Kafa’ah

Assalâmu ‘alaykum wa rahmatullâhi wa barakâtuh respected Muftî.

I would like to enquire about the marriage compatibility (kafa’ah) of the following two persons:

A convert Muslim brother, Non-Arab, conceived out of wedlock by kuffâr parents and a born-Muslimah, Egyptian-Arab, conceived in wedlock by a Muslim father, her mother was a convert to Islam but became murtad later on. The convert Muslim brother is three years older than the born-Muslimah.

1) Are these two compatible for marriage?

2) If they are *not* compatible, they will be obligated to get the permission from the Muslimah’s walî in order for their marriage to be valid, is that correct?

3) Unfortunately, the father and grand-father of the Muslimah are both dead. She has two older brothers, but they do not really practice Islam. Who will now be the walî of the Muslimah?

4) I have been told by a 6th year ‘Âlim course student at Madrasah In’aamiyyah, that only the father and paternal grandfather are “kâmil walî” (i.e. have the power to annul a nikah if the male and the female are not compatible), thus, as both are dead the older brother of the Muslimah is now the walî. But the older brother of a Muslimah will not be a “kâmil walî”, i.e. he is a walî of lesser degree and is not able to prevent/annul the nikah between two incompatible persons. Thus even if the brother and the sister mentioned at the beginning would be incompatible, they would still be able to marry even without the consent of the walî? Is all this correct? Please clarify.

5) Is it correct that only a kâmil walî (father, grandfather) can annul a marriage but not a normal walî like an older brother?

Jazâk Allâhu khayran.

Answer

Wa’alaykum as Salām wa raḥmatullāhi wa barakātuhu,

1) Since both the parents of the man are non Muslims, whereas only the mom of the girl is not a believer, the boy and girl will not be regarded as compatible.

2) Yes, they will be obliged to get the prior consent of the wali.

3) The brothers will still be the walis, inspite of not practising.

4) What he has told you is in conformity with the Shāfi’i madhab. In the Ḥanafi madhab, they will have the right to annul the marriage with the judgement of a Sharī court (or scholars who stand in place on it).

5) This is incorrect. Whoever is the wali, will have the right

And Allaah Ta’aala knows best
Wassalaam,
Ismail Moosa (Mufti)
Iftaa Department,
Euro-Sunni & Islamic Research and Welfare Academy