Validity of Nikah Without the Consent of Wali

Marriage is often seen as a cornerstone of human life, offering not just companionship but a committed partnership where both individuals strive to build a shared future. Ameer Ali defines marriage as “an institution ordained for the protection of society, and in order that human beings may guard themselves from foulness and unchastity” [1]. In the case of Abdul Kadir v. Salima, Mahmood J. went a step forward to note that ‘marriage among Muhammadans is not a sacrament but a civil contract’ [2]. 

This article will analyse the importance of the Nikahnama within a Muslim marriage (as a civil contract and as proof of the marriage) and therefore, the effect of lack of consent by the Wali and consequently the validity of the marriage. 

Central to the Nikah is the concept of seeking a guardian’s (Wali’s) consent, a practice rooted in ensuring the welfare and well-being of both partners. In Pakistan, the idea of marriage without a guardian (Wali) has significant legal and social implications, particularly concerning the validity and legality of such marriages in Islam. Practically, this issue often arises when young individuals choose to marry without their guardian’s consent. 

Before moving forward, it is important to understand who can act as a guardian under Islamic Law. In a Muslim marriage, a “Wali” (guardian) must be from the “Asaba” group, which refers to those heirs who do not have a fixed share in inheritance. Instead, after distributing the fixed shares, whatever remains is given to them. The order of priority for the “Asaba” as guardians in marriage starts with the descendants, such as sons and grandsons. Next in line are the ascendants, including the father and grandfather. Following them are the father’s descendants, such as brothers and nephews, and lastly, the grandfather’s descendants, including paternal uncles [3]. These are the people who are allowed to be Walis but generally, it is the father who is considered the primary guardian. 

Furthermore, if the “Asaba” relatives are not available, then the guardianship right for marriage transfers to the next closest relatives (Dhawi al-Arham), following the inheritance hierarchy. Essentially, the guardian in marriage should be from among the heirs; if these heirs are present, a non-heir does not have the right to guardianship. However, if no such heirs are available to act as guardians or if the woman’s guardians are all non-Muslims, a ruler, authority, or judge can act as the Wali (guardian) [4]. Additionally, if a guardian is absent for some reason he can appoint someone who can fulfill his duties and the marriage conducted by the appointed person will be considered valid as if it was conducted by the guardian [5]. 

Additionally, as per the requirement that a guardian must be Muslim, adult, and of sound mind, a minor cannot act as a Wali in a marriage [6]. A guardian’s role is to ensure that the marriage is in the woman’s best interest according to Islamic principles, and a minor may not be able fulfill this responsibility properly. 

The question then remains, what becomes of the Nikah without the consent of the Wali. A majority of scholars base their belief that a marriage without a Wali is invalid on the sayings of the Prophet (PBUH). It was said by Him and reported by Abu Dawood that “No marriage except with a guardian and the ruler is the guardian of she who has no guardian [7]” and “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 [8]”. 

However, the text of the Quran has also suggested on multiple occasions that an adult woman of sound mind may enter into a marriage without the consent of a Wali (guardian) [9]. Here, it is important to note that these verses have been placed in the context of divorced or widowed women aligning more with the Maliki school of thought. Additionally, emphasis must be placed on “adult woman” meaning that for minor girls, the preferred approach remains to conduct the marriage with the consent of a Wali. This approach is further affirmed by the Council of Islamic Ideology, which supports the necessity of Wali consent in such cases. 

There are various schools of thought in the Islamic legal tradition, including the Hanafi, Shafi’i, Maliki, and Hanbali schools. Each school interprets Islamic jurisprudence differently, offering distinct perspectives on legal and social matters. On this matter, followers of the Shafi’i school of thought believe that a marriage (be it the first or the second) is not valid without the consent of the guardian (Wali) [10]. On the other hand, followers of the Maliki school of though believe that consent of the Wali is only needed for the first marriage, and may marry for the second time independently [11]. 

The Hanafi school (one of the most widely followed, especially in South Asia and parts of the Middle East) unlike the Shafi, Maliki and Hanbali school believe that a woman has the right to contract her own marriage without the consent of a guardian (Wali). This principle is also affirmed in the case of Muhammad Shawal vs. Sonia Farooq, where it was established that A mature Muslim woman who has reached puberty can validly choose and marry someone of her own choice without needing her guardian’s (Wali’s) consent [12]. The marriage thus remains valid if it is acknowledged by both parties even if the guardian’s consent is not obtained. Consequently, the court is required to uphold and protect it as a valid marriage. 

Hanafi’s also believe that a marriage (Nikah) performed by an adult woman without her guardian’s consent can be considered valid, provided certain conditions, known as “Kuf”, are met [13]. These conditions stipulate that the man and woman must be equal in religion, wealth, profession, and social status (Zaat) [14]. The marriage is deemed valid under Islamic law if the man and the woman are Kuf of each other [15]. However, if there is an inequality in any of these aspects, the Nikah may not be recognized as valid. Essentially, the man and the woman need to be equal in the aforementioned regard for the marriage to be valid. 

While different schools of thoughts possess different opinions as to whether the Walis consent is necessary for a valid marriage, one must also consider that in Muslim Personal Law, a valid nikah only requires two key elements as also established by Muhammad Sham v. Liaqat Hussain and 6 others i.e., offer and acceptance that must take place in the same meeting [16]. The significance of these elements is seen in the fact that a marriage will remain valid even if offer and acceptance has been made and accepted in different languages, even by sign language or telephone. These requirements may be extended only to the requirement of witnesses in the case of a Shi’a marriage (only for the purpose of proof of marriage) as was seen in the case of Abdul Kadir v. Salima [17]. It thus follows that consent of the Wali is not a necessity for a legally valid marriage. 

While for minors (in South Asian Muslim law) a marriage is typically arranged by their guardians because they follow classical principles concerning puberty and the capacity to marry [18]. Even a minor has a right to reupdate such marriage on attaining puberty, known as khiyar-al-bulugh [19]. Despite this, the capacity for independent marital decisions is legally recognized, especially as minors attain puberty, such as Under Hanafi law, a father’s authority to arrange marriages cases to be valid once the child reaches puberty, affirming the individual’s right to contract marriage independently [20]. 

Notably, the legal framework in South Asia has evolved, particularly regarding the necessity of a Wali’s (guardian’s) consent. Cases like Saima Waheed lay down the courts’ stance that a Muslim woman, upon reaching the age of majority, has the absolute right to marry without the need for a guardian’s consent [21]. This particular case emphasized that under traditional Hanafi law, a father’s objections to his adult daughter’s marriage were legally unfounded. This shows a significant shift towards recognizing individual rights, particularly for women, in marital contracts within South Asian Muslim law. While the Child Marriage Restraint Act 1929 [22] aimed to curb child marriages, the enduring legal and social validation of marriages without a guardian’s consent reflects the broader principle that a valid Muslim marriage contract, once established, cannot be easily cancelled by state law.  

The aforementioned evolution was seen reflected in the case of Muhammad Imtiaz and Another v. The State that involved a dispute over the validity of a marriage contracted by an adult woman without her guardian’s permission [23]. While the Additional Session Judge initially convicted the parties under the Zina Ordinance 1979, the Federal Shariat Court overturned this, validating the marriage. The Court referenced Hanafi jurisprudence, arguing that an adult woman’s consent is sufficient for the validity of the marriage, rejecting the notion that guardian consent is necessary. Even though the decision did not fully address other Hanafi prerequisites, such as equality between spouses, the fact remains that consent of the Wali was not thought to be a necessity for the legality of the marriage. Similarly, In the case of Arif Hussain and Azra Parveen v. The State, the Federal Shariat Court validated a marriage conducted without Wali’s consent, relying on the mutual confirmation of the spouses and insufficient evidence against the marriage [24]. In a similar occurrence, the Lahore High Court in Hafiz Abdul Waheed v. Asma Jehangir and Another, upheld a sui juris woman’s right to marry without her Wali’s consent, validating the marriage and her voluntary cohabitation with her spouse [25]. 

while the Supreme Court of Pakistan has not yet ruled on the matter, the case of Muhammad Iqbal vs. S.H.O., Batala Colony, Faisalabad [26], along with the case of Hafiz Abdul Waheed vs. Mrs. Asma Jehangir [27], has been granted leave to appeal to consider this important public question, under Article 184(3) of the Constitution of Pakistan (1973). However, the Supreme Court of AJ&K has validated marriages that occur without Wali’s consent in the case of Muhammad Shawal vs. Sonia Farooq [28]. 

Conclusion

In essence, Islam revolutionized women’s rights, granting them unique protections, freedoms, and opportunities. Among these rights is the fundamental right to choose whom they marry, ensuring their autonomy and consent that are central to this important life decision. Islamic teachings underscore the importance of a woman’s consent in marriage, promoting her freedom and well-being. However, many assume that women can be married only with the consent of their guardians. This misconception stems from a lack of awareness about true Islamic principles and the persistence of cultural traditions that restrict women’s freedoms. This article has explored the validation of marriage without the guardian’s (Wali’s) consent, emphasizing that while cultural practices may vary with sects, the essence of Islamic law upholds the right of women to marry a person of their choosing. It is crucial to align our contemporary legal practices with these timeless principles to ensure that women’s rights are respected and protected. 

References 

[1] Asafa. A. Fyzee, Outlines of Muhammadan Law (Fourth Edition) 

[2] Abdul Kadir v. Salima (1886) ILR 8 ALL 149 

[3] Khaniyya (Kitab al-Nikah) (Vol 19) 3

[4] Al-Fatawa al-Hindiyya (Kitab al-Nikah) (Vol 1) 283 

[5] Nayel A. Badareen, Shi’i Marriage Law in the Pre-Modern Period: Who Decides for Women? (Vol. 23, No. 4) (2016) 

[6] Al-Quduri (Kitab al-Nikah) 475 

[7] Sunan Abu Dawood, Book of Marriage, Hadith 2080

[8] Sunan Abu Dawood, Book of Marriage, Hadith 2083.

[9] Quran (2:230), (2:232), (2:234)

[10] Muhammad bin Idrees Al-Shafi, KitÉb Al-Umm (BeirËt: DÉr-ul-kutub Algilmiya, 1993)12

[11] Muhammad bin Idrees Al-Shafi, KitÉb Al-Umm (BeirËt: DÉr-ul-kutub Al gilmiya, 1993)

[12] Muhammad Shawal vs. Sonia Farooq (2020) YLR 1134 (Supreme Court (AJ&K))

[13] Radd al-Muhtar, Chapter on Kafa’ah (Equality in Marriage), (Vol 2) 436

[14] Al-Durr al-Mukhtar (Nizam al-Fatawa), (vol 3) 76 

[15] Al-Durr al-Mukhtar (Nizam al-Fatawa), (vol 3) 89 

[16] Muhammad Sham v. Liaqat Hussain and 6 others (1999) CLC 1130 (SCAJK)

[17] Abdul Kadir v. Salima (1886) ILR 8 ALL 149

[18] Asafa. A. Fyzee, Outlines of Muhammadan Law (Fourth Edition)

[19] ibid. 

[20] Diwan and Diwan (1991) 53

[21] Saima Waheed (1997) PLD 307 (LHC)

[22] Child Marriage Restraint Act 1929

[23] Muhammad Imtiaz and Another v. The State (1981) PLD 308 (FSC)

[24] Arif Hussain and Azra Parveen v. The State (1982) PLD 42 (FSC)

[25] Hafiz Abdul Waheed v. Asma Jehangir and Another (1997) PLD 301 (LHC) 

[26] Muhammad Iqbal vs. S.H.O., Batala Colony, Faisalabad (1997) SCMR 987 (SC)

[27] Hafiz Abdul Waheed vs. Mrs. Asma Jehangir (1997) SCMR 987 (SC)

[28] Muhammad Shawal vs. Sonia Farooq (2020) YLR 1134 (SCAJK)