Marriage Without the Approval of a Wali
Regarding the issue of marrying without wali, we would like to quote the fatwa issued by the European Council for Fatwa and Research which states:
Marriage is one of the most important contracts for it signals the creation of a new family within society; the birth of new individuals into the world and the duties and responsibilities which fall unto each of the two partners. As a result of marriage being a contract between the two spouses as partners to the contract, the full consent of whom is deemed vital for the ratification to proceed, the Lawgiver (Allah Almighty) did not allow for the guardianship of the father of the bride or anyone else to become one by which the guardian forces or compels the woman to marry to a man whom she does not want. Indeed, Islam granted the woman full rights to accept whomever proposes to her in marriage or to reject him.
Ibn Abbas (may Allah be pleased with him) stated that a small girl came to the Prophet (peace and blessings be upon him) and told him that her father had forced her to marry against her will. The Prophet gave her the right to choose either to stay married or to annul the marriage contract. (Reported by Imam Ahmad).
The Prophetic texts all came to affirm this right for women. The Prophet (peace and blessings be upon him) stated that “The virgin shall not be married until her consent is sought neither a previously married woman until she overtly states her acceptance,”. He (peace and blessings be upon him) added: “and the virgin’s consent shall be sought by her father.”
By this, Islam decreed that marriage be built upon a basis of love, compassion and mercy. Allah Almighty stated: “And among His signs is this, that He created for you mates from among yourselves, that you may dwell in tranquility with them, and He has put love and mercy between your hearts.” ( Ar-Rum: 21).
It is usually impossible to attain these beautiful aims and objectives within a marriage, which was established with force and compulsion. However, since the woman, despite her Islamically granted independence, was always subject to the desires of the ill-hearted and evil opportunists; Islam decreed certain legislations which would maintain her rights and deter those whom carry ill-aims and desires.
Therefore, Islam gave great importance to the approval of the woman’s guardian in a manner, which reflects the significance of the marriage contract. This also adds another dimension to the beautiful state of tranquility and love in which the entire family will find themselves, as the woman will remain on good terms with her parents or guardians, in contrast to what would happen if she went against their wish. In this case the opposite of what Islam aimed to achieve would undoubtedly prevail.
Despite the general consensus among scholars that the approval of the woman’s guardian is preferable and much more favorable, they differed regarding whether it is actually a condition for the validity of the marriage contract:
1- The majority of scholars agreed that the approval of the guardian is a condition, without which the contract would be invalid. This is based upon the statement of the Prophet (peace and blessings be upon him) who stated that: “The marriage of any woman married without the permission of her guardian is false.” He (peace and blessings be upon him) also stated: “No marriage is to take place without the guardian.”
2- The followers of Imam Abu Hanifah stated that the permission of the guardian is not a condition, and they based their conclusion upon many evidences, such as the hadith narrated by Muslim and the Four Narrators of Hadith, that the Prophet (peace and blessings be upon him) stated: “The previously married woman shall have the right to decide for herself, whilst the consent of the virgin shall be sought to be married, and a sign of her consent being granted is her keeping silent.” They added that the permission of the guardian only becomes a condition if the girl is under the age of puberty. They also said that: If the adult sound-minded woman married herself (without the interference of her guardian), her marriage would be valid given all other conditions are fulfilled. Her guardian maintains the right to appeal to the Judge and request the annulment of the contract.
The European Council for Fatwa and Research advises women not to disregard their guardians, who wish only for their best interest and that they marry good men rather than deceitful and ill-heart proposers.
The Council also advises fathers to facilitate the marriage of their daughters and to seek their opinions as regards the suitors, without transgressing in using the rights that Islam granted to them. The Council also reminds them of the hadith of the Prophet (peace and blessings be upon him): “If someone comes to propose in marriage and he is of acceptable religion and behavior, then accept his proposal, otherwise great turbulence and corruption will spread on earth.”
In addition, fathers must also realize that preventing their daughters from getting married is a great injustice, which is outlawed and prohibited by Islam. The Council also advises the Islamic Centers to take the aforementioned rules into consideration, as it is safest and best. However, if the woman does not have a legal guardian, then an Islamic Center must act as her guardian in countries lacking an Islamic Legal system. The Council finally affirms that it believes that if the mature and sound-minded woman were to marry herself (without the interference of her guardian), then her marriage would be valid.