What is the ruling if the father or Walī (Guardian) refuses to allow reconciliation to occur after the end of the ʾiddah period due to divorce between the spouses?
All complete praise is due to Allāh the one and only. May the Ṣalāh and Salām be upon the (last and final) Prophet (Ṣallallāhū ʾAlayhī Wa Sallam), who has no Prophet coming after him.
Allāh has said in one place of the Qurʾān that,
وَإِذَا طَلَّقْتُمُ النِّسَاءَ فَبَلَغْنَ أَجَلَهُنَّ فَلَا تَعْضُلُوهُنَّ أَن يَنكِحْنَ أَزْوَاجَهُنَّ إِذَا تَرَاضَوْا بَيْنَهُم بِالْمَعْرُوفِ
“When you divorce women and they have reached the end of their ʾiddah (waiting period), do not prevent them from remarrying their [former] husbands if they [i.e all parties] come to an acceptable agreement among themselves.”
(Sūrah al-Baqarah āyah no. 232)
In this āyah, Allāh has addressed the protectors and guardians by stating that if the husband and wife are willing to reconcile between themselves and remarry each other to settle down, then the Walī should not prevent this from happening.
In fact, the sister of Ma’qil b. Yasār (Radī Allāhū ʾAnhu) was divorced by his brother-in-law. After the ʾiddah had passed, both of them agreed to get re-married. So Ma’qil b. Yasār (Radī Allāhū ʾAnhu) thought, how can they remarry after I married him to her, gave him honour, respect but then he divorced her? Therefore I will not allow remarriage to occur. Then the previously mentioned āyah was revealed. (Saḥīḥ Bukhārī ḥadīth no.4529)
From here it is also known that marriage cannot take place without a Walī. That is why they are being prevented here from doing something unlawful.
In any case, it is clear from this ḥadīth that if the ʾiddah ends after the first or second divorce, then the spouses can remarry with the renewal of the nikah and the Walī should not be a hindrance in this. The purpose of the Walī is not to forcibly make decisions for his daughter or sister, but the Walī’s duty is to help choose the most suitable spouse, keeping in view the consent of the girl. The girl should also allow the guidance and permission of the Walī instead of making an impulsive decision in a hurry.
According to the Sharīʾah, the consent of the girl and the permission of the Walī are the basic conditions for a successful marriage.
In spite of all this, if the Walī does not agree to the renewal of the marriage, does he lose his right of being the Walī? In such a case, can the authority of the current Walī be transferred to another Walī?
Ibn ʾAbbās (Radī Allāhū ʾAnhu) narrated that,
لَا نِكَاحَ إِلَّا بِوَلِيٍّ مُرْشِدٍ
“That is, it is necessary to have a ‘Walī Murshid (who acts as a guide)’ for marriage.”
(As-Sunan as-Sughrā Bayhaqī no.2376 and Ibn Ḥajar declared it to be Hasan in Fatḥul Bārī vol no.9 pg no.191)
The meaning of ‘Murshid’ is the one who is wise and considerate i.e. who is kind, acts in support of the girl and wants good for her. The Walī who prevents a girl from marrying, abuses his authority and is not considerate towards her. Therefore he loses his right of being the Walī. So this right of being a Walī is transferred to another suitable Walī (such as the grandfather, brother or uncle). It is worth noting that the right of being a Walī will remain with the fathers side of the family. It will not be transferred to the mothers side of the family such as the maternal grandfather, maternal uncle etc. If there is no Walī available then as stated in the ḥadīth,
فَإِنْ اشْتَجَرُوْا فالسُّلطانُ وليُّ من لا وليَّ له
“If they disagree, then the Sultan is the Walī for one who has no Walī.”
(Sunan al-Tirmidḥī ḥadīth no.1879)
Therefore, in such a case, the government of the day or the court itself will become the authority who will perform the duties of this marriage.
Imām Bukhārī (may Allāh have mercy on him) has stated this issue in a very balanced manner, and has established three chapter headings of ahadīth in this regard:
- Marriage does not take place without a Walī
- Fathers should marry their dependent daughters with their consent
- If the fathers force a marriage, then the marriage will be void and annulled
This shows that both are necessary i.e. the consent of the girl and the permission of the Walī are required. If the Walī abuses his authority then he will lose his right and status of being the Walī. Similarly if a girl goes ahead to marry on her own accord without respecting the advice and permission of the Walī then her marriage is void. Therefore, the girl should take care of the honour and dignity of her Walī and get married with his permission. At the same time the Walī should ensure that he should have Taqwā of Allāh when the time comes for the marriage of his sister or daughter and take her consideration and consent into account then allow the marriage to go ahead. They should not sacrifice this sacred bond for their own interests. Allāh knows best.
His excellence Shaykh Abu Muhammad AbdusSattar Hammad (President of the Lajnah)
His excellence Shaykh Abdul Haleem Bilal (may Allah preserve him)
His excellence Shaykh Javed Iqbal Sialkoti (may Allah preserve him)
His excellence Shaykh Dr Ishāq Zāhid (May Allāh preserve him)
This is a translation of the original text of the fatwa which was issued in the Urdu language.