Alhamdulillah, wa Salat wa Salam 'ala Rasulillah.
Dear fulan,
In answer to your question [adapted from Malay]:
“Is marriage through the consent of a 'wali hakim'
[magistrate guardian]
that is done (a) more than 2 Marhala [81 km] from the
place of the bride's original wali, and (b) without
the consent of the original wali, valid? Do they need
to remarry after the bride's family learns about it?”
The marriage is valid even when the bride's original wali (the original
wali is, in the terminology of the fuqaha', the 'wali khass', whether the
wali nasab [a family guardian] or wali wala' [an appointed guardian]),
refuses to marry her, provided that the following conditions are met:
(a) that the marriage is of a suitable match [kafa'a]. Examples of a non
suitable match fall under 5 types:
(1) Nasab: inter-racial marriage (the concern here is in fact the language,
which might affect the Fard 'Ayn instruction of the child and the
communication between the spouses);
(2) Din: a fasiq man and a righteous woman;
(3) San'a: a royal and a commoner or lowly waged man with the daughter of
a
highly waged man (although being wealthy has nothing to do with suitability);
(4) Badan: free from bodily defects ['uyub] that can lead to annulling the
marriage.
(5) Hurriyya: a slave and a free woman.
(b) the wali hakim has to be nominally resident in the place where the
marriage takes place such as if he is a Qadi or the governor, it must be
done in his area of jurisdiction [mahall wilaya].
(c) the marriage must take place beyond the distance of Qasr, that is, more
than 81 km. The only exception to this is if the original wali refuses to
marry the bride to the groom of her own choice in the presence of a Qadi
(and it does not have to be the local Qadi working in the muqim of the
original wali). In this case, the wali hakim may marry her to such a groom
even in her hometown.
[cf. I'anat al-Talibin, vol. 3, pg. 554 ff., 527, 530].
If all the above conditions are met, there is no need to remarry or renew
the 'aqd of Nikah [tajaddud nikah]. However, according to the Qawl Sahih
of
our school [i.e., the Shafi'i school], it is permissible (jawaz) to renew
the marriage contract and this will in no way invalidate the validity of
the first 'aqd. This is because, to renew the 'aqd is considered courteous
[tajammul] and precautionary [ihtiyat].
[cf. Ibn Hajar, Tuhfa Sharh al-Minhaj al-Nawawi, vol. 4, pg. 391].
May this be of help.
Wallahu a'lam!
The one who is always in need of Divine Mercy,
M. Afifi al-Akiti ©
Oxford
18 Sha'ban 1423
24 X 2002
