❀ Sharʿī Ruling on the Guardian of Marriage in Case of Uncle’s Refusal ❀
Source: Fatāwā Rāshidiyyah, Page 427
Question
What do the scholars of Islam say about this case: I, Būrhī bint Sūzal Khān, an adult and of sound mind, have lost my father. During his lifetime, he arranged my engagement with Muḥammad Ṣāliḥ, to which both my mother and I consented. Now, my uncle intends to marry me elsewhere, which is not only against my will but also harmful and distressing for me. I ask: in this situation, will my uncle, Suhrāb Khān, be my guardian (walī) in marriage, or does the right of guardianship pass to another such as my maternal grandfather or maternal uncle?
✔ Answer
Alḥamdulillāh, waṣ-ṣalātu was-salāmu ʿalā Rasūlillāh, Ammā Baʿd!
It must be clearly understood that if a woman’s guardian (walī) opposes her interest, prevents her from marrying appropriately, or seeks to cause her harm, then in such a case she has the right to appoint another man as her guardian for marriage.
As narrated in Sunan al-Dāraquṭnī, Abwāb al-Nikāḥ, from Ibn ʿUmar رضي الله عنه:
((قال إذا كان ولى المرأة مضارا فولت رجلا فنكاحها ونكاحة جائزة.))
“If a woman’s guardian causes her harm, and she appoints another man as her guardian, then her marriage conducted through him is valid.”
Similarly, in Musnad al-Shāfiʿī, Ibn ʿAbbās رضي الله عنه reports:
((لا نكاح إلا بشاهدى عدل و ولى مرشد.))
(Vol. 9, p. 482, Beirut edition)
“There is no marriage except with two just witnesses and a righteous guardian.”
Since in this case Suhrāb Khān (the uncle) is acting harmfully, his right of guardianship is nullified. Therefore, Būrhī may appoint either her maternal grandfather or maternal uncle as her guardian and marry according to her own choice.
Hadhā mā ʿindī, wallāhu aʿlam bis-ṣawāb.
