What exactly constitutes a guardian, as is
needed in the nikkah ceremony. I am a female Muslim, and I want to know if my older
brother is acceptable for this role.Praise be to Allaah.
There are three pillars or conditions for the marriage contract in
Islam:Both parties should be free of any obstacles that might prevent the
marriage from being valid, such as their being mahrams of one another (i.e., close
relatives who are permanently forbidden to marry), whether this relationship is through
blood ties or through breastfeeding (radaa’) etc., or where the man is a
kaafir (non-Muslim) and the woman is a Muslim, and so on.There should be an offer or proposal (eejaab) from the walee or
the person who is acting in his place, who should say to the groom “I marry so-and-so
to you” or similar words.There should be an expression of acceptance (qabool) on the part
of the groom or whoever is acting in his place, who should say, “I accept,” or
similar words.The conditions of a proper nikaah (marriage contract) are as follows:
Both the bride and groom should be clearly identified, whether by
stating their names or describing them, etc.Both the bride and groom should be pleased with one another, because the
Prophet
(peace and blessings of Allaah be upon him) said: “No previously-married
woman (widow or divorcee) may be married until she has been asked about her wishes (i.e.,
she should state clearly her wishes), and no virgin should be married until her permission
has been asked (i.e., until she has agreed either in words or by remaining silent).”
They asked, “O Messenger of Allaah, how is her permission given (because she will
feel very shy)?” He said: “By her silence.” (Reported by
al-Bukhaari, 4741)The one who does the contract on the woman’s behalf should be her
walee, as Allaah addressed the walees with regard to marriage (interpretation of the
meaning): “And marry those among you who are single…” [al-Noor
24:32] and because the Prophet
(peace and blessings of Allaah be upon him) said:
“Any woman who marries without the permission of her walee, her marriage is invalid,
her marriage is invalid, her marriage is invalid.” (Reported by al-Tirmidhi,
1021 and others; it is a saheeh hadeeth)The marriage contract must be witnessed, as the Prophet
(peace and
blessings of Allaah be upon him) said: “There is no marriage contract except with a
walee and two witnesses.” (Reported by al-Tabaraani; see also Saheeh
al-Jaami’, 7558)It is also important that the marriage be announced, as
the Prophet
(peace and blessings of Allaah be upon him) said: “Announce
marriages.” (Reported by Imaam Ahmad; classed as hasan in Saheeh
al-Jaami’, 1027)The conditions of the walee are as follows:
He should be of sound mind
He should be an adult
He should be free (not a slave)
He should be of the same religion as the bride. A kaafir cannot be the
walee of a Muslim, male or female, and a Muslim cannot be the walee of a kaafir, male or
female, but a kaafir can be the walee of a kaafir woman for marriage purposes, even if
they are of different religions. An apostate (one who has left Islam) cannot be a walee
for anybody.He should be of good character (‘adaalah – includes
piety, attitude, conduct, etc.), as opposed to being corrupt. This is a condition laid
down by some scholars, although some of them regard the outward appearance of good
character as being sufficient, and some say that it is enough if he is judged as being
able to pay proper attention to the interests of the woman for whom he is acting as walee
in the matter of her marriage.He should be male, as the Prophet
(peace and blessings of Allaah be
upon him) said: “No woman may conduct the marriage contract of another woman, and no
woman can conduct the marriage contract on behalf of her own self, because the zaaniyah
(fornicatress, adulteress) is the one who arranges things on her own behalf.” (Reported
by Ibn Maajah, 1782; see also Saheeh al-Jaami’, 7298)He should be wise and mature (rushd), which means being able to
understand matters of compatibility and the interests of marriage.The fuqahaa’ put possible walees in a certain order, and a walee who
is more closely-related should not be ignored unless there is no such person or the
relatives do not meet the specified conditions. A woman’s walee is her father, then
whoever her father may have appointed before his death, then her paternal grandfather or
great-grandfather, then her son, then her grandfathers sons or grandsons, then her brother
through both parents (full brother), then her brother through her father, then the sons of
her brother through both parents, then the sons of her brother through her father, then
her uncle (her father’s brother through both parents), then her father’s brother
through the father, then the sons of her father’s brother though both parents, then
the sons of her father’s brother through the father, then whoever is more closely
related, and so on – as is the case with inheritance. The Muslim leader (or his
deputy, such as a qaadi or judge) is the walee for any woman who does not have a walee of
her own.And Allaah knows best.
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