Preventing a woman from getting married is not unfair in all cases
22-1-2014 | IslamWeb
Question:
In the Name of Allaah, The Most Merciful, The Ever Merciful
Assalaamu Alaykum,
There is a divorced woman who is 35 years old and has children. Her parents are dead and her brothers have deserted her. Can she get married and the judge will be her guardian (Wali), noting that her brothers refuse the idea of her marriage?
May Allaah Reward you.
Answer:
All perfect praise be to Allaah, The Lord of the Worlds. I testify that there is none worthy of worship except Allaah, and that Muhammad, sallallaahu ‘alayhi wa sallam, is His slave and Messenger.
The majority of Islamic jurists think that having a guardian (Wali) is a condition for the validity of marriage, because the Messenger of Allaah, sallallaahu ‘alayhi wa sallam, said: “No marriage (is valid) unless there is a guardian.” [Ibn Hibbaan] [Al-Haakim: Saheeh]
People who deserve to be in charge of marrying the woman off are her father, then her grandfather of all levels, then her son of all levels, then her full brother, then her half-brother from her father, then their sons of all levels, then her paternal uncles.
However, if it is proven that her guardians prevent her from getting married and do not agree, then the reasons for their prevention should be inspected. If they prevent her for a benefit as in the case where she accepts to marry a man who is not efficient in religious and moral commitment, then they have a valid reason to prevent her and they are not forbidden by Sharee‘ah from doing so. In this case, the woman is not allowed to get married unless she is permitted by her guardian. If she gets married without his permission, then her marriage will be invalid.
On the other hand, if the woman’s guardians prevent her from marriage for no benefit and nothing but denying her this right, then the guardianship should be transferred to the judge who will be in charge of marrying her off.
We advise you to bring your case to Sharee‘ah courts so as to investigate why your brothers prevent you from getting married. After all, adopt the ruling that will be issued by the judge.