Islam stipulates that in order to conclude her marriage, a Muslim woman should have a guardian or wali, who is usually her father. 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. Islam’s insistence on the guardian’s involvement in the selection process is to ensure that the woman exercises her choice correctly.
The responsibility of a guardian in marriage is to help a female in selecting her husband. Usually, a female can hardly dig into essential information about a man, so a guardian, like a father, does his best for the interest and welfare of that woman. A guardian should be a Muslim male. The father is the guardian, next to the father comes the closest male.
If the girl wants to marry a certain person, but the wali is against it, then the judge will consider, why that guardian object the marriage; if the he has a good legitimacy in objecting that certain marriage, then the court will enforce his opinion. If he gives an incorrect and illegitimate reason, the guardian will have no power for marriage. The judge will give the girl the right to marry that person. No one can force the girl to marry anyone that she doesn’t like to marry.
Elaborating on the role and requirements of a wali, we’d like to cite the following quotation from the course “Family Law I” offered by the American Open University:
“The wali is a Muslim man charged with marrying the one under his charge to a man who will be good for her. There is no disagreement that the first wali is her natural father if he is Muslim and that the last in line is the ruler. Between those two, there is some disagreement about the order but agreement that they come from the girl’s paternal male relatives – no one from her mother’s side enters into the picture. The order, according to many is: father, paternal grandfather, son, grandson, full brother, paternal half-brother, paternal uncle. The wali is an absolute requirement for a marriage, and any marriage done without him is null and void according to the majority of scholars based on the following hadiths:
“No marriage except with a guardian and the ruler is the guardian of she who has no guardian.” (Reported by Abu Dawud & others and classed as sahih)
“If any woman marries without the permission of her guardian, then her marriage is void, then her marriage is void, then her marriage is void.” (Reported by Abu Dawud & others and classed as sahih)
[However, according to Imam Abu Hanifah, a lawful gaurdian is not required if the woman is non-virgin (i.e. married before) or a virgin. Dawud Az-Zahiri, however, holds that a lawful guardian is needed in case of a virgin, and not the non-virgin woman who got married before. Yet still, the opinion of the majority is more correct and preferable especially under the now-a-days circumstances where marriages without the permission of the brides’ families often lead to problems and bring about considerable harms. Editor]
It is the job of the wali to marry the woman under his charge to the best possible marriage candidate. He must not be guided by his own desires nor by her own desires. If the person is acceptable in both his religion and his character and appropriate to her in some other way discussed by the scholars, then he must facilitate the marriage and not refuse it for his own desires or biases. If the conditions are not right, then he must refuse the marriage, even if both the woman under his charge and the man desire it. This is a grave trust and he must do his best to fulfill it properly and not bring harm to the woman and/or to society. Almighty Allah says: “O, you who believe, do not commit treachery against Allah and against the Prophet nor betray your trusts though you know.” (Al-Anfal: 27)
What about the case where the wali refuses someone on a non-Islamic basis? As was stated earlier, it is the job of the wali to act in the best interest of the woman according to the standards established by Islam. If a qualified person asks to marry the woman and he turns him down, then he is not doing his job. In such a case, the woman can complain to the judge or ruler and have her wali “fired” (removed).
The wali must be the same religion as the woman. A non-Muslim father cannot be the wali for his Muslim daughter.”