WALI (GUARDIAN) IN ISLAM
1.
PREFACE A wali (guardian) is a very important and vital aspect in a marriage. It
determines whether or not a certain marriage contract (akad nikah) that has been performed is valid. This can be clearly understood from a hadith by the Prophet (peace and blessings be upon him):
Meaning: “The marriage of a woman who marries without the consent of her guardians is void.” (Hadith by Abu Daud) And Allah s.w.t.’s commandment:
Meaning: “Do not prevent them from remarrying their (former) husbands if they agree among themselves on an acceptable basis.” (Surah al-Baqarah, verse: 232) Therefore, it is the main task of the Assistant Registrar, the Registrar of Marriages, and the society, in general, to ensure that a wali complies with Islamic rulings in the matters of marriage. This is because negligence in matters of wali may cause emotional and spiritual stress, as we have discovered through the media, 1
where couples had to be temporarily separated (faraq) because their marriage contracts were found to be invalid due to wali issues, and certain wedding ceremonies had to be postponed as the status of the wali is in doubt. In order to ensure that the problem does not recur, we need to take collective responsibility to understand the problems concerning a wali in performing a marriage contract. This is due to the fact that guardianship is the basic thing that needs to be identified before a marriage contract is performed. As such, we must not take for granted the issues of wali because the order of the wali is preordained by Allah s.w.t. which must not be overlooked and must be adhered to as determined by the Islamic Law. There is no compromise and leeway in obeying the order of the wali without a justifiable cause in the Islamic Law. 2.
DEFINITION OF A WALI
2.1. The word ‘wali’ is taken from the Arabic word Al-Wilayah (
) meaning
the willingness to take responsibility to manage or to take up the authority to administer something such as managing the orphans by attending to their needs and to become a wali for a woman by performing a marriage contract for her.
2.2. Briefly, the definition of wali can be categorised in two: a) From the language perspective:
The willingness to act, manage or the authority to administer something.
b) From the terminology perspective:
Someone who possesses or has been granted by syara’ the authority to perform a marriage contract.
3.
REASONS FOR AUTHORITY There are four reasons why a person is granted with the Authority to become
a wali: 2
a) Authority due to fatherhood. b) Authority due to the Asobah characteristic (as in the matters of inheritance). c) Authority due to freeing a slave (a master who frees a slave). d) Authority due to the empowerment as Sultan or King. 4.
TYPES OF WALI
4.1. A wali can be categorised into 2 types: a) Wali Mujbir (guardian by force) b) Wali Ikhtiar 4.2. A Wali Mujbir is regarded as the perfect wali because he has full power to endorse a marriage on behalf of everyone under his care. Although a father may marry off her virgin daughter without her consent, it is sunat (favourable) for the father to request for her consent. And the father may not act freely using his ijbar authority. He has to make sure that his actions are just and fair for the benefits of his daughter. That is why Islam has enforced 3 conditions which allow for the ijbar authority of the father to be enforced upon his daughter: a) There is no apparent dispute between father and daughter b) The groom must be suitable for the daughter c) The prospect husband is capable of paying the dowry (mahar) immediately 4.3. For a daughter who is widowed or divorced, the father may not force her into a marriage unless by a clear and undisputed permission as explained in the hadith by the Prophet (peace and blessings be upon him) by Darulqutni which stated:
Meaning: “A widowed woman has more rights unto herself than her guardian and a virgin woman is married off by his guardian”.
3
4.4. Wali Ikhtiar is a wali from Asobah guardians related to a woman at marrying a woman with her consent. Wali Ikhtiar include Wali Akrab and Aba’ad, who are wali in the absence of a Wali Mujbir who is either the father or grandfather from the father’s side. Such wali can marry off mature adult women and does not have any authority to force any marriage contract.
Wali Ikhtiar may only marry off a bride after she has given her consent. The consent may be given in two ways: a) For widowed/divorced women, she must pronounce her consent clearly and verbally. Silence alone is not sufficient. b) For virgins, the consent is sufficient by virtue of her silence. The Prophet (peace and blessings be upon him) said:
Meaning: “It is sunat for a father to ask permission from a virgin woman, and her silence is her consent”. (By Imam Muslim) 4.5. According to the Islamic Family Law Act (Federal Territory) 1984, Act 303 in relation to wali: Section 7: 1) A wedding in the Federal Territory must follow the provisions in this Act and the akad in accordance with the syara’ by: a) A wali in front of the Registrar, b) A wali’s representative in front of the Registrar and with the Registrar’s consent, or c) The Registrar as the wali’s representative.
4
2) If a wedding involves a woman who has no wali from kinship (relationship by blood), according to the syara’, the marriage contract must be done by a Royal Guardian. 5.
TERMS AND CONDITION TO BECOME A WALI
5.1
Terms and conditions to become a wali include: a) A male b) Has reached puberty and mature c) A Muslim d) Just and not fasiq (someone who violates Islamic law) e) Not in ihram f) A free man (not a slave) g) Has no visual impairment (due to old age) which may impair eyesight.
5.2
A brief explanation about the terms and conditions to become a wali: a) A man – a woman is not granted the power to become a wali to other people and she may not marry herself off. b) The wali has reached puberty and mature – wali by a mumaiyiz child is invalid. The wali must not be insane or mentally challenged, for example, too stupid / safih (
).
The word Safih, as interpreted by Imam Al-Syafie’, refers to someone who wastes his wealth on things that are forbidden such as gambling, drinking and so forth. Therefore, according to syara’, a ruler may prohibit wealth from being used by a safih owner. d) The wali is a Muslim. An infidel may not marry off a Muslim woman because he does not have the authority (Al-Wilayah) over any Muslim. Allah s.w.t. said:
5
Meaning: “and never will Allah give the disbelievers over the believers a way [to overcome them]”. (Surah Al-Nisa’, verse: 141) Similarly, authority (Al-Wilayah) in marriage refers to Asobah group as in the inheritance issue whereby Muslims and infidels cannot mutually inherit one another’s wealth. e) Wali is just – which means that the guardian does not commit great sins, does not continue to commit small sins, and does not commit demoralising actions such as pissing by the roadsides without repenting. However, when a wali truly repents, then he will become eligible to be a wali. f) Wali is not in ihram – someone who is performing Hajj or Umrah may not marry off someone else as indicated by this hadith by the Prophet (peace and blessings be upon him):
Meaning: “Who are in Ihram (men and women) cannot marry and marry off another (a woman whether or not in Ihram), and may not propose”. (Imam Muslim) g) Wali is a free man. Therefore, a slave does not have the authority to marry off anybody because he does not even have the authority upon himself and when he does not have the authority upon himself, surely he does not have the authority on others. 6.
ORDER OF GUARDIAN Order of wali in a Muslim’s marriage is a requisition that must be taken into
account by all parties either the couple who are getting married, the parents, and especially those who are directly involved in the wedding arrangements such as the 6
Assistant Registrar and the Marriage Divorce and Ruju’ Registrar. Order of wali is as follows: a) Biological father b) Grandfather from the father’s side, or older c) A male sibling of the same father and mother d) A male sibling of the same father e) A nephew from the father’s side of the same father and mother, or younger f) A nephew from the father’s side, or younger g) An uncle from the father’s side of the same father and mother h) An uncle from the father’s side of the same father i) A nephew from an uncle from the father’s side of the same father and mother (cousin) j) A nephew from an uncle from the father’s side of the same father (cousin) k) Father’s uncle of the same father and mother (distant grandfather) l) Father’s uncle of the same father (distant grandfather) m) A nephew from father’s uncle of the same father and mother (second cousin) n) A nephew from father’s uncle of the same father or younger (second cousin) o) Grandfather’s uncle of the same father and mother p) Grandfather’s uncle of the same father q) A son of the grandfather’s uncle of the same father and mother or younger r) A son of the grandfather’s uncle of the same father or younger s) Judge / king guardian (Wali Hakim) t) Wali Tahkim (for a state without a Wali Hakim) u) Al-Mu’tiq (
) a master who has freed his woman slave
7.
A MARRIAGE BY WALI HAKIM
7.1
For a woman who does not have wali nasab (from her own kinship), or has
problems with her wali, she is allowed to refer to a Judge / King guardian (wali hakim) because a king is a wali to those who do not have one as indicated in the hadith by the Prophet (peace and blessings be upon him): 7
Meaning: “Sultan / King is the guardian for those who do not have a guardian”. (Ahmad and Ashabul Sunan Al-Arba`ah from Aishah) A woman who has problems with her wali to get married will require Wali Hakim under the following conditions: a) Wali refuses b) Wali disappears / lost c) Wali for a convert d) Wali for an illegitimate child e) Wali for a woman who does have wali nasab 7.2
Section 13(b) Islamic Family Law Federal Territory stated:
A Syarie’ Judge who has the authority in the area in which the bride is staying or someone who has been given the authority in general or specific for that purpose by the Syarie’ Judge has, after a fair investigation in front of everyone involved, given his consent to the marriage by the Wali Hakim as stipulated by the Syara’ Laws, the agreement can be given to a woman who has no wali nasab according to Syara’ Laws or if the wali cannot be found or if the wali refuses to give his consent without justifiable causes. 7.3.
According to Section 18(1), in any of these cases: (a) If any of the marrying party of the proposed marriage is under age as stipulated in section 8; or (b) If the woman is a widow/divorcee proven by section 14(3); or (c) If the woman does not have wali nasab according to the Syara’ Laws.
Hence the Registrar should, as a replacement action under section 17, refer the application to marry to the Syariah Judge who has the authority in the area the woman lives in. 8
8.
APPLICATION TO OBTAIN WALI HAKIM ORDER FROM THE SYARIAH COURT
8.1
First action: The applicant must produce the following documents: a) A copy of the applicant’s identification card b) The applicant’s birth certificate c) A copy of the wali’s marriage certificate d) A copy of the wali’s identification card (for women) e) A copy of the witnesses’ identification card (2 men) f) Authentication letter from employer / village headman / Penghulu / Warden, Statutory Declaration letter for those who do not have an employer to certify that the man / woman is not married g) A copy of Death Certificate (for widow or widower) h) Original Divorce Certificate (for divorcee) i) Certificate of Islam (for new converts)
8.2
Second action: a) Complete an application to marry and attach all the documents above (related to applicant only). b) The applicant and 2 witnesses must be present at the Syariah Law Division, the State’s or District’s Islamic Religious Department and meet the Registrar to explain the problem faced, for example, the wali refuses. In the case that the wali refuses to marry off the applicant, the documents required are: i. A copy of Identification Card of the applicant and 2 witnesses. ii. Authentication letter to certify that the woman is not married iii. Divorce certificate or a copy of death certificate (for divorcee or widow). c) The Registrar will produce an appointment letter for the wali inviting him to discuss and obtain his consent. d) Should the wali continue to refuse, either by being absent from the interview or even if he attends but still refuses to be a wali, the Registrar will produce a report stating the list of necessary actions that have been taken by both the applicant and the Registrar to obtain the wali’s consent. 9
e) The report will be submitted to the applicant to be submitted to the Syariah Court as an attachment to the Wali Hakim application form. f) Once the ruling to use a Wali Hakim has been obtained from the Syariah Court, the applicant has to go back to the Syariah Law Division, the State’s or District’s Islamic Religion Department to pursue the marriage arrangements. g) The marriage will be conducted by a Registrar or an Assistant Registrar who has been authorised to be a Wali Hakim. 9.
CONCLUSION Wali is one of the wedding pillars that need to be properly identified and
carried out according to the correct order. Failure to obey it will result in a wedding that is not valid and will leave a negative impact on the marrying couple, the society and the institution of Islamic Religion Administration. Therefore, it is everybody’s responsibility especially the closest family to be brave to uphold the truth and the Assistant Registrar and Registrar of Marriage, Divorce and Ruju’ must be experts in wali issues and efficient as well as tactful in questioning the order of wali.
10
