Nikah rules: Consent of father must for girl's marriage, say Islamic scholars

By Syed Akbar
Hyderabad: Miya bibi razi to kya karega qazi, goes a famous Urdu saying. But a group of Muslim religious scholars in Hyderabad feels that Nikah will become valid only if the legal guardian of the bride gives his nod. The miya (groom) and the bibi (bride) may be willing to become man and wife but unless the "wali" (legal guardian) says "yes" in the presence of the Qazi, the Nikah will not be solemnised.
A major religious controversy is now raging in the Muslim community in Hyderabad after a noted preacher and authority on comparative religion married a girl without the consent of the latter's father. A fatwa has been issued stating that the Nikah is "batil" (illegal) and the couple has committed "zina" (adultery or fornication). Pamphlets are published highlighting the fatwa and distributed in Muslim localities. The issue got complicated with the intervention of eminent religious body Tameer-e-Millat into the controversy.
The fatwa was obtained by the parents of the girl from the Ahle Hadis Ulema Board, Hyderabad, and Islamic Research and Guidance Centre, Chennai. According to the religious edict (fatwa), a girl cannot marry a boy without obtaining the consent of her father or legal guardian. Islamic scholars Safi Ahmad of the Ulema Board and Shaik Anees-ur-Rahman of the IRGC based their comments on the sayings (hadith) of the Holy Prophet Hazrat Muhammad. They quoted the hadith from eminent books of prophet's traditions, Sahih Muslim and Abu Dawud.
Ulema, however, are divided on the issue. Those adhering to the Shafai, Maliki, Hanbali and Salafi schools of thought support the view that father's consent is needed for the Nikah to become valid. Scholars of Hanafi sect feel that the Nikah will be legally valid even if the girl does not take the consent of her father or legal guardian.
Says Safi Ahmad, who is also vice-president of Jamaat Ahle Hadis, Andhra Pradesh unit, "we feel that the parents' consent is needed if the girl is a "Bakira" (marrying for the first time). In the case of "Sayyiba" (second marriage), the girl need not obtain the consent of her legal guardian".
Senior Islamic priest Abdur Rahim Khuram says since the scholar of comparative religions claims that he follows the Salafi school of Islamic jurisprudence, he should strictly adhere to it. "He has earlier married a girl without the consent of her father. He had to leave the girl after her parents took up the issue with religious leaders. This is the second time that he has married a girl without parents' nod," Khuram adds.
However, hanafi scholar Syed Shujath Hussain is of the view that a mature girl has the choice to marry or not to marry. "She can marry whomsoever she wishes - no one can force her to marry a particular person. If she marries a person on her own, the nikâh will be valid irrespective of whether the wali is informed or not, and irrespective of whether the wali gives his consent or not. In all cases the nikâh will be valid," he points out.
However, his statement comes with a rider. Parents' consent is not necessary if the social, educational and economic status of the boy is equal to that of hers. "If she does not marry a person who is of the same social standing as her, and instead, marries a person who is of a lower standing than her family, and her wali is not happy about this marriage, then the fatwâ in this case is that the nikâh will not be valid," he clarifies.
According to Moulana Muhammad Kareem, in Shafi'i and Hanbali Madhhabs the wali has to be present during the nikah; otherwise, the nikah will not be sahih. A woman cannot be a wali. In Hanafi Madhhab, a woman can get married without a wali and can appoint someone her deputy, yet if a woman marries someone who is not her kufw (status), her wali can interfere and stop the marriage. In Maliki Madhhab, if a woman is one of the notables of the town and is rich, then her wali has to be present at the nikah.