Question:
Assalamualaikum SS Mufti. If a father refuses to be the wali, who has the right to be her wali when her uncles and brothers are still alive?
Answer:
Waalaikumussalam w.b.t,
Alhamdulillah, praise and thanks to Allah for the countless blessings He has blessed us all with. Blessings and salutations to the Prophet Muhammad PBUH, his wives, his family, companions and all those that follow his teachings to the day of judgement.
In this issue, a father should be her wali because he is among the wali mujbir. However, if the father refuses, then the rightful wali to marry her off goes to the ruler or sultan. This is in accordance with a hadith of the Prophet PBUH:
فَالسُّلْطَانُ وَلِيُّ مَنْ لاَ وَلِيَّ لَهُ
The sultan (man in authority) is the guardian of one who has none.
Sunan Abi Dawud (2083) and Sunan Ibn Majah (1879) and Jami’ al-Tirmidhi (1102). He said this hadith is hassan.
Our teacher said: When a woman who has reached puberty and of sound mind wants to marry with someone who are compatible to her, it is wajib for her wali to marry her off. If the wali refuses even if it is her own biological father, the marriage will be through wali sultan. This is because marrying off a daughter with someone compatible with her is the responsibility of a wali. If they refuse to fulfil the responsibility, then the hakim will execute it. (See al-Fiqh al-Manhaji, 2/572)
Also see our explanation on this issue in the following series:
- Al-Kafi #879: Nikah Without the Father as a Wali [1]
- Al-Kafi #498: Nikah Through Wali Hakim Because Father Refuses the Marriage [2]
- Irsyad al-Fatwa Series 256: Nikah in Thailand Without Wali Mujbir [3]
- Irsyad al-Fatwa Series 16: Father as the Wali is Still Alive but Cannot Be Traced [4]
May Allah give us all understanding to follow His Shari’a. Ameen.
Endnotes:
[1] See http://www.muftiwp.gov.my/ms/artikel/al-kafi-li-al-fatawi/2733-al-kafi-879-nikah-tanpa-berwalikan-bapa?highlight=WyJ3YWxpIl0=
[2] See http://www.muftiwp.gov.my/ms/artikel/al-kafi-li-al-fatawi/2092-al-kafi-498-wali-enggan?highlight=WyJ3YWxpIl0=
[3] See http://www.muftiwp.gov.my/ms/artikel/irsyad-fatwa/irsyad-fatwa-umum/2670-irsyad-al-fatwa-siri-ke-256-nikah-siam-tanpa-wali-mujbir?highlight=WyJ3YWxpIl0=
[4] See http://www.muftiwp.gov.my/ms/artikel/irsyad-fatwa/irsyad-fatwa-umum/2055-16?highlight=WyJ3YWxpIl0=