Q349 :When I was on my home leave last year, I ran
away with a woman and arranged for our marriage to be performed in a
friend’s house, who acted as her guardian. What prompted us to do so
was that she was being forced by her parents to marry someone she did
not want to marry. Our marriage could not be consummated because of her
illness at the time. However, we went back to her family, but her
parents refused to recognize the marriage. They claimed that we cannot
be considered as man and wife because they had not consented to this
marriage in the first place, and because she is staying with her
parents and supported by them. Perhaps I should add here that she only
returned to her family’s home after her parents agreed initially to
celebrate our marriage. Could you please let me know whether our
marriage is valid or not.
A349 : To start with, you should not have taken that
woman away from her parents in order to marry her. Marriage is a
relationship which starts a family. It must, therefore, remain a family
affair from the start to the finish. When a woman is living with her
parents, she may not just go out and get married without their consent.
She must have a guardian who acts for her in conducting her marriage.
When her father is present, no one may have guardianship other than
him. Moreover, the Prophet says, “No marriage may be contracted without
the presence of a guardian and two witnesses.” It is true that
according to the Hanafi school of thought, the marriage may be valid.
However, in the face of this clear and authentic Hadith, the opinion of
any scholar which clashes with it is not to be taken. Sometimes
scholars may take a weaker opinion in preference to a better supported
one because the circumstances of the case make the application of such
an opinion likely to serve a more important purpose. A case like yours
where the marriage was carried out without the consent of the woman’s
parents may be given a ruling of valid marriage, adopting the opinion
of Imam Abu Hanifah, if the circumstances required that. Suppose that
the marriage has been in effect for several years and several children
were born into that marriage. The wife’s parents may have already
relented and accepted the marriage as an acnetplished fact. When such a
case is put to a scholar, he has a very strong reason to let things
stand as they are, taking into consideration the interests of the young
children as something of paramount importance. Any scholar who opts for
this opinion will be looking at the fact that the Hanafi school of
thought was implemented in the Muslim state for several hundred years.
Having said that, I must add that in your particular case the same
cannot be applied. Your marriage has not been consummated and your lady
is still living with her parents. Why should we overlook the express
Hadith in favor of a ruling by a scholar, eminent as he certainly was.
No man’s opinion may be taken in preference to a clear and authentic
Hadith. You say that your friend acted as your lady’s guardian. What
right has he got to do so? A woman may ask someone whom she trusts to
act for her in her marriage contract only if she has no Muslim relative
who may undertake the task. But to ask someone to be a guardian only
because he is willing to oblige in a situation which is kept secret
from the woman’s family is unacceptable. The case would have been
different if the woman was living in a place very far from the rest of
her family and she went to the judge of her locality and explained
matters to him, and he consented to her request to be her guardian.
Such an arrangement would have been acceptable. But in your case, the
situation is simply a marriage undertaken without the consent of the
woman’s father. Therefore, its validity is strongly suspect. Having
said that, I must add that since the woman’s parents promised you and
their daughter to make the necessary arrangements to sanction your
marriage, they should honor their promise. To start with, they should
not have tried to force their daughter to marry someone she did not
want. If she wanted someone else and he is acceptable on account of his
faith and honesty, they should not withhold their consent. The Prophet
tells all parents: “If you have a proposal by someone whose faith and
honesty you find acceptable, then sanction his marriage. If you do not
do so, chaos and much corruption will be the result.” What I would
advise you is to adopt a wise and understanding approach to the matter.
You should go to the woman’s parents and try to arrive at a clear
understanding with them. Try to show them that if they consent your
marriage with their daughter, things will be better all round. They may
find it difficult to consent to the marriage as something imposed on
them. Try to give them the feeling that they consent to it as a matter
of choice. Perhaps you can seek the help of someone who has influence
in their family, such as an uncle of the father or a brother. Perhaps
they need time to demonstrate that they are not acting under pressure
from you or from their daughter. If so, you should be understanding.
From your letter, they appear to be rather amenable. Try not to deal
with them as if you were in confrontation, but rather you understand
their attitude and you want a solution which satisfies everyone. In
this way, you may achieve your purpose without allowing friction to
creep into the family.
Our Dialogue ( Source : Arab News – Jeddah )