Question
Kindly advise on whether the Wali (Father) has the right of Fasakh (annulment) in the scenario below: A boy and girl were courting, both in their early twenties. Both families knew about it from the beginning of the courtship. The girl had requested her parents several times to get her married. The parents did not have a problem with her marrying the boy but they wanted her to complete her studies and begin working so she may be able to stand on her feet for the unforeseeable future. They already have a daughter who was divorced and because she had studied and started work was able to fend for herself after divorce. Hence they deemed it necessary for this daughter to do the same and said that the marriage can only take place after she has got some work experience (about 6 months). Their courtship however continued. The father had arranged for Aamal treatment for his daughter and the Aamil advised that for one week there should be no contact between boy and girl. However, the girl refused to give her phone to her father. The father forcefully took the phone. The girl somehow managed to get hold of the phone and contacted the boy saying that she felt unsafe and threatened by her father's behaviour. He made a decision and fetched her from her home and brought her to his home. They narrated their events to local Ulama/ Muftis and got a ruling that under the circumstances performing Nikah without the Wali would be valid. The boy's party, though unhappy at having to perform a Nikah in this manner, contacted a local Imaam and got the Nikah done without contacting the girl's family. The girl's family is now very upset and demands an annulment of the marriage. They have spoken to many Ulama and have got rulings that such a Nikah is not valid as per the Hadith, "Whoever marries without a Wali, the Nikah is Baatil, Baatil, Baatil." There was no pressure on the girl to get married and she confirmed it was her choice and she is happy with her decision. The boy's party says they will do whatever is required to mend the relationship. However, the girl's father is adamant that he wants the marriage annulled.
Answer
In the circumstances the Nikah cannot be annulled by anyone, neither by the father, nor by a panchaayat of Ulama nor by a Qaadhi. There are no valid Shar'i grounds for annulling the Nikah in this case.
Regarding the Hadith cited, firstly, a muqallid has no right to make istimbaat of masaa-il from Ahaadith. Istimbaat of masaa-il from the Qur'aan and Ahaadith is the wazeefah (function) of only the Aimmah Mujtahideen.
Secondly, the Hadith is the evidence of the Shaafi' and other Math-habs. According to the Ahnaaf, whilst the consent of the Wali is Waajib, the Nikah without his consent is not invalid. In certain Kufw scenarios, the Wali has the right of annulling a Nikah. But this is not applicable to the case in question.
Thirdly, the father by having consented to the zina relationship and even promoting and perpetuating it, is a faasiq of the worst order. He has lost his wilaayat over his daughter, hence he has no say in this matter. The Nikah is valid and no one can annul it.
- Source
- themajlis.co.za
- Published in
- The Majlis Vol 24 No 02
- PDF page
- 10
Appears under THIS NIKAH CANNOT BE ANNULLED (approximate).