Full Lecture Transcript (Cleaned)
Wali and the marriage contract — 0:00
uh what are the various opinions about uh the necessity of having a guardian awali in order for the marriage to be considered valid and what is to be done if there is a clash between the bride and between the wali and there doesn't seem to be an agreement on that issue now this question actually is very sensitive and a few weeks ago i had given a response about another question and i simply mentioned in passing that the majority opinion is that awali is required and then i moved on and after that lecture i got dozens of emails from around the world of generally speaking positive but uh quite a few were very long emails and explaining that you know i should be more careful in what i say they didn't agree with this position they said that one of the schools of law allows uh the woman to get married without the wali the issues of updating islamic faith this and that so all of these questions and of course one of the largest genre of questions that any scholar in the west gets is with regards to pertaining to marriage and pretending to divorce and this is one of those issues of marriage is that what is one to do when uh two people want to get married the the the bride in the groom or the fiance they know they want to get married together and the wali becomes involved in the what he says i'm not i'm not wanting this marriage to take place i'm not happy in this particular instance i don't want this this particular groom i have something else in mind for you and of course this is the standard clash that we hear about all the time you know we've all gone through that phase of our lives those of us that are beyond that phase and so it is important for us to take a critical look about what does islamic law say and look at the reality and see what can be done and before i begin this is going to be a lengthy lecture it's not just the evidences because we really do have to take a step back we have to understand that this is an issue of importance to many young men and especially young women and this is a very very common theme and it is one of the largest sources of conflict really of a young lady's life is that you know she might be going to college or just entering the workforce and she meets somebody she wants to marry they get along very well they think that they're perfect one another and then you know for whatever reason the wali objects and then of course you know the whole drama ensues which is the standard you know uh back and forth between her and between the wali and between other family members and the issue comes that you know why can't she make this decision when she can make decisions with regards to other aspects of her life and therefore we do need to take a step back and understand that we as muslims do have a very different philosophy of the conception of family and yes even of gender the role and the notion of family and of gender is something that is relatively fluid in the western context by fluid we mean it it changes you know that keeps on morphing from one uh understanding to another and from our perspective uh it is the sharia that defines the role of the family and the role of the gender and at times our values uh from our sharia are not fully in in consonance and agreement with the values of our society around us and we have to be very clear in this regard that what is to be done when our laws seem to conflict with our values that we've absorbed from our society because what we've absorbed really is the sense of individualism what we've absorbed is the sense of it's my life it's my pleasure it's my uh you know rest of my life why should i take into account what my parents say and that is something i'm not saying everything we absorb from the world around us from the from the society around us is necessarily evil but we do need to be cognizant of the fact that okay the sharia does allow for change so is this something we can change or not with regards to our modern uh times and uh before i even get into the the evidences of we also have to discuss just a little bit about even the philosophy of ulama of the scholars themselves when it comes to how much we take modern society into account because as you're probably aware for so many issues you know there's going to be a spectrum of opinion and the answer that you get will depend on the scholar that you ask for many issues of islamic law and this is no exception when it comes to the issue of wali you will find classical difference of opinion and then of course in our modern times you will find even more people of course debating this issue and within the spectrum within this gamut of scholarship obviously there are some scholars that uh they feel that we should not uh take anything uh of modernity and of cultural differences into account we should simply stick with the tradition whatever our books have taught us whatever the filth that they studied was they should simply copy and paste and they should ignore the world around them because they feel from their paradigm that the job of the sharia is not to conform to society rather society should form conform to the sharia so they have their paradigm then you have of course the flip opposite side of the spectrum and you have those that feel that we look at the what they call the goals of the sharia adam akasu and they will always find a mechanism or a way to bring their understanding of the sharia into harmony with the modern understanding of the world and of course these are the people that are typically on the more modernist or the progressive side of the spectrum and within themselves they also have quite a lot of differences now obviously you're asking me or i'm the one you're listening to my lecture right now so obviously i should just put my cards on the table i've said this many times and if you listen to my lectures and my q a you know exactly where i am coming from that um in the grand scale of things i do consider myself to be for lack of a better label a forward-thinking traditionalist and by this i mean that uh we understand that we come from a tradition we cannot just discard the tradition we understand that our our laws they have been built over the last 14 centuries we understand that there is a human element no doubt about that but we also understand that there is a divine component as well not everything is subjective we have to be very careful that we don't enter this pandora's box of ultimate post-modernism we have to be very careful that we don't just accept the notion that there is no ultimate truth and that islam has been you know made so easy for everybody that in reality there are no laws and we just conform with the with whatever the values of our times are there has to be that healthy balance and middle ground and so my philosophy has been if you all of the throughout all of these lectures is that where there is room for change where there is leeway and culture and society is forcing us to rethink through the tradition and the the uh paradigm that we follow the traditionalist paradigm allows us to rethink through the tradition no problem we should do so however where we have an explicit authoritative text from allah or a hadith that needs to be applied in the situation we are dealing with in this case then obviously or unanimous consensus of course that is the most definitive because quran and hadith can be interpreted depending on how you look at them unanimous consensus is not interpreted it is unanimous consensus but and by that i mean that a verse from the quran hadith on the prophet sallallahu alaihi sallam so many times scholars will look at the same thing and derive different interpretations but when you have unanimous consensus well then that solves the issue so bottom line is that uh what i'm trying to say is that i i do not consider myself to be a cut and paste literalist or fundamentalist and i don't think anybody actually accuses me of that who listens to my lectures and i'm trying to say this because where there is room for change i will be the first to advocate that change if you listen to so many other q and a's that i've given and where the texts are definitive where the texts are clear-cut well then there has to be so another disclaimer because again we live at times where no matter what you say somebody's going to pick on it and read in obviously i'm speaking from a spiritual or a religious paradigm i'm not speaking from a a legal paradigm of the lands that we are living in obviously in western lands once a woman comes of age a man comes of age they are technically free to do whatever they want according to the laws of the land so what i'm saying is not enforceable on anybody living in these lands it's simply you're asking a religious advice you're asking the spiritual realities and therefore i am telling you this is the the response based upon your relationship between you and your lord you can choose to take it you can choose to reject it that is up to you in the end of the day the the lands that we live in these western lands they do not uh you know obviously they have ultimate freedom to do as you please when it comes to to marriage and therefore this is simply a an advice that is being given from a spiritual perspective and what you do beyond this it is up to you and if a person chooses to take another path that is their prerogative in this land and then they have to answer to allah on the day of judgment one other caveat before i get to the actual uh phil this is very important brothers and sisters we need to separate when we talk about islamic law when we talk about sharia when we talk about fik we need to separate the wisdom of the ruling from the legal cause of the ruling okay this is one of the most common mistakes that the average muslim falls into when they look at islamic law the wisdom in arabic hikmah is a general reason that we can say because of this reason such such a ruling has come down from allah okay so the wisdom we can say is it seems to be this is why allah legislated a particular ruling however the wisdom of a particular ruling is not the cause of the ruling because it is possible for the wisdom to exist and it is possible for the wisdom to not exist the legal ruling will only be applied when the cause of the ruling in arabic this is called when the illah of the ruling exists when there is the illah when there is the cause the ruling will exist we would expect that the wisdom and the illah and the ruling are all simultaneous we would expect this to be the default and it is the default however if in a particular scenario the wisdom of the ruling is not manifested the ruling still applies i hope that is clear and i'll give you a number of examples so we understand a simple example is that of shortening the prayer uh to pray for and to prayer the illa is travel the wisdom is to make life easier it was difficult to travel at that time to get off of the caravan to combine the prayers to pray two to four to two and so the wisdom is the ease of the travel the actual cause is the travel itself now suppose somebody were to argue hey in those days they couldn't just stop the caravan and pray for god these days were just driving a car or in those days they didn't have air condition and these days we have full air condition we're in the plane you know why should we worry about this four and two everything is so easy now we're gonna say that the wisdom of the ruling was to make it easier uh fasting for example right the issue of not fasting when traveling so they would say the wisdom is to make the fast or the person easier because it's so difficult to walk when you're fasting it's so difficult to be traveling when you're fasting if somebody were to say hey guys today we have the airplane and the you're just sitting there and you have cool air condition flowing and you don't have to move a finger you're going 500 miles an hour therefore we're going to say that you are not allowed to break your fast when you're traveling because the wisdom doesn't exist the response is no the ruling comes as a result of its legal cause the illah which is travel and it does not come as a result of the wisdom in case the wisdom does not exist the ruling will still exist now why do i say this because we're going to come to this notion of protecting the sanctity of the woman protecting the honor of the woman we're going to come to this notion of making sure that nobody takes advantage of the of the lady this is a wisdom it is not the cause it is a wisdom if somebody were to say hey i am more knowledgeable than my wali if somebody were to say my wali doesn't know anything and i am a better person to judge we will say and we're going to come to this it doesn't mean this the end of the story we will say that the ruling the default ruling does not change because what you're referring to is a wisdom that uh the protection needs to be done and the default ruling is not based on the wisdom it is based on the what we call the illa or the legal cause and by the way the same applies in secular law as well the same applies in secular law let me give you a simple example that will help illustrate this point from a secular paradigm uh the speed limits right you're driving on the highway and there's a limit of 70 miles an hour okay so the limit is 70 miles an hour now why what is the wisdom of that ruling the wisdom of that ruling is to protect life the wisdom of that ruling is to avoid drastic tragic accidents the wisdom of that ruling is that nobody should be going at a hundred miles an hour because that is fatal that is lethal you're going to kill yourself or kill other people and so you should go at a reasonable pace so that even if god forbid an accident happens you minimize the damage that is the wisdom now let me ask you an honest question does everybody have the same level of driving skills what if somebody would argue and maybe they're correct that hey i'm a speed race driver um that's my profession and i can drive 90 miles an hour you know just as safely as i can drive 60 miles an hour in fact there is no doubt that there are some people who are safe for drivers at 90 miles an hour than others are driving at 60 miles an hour right isn't that the case there are some people those rules don't make sense that why would you restrict this expert at 70 miles an hour actually that expert should go 80 90 100 and they know exactly when to speed when to break they have a fancy car with good brakes whatever whereas other people maybe they're you know whatever reason impediments impairments whatever that in fact they should not even be given 70 they should be given 50 in fact how many of us think that certain people should not even be driving when we see them on the highway the point is that this is a good illustration what if this person who's speeding at 90 and he's caught by the police police and he goes to the court and he and he says to the judge hey i am qualified aye that rule doesn't apply to me because i'm smarter than everybody else right what do you think the judge is going to say similarly the sharia has come with generic laws generally speaking those laws are for the benefit of society it is very possible that an individual case we don't see the wisdom of that law it's very possible we don't see the wisdom manifested it does not change the default ruling that's something we have to be very clear about because we always get this issue of hey but what about this or what about that islamic law is not based about what about this and what about that islamic law is based upon the legal cause the what is called the the illah and so that is why in case the wisdom is not manifested in a particular situation it will not change the legal ruling even though other mechanisms can be done as we have said now by the way all of this uh preliminary discussion was done because all too often i think that scholars they just jump in to quote the evidence and imam shafari said this and the hadith says that and this and that and we need to understand that you know a lot of our young men and women and especially our young women who are about to get married they really are struggling to understand uh the wisdoms of some of these laws and i i i sympathize with that with that struggle but we do need to take a step back and point out that for pretty much all of human history uh before our one generation that we just happen to be born in before pretty much the entirety of the human race marriage and gender and the roles of gender were looked at in a very very different light all that we're seeing now of this individualism and me myself and i and what i want to do and my life all of this is very very recent and even in this lands that we live in we can date this quite literally to the late 60s and early 70s this is when it all uh you know began so even though society is changing i understand the world is no longer the way that it used to be we do need to point out that that's that is a relatively modern change and frankly uh not for this question but for other questions and other lectures we do need to get into it the effects that these changes have had the detrimental effects on family on society on sexuality what is happening to the world around us internally and externally and all of this goes back to a number of key changes that took place in this time frame anyway all of this is separate to uh the point here so to summarize all of this was a conclusion before before we get to the fick of this is that we need to understand the difference between wisdom and between cause just in case the wisdom doesn't exist the cause will still bring about the ruling we also need to understand that islamic law does allow for some change but not unconditional change so what i'm trying to point out is that inshallah i consider myself to be of those who are pushing for change where change is allowed therefore when no change is allowed and i say that no change is allowed understand that i'm not coming from a literalist or a fundamentalist paradigm i'm trying my best to work within the situation as we can and then the third point that i mentioned is the cultural realities that we live in is that let us also as we you know uh go through these issues let us be brave enough to problematize modernity let us be brave enough to problematize our own modern culture and don't just accept it to be uh the ethical default it might be the uh the political default it doesn't mean it is the ethical norm and we need to be brave enough to challenge our presumptions and to challenge our notions that we've absorbed from the time and the place that we have lived in with all of that let us now get to what does islamic law say and what are the main opinions about having a wali for marriage so the first position in this regard is the position of the vast majority of the the scholars of islam and the position of all of the schools of islamic law except for one and of course this includes the malakis and the shafires and the hambalis and the wahidis and pretty much every other major scholar that has come except for one primary fundamental school which is the hanefescu that's the other exception that the majority of scholars past and present classical premodern and modern and the majority of islamic schools have said that the marriage contract will not be valid without a wali that if there is no worry then there is no marriage and the marriage contract cannot and does not take place between the bride and the groom rather it takes place between the groom and between the wali with the consent of the bride okay so this is the position of pretty much all of the schools of islamic law except for one that the wali is a necessary prerequisite a necessary condition it is called the rukan basically it's a necessary part and parcel there is no contract you cannot have a marriage there is no nikah without the approval of the wali we can say and whether the wali himself is president or to delegate somebody but the point is the wali has to approve and then uh the nikah will take place of course the uh from the bright side islamic law does not require the wali from the groom side and once again this is one of those uh cultural issues that comes up why not and whatnot and this is a longer discussion but um it is very very correct to point out that while islamic law views the genders as being spiritually equal in the eyes of allah islamic law does have differences between the roles and the responsibilities of the true genders that is an undeniable fact and the only way out of this frankly is to completely reject normative islamic law to completely reject the basic tenets of the quran and sunnah and to redevelop something completely obscure and unknown which then you know comes to the point of how much are you going to change the religion and at what point does that much change change the religion to the point of it not being the religion of islam anymore all of these are questions that need to be discussed by those who are going to go to that level from our perspective we're not going to go down there today we're simply going to say that according to that position the wali is a necessary requirement a part and parcel of the nikah contract now this is position number one within this position we can sub-categorize into two one a and one b and then there's position two so there's two major positions and then within the first we'll have one a and one b one a that the wali always has the right of veto and the weddi's approval must always be sought and regardless of the circumstances of uh the lady whether she is previously unmarried or whether she has been married and then divorced and then wants to remarry or widowed and then wants to remarry in all circumstances this group of scholars in ulama would would argue that the wali's approval must be sought and that if for whatever reason the wali does not agree then the nikah cannot take place unless if we're going to come to this the lady appeals to a higher authority the court or whatnot and the willie is taken away and another will be put in his place but the the woman cannot of herself uh go ahead and perform the the contract this would be one a that the wali does have veto power in all circumstances whether the woman has been unmarried or whether the woman has been previously married one b is that the the the wali is still required however uh the wilaya or the the wali of the lady who has been previously divorced or has been widowed that that wali essentially becomes a token wali and if there is a clash between the the divorced lady who wants to remarry or between the widowed lady who wants to marry and her wali meaning obviously the only lady left is the unmarried lady the lady has never been married right if there is a clash between the the the divorcee or the widowee if there's a clash between her and her wali she has the right without going to a third party to strip his willah away and give it to somebody else and say go to another cousin go to an uncle go to somebody and say you will be my willie for the marriage and she does not need the permission of a particular wali she needs a wali by the way both of these are still awali the difference though is in the power of the wali that 1a the wali always outranks the lady one b is that the wali outranks the lady in power when she has been previously unmarried is her first marriage and one b would say that if she has been married and then for whatever reason divorce or the death of the husband now she wants to remarry again in this case she has the right to basically uh marry whomever she pleases and in case her primary welly says no she has the right to say well okay i'll choose another way and she just chooses an uncle or a cousin and then the marriage will take place and uh this is let's call it one b and the the the the technical terms uh for this is is the one that has the right to veto that's one a wali al-musadik is the one that he's just taking part in the ceremony and the position that i'm advocating in this q a is 1b this is the position that i personally follow when i have cases in front of me and is the position that i think uh does make the most sense even though again with respect to 1a and position 2 i have utmost respect for all of those scholars but obviously every one of us who has to deal with cases we have to have a position so my my position and the default and the one that i'm advocating and the one that i have been advocating throughout my q and a's is basically one b and that is that the unmarried lady requires her weddi's permission and that permission has veto status whereas the previously married lady she gets the wali but the wali becomes a technicality the wali becomes just anybody that is her close relative that can count as a wali and she then performs the marriage uh even if the primary well he says no it's her business she has to face you know the consequences of that in this world obviously there's no sin on her for doing that that's position one b and that is uh the position of uh many past in prison is a classical position nothing new is very well known and standard that the unmarried lady requires the permission of rwali whereas the married lady then divorced and then the the widowed lady that uh she has more right concerning her life and her business than her wali does the second opinion so that's 1a1b the second opinion is of course the famous position of the hanafi school and the position that has been attributed to a number of taberun including azuhi and it has also been narrated from alhassan al-basri that they allowed a woman to get married without her wadi's approval and even if her wali said no they said she can still get married and this is an opinion nobody can you know deny the veracity of the opinion that it exists and it is an opinion that that has been uh held by one of the major and most you know vibrant schools of islamic law and it is a position that therefore cannot just be dismissed however as i will argue in this lecture that uh the majority position really does have so many evidences that i cannot just you know find leeway and just dismiss it and choose the position of the other school with respect with utmost respect to the other school and of course anybody who is a follower of that school you have the right to follow your islamic school your law nobody is telling you that you should leave that however anybody who is by default following any of the other schools should definitely not just then pick and choose just because of convenience another one now what are some of the evidences that are used by the majority uh opinion those that say that a wedi is required what are their evidences there are so many evidences that we're going to have to summarize them one of the most common evidences is an entire series of quranic verses pertaining to marriage where pretty much the default most of the time that allah references marriage when he talks about women marrying he uses a different verb and that verb is and means to get married off and he doesn't use the word neca and neca means that you marry so the fact that allah switches verbs so it's transitive versus intransitive right who's doing it the fact that allah subhanahu wa ta'ala when he's talking about ladies getting married he is addressing the awliya the wali and he is saying to the wadi do not get your ladies married off or get your ladies married off so the addressee is the weddi it is as if the wali is the one making the decision or at least enforcing the decision after the lady says she wants it or not that the wali is the one who is doing the contract and taking care of the contract on behalf of the lady so the fact that the quran has so many verses on the in this genre for example surat al-baqarah verse 221 where allah says allah speaks to the men and allah says do not do nikah he's speaking to the men do not do nikah with pagan ladies those who worship idols until they believe in allah subhanahu wa ta'ala so now then when it comes to women and that's a different verb if you know your arabic and that verb is that do not marry off your women to men who are worshiping idols notice the difference in the tenses right when allah is talking about the man getting married allah says you men do not get married to ladies who are practicing idolatry then when allah talks about muslim ladies he says and do not o men do not get your daughters or your yani the the people that you're in that you're in charge of he's speaking to the awliya do not get your ladies married off so now it is allah is speaking to the one who has the right to veto and that is the wali uh also in the quran that get married off again the the uh transitive that you're not doing the marriage but your ladies that are under your control that have them married off and allah says thank you that marry them with the permission of their families now these two verses um they're not technically fully in the context of what we're talking about because they deal with uh right hand and emma and milky mean nonetheless the concept is there that the permission must be given by those in authority and allah mentions uh in surat al-qasas the story of musa and his father-in-law to be when he went to median that allah says in the quran that the the father-in-law of musa to be the father-in-law to be of musa said the father says to musa i want to offer you one of my two daughters in marriage once again the father is the one saying i shall marry my daughter off to you so all of these verses indicate very clearly that the one who is doing the the the technicalities of the nikkei the one who is deciding whether it's going to take place or not the one who has the veto power it is the wali and perhaps one of the most explicit verses in this regard is also surah baqarah in the same series where allah mentions and they finished their uh their divorced time frame they finished their waiting period then do not prevent them from remarrying or from marrying whoever they want to if they choose to do so with ma roof within that in a good manner now this verse was revealed because of an incident in medina it is an authentic hadith reported in multiple books of hadith that ibn yasar married his sister off to their cousin and some fighting happened between the couple and the cousin ends up divorcing the sister sends her back to the house of makkal and maka loses his temper gets angry at his brother-in-law slash cousin and basically you know they they're falling out then they're in the finishes and she is now a free lady now the sister of malcolm the husband comes back apologizing wanting to make up he speaks to the his ex-wife and they agree to give it another chance they agree that you know they're going to make it work out this time and she agrees to marry her cousin she agrees she wants to get remarried again and mak a living yes said no allah i will never do this i welcome you into our household as a brother-in-law i gave you my sister i did this and that and then you mistreated her and sent her back now here we have the classic the classic issue right of this clash that his sister wants to marry and her brother the parents were not in the picture her brother is saying no you're not going to marry that this man has dishonored us by divorcing you and so allah revealed in the quran the address he is do not stop do not act as a barrier between you between your sister and between uh the man that she wants to marry it's not your responsibility now to act as that barrier now now what is the evidence here the evidence is that the very fact that allah had to reveal that you cannot stop this marriage the very fact that allah is addressing him indicates that he had some power and now the question is how much power did he have veto power or which is what i'm arguing that he didn't have that veto power anymore but he still have a wedding status and allah is saying now that she is fully capable of making that decision you cannot come between her and her decision which is the argument that i'm making other scholars by the way and i'm not going to go down the controversy over 1a and 1b and the evidence is that's beyond maybe another q a this q and a we're not going to go down there do realize by the way that there are strong evidences on both sides i'm not dismissing one a at all but i'm simply saying again for for me and the position that i follow 1b is is very clear-cut to me at least and there are a number of traditions that i see them to be very self-evident that uh the divorced lady has ultimate right to make her decision even for what he says uh no now this is the quranic evidences there are many a hadith as well in this regard many of them the most famous hadith is hadith so again this is a negation there is no negative and this hadith is reported in abu dhabi and a number of other books as well and uh the problem comes and this is the whole issue here all of the hadith that are explicit are not in sahib muslim they're in the other books they're in books lesser than that and the hadith that are implicit and in bukhari and muslim are not as explicit as what we need for this issue that's why the hanafi's able to find as we will come to okay so this hadith himself says that uh this hadith there is some controversy over whether it is you know any continuous chain or a broken chain and then he uh prefers that it is a continuous change so he says it is authentic but there is a controversy whether it is an authentic hadith or not from the time of tirmidhi up until our times and uh the hadith in tirmidhi as well that neca had been whichever or whoever lady marries herself off without her wali then her marriage is belted her marriage is invalid her marriage is invalid and if they differ over who's going to be the wadi or there's no wali then the sultan will be the wali the leader or the community will be the wali for the one who has no wali and this hadith as well is subject to some controversy in the sunnah in the sun we have the hadith has no affair with the previously married lady the widow or the divorcee the wadi does not have the control over her and as for the yatima and the yatima here literally means the orphan but also it means that the young girl sometimes you call the young girl the young girl she is asked whether she wants to marry or not and if she is quiet then that quiet uh her quietness her silence is considered to be her acceptance so once again we have the notion of the wali being involved and taking charge and getting permission from the lady but once that is done then he is the one doing the nikah also in sahih muslim we have the hadith that will be the uh the lady that has been married now again i'm translating this as a lady that has been married realize that even how you translate these goes back to if you prefer one a or one b because i prefer one b so i'm doing a different translation those that prefer one a have a different understanding of this hadith but for now we'll leave that controversy between 1a and 1b that the ayiim and i'm translating the am here is that the one who has already been married the one who has already been married she has more right concerning herself than her wali and the one who has not been married before the unmarried lady she must be asked permission and this isn't muslim now that's insane muslim but it doesn't mention that the nikah must have the word the concept is indirect but it is not direct and in sahih bukhari as well as similar hadith in this regard now these are the evidences of the primary school and their main the crux of their evidence really is that the quran seems to address diwali and there are a number of a hadith that mentioned there is no nikkah without ali and put together these are authentic hadith how do the hanafis respond to this the hanafi say that well the quran doesn't always address the wali the hanifies do not deny that it is better to have a wali the han if you simply say it's not a necessary requirement and in case there is no wali they say or the is for whatever reason is not there the woman may herself get married and act on her own behalf she does not need a welly and she can do her own marriage without anybody even if she is previously unmarried if it's her first marriage she can act on her behalf now footnote here even the hanafi's amongst themselves they have like five or six opinions with minor differences but this is the the mainstream position what i'm telling you is like the default of and this is reported from uh imam abu hanifah and muhammad hassan and abu yusuf is the default of the methamphetamine and you can look this up in other famous books of the hanover schools of law that the default of their medha is that the young lady previously unmarried may marry herself off as long as her husband-to-be is of the similar background meaning he is somebody who's appropriate for her and somebody who gives her her mahr that is equivalent to her status now again even these scholars they said that the groom must be suitable now who gets to define what is suitable right because what they were worried about is an unmarried lady being taken advantage of and so even even they put in that hey somebody from the same socioeconomic and eve and in those times culture because again this is another point that the backlash that i got is that culture is no longer important and i understand this is an ongoing conversation culture was very important for most of human history these days i understand that culture is secondary and i'm not arguing that culture is definitive i'm not arguing that at all but do understand that for most of human history it was very important that uh the husband and wife be of a similar background socioeconomically you know intellectually culturally that they thought the marriage would get along better and uh it would not work out otherwise that's the way that they felt in the world that we live in it's a very different world and i'm willing to acknowledge that that is not a requirement anymore that the sharia does not come and mandate uh that a person has to be of the same culture i never said that but but i did say that generally speaking uh generally speaking birds have a feather flock together i think that's a general loop but of course there's many exceptions and that's not shariah that's just a you know normative human history nonetheless the the hanafi say that if the groom is suitable for the for the lady and gives her the mahar that other ladies of her socio-economic status would get then the nikah has valid even if there's no wali and she can be the woody herself now what is their evidence for this they say that firstly there are at least one or two verses where allah seems to indicate that the woman has the right for her marriage and it's not talking to the wali of them surah baqarah verse 234 that there is no sin on you if whatever they decide to do in a way that is honorable and respectful whatever they meaning the women here so allah so allah subhanahu ta'ala is literally saying that she has the right now the response by the majority is that the reference here is that she may choose to marry and she may choose to remain single and it doesn't mean that the wally has no role it simply means that she has now the opportunity to basically uh give the message out that she's looking for a groom and she's interested in marriage or she cannot do that so the point is they have a way of interpreting that and it's not the way that the hanafi's understand it the other issue that the hanafi's bring is that all of these hadith that we brought forth there is no nikah without a wali uh whoever marries uh without a wally say according to their uh understanding these are hadith are not authentic so they simply point out and it is correct to point out certain scholars criticize these hadith and so they uh simply generally speaking put these to the side and they also then bring up another issue which is a bit more technical and that is that they believe that if the narrator of the hadith himself does something against the hadith this shows that the hadith is somehow not authentic and so they point out that who is narrating one of these hadith apparently she herself got one of her nieces married without her brother's approval and the story goes as follows that a isha ra of course she had a younger brother by the name of abdul rahman ibn abi bakker and abdul rahman was her younger brother remember the famous hadith of uh the hajj that abdul rahman was the one who uh from masjid aisha from he took her back and then he brought her to do the tawaf inside one more time so abdul rahman had a daughter by the name of abdul rahman was away on a long journey and in that interim period this is of course after the death of the prophet got her niece married to al-mundir ibn zubair the younger brother of abdullah the famous abdullah zubair he had a younger brother called ibn zubair and so aisha got her niece married to al-mundir while her brother was not in the picture her brother was away that's her wadi the f says wadi and when her brother returned he was very angry and he said how could this happen how could you do this when i'm not here you know uh obviously understandably he was very uh hurt and so um uh the issue was then brought back to uh al-mundir the groom and al-mundir said that i will leave the affair to the father if he wants to to cancel then i will cancel and the father then said no khalas now that has happened let it be and so the marriage did in fact you know go ahead meaning the marriage already taken place but the marriage was then allowed to continue and the father did not come so the fact that um had got her niece married in the absence of her brother is an indication according to the hanafis that she did not view the william to be necessary the response to this is a bit more complicated the response is that firstly they say the action of a companion does not take precedence over the hadith of the prophet sallallahu alaihi wasallam this is what the majority say and so even if the companion does something the hadith has a higher authority over it secondly they'll point out that did not act as a wedi rather she had another male relative act as a weli in this nikah but what she did was she kind of sort of took abdulrahman out of the picture and did not ask his permission and got her niece married off and the actual there was a willie involved but it wasn't the father it was another relative another i don't know who it was or actually the books don't mention who it was but another relative a brother and uncle whatever was gotten involved couldn't have been uncle excuse me but another person got involved and that he acted as the wali so it's not as if she became the wali it's rather she did a reorientation of the wali and she took the will i have the father away which irritated the father immensely and she gave it to somebody else so that is the way that we understand this that and then als also by the way it needs to be said here that hey firstly this is aisha not just anybody and this is her niece it's not just a stranger and this is a girl that she's raised and her younger brother and her might have a relationship we don't know about that she and by the way the the groom was very noble coming from a very well-known family the family of zubaid i mean what more do you want and so maybe aisha assumed that this is a golden opportunity to have this marriage take place and the father would approve point is there's a million scenarios of why what if why and we should simply understand that the hadith in this case will have precedence and priority over the actions of a very respected uh companion and of course the wife of the prophet sallallahu alaihi wasallam a logical reasoning and they say that just like the lady does not need to ask permission when she spends her money why would she need to ask permission when she gets married and of course that appeals immensely to many people in our times that logic and reasoning the response goes that firstly marriage is not just a simple one-off you buy a purse or something of this nature it is a lifelong commitment secondly that has repercussions beyond you yourself there are family repercussions and then thirdly we are not the ones putting these conditions the hadith is coming and saying has to have a wali if this hadith did not exist this logic would be very sound that why should she need permission we are not putting the permission the permission is being put by uh the hadith itself that she needs to get the permission of her wali so uh all of this being said uh i understand that the hanafi position is very appealing to many of our younger brothers and sisters if they happen to follow the hanafi medhab and they they take recourse to this action what can be done it is a valid position and if it is their school of law it is their school of law however i do consider the other position to be uh the the stronger one because of the number of evidences the explicit nature of the evidences uh and the explicit hadith in this regard the hadith are authentic by the way the vast majority of scholars of hadith have considered because it's not just one hadith there's at least seven hadith at least seven different hadith about the concept of the nikah has to have a wali i quoted you the top two or three of them but there's more that i did not quote you the issue also comes before we get to some advice about what in case there's a clash about the order of the walis uh what if the father is not in the picture he's passed away what happens then and again the order is a much easier issue but according to the hambury school of law that you start with the father and then you go upwards so the grandfather if he's still alive then if there is no ascendant then you go to the descendant so suppose she's getting married she has a teenage son so then the son becomes the wedi of the the divorce of the widowed mother uh and then uh the grand center what not suppose that there are no sons then in this case her full brother then in this case her brother from her father's side if there's a half marriage or half sibling after that and then her uh full uncle and then her half uncle and then her full cousin from her uncle here is of course the paternal uncle so it is the father's brother and then uh if there's no uncle and then the the father's brother's sons become her weddi so basically the hamdinbeth is like leaning towards and this is the majority position the the father's side because the father is the way so his relatives would come generally speaking most of the schools of law do not consider the widaya to go to the mother's side for the unmarried lady now suppose there is no relative from the father's side what is to be done in this case if you live in an islamic land the islamic court will appoint a wali for you and if you live in a non-muslim land you should go to the masjid and the imam will then either himself or appoint a wedi for you and that would be your your wally not a problem in that case also by the way one point that should be mentioned here is the concept of wacala of tokyo of the wali it's very common that uh a distant wali in terms of blood might be closer to the family proximity wise and relationship wise like you have a better relationship then a uh closer weddi in terms of blood so let me give you a classic example most of us living in the west we might have an uncle living back home and we have a cousin you know for a father's brother's you know son for example living in a different state and because we're in this country we're closer to that cousin than we are to the distant uncle in this case all that needs to be done is that the distant wali and if by by physical proximity simply says okay i gave my permission to the cousin you can stand in my place no problem so this is handing the woody over by the way this can be done at any since situation circumstance for example if the father cannot physically be present the father can say to somebody in the community that is there so suppose the father's overseas and the ladies in a different land the father can call up and say okay so and so you're my friend you know i know you you become the body for my daughter so the father then delegates this is called a delegation or a wacala it can be done for any reason you don't have to have a medical need it can be done for any reason that the the the wali can hand over can delegate the responsibility to somebody else okay so before we get to the advice in case of controversy the conclusion of the philly aspect is that it is very clear from the quran in sunnah that the nikah takes place with a wali and even if the lady is previously divorced or widowed there must be a nominal wali so the wali is still there but in that case she has more right than her what he does and nobody can veto her if she decides to do so this is the position that i'm advocating which is one uh b now uh what if it is a lady that has not been married before previously unmarried and her father says no and i cannot even begin to tell you how many emails i get from all over the world you know in particular from men who want to get married to a particular lady or the ladies themselves they email me and they say please talk to my you know father obviously i cannot do that many brothers and sisters for many many reasons uh but i understand this is a very big problem and it's very emotional it's very heartbreaking uh what can be done some advice advice to the elders and especially to the walis that we are living in a very different time in a very different world than the world of 30 40 50 years ago and there are too many cultural changes taking place we need to rethink through how we ourselves grew up a decade two decades three decades ago we need to rethink through the role of culture we need to rethink through the necessity really of being so picky as maybe our ancestors were and understand that young ladies of our generation i would say as a rule are far better equipped than any other generation previously to understand the pros and cons that because of the world we live in because it is true to point out that 500 years ago 50 years ago generally speaking ladies of a respectable background did not interact with men at all that were strangers to them in all societies and cultures by the way even in this land of america you know back in the 20s 30s 40s if a young man were interested in a lady to get married he would ask permission from the father he would ask permission i would like to date your daughter you know for the purposes of marriage you know so get to know her public dates what not that's in this culture all of this has changed in one two generations all of this has changed right now and so even in this culture there was this notion of a very different understanding now all of this is gone and even though we cannot change the fact that the woody is required i think the wali needs to also understand that the the young ladies you know a 20 year old lady of our time is not like a 20 year old 50 or 100 years ago and if she is adamant that she wants to marry a particular young man explain to her the risks explain to her how you feel about whatever man she has in mind be very frank with her and what not and then allow her to think and think and i'm not saying you have to what i'm saying be more open-minded than a generation ago so that is frank advice to the uh wali because in the end of the day you cannot expect your daughters to understand the world the way that your mothers used to do it's not gonna happen or even you yourself a generation ago it's not going to happen the world has changed even if we cannot change the necessity of a wali walis need to themselves rethink through how much they should enforce a veto that's the first point to the wordi and i'm not saying they have to i'm saying they can they have to rethink through and the second point to the young men and women and especially to the young women out there true you might be more equipped than your mothers or grandmothers but that doesn't mean that at the age of 20 or 22 you are certain about what you want and that the person you have in mind is going to be the best person for you young love birds always assume that they are meant for each other and they always assume that if they don't get married to that particular person they shall die or live a miserable life or never find happiness i mean you know young men and women you're not the first romeo and juliet you're not the first leila and majnun there is a reason why this motif is common in every single culture i mean we've all experienced that age you know i mean just because i am who i am we've all been through that stage and age we know what life is like we know those feelings i'd like to tell you as an older person to the youngsters in the audience your first love is indeed very precious very tender very what not just because you think you will never move on in case that love doesn't come to fruition in marriage just because you think that doesn't make it true how many young gloves have not become you know into marriages in fact that is the default i'm not trying to terrify you but that is the default that your first love or your first time you want to get married is not going to be your first your actual marriage and believe it or not you will life will go on believe it or not you will find love after this believe it or not you will find a partner insha'allah and then you will have memories maybe of you know a previous crush or whatever inshallah everything was halal with that one you'll have memories but life goes on and by the way by the way i have to say this as an older brother as well that that that young love that you have right now at that young age and you think that you live forever happily ever after life is not a fairy tale life is not a fairy tale that love that you feel that innocence that strong power that what not that emotion overcome you get married if that were to happen within a few years all of that is gone and reality strikes that's why every fairy tale ends at the marriage they lived happily ever after no fairy tale goes on to washing the dishes and having kids no fairy tale goes on to actual life and midlife crisis that's never going to be talked about okay i'm trying to say to you young ladies and young men if you think you're so mature then really be mature and understand that that love that you feel we all understand how you feel believe we all understand it but not every single love is going to come to fruition in a marriage and even if that marriage takes place that love that you feel will not be the same it might even go a different way so keep that point in mind also the third advice that i'm going to give as well is that dear sisters who are in the situation where your wali is saying no to you dear sisters you have every right to use halal mechanisms to bring about a change from within you have every right to discuss with your father you have every right to be mature and explain why you think this particular person will be best for you you have every right to bring in elder cousins aunts and uncles if your mother's on your side you have every right to get internal pressure on top of this you can bring in the local imam on top of this make dua to allah on top of this changes the hearts do every one of these mechanisms and let me tell you something honestly you say in your mind that this person is like one in a million this person is masha'allah mr romeo or whatever you want to call him this person is the best for you if he truly is that one in a million for sure other people will also see that and for sure other people will be advocating for you as well and that pressure will become easy but in case he's not and you have absolutely no allies then maybe just maybe the perception you have of that other person is your perception and not reality so think about that as well fourthly think long and hard of the consequences especially those who are going to go the hanifi route of not having a weddi do realize that you undertaking that decision is going to have massive repercussions i have known of plenty of cases and we hear them all the time where a young lady or a man decides to get married without the consent of their their family and then guess what happens within a few years that popular falls apart within a few years that marriage goes down south within a few years it goes sour and divorce takes place what's going to happen who's going to because again you can throw cliches as much as you want and you can throw slogans about gender equality as much as you want in the end of the day slogans and cliches don't change human biology and psyche and the man is not like the woman wales and the psychological trauma that afflicts one gender and the realities of future prospects for that gender are not the same now you can get angry at me you can say why is it like that i am not advocating that it should be i'm just telling it like it is if we stop living in a utopic romantic unreality and flutter back down to the real world wales and the young lady who has ended up in divorce needs the love and the support of her family and she needs a mechanism to rehabilitate yourself for a while and then insha'allah find another prospect if if that is going to take place and that requires the help and the needs of her family i have heard of all too many cases where at a younger stage of her life she made a drastic decision and of course not only did she regret it but then she had to make up to her own family as well now you're going to say why not demand and the responses whether we like it or not there is a level of independence that comes with one gender that doesn't come with the other that is that is the reality and it is not only the way that allah created us but human psychology clearly demonstrates this as well so think long and hard about the repercussions of not having a wedi and then the final point that i'm going to conclude all of this off with is very simple one of the most beautiful aspects of our faith it is a pillar of our faith is to believe in kadar to believe in when it comes to the issue of marriage it is so consoling to know in your heart that whatever allah has willed is going to happen have this as a consolation if it is decreed it shall happen and if allah knows that there's good for you in this it is going to happen and in case it is not decreed then no matter what you try it's not going to come about you try your best i'm not saying be lazy i'm not saying try your best but in case the door has been shut and in case lives have been moved on in your heart accept allah's other and know that if the entire world were to come together to try to change they could not do so and know that the pen has been lifted and the ink has dried and know that allah has written your nasib your your life partner and in case you were not able to get married to the person you really wanted to get married to then put your trust in allah that allah has someone better in mind for you you might not realize it at 20 21 22 your first love always blinds men and women both of you totally blinding we all know this your first love it's it's a love that is an immature naive love that's why it's so romanticized it's not the love of an experienced person it's the love of a person who's never experienced love that's why it's called your first puppy love you cannot make your life long decisions at that stage of your life without the help of your family and especially that's why the wali is required for in particular one gender and not the other because we want to make sure that the interests of that person is protected and she's not taken advantage of and we know that the two genders are different in this regard bottom line dear brothers and sisters i wanted to talk an entire lecture about this because i have at least one i'd say one third one fourth of my questions are dealing with this issue over all of willa all of these different aspects i want to give a long lecture to summarize and conclude a wali is required for an unmarried lady for a previously married or lady or divorcee she may choose on her own and choose her wali as well but still in that case there must be a nominal wali and the unmarried lady who wants to get married to a particular person go ahead and try make dua do whatever you can but in the end of the day and and of course um yeah you always have the option by the way i should have added this as well you always have the option of appealing to a higher authority in case it is unjust and that's not for you to decide a third party the shaykh the imam or if you're in an islamic land the court will come in and the court will look at if you you have the right to petition and say my father is treating me unjustly and these are the reasons why a third party has to see not you yourself because you are the you're you're you're smack in the middle of it you can't emotionally uh think rationally right now a third party has to see is your father really uh being unjust and if that third party decrees and i've had this has happened to me by there as well that i have had uh ladies come to me and tell me their stories i contact the father i verify that in fact the father seems to be you know just an evil person it's you know it's very common that he's just nasty person and whatnot and in this case i will tell the father your your daughter uh is of age she is mature she is now whatever 25 whatever and because of this this this you know i do not consider your william to be active anymore and i will tell her to find a way from her uncles and cousins and in all the cases we find another way within the family that understands because again people of that character their own families know who they are so if your father really is a tyrant if your father really is cruel is unjust you will find within islamic law mechanisms to find the other wali in case your family and your father has a reasonable objection and you cannot get married accept allah and move on initially allah will have something better in store for you may allah protect all of us and our children may allah azzawajal guide us and our loved ones to that which is pleasing to him and insha'allah will continue next week foreign foreign