Woman eloped and judge conducted her marriage
4-6-2016 | IslamWeb
Question:
Assalaamu alaykum dear Brothers. I am from the Indian state of Kerala and follow the Shaafi'i mathhab. Two years ago, my wife's sister's daughter ran away with her lover. My wife's family was not ready to arrange a marriage because he was not following an Islamic way of life; he was drinking and had a criminal background. The case reached the court, and she requested to go with him. After that, they went to a Chief Judge, and he married them. Too many people go to that Chief Judge for marriage and other issues on a daily baseis. The Judge may not have seen the genuineness. In any case, they got married without a legal guardian. Now they have a one-year-old girl. I heard that he has stopped drinking and tries to lead a good life. Three months ago, he was hospitalized and heard that both his kidneys are damaged and need a quick transplant. I am the only man from our family who has contact with that girl. I use to call her and give advice. As Islam is the religion of simplicity, and given that they were married by a renowned judge, can we forgive them and regard their marriage as valid? (I do not know how they presented themselves in front of the judge to get this marriage done.) Actually, if we agree with them, it would be a very big help for them, because his family is not in a good condition financially. Now, for the treatment, they are depending upon public donations. Her father says that he will not agree with them unless she divorces him and comes back home and that he will not be ready to agree with him. How can she come back in this situation? And her father or our family is not ready to help him financially. I feel that he is now getting punished for the sins that he did in his past life, so why should we not forgive him and accept them? If we accept them, is there any need for another marriage with her father as the guardian? I think that this is the best time to solve this problem. If we are not able to solve it now, then it will become too difficult to do so. And what will be our stance regarding their child?
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 
is His slave and Messenger.
The dominant opinion among the scholars is that a marriage contract without the bride's guardian is invalid. This is the opinion of the majority of the scholars, contrary to the opinion of Imaam Abu Haneefah. However, if the judge who conducted their marriage contract was in a sharee'ah court (not a civil court), then the marriage contract is valid, as has previously been explained in fataawa 89782 and 130284. In this case, the child born to them is attributed to the husband. The actions of a sharee'ah judge are considered valid until proven otherwise. Therefore, his judgment is not invalidated except if there is a valid reason. The Shaafi'i scholar As-Subki said in his Fataawa, "The affirmed rule is that the judgment of a ruler is not undermined except if it violates a religious text or the consensus of scholars or explicit analogy..."
Even if we assume that the marriage is defective (Faasid), then the child is still attributed to the husband because they mistakenly believed that their marriage was lawful, as has previously been highlighted in fatwa 84811. In case of a defective marriage, the marriage should be terminated either through a legal annulment or by the husband issueing a divorce. If the spouses wish to continue to be married, then they have to conduct a new marriage contract with the permission of the bride's guardian. Her guardian does not have the right to refuse to marry her off (to a suitable suitor) except for a valid reason; otherwise, it would be injustice on his part. In such a case, she should refer her case to the judge in the sharee'ah court or whoever is acting on his behalf to marry her off instead or appoint someone else to marry her off and act as her guardian in the marriage contract.
There is no doubt that this girl did wrong by running away with this man; however, her father should forgive her mistake. Please refer to fatwa 84351.
Lastly, it should be noted that it is wrong to believe that the affliction that befell this man was a punishment for his sins; this is a matter of the Unseen, and the knowledge of such matters belongs to Allaah alone. The calamities that befall the individual may be afflictions meant as a trial from Allaah and not necessarily a punishment for a sin. If this man is still committing such sins, then he should gently be advised and urged to repent to Allaah of them.
Allaah knows best.