nephews).”

Ibn Battal Rahimahullah said: “The vast majority of scholars, including Imam , Sufyan At Thawri, Laythe Ibn Sa’d and Imam Ash Shafi’ee agree that the Awliyaa’ (i.e. Guardians of the woman), in relation to marriage, are the males from the paternal side of her family. Neither the maternal uncle nor the father of the mother (maternal grandfather), or her brothers from the mother’s side are not the ‘Awliyaa of the woman. Rather these are considered her Mahaarim (plural of Mahram). So every Wali is a Mahram but not every Mahram is a Wali.

The Wali is the guardian of the woman from the paternal side of her family and assumes the responsibility and religious obligation of caring for her in the domestic realm of housing, clothing, education, accompanying her in her journeys etc. and also assumes the sole responsibility of assisting her in the process of marriage. On the other hand, the Mahram is the maternal family member of the woman or a non-immediate family member whom she is not allowed to marry either due to breastfeeding or because the man married her mother.

And although the Mahram is considered a family member, due to the fact that the woman can never marry him, and she is allowed to be uncovered in front of him, and he is allowed to be alone with her and accompany her on a journey, Islamically he does not qualify to be her Wali, which would give him the authority to marry her off. However, Muslim minorities living in America under a different set of circumstances where the woman might accept Islam and have no other Muslim family member, except those mentioned above, to represent her, may have to use a combination of both the Mahram and the Imam, who would act as he Wali as the Prophet Sallallahu alaihi wa salam said:

“The Sultan (i.e. leader) is the Wali for the woman who has no Wali.” (Collected in

Although the Mahran is not her Wali, that doesn’t necessarily mean that he has no concern for her or he does not have her best interest at heart, in general or in more specific when it comes to marriage. However our success as Islamic community lies in holding fast to the tenet and values outlined for us in the Book of Allah and the Sunnah of the Prophet Sallallahu alaihi wa salam and if we can combine the two desiring thereby a favorable outcome, then this would definitely be the best and most preferable course of action and Allah knows best. The scholars mention that the sequence of the ‘Awliyaa is as follows:

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1. Her father: The scholars mention that the reason the father is given precedence is because a fathers concern for his daughter is driven by complete compassion and love for her, the like of which would not be exhibited by anyone else. And secondly is because of his outlook on marriage and him knowing his daughter and what would best suit her interests in a husband. This is a legal Islamic term used to describe any male the biological father :اﻟﻮﺻﻲ Wasi .2 may request to marry his daughter off. This person takes precedence over any other family member because his authority over the girl is given to him by the father—the sole authority over the affair of the girl. The father could resort to this measure for a number of reasons: 3. Her paternal Grandfather: 4. Her son: Provided the son of the woman has reached the age of sound judgment and reasoning, and understands the Islamic rulings and regulations of marriage. 5. Grandson 6. Her brother (from the same mother and father) 7. Her paternal brother 8. Her nephew from the biological brother 9. Her nephew from the paternal brother 10. Her biological uncle 11. Her paternal uncle

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Chapter Five

The Imam is the Wali for the Woman who has no Wali

It was discussed in the previous chapters that the Imam is the Wali for the woman who has no Wali, based upon the hadeeth of … who said the Prophet Sallallahu alaihi wa salam said:

“The Sultan (i.e. leader) is the Wali of the woman who has no Wali.”

The scholars mention that there are certain reasons why the woman would not have a Wali from her Muslim male relatives:

The First: If her male relatives are not Muslim

The Second: The Wali does not qualified to manage her affairs

The Third: The Wali is absent indefinitely

Shaykh Salih Fowzan Rahimahullah mentioned: “If someone other than the immediate Wali—based upon the sequence mentioned in the previous chapter— assumes responsibility of the marriage contract without any of the legislative Islamic reasons, or someone who is not a guardian of the woman under any condition (i.e. Ajnabi), the marriage is not valid. This is due to the fact that the one who married her had no authority to do so. The Wali is a condition for the validity of the marriage.” [Sharh ul Mumti’Vol.3 Pg. 455]

There is something in Islam called Wikalah where the father of the woman or the Imam can appoint someone to manage her affair and assist in the process. This man is considered the Wakil of the Imam, and his authority is very limited within the context of his responsibility. This would most likely occur in the case where the Imam himself has an interest in the sister he is responsible for, as the Imam—although the authority over the woman—still needs a Wali to marry the sister to him. This is evidenced by the hadeeth of …When the Prophet Sallallahu alaihi wa salam married Maymoonah he made Raa’fi Ibn Khadeej the Wakil to preside over the marriage procedure. Also when the Prophet Sallallahu alaihi wa salam wanted to marry Umm Habeebah, the daughter of Abu Sufyan, he made Amr’ Ibn Ummayah the Wakil to preside over the marriage procedure.

Nonetheless, the Imam should not use this as a means of evading his responsibility or out of sheer negligence towards this very basic need of the women in the community. The Prophet Sallallahu alaihi wa salam, with all of his religious obligations as the Imam of the community, as a father and a husband to multiple wives etc. still managed to shoulder this responsibility with grace and integrity, the like of which we see being totally neglected today by many who fail to comprehend the tremendous accountability that lay on their shoulders.

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When we consolidate the responsibility of guardianship and restrict it to one chief indivual, it is easy to identify who takes responsibility for any negligence in the matter. It is easier to hold him accountable for any error or oversight, as we are talking about someone’s life here, and to simply pass the buck in a matter as serious and as delicate as marriage and/or divorce, is totally unacceptable. As the Prophet Sallallahu alaihi wa salam said:

ﻛﻠﻜﻢ راع وﻛﻠﻜﻢ ﻣﺴﺌﻮل ﻋﻦ رﻋﯿﺘﮫ، ﻓﺎﻹﻣﺎم راع وﻣﺴﺌﻮل ﻋﻦ رﻋﯿﺘﮫ، واﻟﺮﺟﻞ راع ﻓﻲ أھﻞ ﺑﯿﺘﮫ وﻣﺴﺌﻮل ﻋﻦ رﻋﺘﯿﮫ، ... وﻛﻠﻜﻢ راع وﻣﺴﺌﻮل ﻋﻦ رﻋﯿﺘﮫ.

“All of you are shepherds and all of you will be questioned about your responsibility (flock). The Imam is a shepherd and will be questioned about his flock. The man is a shepherd over his household and will be questioned about his responsibility to them…indeed all of you are shepherds and will be questioned about your flock.” [Sahih Al Bukhari and Muslim]

The Imam should be cognizant of the fact that he is responsible for something far greater than just the obligation of marrying the sisters in the community, rather he is responsible for the trust (i.e. Amaanah) of the people who hired him under the guise of a commitment to serving them assiduously. The obligation of guardianship, as we discussed in the introduction of this booklet, should be viewed as an act of (i.e. worship) that he will be questioned about on the Day of Judgment.

If the woman is married by two guardians (who obviously were not aware of this bizarre arrangement), the second marriage is not valid. This is based upon the hadeeth of Samurah Ibn Jundab Radiyallahu anhu who said that the Prophet Sallallahu alaihi wa salam said:

أﯾﻤﺎ اﻣﺮأة زوﺟﮭﺎ وﻟﯿﺎن ﻓﮭﻲ ﻟﻸول ﻣﻨﮭﻤﺎ وﻣﻦ ﺑﺎع ﺑﯿﻌﺎ ﻣﻦ رﺟﻠﯿﻦ ﻓﮭﻮ ﻟﻸول ﻣﻨﮭﻤﺎ

“Any woman who is married by two guardians, the valid marriage is the first one. And any man who sells his merchandise to two people, the valid transaction is the first one” [Collected in Sunan of At Tirmithi]

Imam At Tirmithi mentioned in his commentary of this narration: “The context of this narration is supported by the people of knowledge. We don’t know any difference of opinion in this matter. If one of the two guardians of the woman marries her before the other one, the valid marriage is the first one and the second one is null and void (i.e. fornication/adultery). And this was the opinion held by Sufyan At Thowry, Imam Ahmad and Ishaq Ibn Raa’huway.

Imam As San’ani said: It doesn’t matter if the second husband consummated the marriage or not (based upon ignorance obviously), and there is no Islamic punishment for him according to the Sharee’ah if it was done in ignorance. However, if he consummates the marriage knowingly, then by the consensus of the scholars, he is a fornicator/adulterer (depending on whether or not he was married previously), but the valid marriage is the first one.

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This matter is important in environments where many lack the necessary fear of Allah and the probability of incidents like this occurring are likely. However, this is why it is important for the brothers and more importantly the sisters to belong to a community so that we can eliminate the possibility of such absurdity and indecency in our communities. Just the mere mention of an atrocity of this magnitude is enough to disrupt the Islamic structure and communal fortification we are trying to establish.

Chapter Six

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The Responsibilities of the Wali

The Wali’s responsibility is not just restricted to being the woman’s guardian, but also going out in search of a potential spouse for the woman he is responsible for. Many brothers who are either fathers or brothers or sons or any position where they are responsible for the women under their auspices, take a very indolent and nonchalant approach to finding suitable spouses for them. And while they enjoy the luxury of being married, they fail to see the urgency in their situation.

The First Responsibility: Actively Searching for a Potential Husband

It was mentioned in the hadeeth of Abdullah Ibn Umar Radiyallahu anhu who said:

أن ﻋﻤﺮ ﺑﻦ اﻟﺨﻄﺎب، ﺣﯿﻦ ﺗﺄﯾﻤﺖ ﺣﻔﺼﺔ ﺑﻨﺖ ﻋﻤﺮ ﻣﻦ ﺧﻨﯿﺲ ﺑﻦ ﺣﺬاﻓﺔ اﻟﺴﮭﻤﻲ، وﻛﺎن ﻣﻦ أﺻﺤﺎب رﺳﻮل ﷲ ، ﻓﺘﻮﻓﻲ ﺑﺎﻟﻤﺪﯾﻨﺔ، ﻓﻘﺎل ﻋﻤﺮ اﺑﻦ اﻟﺨﻄﺎب: أﺗﯿﺖ ﻋﺜﻤﺎن ﺑﻦ ﻋﻔﺎن، ﻓﻌﺮﺿﺖ ﻋﻠﯿﮫ ﺣﻔﺼﺔ، ﻓﻘﺎل: ﺳﺄﻧﻈﺮ ﻓﻲ أﻣﺮي، ﻓﻠﺒﺜﺖ ﻟﯿﺎﻟﻲ ﺛﻢ ﻟﻘﯿﻨﻲ ﻓﻘﺎل: ﻗﺪ ﺑﺪا ﻟﻲ أن ﻻ أﺗﺰوج ﯾﻮﻣﻲ ھﺬا ﻗﺎل ﻋﻤﺮ: ﻓﻠﻘﯿﺖ أﺑﺎ ﺑﻜﺮ اﻟﺼﺪﯾﻖ، ﻓﻘﻠﺖ: إن ﺷﺌﺖ زوﺟﺘﻚ ﺣﻔﺼﺔ ﺑﻨﺖ ﻋﻤﺮ، ﻓﺼﻤﺖ أﺑﻮ ﺑﻜﺮ ﻓﻠﻢ ﯾﺮﺟﻊ إﻟﻲ ﺷﯿﺌﺎ، وﻛﻨﺖ أوﺟﺪ ﻋﻠﯿﮫ ﻣﻨﻲ ﻋﻠﻰ ﻋﺜﻤﺎن، ﻓﻠﺒﺜﺖ ﻟﯿﺎﻟﻲ ﺛﻢ ﺧﻄﺒﮭﺎ رﺳﻮل ﷲ ﻓﺄﻧﻜﺤﺘﮭﺎ إﯾﺎه، ﻓﻠﻘﯿﻨﻲ أﺑﻮ ﺑﻜﺮ ﻓﻘﺎل: ﻟﻌﻠﻚ وﺟﺪت ﻋﻠﻲ ﺣﯿﻦ ﻋﺮﺿﺖ ﻋﻠﻲ ﺣﻔﺼﺔ ﻓﻠﻢ أرﺟﻊ إﻟﯿﻚ ﺷﯿﺌﺎ؟ ﻗﺎل ﻋﻤﺮ: ﻗﻠﺖ: ﻧﻌﻢ، ﻗﺎل أﺑﻮ ﺑﻜﺮ: ﻓﺈﻧﮫ ﻟﻢ ﯾﻤﻨﻌﻨﻲ أن أرﺟﻊ إﻟﯿﻚ ﻓﯿﻤﺎ ﻋﺮﺿﺖ ﻋﻠﻲ، إﻻ أﻧﻲ ﻛﻨﺖ ﻋﻠﻤﺖ أن رﺳﻮل ﷲ ﻗﺪ ذﻛﺮھﺎ، ﻓﻠﻢ أﻛﻦ ﻷﻓﺸﻲ ﺳﺮ رﺳﻮل ﷲ، وﻟﻮ ﺗﺮﻛﮭﺎ رﺳﻮل ﷲ ﻗﺒﻠﺘﮭﺎ.

“When Hafsah Bint Umar Ibn Al Khattab became a widow from Khunays Ibn Huthafah As Sahmi (a companion of the Prophet Sallallahu alaihi wa salam who died in Medinah), Umar Ibn Al Khattab said: “I went to Uthman Ibn Affan, and I made him an offer to marry Hafsah, so he said: “I will look into my affair and get back to you.” So I waited a few nights and when Uthman met me again he said: “It just occurred to me that I am not going to marry today.” Umar said: “So I met Abu Bakr As Sideeq and said to him: “If you so desire, I will marry you to Hafsah Bint Umar?” Abu Bakr remained silent and didn’t reply with anything, but I was more upset with him then I was with Uthman. So I waited a few days and the Prophet proposed to her so I married her to him. So when Abu Bakr met me again he said: “It seems as if you were upset with me when you offered Hafsah to me and I didn’t reply with anything?” So Umar Said: “Yes!” Abu Bakr then said: “Nothing prevented me from responding to you when you offered her to me except that I knew the Messenger of Allah had made mention of his interest in her and it was not appropriate for me to expose the secrets of the Messenger of Allah and had he abandoned the idea of marrying her, I would have surely accepted your offer.” [Collected in Sahih Al Bukhari]

So we can see here that Umar, the Wali of his daughter, Hafsah, went out in search of prospects for his daughter, as opposed to letting the woman tackle this task by herself, with all of the potential risks, both spiritually and morally, that are involved. The father can also use the help of the Imam who, should either be somewhat familiar with the men in the community or, at very

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least, responsible for developing a system that will facilitate the process of marriage to the community in a manner that is conducive with the basic guidelines of the religion of Islam. There was a very profound incident that demonstrates this very clearly.

The Second Responsibility: Letting the Imam Assist in the Process

On the authority of Abu Barzah Al Aslami Radiyallahu anhu who said:

أن اﻟﺼﺤﺎﺑﺔ ﻛﺎﻧﻮا إذا ﻛﺎن ﻷﺣﺪھﻢ أﯾﻢ ﻟﻢ ﯾﺰوﺟﮭﺎ ﺣﺘﻰ ﯾﻌﻠﻢ ھﻞ ﻟﺮﺳﻮل ﷲ ﺻﻠﻰ ﷲ ﻋﻠﯿﮫ وﺳﻠﻢ ﻓﯿﮭﺎ ﺣﺎﺟﺔ أم ﻻ، ﻓﻘﺎل رﺳﻮل ﷲ ﺻﻠﻰ ﷲ ﻋﻠﯿﮫ وﺳﻠﻢ ذات ﯾﻮم ﻟﺮﺟﻞ ﻣﻦ اﻷﻧﺼﺎر: ﯾﺎ ﻓﻼن، زوﺟﻨﻲ اﺑﻨﺘﻚ، ﻗﺎل: ﻧﻌﻢ و ﻛﺮاﻣﺔ وﻧﻌﻤﺔ ﻋﯿﻦ، ﻗﺎل: إﻧﻲ ﻟﺴﺖ ﻟﻨﻔﺴﻲ أرﯾﺪھﺎ، ﻗﺎل: ﻓﻠﻤﻦ؟ ﻗﺎل: ﻟﺠﻠﯿﺒﯿﺐ، ﻗﺎل: ﯾﺎ رﺳﻮل ﷲ، ﺣﺘﻰ أﺳﺘﺄﻣﺮ أﻣﮭﺎ، ﻓﺄﺗﺎھﺎ ﻓﻘﺎل: إن رﺳﻮل ﷲ ﺻﻠﻰ ﷲ ﻋﻠﯿﮫ وﺳﻠﻢ ﯾﺨﻄﺐ اﺑﻨﺘﻚ، ﻗﺎﻟﺖ: ﻧﻌﻢ ﻛﺮاﻣﺔ، وﻧﻌﻤﺔ ﻋﯿﻦ، ﻓﺰوج رﺳﻮل ﷲ ﺻﻠﻰ ﷲ ﻋﻠﯿﮫ وﺳﻠﻢ، ﻗﺎل: إﻧﮫ ﻟﯿﺲ ﻟﻨﻔﺴﮫ ﯾﺮﯾﺪھﺎ، ﻗﺎﻟﺖ: ﻓﻠﻤﻦ؟ ﻗﺎل: ﻟﺠﻠﯿﺒﯿﺐ، ﻗﺎﻟﺖ: ﺣﻠﻘﻰ أﻟﺠﻠﯿﺒﯿﺐ إﻧﯿﮫ ﻻ ﻟﻌﻤﺮ ﷲ ﻻ ﻧﺰوج ﺟﻠﯿﺒﯿﺒﺎ، ﻓﻠﻤﺎ ﻗﺎم أﺑﻮھﺎ ﻟﯿﺄﺗﻲ اﻟﻨﺒﻲ ﺻﻠﻰ ﷲ ﻋﻠﯿﮫ وﺳﻠﻢ، ﻗﺎﻟﺖ اﻟﻔﺘﺎة ﻣﻦ ﺧﺪرھﺎ: ﻣﻦ ﺧﻄﺒﻨﻲ إﻟﯿﻜﻤﺎ؟ ﻗﺎﻻ: رﺳﻮل ﷲ ﺻﻠﻰ ﷲ ﻋﻠﯿﮫ وﺳﻠﻢ، ﻗﺎﻟﺖ: أﺗﺮدون ﻋﻠﻰ رﺳﻮل ﷲ ﺻﻠﻰ ﷲ ﻋﻠﯿﮫ وﺳﻠﻢ أﻣﺮه، ادﻓﻌﻮﻧﻲ إﻟﻰ رﺳﻮل ﷲ ﺻﻠﻰ ﷲ ﻋﻠﯿﮫ وﺳﻠﻢ ﻓﺈﻧﮫ ﻟﻦ ﯾﻀﯿﻌﻨﻲ، ﻓﺬھﺐ أﺑﻮھﺎ إﻟﻰ رﺳﻮل ﷲ ﺻﻠﻰ ﷲ ﻋﻠﯿﮫ وﺳﻠﻢ، ﻓﻘﺎل: ﺷﺄﻧﻚ ﺑﮭﺎ ﻓﺰوﺟﮭﺎ ﺟﻠﯿﺒﯿﺒﺎ

“When one of the companions of the Prophet had a daughter who was widowed, they would not marry her off to someone else until they knew whether or not the Prophet had a desire to marry her. So the Messenger of Allah said to a man from the Ansar one day: “O such and such, give me your daughter in marriage.” So the man replied: “Of course! It would be an honor and a pleasure.” So the Prophet said: “I do not desire her for myself.” So the man replied: “Well then for whom?” The Prophet said: “For Julaybeeb!” So the man said: “O Messenger of Allah! Not until I consult with her mother first.” So he went to her and said: “The Messenger of Allah is asking for your daughter?” So the woman replied: “It would be an honor and a pleasure!” So the father said: “He does not desire her for himself.” The mother said: “Then for whom?” So he said: “For Julaybeeb!” She said: “For Julaybeeb? I swear by Allah! We will never marry our daughter to Julaybeeb!” So when the father got up to go back to the Prophet to inform him of what she said, the daughter said from her room: “Who is it that is asking you for my hand in marriage?” So the mother and the father said: “The Messenger of Allah!” So the daughter said: “Are you going to deny the request of the Messenger of Allah? Give me to the Messenger of Allah for indeed he will not neglect me!” So the father went to the Messenger of Allah and said: “You are free to do with her as you see fit.” So the Prophet married her to Julaybeeb.” [Collected in Sahih Muslim]

So here is a situation where the Prophet not only advocated for someone who, in his estimation, was a perfect candidate, despite what the people thought of him, but also assisted the father in finding a suitable mate for his daughter. He also did this with Fatimah Bint Qays when she came to him for advice regarding the proposal of Mu’awiyah Ibn Abu Sufyan and Abu Jahm.

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He directed her to marry Usamah Ibn Zayd Radiyallahu anhu. Another matter of importance is where the father of the woman has his own personal issues with the potential spouse, beyond the parameters that were outlined in the Qur’an and Sunnah. In a situation like this, the potential spouse and/or the woman can request the help of the Imam or another family member. However, his guardianship cannot be disregarded nor can he be stripped of it simply because his views are unreasonable, without consulting with other family members of the same caliber (i.e. the uncle, grandfather etc.).

The Third Responsibility: Following up with the Couple Post-Marriage

The Wali is also responsible for following up with the couple after marriage. Making sure that things are moving along amicably, and helping to quell any problems that arise expeditiously. This is especially so, if this is the couple’s first marriage, in addition to the likelihood of their immaturity, which are two very dangerous components that tear at the core of their relationship over time.

The Prophet had daughters of his own in the community whom he married, and looking at the way he actively related to them and their spouses post-marriage, acts as a blueprint for the way the Wali should interact with the one he is responsible for and her particular mate in our communities today. An example of this is found in the hadeeth of … where Ali Ibn Abi Talib and his wife, Fatimah Bint Muhammad, had an altercation and the Prophet just so happened to visit her during this time. Fatimah narrates the incident when she said:

Many of the young couples create a mess of their due to the lack of communal concern for their marital longevity. The ironic thing about this is that many members of the community will be quick to judge condescendingly—and in some instances backbite— and provide all types of solutions for what could possibly have saved their marriage post facto. However, we want to be proactive with the youthful marriages in our communities and not reactive as well as solution oriented along the way and not after they’ve burned bridges that can be repaired or damaged relationships to the extent that they cannot be salvaged.

The Fourth Responsibility: Third Party Intervention

Another responsibility of the Wali is to intervene when the husband of the woman he is responsible for begins to make decisions that affect her spiritual well-being and vice-versa. Allah says in the Qur’an:

وإن ﺧﻔﺘﻢ ﺷﻘﺎق ﺑﯿﻨﮭﻤﺎ ﻓﺎﺑﻌﺜﻮا ﺣﻜﻤﺎ ﻣﻦ أھﻠﮫ وﺣﻜﻤﺎ ﻣﻦ أھﻠﮭﺎ إن ﯾﺮﯾﺪا إﺻﻼﺣﺎ ﯾﻮﻓﻖ ﷲ ﺑﯿﻨﮭﻤﺎ إن ﷲ ﻛﺎن ﻋﻠﯿﻤﺎ ﺧﺒﯿﺮا

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“And if you fear a breach between the husband and the wife, appoint two arbitrators, one from his family and one from her family and if they both wish for reconciliation then Allah will bring about reconciliation indeed Allah is Ever All-Knower, Well Acquainted with all things.” (4:35)

Third party intervention is necessary when immaturity and/or hastiness begin to cloud one’s judgment. Allah states in the Qur’an:

إن اﻹﻧﺴﺎن ﺧﻠﻖ ھﻠﻮﻋﺎ

“Indeed mankind was created impatient” (70:19)

And the Prophet stated very clearly:

اﻟﺘﺄﻧﻲ ﻣﻦ ﷲ و اﻟﻌﺠﻠﺔ ﻣﻦ اﻟﺸﯿﻄﺎن

“Patience is from Allah and hastiness is from Shaytan” [collected in Sunnan of Al Bayhaqi]

The Prophet had to intervene on one occasion where Ali Ibn Abi Talib decided to take on another wife, as Fatimah Radiyallahu anha narrated that word had begin to spread that her husband, Ali Ibn Abi Talib, proposed to the daughter of Abu Jahl. So Fatimah went to the Prophet and said: “The people of Quraysh are saying that you are not jealous for you daughter?” So he gathered the people and said:

إن ﺑﻧﻲ ھﺎﺷم ﺑن اﻟﻣﻐﯾرة اﺳﺗﺄذﻧوﻧﻲ أن ﯾﻧﻛﺣوا اﺑﻧﺗﮭم ﻋﻠﻲ ﺑن أﺑﻲ طﺎﻟب ، ﻓﻼ آذن ﻟﮭم ، ﺛم ﻻ آذن ﻟﮭم ، ﺛم ﻻ آذن ﻟﮭم ، إﻻ أن ﯾﺣب اﺑن وﻓﻲ اﻟرواﯾﺔ اﻷﺧرى : ( أﻧﻲ ( أﺑﻲ طﺎﻟب أن ﯾطﻠق اﺑﻧﺗﻲ ، وﯾﻧﻛﺢ اﺑﻧﺗﮭم ، ﻓﺈﻧﻣﺎ اﺑﻧﺗﻲ ﺑﺿﻌﺔ ﻣﻧﻲ ، ﯾرﯾﺑﻧﻲ ﻣﺎ راﺑﮭﺎ ، وﯾؤذﯾﻧﻲ ﻣﺎ آذاھﺎ ﻟﺳت أﺣرم ﺣﻼﻻ ، وﻻ أﺣل ﺣراﻣﺎ ، ﻟﻛن وﷲ ﻻ ﺗﺟﺗﻣﻊ ﺑﻧت رﺳول ﷲ وﺑﻧت ﻋدو ﷲ ﻣﻛﺎﻧﺎ واﺣدا أﺑدا

“Indeed Bani Hashim Ibn Mugheerah seeks my permission to marry their daughter to Ali Ibn Abi Talib. I do not permit such a marriage! I do not permit such a marriage! I do not permit such a marriage! Except if Ibn Abi Talib would divorce my daughter and then marry their daughter. Indeed, my daughter is a part of me and I am offended by the same things that offend her. I am not making something that is permissible (i.e. Halal) impermissible (i.e. Haram). However, I swear by Allah! The daughter of the Messenger of Allah will not be united with the daughter of the enemy of Allah in one marriage!” [Collected Saheeh Bukhari and Muslim]

So here we can see that the Prophet was actively involved in the marriage of his daughter and clearly a source of guidance and consultation for the couple. He not only intervened on behalf of his daughter when he felt that Ali’s decision would affect Fatimah in her religious affairs (i.e. being obedient to her husband), as he said in another narration:

إِ ﱠن ﻓَﺎ ِط َﻤﺔَ ِﻣﻨﱢﻲ َوإِﻧﱢﻲ أَﺗَ َﺨ ﱠﻮ ُف أَ ْن ﺗُ ْﻔﺘَ َﻦ ﻓِﻲ ِدﯾﻨِﮭَﺎ

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“Indeed Fatimah is from me, and I from her and I fear that this will be a trial for her in her religion.” [Collected in the Musnad Imam Ahmad]

However, we can see that the Prophet also instructed Ali that it would be a conflict of interest uniting his daughter and the daughter of the enemy of Allah, Abu Jahl,—although a Muslimah— with the same man in a bond of marriage, and Ali complied with his wishes. He simply put aside his own personal desires for the overall well-being and benefit of his family—an ultimate indication of maturity.

The Fifth Responsibility: Admonition

It is the responsibility of the Wali to admonish the woman he is responsible for, in the event of marital discord or her part. Many would like to believe that the relationship of the Prophet with his wives was complete utopia and void of the typical problems that affect normal couples, but it wasn’t. Rather his relationship with them was affected by the same occasional contention and strife that comes with the territory of any relationship. However, most of the women he was married to had fathers (Awliyaa’) who were actively involved in the community and actively involved in the lives of the women they were responsible for. There was one occasion where the Prophet boycotted his wives, Umar narrated the story when he said:

ﻛﻨﺖ أﻧﺎ وﺟﺎر ﻟﻲ ﻣﻦ اﻷﻧﺼﺎر ﻓﻲ ﺑﻨﻲ أﻣﯿﺔ ﺑﻦ زﯾﺪ وھﻢ ﻣﻦ ﻋﻮاﻟﻲ اﻟﻤﺪﯾﻨﺔ وﻛﻨﺎ ﻧﺘﻨﺎوب اﻟﻨﺰول ﻋﻠﻰ اﻟﻨﺒﻲ ﺻﻠﻰ ﷲ ﻋﻠﯿﮫ وﺳﻠﻢ ﻓﯿﻨﺰل ﯾﻮﻣﺎ وأﻧﺰل ﯾﻮﻣﺎ ﻓﺈذا ﻧﺰﻟﺖ ﺟﺌﺘﮫ ﺑﻤﺎ ﺣﺪث ﻣﻦ ﺧﺒﺮ ذﻟﻚ اﻟﯿﻮم ﻣﻦ اﻟﻮﺣﻲ أو ﻏﯿﺮه وإذا ﻧﺰل ﻓﻌﻞ ﻣﺜﻞ ذﻟﻚ وﻛﻨﺎ ﻣﻌﺸﺮ ﻗﺮﯾﺶ ﻧﻐﻠﺐ اﻟﻨﺴﺎء ﻓﻠﻤﺎ ﻗﺪﻣﻨﺎ ﻋﻠﻰ اﻷﻧﺼﺎر إذا ﻗﻮم ﺗﻐﻠﺒﮭﻢ ﻧﺴﺎؤھﻢ ﻓﻄﻔﻖ ﻧﺴﺎؤﻧﺎ ﯾﺄﺧﺬن ﻣﻦ أدب ﻧﺴﺎء اﻷﻧﺼﺎر ﻓﺼﺨﺒﺖ ﻋﻠﻰ اﻣﺮأﺗﻲ ﻓﺮاﺟﻌﺘﻨﻲ ﻓﺄﻧﻜﺮت أن ﺗﺮاﺟﻌﻨﻲ ﻗﺎﻟﺖ وﻟﻢ ﺗﻨﻜﺮ أن أراﺟﻌﻚ ﻓﻮﷲ إن أزواج اﻟﻨﺒﻲ ﺻﻠﻰ ﷲ ﻋﻠﯿﮫ وﺳﻠﻢ ﻟﯿﺮاﺟﻌﻨﮫ وإن إﺣﺪاھﻦ ﻟﺘﮭﺠﺮه اﻟﯿﻮم ﺣﺘﻰ اﻟﻠﯿﻞ ﻓﺄﻓﺰﻋﻨﻲ ذﻟﻚ وﻗﻠﺖ ﻟﮭﺎ ﻗﺪ ﺧﺎب ﻣﻦ ﻓﻌﻞ ذﻟﻚ ﻣﻨﮭﻦ ﺛﻢ ﺟﻤﻌﺖ ﻋﻠﻲ ﺛﯿﺎﺑﻲ ﻓﻨﺰﻟﺖ ﻓﺪﺧﻠﺖ ﻋﻠﻰ ﺣﻔﺼﺔ ﻓﻘﻠﺖ ﻟﮭﺎ أي ﺣﻔﺼﺔ أﺗﻐﺎﺿﺐ إﺣﺪاﻛﻦ اﻟﻨﺒﻲ ﺻﻠﻰ ﷲ ﻋﻠﯿﮫ وﺳﻠﻢ اﻟﯿﻮم ﺣﺘﻰ اﻟﻠﯿﻞ ﻗﺎﻟﺖ ﻧﻌﻢ ﻓﻘﻠﺖ ﻗﺪ ﺧﺒﺖ وﺧﺴﺮت أﻓﺘﺄﻣﻨﯿﻦ أن ﯾﻐﻀﺐ ﷲ ﻟﻐﻀﺐ رﺳﻮﻟﮫ ﺻﻠﻰ ﷲ ﻋﻠﯿﮫ وﺳﻠﻢ ﻓﺘﮭﻠﻜﻲ ﻻ ﺗﺴﺘﻜﺜﺮي اﻟﻨﺒﻲ ﺻﻠﻰ ﷲ ﻋﻠﯿﮫ وﺳﻠﻢ وﻻ ﺗﺮاﺟﻌﯿﮫ ﻓﻲ ﺷﻲء وﻻ ﺗﮭﺠﺮﯾﮫ وﺳﻠﯿﻨﻲ ﻣﺎ ﺑﺪا ﻟﻚ وﻻ ﯾﻐﺮﻧﻚ أن ﻛﺎﻧﺖ ﺟﺎرﺗﻚ أوﺿﺄ ﻣﻨﻚ وأﺣﺐ إﻟﻰ اﻟﻨﺒﻲ ﺻﻠﻰ ﷲ ﻋﻠﯿﮫ وﺳﻠﻢ ﯾﺮﯾﺪ ﻋﺎﺋﺸﺔ ﻗﺎل ﻋﻤﺮ وﻛﻨﺎ ﻗﺪ ﺗﺤﺪﺛﻨﺎ أن ﻏﺴﺎن ﺗﻨﻌﻞ اﻟﺨﯿﻞ ﻟﻐﺰوﻧﺎ ﻓﻨﺰل ﺻﺎﺣﺒﻲ اﻷﻧﺼﺎري ﯾﻮم ﻧﻮﺑﺘﮫ ﻓﺮﺟﻊ إﻟﯿﻨﺎ ﻋﺸﺎء ﻓﻀﺮب ﺑﺎﺑﻲ ﺿﺮﺑﺎ ﺷﺪﯾﺪا وﻗﺎل أﺛﻢ ھﻮ ﻓﻔﺰﻋﺖ ﻓﺨﺮﺟﺖ إﻟﯿﮫ ﻓﻘﺎل ﻗﺪ ﺣﺪث اﻟﯿﻮم أﻣﺮ ﻋﻈﯿﻢ ﻗﻠﺖ ﻣﺎ ھﻮ أﺟﺎء ﻏﺴﺎن ﻗﺎل ﻻ ﺑﻞ أﻋﻈﻢ ﻣﻦ ذﻟﻚ وأھﻮل طﻠﻖ اﻟﻨﺒﻲ ﺻﻠﻰ ﷲ ﻋﻠﯿﮫ وﺳﻠﻢ ﻧﺴﺎءه وﻗﺎل ﻋﺒﯿﺪ ﺑﻦ ﺣﻨﯿﻦ ﺳﻤﻊ اﺑﻦ ﻋﺒﺎس ﻋﻦ ﻋﻤﺮ ﻓﻘﺎل اﻋﺘﺰل اﻟﻨﺒﻲ ﺻﻠﻰ ﷲ ﻋﻠﯿﮫ وﺳﻠﻢ أزواﺟﮫ ﻓﻘﻠﺖ ﺧﺎﺑﺖ ﺣﻔﺼﺔ وﺧﺴﺮت ﻗﺪ ﻛﻨﺖ أظﻦ ھﺬا ﯾﻮﺷﻚ أن ﯾﻜﻮن ﻓﺠﻤﻌﺖ ﻋﻠﻲ ﺛﯿﺎﺑﻲ ﻓﺼﻠﯿﺖ ﺻﻼة اﻟﻔﺠﺮ ﻣﻊ اﻟﻨﺒﻲ ﺻﻠﻰ ﷲ ﻋﻠﯿﮫ وﺳﻠﻢ ﻓﺪﺧﻞ اﻟﻨﺒﻲ ﺻﻠﻰ ﷲ ﻋﻠﯿﮫ وﺳﻠﻢ ﻣﺸﺮﺑﺔ ﻟﮫ ﻓﺎﻋﺘﺰل ﻓﯿﮭﺎ ودﺧﻠﺖ ﻋﻠﻰ ﺣﻔﺼﺔ ﻓﺈذا ھﻲ ﺗﺒﻜﻲ ﻓﻘﻠﺖ ﻣﺎ ﯾﺒﻜﯿﻚ أﻟﻢ أﻛﻦ ﺣﺬرﺗﻚ ھﺬا أطﻠﻘﻜﻦ اﻟﻨﺒﻲ ﺻﻠﻰ ﷲ ﻋﻠﯿﮫ وﺳﻠﻢ ﻗﺎﻟﺖ ﻻ أدري...

"I and an Ansari neighbor of mine from Bani Umayya bin Zayd who used to live in the area of Awali in Medinah, used to take turns visiting the Prophet . My neighbor would go one day

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and I another day. When I went, I would bring him the news of what had happened that day regarding the Divine Inspiration and other matters, and when he went, he used to do the same for me. We, the people of Quraysh, were used to being more aggressive than our wives, but when we came to Medinah, we found that the women there were more aggressive than their men, so our women started to assimilate the behavior of the Ansari women. I shouted at my wife and she retorted against me and I disliked that she should answer me back. She said to me, “Why are you so surprised at my answering you back? By Allah! The wives of the Prophet answer him back and some of them may even refuse to speak to him throughout the day till the night.” This behavior scared me so I said to her, '”Whoever has done so will be ruined!” Then I proceeded after dressing myself, to the house of Hafsah and I said to her, “Do any of you women keep the Prophet angry till night?” She said, “Yes.” I said, “Ruined is the one who resorts to such behavior! Don't you fear that Allah may get angry due to the anger of His Messenger and thus you will be ruined? So do not ask more from the Prophet, and do not answer him back, and do not give up talking to him. Ask me for whatever you need and do not be tempted to imitate your co-wife (i.e. Aisha) in her manners, for she is far more charming than you and more beloved to the Prophet . `Umar added, “At the time, talk was circulating among us that the tribe of Ghassan were preparing their horses to invade us. My Ansari companion, on the day of his turn, went to the town and returned to us at night and knocked at my door violently and asked if I was there. I became horrified and came out to him. He said, “Today a great thing has happened.” I asked, “What is it? Have the people of Ghassan attacked?” He said, “No, but something far greater and more horrifying than that; Allah's Messenger divorced his wives!” Umar added: “Indeed Hafsah is a ruined loser! I had already thought that this would probably happen in the near future! So I dressed myself and offered the morning Prayer with the Prophet and then the Prophet entered an upper room and stayed there in seclusion. I entered upon Hafsah and saw her weeping. I asked, 'What makes you weep? Did I not warn you about that? Did the Prophet divorce you all?' She said, 'I do not know…” [Collected in Sahih Al Bukhari]

So in this story we can see Umar, as a father, admonishing his daughter when he noticed that she was exhibiting behaviors that created marital discord (i.e. Nushooz) in the home with her husband. Many fathers take the ‘my daughter can do no wrong!’ attitude and unfortunately enable behavior(s) that will eventually lead to her divorce. So it is the Wali’s responsibility to admonish the woman he is responsible for when he notices this with an unbiased outlook instead of allowing his love for his ‘baby girl’ or ‘little princess’ to cloud his judgment. This type of involvement also makes the potential husband more comfortable knowing that her guardian is not biased and that he will have a fair opportunity to present his case in the event that there are any problems late on in the marriage or, at very least, someone in the family that he can talk to— an outlet, if you will.

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Guardianship

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