Question:
I’m confused regarding the issue of marriage without the knowledge of wali mujbir.
The situation is, me and my partner are still students in university. However, sometimes we transgressed the social boundaries that has been set in Islam. Honestly, we really want to get married through khitbah marriage to avoid continuing with sin. For us, the only way is to marry.
The problem is, if we marry without the knowledge of my girlfriend’s father, which is, if we eloped to Thailand, is our marriage valid? We want to take this step to avoid causing problems to both our families.
Answer:
Alhamdulillah, praise and thanks to Allah for the many 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.
Thank you for your question. Your question includes several things, which are:
- Suspended marriage or khitbah marriage
- Eloping and marrying in Thailand
First: Suspended Marriage or Khitbah Marriage
There is no such thing as suspended marriage in Islam or khitbah marriage. If a marriage fulfils all the prerequisites and commandments, then the marriage is valid. Khitbah marriage is the same as any normal marriages according to Islamic ruling that fulfils the following prerequisites:
- Husband
- Wife
- Wali
- Two witnesses
- Ijab and qabul
The term khitbah marriage or suspended marriage that is usually referred to in our society is used when a married couple do not live under the same roof with each other for an agreed period by both families. In other words, the aqad ceremony is done first but the reception ceremony (walimatul urus) is done at a later date.
If that is the case, then suspended marriage is permitted for wedding reception and a huge dowry is not a prerequisite or a valid condition for marriage in Islam. Wedding reception ceremony of inviting family and friends of both families to celebrate is sunnah and a small wedding reception is enough. While dowry is considered as a gift from the groom family’s side for the bride and it is not obligatory. However, in our society today, dowry is viewed as if it is obligatory and as a symbol of pride which should not be the case.
A few main reasons for couples to choose suspended marriage are:
- The husband still cannot fully afford his wife’s cost of living such as rent, clothes, utensils, food and others.
- His partner is still a student
The advantages of suspended marriage are to prevent fornication and the birth of out of wedlock child and this is the main reason for suspended marriage for some people in our society. Even if it is suspended marriage, they are free to do anything together without mahram and the couple can get pregnant and have a baby together. Having a child from this relationship is not prohibited and valid for in Islamic law and Malaysia’s legislation system, they are a valid married couple. They do not have to run away, abort, throw or kill the baby since they are legally married.
Even though it is permitted, the best way is for both parents and families to discuss things over properly to avoid any conflicts in the future. Marriage is not simply a form of friendship but the unification of two bodies and souls together. We would like to remind them of a hadith that should always be prioritized:
رِضَى الرَّبِّ فِي رِضَى الوَالِدِ ، وَسَخَطُ الرَّبِّ فِي سَخَطِ الْوَالِدِ.
"The Lord's pleasure is in the parent's pleasure, and the Lord's anger is in the parent's anger."
Sunan al-Tirmizi (194)
As a forethought, this marriage has its own dangers especially if the reason for the man to get married is just to fulfil his sexual desires without giving any thoughts of fulfilling his wife’s rights for maintenance (money for living). This is due to the fact that after the aqad and tamkin (handing over of the bride to her husband) is completed, then the marriage carries both the inner and physical responsibilities and rights of husband and wife.
As a conclusion, a marriage that fulfils all the prerequisites and conditions according to the Islamic law and named suspended marriage, even without a huge wedding reception and may not seem to have a household, is permitted in Islam. The husband and wife’s relationship of a suspended marriage is the same as any normal marriage, carrying the rights and responsibilities of husband and wife.
Second: Eloping and Marrying in Thailand
You are not only involved in khitbah marriage but also in eloping and marrying in Thailand. Eloping is often linked with marriages without the presence of wali.
Wali’s role in marriage is vital for it is one of the prerequisites of marriage. If a marriage is done without the presence of wali, then it is invalid according to Islamic law. Wali must be from someone who is qualified.
The order for wali for the bride according to Islamic law is as follows:
- Biological father
- Grandfather on the father’s side and upwards
- Brother (same parents)
- Brother (same father)
- Nephew (same parents)
- Nephew (same father)
- Son of nephew (same parents)
- Son of nephew (same father)
- Uncle on father’s side (same parents)
- Uncle on father’s side (same father)
- Great uncle on father’s side same parents as the grandfather
- Great uncle on father’s side same father as the grandfather
- Great-great uncle on father’s side same parents as the grandfather
- Great-great uncle on father’s side same father as the grandfather
- Son of uncle on father’s side same parents (male cousin)
- Son of uncle on father’s side same father (male cousin)
- Grandson of uncle on father’s side same parents
- Grandson of uncle on father’s side same father
- Child of great uncle on father’s side same parents as the grandfather
- Child of great uncle on father’s side same father as the grandfather
- Magistrate guardian/regent
From Aisyah R.Anha, the Prophet PBUH said:
أَيُّمَا امْرَأَةٍ نَكَحَتْ بِغَيْرِ إِذْنِ وَلِيِّهَا فَنِكَاحُهَا بَاطِلٌ بَاطِلٌ بَاطِلٌ فَإِنِ اشْتَجَرُوْا فَالسُّلْطَانُ وَلِيُّ مَنْ لاَ وَلِيَّ لَهُ
"Whichever woman married without the permission of her Wali her marriage is invalid, her marriage is invalid, her marriage is invalid. If they disagree, then the Sultan is the Wali for one who has no Wali."
Sunan Ahmad (24417), Sunan Abu Daud (2083) and Sunan al-Tirmizi (1102)
In another hadith from Abu Musa al-Asy’ari RA, the Prophet PBUH said:
لاَ نِكَاحَ إِلاَّ بِوَلِيٍّ
“A marriage is invalid except with the presence of wali”
Sunan Abu Daud (2085) Sunan al-Tirmizi (1101) and Sunan Ibn Majah (1881)
From Abu Hurairah RA, the Prophet PBUH said:
لاَ تُزَوِّجُ الْمَرْأَةُ الْمَرْأَةَ وَلاَ تُزَوِّجُ الْمَرْأَةُ نَفْسَهَا وَالزَّانِيَةُ الَّتِى تُنْكِحُ نَفْسَهَا بِغَيْرِ إِذْنِ وَلِيِّهَا
“No woman should arrange the marriage of another woman (be a wali), and no woman should arrange her own marriage. The adulteress is the one who arranges her own marriage.”
Sunan Ibnu Majah (1882), al-Daruqutni (384) and al-Baihaqi (7/110)
A marriage that is done in an area where the wali mujbir is residing must be approved by him. However, if the woman travels out for two marhalah or more from the area then the marriage is valid without getting the approval of the wali.
According to Muhammad bin Ismail as-Syeikh Daud al-Fathani in Matla’ Badrain, (Published by The Office of Mufti Wilayah Persekutuan of Prime Minister’s Department), page 414:
“The Sultan has the power to arrange the marriage for a woman when wali aqrab ghaib is residing at two marhalah, in ihram, or refuse to arrange the marriage for a mukallaf woman to a kufu’ man when asked less than three times. The marriage cannot be arranged by the Sultan if wali aqrab ghaib is residing less than two marhalah except with the wali’s permission.”
Muzakarah of National Fatwa Committee for the 52nd Malaysian Islamic Religious Affairs Council that conferred on 1st July 2002 discussed the issue of eloping and marrying in South of Thailand. The muzakarah ruled the marriage valid if it fulfils the following:
- The marriage fulfils the prerequisites of marriage.
- The marriage is done at a place more than two marhalah.
- There is no court ruling that prevents the woman to marry according to Islamic law in the area where she resides in.
- The marriage is arranged by a recognized magistrate of a country and the aqad is done at the district where the magistrate is commissioned as magistrate guardian.
Muzakarah National Fatwa Committee for the 52nd Malaysian Islamic Religious Affairs Council that conferred on 1st July 2002, discussed the issue of eloping and marrying in South of Thailand decides that the marriage arranged by a recognized magistrate for the couple that are far from the wali (more than two marhalah) is valid according to mazhab Al-Syafie.
It is advised that couples that plan to marry in Thailand or any other countries for any reasons which includes without the permission of wali or without the permission for polygamy from wife, to first get a permission letter for overseas marriage from Religious Office in their respective states. This involves several steps, attending a pre-marriage course, getting a letter of permission for polygamy from wife, submitting letter of self-declaration for status (single, widowed) and others. It will be an easier process to register the marriage in Malaysia after marrying in Thailand and returning home if the permission letter for overseas marriage is obtained first.
Section 31 (2) of the Islamic Family Law (Federal Territories) Act 1984 states, that a couple that marries overseas and has returned to Malaysia must register their marriage here.
May this issue be resolved and harmonized among all the people involved so that the home institution can be verified with feelings and a pure heart that will ultimately lead to Baiti Jannati.
Wallahu a’lam.