Source: Fatāwā Muḥammadiyyah, Vol. 1, p. 712
What is the ruling of the esteemed scholars in the case of Saima bint Faqeer Muhammad, an orphan girl whose mother is mute, with no real brother and no paternal uncle. She arranged her marriage with a man named Hussain without the consent of her close relatives, appointing a guardian (walī) with the permission of her male cousins (relatives from her locality), and the marriage was conducted.
Both remained in hiding for some time. When the matter was exposed, her maternal and paternal relatives demanded divorce and her return. Under pressure from Saima’s family, Sajid's father compelled his son to issue divorce to avoid further conflict. As a result, Sajid divorced her.
Now, the girl is pregnant, and her waiting period (ʿiddah) will complete on 14-03-97. The question is: Can Sajid take her back (reconcile)?
This statement is made under oath and is true. Please provide a verdict in light of the Qur’ān and Sunnah.
Al-ḥamdu lillāh, waṣ-ṣalātu wa-s-salāmu ʿalā Rasūlillāh, Ammā Baʿd!
Assuming the question and sworn statement are accurate, this issue involves clarification of the following three core points:
① Was the marriage legally valid according to Sharīʿah?
② Did the divorce actually take place in Sharīʿah?
③ If the divorce occurred, is it effective and final or not?
Below is a detailed discussion on each:
There is no doubt that a marriage without the consent of a Sharʿī walī (guardian) is not valid in Islamic law.
Arabic:
«لَا نِكَاحَ إِلَّا بِوَلِيٍّ»
(Abu Dāwūd, Vol. 2, p. 75; al-Tirmidhī, Vol. 1, pp. 203–204; al-Dāramī, Vol. 2, p. 137; al-Bayhaqī, ḥadīth no. 10717; Irwāʾ al-Ghalīl, Vol. 6, p. 236; Nayl al-Awṭār, Vol. 1, p. 135)
Translation:
The Messenger of Allah ﷺ said:
“There is no nikāḥ except with a walī.”
Imām al-Ḥākim narrated that this ḥadīth is reported from over thirty Companions, including Umm al-Mu’minīn ʿĀʾishah, Umm Salamah, and Zaynab bint Jaḥsh رضي الله عنهن.
(Ref: Irwāʾ al-Ghalīl, Vol. 6, p. 236)
Authorities like Imām ʿAlī ibn al-Madīnī, Imām al-Bukhārī, Imām al-Ḥākim, and Ḥāfiẓ al-Dhahabī have all authenticated it. Shaykh Nāṣir al-Dīn al-Albānī also declared it authentic.
This serves as a strong and sound evidence that a woman cannot marry without a walī, whether she is a virgin or previously married, minor or adult.
However, this does not mean that the woman has no say and the walī can force her into marriage. Rather, both the woman and the walī must be mutually agreeable.
If the walī acts unjustly or oppressively, then he loses his right of guardianship.
Arabic:
«لَا نِكَاحَ إِلَّا بِوَلِيٍّ وَشَاهِدَيْ عَدْلٍ، وَمَا كَانَ مِنْ نِكَاحٍ عَلَى غَيْرِ ذَلِكَ فَهُوَ بَاطِلٌ، فَإِنْ تَشَاجَرُوا فَالسُّلْطَانُ وَلِيُّ مَنْ لَا وَلِيَّ لَهُ»
(Subul al-Salām, Vol. 2, p. 121; Nayl al-Awṭār, Vol. 6, p. 126; Irwāʾ al-Ghalīl, Vol. 6, p. 240)
Translation:
The Messenger of Allah ﷺ said:
“There is no nikāḥ without a walī and two upright witnesses. Any nikāḥ conducted otherwise is invalid. If a dispute arises between the guardians, then the Sultan (judge) becomes the walī of the one who has no walī.”
Arabic:
«إذا كان الولى مضارًّا فولّت رجلاً وأنكحها، فنكاحه جائز»
(Reported by al-Dāraquṭnī; al-Mughnī; Fatāwā Ahl al-Ḥadīth, Vol. 2, p. 407)
Translation:
“If a walī is causing harm, and the woman appoints another responsible man who performs her marriage, then the marriage is valid.”
Imām al-Shāfiʿī narrated from Ibn ʿAbbās رضي الله عنه:
Arabic:
«لَا نِكَاحَ إِلَّا بِوَلِيٍّ وَشَاهِدَيْ عَدْلٍ»
(Kitāb al-Umm, Vol. 5, p. 19; Nayl al-Awṭār, Vol. 6, p. 129; Dāraquṭnī, Vol. 3, p. 222)
This shows that the walī must be just, trustworthy, and well-wishing, otherwise his guardianship is void.
As per the question, Saima bint Faqeer Muhammad appointed a walī with the consent of her local relatives (cousins), due to absence of a close guardian. Hence, the nikāḥ is valid in Sharīʿah.
Shaykh ʿAbdullah Rūpūrī رحمه الله says:
“It is essential for a woman to have a walī. First the father, then the son, then brother, then paternal uncle, then paternal grandfather’s descendants... In short, guardianship lies on the father's side, not the mother's.”
(Fatāwā Ahl al-Ḥadīth, Vol. 2, pp. 407–408)
Therefore, more distant uncles or maternal relatives have no right to object to this marriage.
Sajid divorced his wife Saima upon his father’s instruction and of his own sound mind. Hence, divorce has taken place.
However, since all three divorces were pronounced in one sitting, according to the ḥadīth of Ṣaḥīḥ Muslim, this counts as one revocable (rajʿī) divorce:
Arabic:
«كَانَ الطَّلَاقُ عَلَى عَهْدِ رَسُولِ اللَّهِ ﷺ، وَأَبِي بَكْرٍ، وَسَنَتَيْنِ مِنْ خِلَافَةِ عُمَرَ، طَلَاقُ الثَّلَاثِ وَاحِدَةً»
(Ṣaḥīḥ Muslim, Book of Ṭalāq, Vol. 1, p. 477)
Translation:
“During the time of the Messenger of Allah ﷺ, Abū Bakr, and the first two years of ʿUmar’s caliphate, three divorces given at once were considered as only one.”
Since the divorce occurred during pregnancy, the waiting period (ʿiddah) is until delivery, as per the Qur’ān:
Arabic:
﴿وَأُولَاتُ الْأَحْمَالِ أَجَلُهُنَّ أَن يَضَعْنَ حَمْلَهُنَّ﴾
Surah al-Ṭalāq: 4
Translation:
"And for those who are pregnant, their waiting period is until they deliver their burden."
Thus, as her ʿiddah is not yet over, the marriage remains intact, and Sajid may reconcile with Saima.
◈ No new nikāḥ is required.
◈ No ḥalālah is needed either, and in fact, ḥalālah is a cursed and prohibited act in Islam.
◈ Saima’s marriage is valid, as it was conducted with the permission of an eligible walī in the absence of a closer guardian.
◈ The divorce is revocable (rajʿī) and occurred during pregnancy.
◈ Sajid may reconcile with his wife without the need for a new nikāḥ or ḥalālah, as the waiting period is still ongoing.
هٰذَا مَا عِندِي وَاللّٰهُ أَعْلَمُ بِالصَّوَابِ
❖ Question:
What is the ruling of the esteemed scholars in the case of Saima bint Faqeer Muhammad, an orphan girl whose mother is mute, with no real brother and no paternal uncle. She arranged her marriage with a man named Hussain without the consent of her close relatives, appointing a guardian (walī) with the permission of her male cousins (relatives from her locality), and the marriage was conducted.
Both remained in hiding for some time. When the matter was exposed, her maternal and paternal relatives demanded divorce and her return. Under pressure from Saima’s family, Sajid's father compelled his son to issue divorce to avoid further conflict. As a result, Sajid divorced her.
Now, the girl is pregnant, and her waiting period (ʿiddah) will complete on 14-03-97. The question is: Can Sajid take her back (reconcile)?
This statement is made under oath and is true. Please provide a verdict in light of the Qur’ān and Sunnah.
❖ Answer:
Al-ḥamdu lillāh, waṣ-ṣalātu wa-s-salāmu ʿalā Rasūlillāh, Ammā Baʿd!
Assuming the question and sworn statement are accurate, this issue involves clarification of the following three core points:
① Was the marriage legally valid according to Sharīʿah?
② Did the divorce actually take place in Sharīʿah?
③ If the divorce occurred, is it effective and final or not?
Below is a detailed discussion on each:
✦ Regarding the Validity of the Marriage
There is no doubt that a marriage without the consent of a Sharʿī walī (guardian) is not valid in Islamic law.
➤ Hadith from Abu Dāwūd, al-Tirmidhī, al-Dāramī, al-Bayhaqī:
Arabic:
«لَا نِكَاحَ إِلَّا بِوَلِيٍّ»
(Abu Dāwūd, Vol. 2, p. 75; al-Tirmidhī, Vol. 1, pp. 203–204; al-Dāramī, Vol. 2, p. 137; al-Bayhaqī, ḥadīth no. 10717; Irwāʾ al-Ghalīl, Vol. 6, p. 236; Nayl al-Awṭār, Vol. 1, p. 135)
Translation:
The Messenger of Allah ﷺ said:
“There is no nikāḥ except with a walī.”
Imām al-Ḥākim narrated that this ḥadīth is reported from over thirty Companions, including Umm al-Mu’minīn ʿĀʾishah, Umm Salamah, and Zaynab bint Jaḥsh رضي الله عنهن.
(Ref: Irwāʾ al-Ghalīl, Vol. 6, p. 236)
Authorities like Imām ʿAlī ibn al-Madīnī, Imām al-Bukhārī, Imām al-Ḥākim, and Ḥāfiẓ al-Dhahabī have all authenticated it. Shaykh Nāṣir al-Dīn al-Albānī also declared it authentic.
This serves as a strong and sound evidence that a woman cannot marry without a walī, whether she is a virgin or previously married, minor or adult.
However, this does not mean that the woman has no say and the walī can force her into marriage. Rather, both the woman and the walī must be mutually agreeable.
If the walī acts unjustly or oppressively, then he loses his right of guardianship.
➤ Hadith from ʿĀʾishah رضي الله عنها:
Arabic:
«لَا نِكَاحَ إِلَّا بِوَلِيٍّ وَشَاهِدَيْ عَدْلٍ، وَمَا كَانَ مِنْ نِكَاحٍ عَلَى غَيْرِ ذَلِكَ فَهُوَ بَاطِلٌ، فَإِنْ تَشَاجَرُوا فَالسُّلْطَانُ وَلِيُّ مَنْ لَا وَلِيَّ لَهُ»
(Subul al-Salām, Vol. 2, p. 121; Nayl al-Awṭār, Vol. 6, p. 126; Irwāʾ al-Ghalīl, Vol. 6, p. 240)
Translation:
The Messenger of Allah ﷺ said:
“There is no nikāḥ without a walī and two upright witnesses. Any nikāḥ conducted otherwise is invalid. If a dispute arises between the guardians, then the Sultan (judge) becomes the walī of the one who has no walī.”
➤ Supporting Narration:
Arabic:
«إذا كان الولى مضارًّا فولّت رجلاً وأنكحها، فنكاحه جائز»
(Reported by al-Dāraquṭnī; al-Mughnī; Fatāwā Ahl al-Ḥadīth, Vol. 2, p. 407)
Translation:
“If a walī is causing harm, and the woman appoints another responsible man who performs her marriage, then the marriage is valid.”
Imām al-Shāfiʿī narrated from Ibn ʿAbbās رضي الله عنه:
Arabic:
«لَا نِكَاحَ إِلَّا بِوَلِيٍّ وَشَاهِدَيْ عَدْلٍ»
(Kitāb al-Umm, Vol. 5, p. 19; Nayl al-Awṭār, Vol. 6, p. 129; Dāraquṭnī, Vol. 3, p. 222)
This shows that the walī must be just, trustworthy, and well-wishing, otherwise his guardianship is void.
As per the question, Saima bint Faqeer Muhammad appointed a walī with the consent of her local relatives (cousins), due to absence of a close guardian. Hence, the nikāḥ is valid in Sharīʿah.
Shaykh ʿAbdullah Rūpūrī رحمه الله says:
“It is essential for a woman to have a walī. First the father, then the son, then brother, then paternal uncle, then paternal grandfather’s descendants... In short, guardianship lies on the father's side, not the mother's.”
(Fatāwā Ahl al-Ḥadīth, Vol. 2, pp. 407–408)
Therefore, more distant uncles or maternal relatives have no right to object to this marriage.
✦ Regarding the Divorce
Sajid divorced his wife Saima upon his father’s instruction and of his own sound mind. Hence, divorce has taken place.
However, since all three divorces were pronounced in one sitting, according to the ḥadīth of Ṣaḥīḥ Muslim, this counts as one revocable (rajʿī) divorce:
➤ Hadith from Ṣaḥīḥ Muslim:
Arabic:
«كَانَ الطَّلَاقُ عَلَى عَهْدِ رَسُولِ اللَّهِ ﷺ، وَأَبِي بَكْرٍ، وَسَنَتَيْنِ مِنْ خِلَافَةِ عُمَرَ، طَلَاقُ الثَّلَاثِ وَاحِدَةً»
(Ṣaḥīḥ Muslim, Book of Ṭalāq, Vol. 1, p. 477)
Translation:
“During the time of the Messenger of Allah ﷺ, Abū Bakr, and the first two years of ʿUmar’s caliphate, three divorces given at once were considered as only one.”
✦ Ruling on Reconciliation (Rajʿah)
Since the divorce occurred during pregnancy, the waiting period (ʿiddah) is until delivery, as per the Qur’ān:
➤ Qur’ānic Verse:
Arabic:
﴿وَأُولَاتُ الْأَحْمَالِ أَجَلُهُنَّ أَن يَضَعْنَ حَمْلَهُنَّ﴾
Surah al-Ṭalāq: 4
Translation:
"And for those who are pregnant, their waiting period is until they deliver their burden."
Thus, as her ʿiddah is not yet over, the marriage remains intact, and Sajid may reconcile with Saima.
◈ No new nikāḥ is required.
◈ No ḥalālah is needed either, and in fact, ḥalālah is a cursed and prohibited act in Islam.
Conclusion:
◈ Saima’s marriage is valid, as it was conducted with the permission of an eligible walī in the absence of a closer guardian.
◈ The divorce is revocable (rajʿī) and occurred during pregnancy.
◈ Sajid may reconcile with his wife without the need for a new nikāḥ or ḥalālah, as the waiting period is still ongoing.
هٰذَا مَا عِندِي وَاللّٰهُ أَعْلَمُ بِالصَّوَابِ
