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Is it wrong for a gurl to marry a guy of her choice? I know having a pre-marital relationship is wrong

Answered according to Hanafi Fiqh by Askimam.org

Is it wrong for a gurl to marry a guy of  her choice?? I know having a pre-marital relationship is wrong, n i have repented and am continuing to do so for that…however, me and the guy really want to get married now so we can stop sinning like this. him and his family are ready to come for me…they have no problem. the problem is my family. they wont say yes to him because he’s not memon. i think that is very wrong. my mom is forcing me to marry someone of her choice. but i do not want to. she says if i marry of my choice ill never be happy in life and Allah (swt) will never forgive me for that. and she’s also afraid people will talk about our family and make stupid comments just because i married outside the memon society. i do not think these are valid reasons to say no to someone. Am i wrong? if i was to go against my parents to say that i still want to marry this guy, would i be sinning?? Please help me Imaam Sahib. This guy is good and his family is too. And his whole family is ready to accept me. Would i get gunnah for going againt my family? Jazakallah. Allah Hafiz

Answer

QUESTION:

I wish to marry a person of another nationality and culture. What is your advice? Kindly elaborate on the Shari’ah laws of Kafa’at and will my marriage be valid if I marry out of my nationality and culture without the approval of my parents?

ANSWER:

Before responding to the query of marrying a person of one’s own culture or not, we wish to state the following:

Allah states the relationship between the husband and wife as ‘they (women) are your garments and you (men) are their garments.’ (Surah al-Baqarah Aayat 189)

a. A garment is close to one’s body. So too is the relationship between the husband and wife.

b. A garment conceals one’s private parts. The husband and wife ought to conceal one another’s faults and shortcomings.

c. Different types of garments are worn in different seasons and different occasions. In winter, one wears warm garments. When the spouse experiences cold situations, grief, agony, etc. it is expected of the other to be a means of warmth and comfort. In summer, cool garments are worn. When the spouse experiences good conditions, the partner should share in that.

In view of the very close relationship between the husband and wife, as also understood from the example of garments, the Fuqahaa (jurists) have discussed the issue of Kafa’at (compatibility). The institution of marriage in Islam goes beyond merely fulfilling one’s carnal desires. It is also about mutual respect between the spouses. It is an accepted fact that a human being conducts himself according to his upbringing and family background. For some, this may remain as pure as ever, for others, the upbringing and cultural practices may be diluted due to other factors in life.

If the spouses are of two different cultures and they are also sensitive to their family practices, then it becomes difficult to reconcile between that and the close marital relationship. The spouses are separated between two cultures, practices and upbringings, but marriage demands both to be as close as possible. If both factors (marital bond – cultural practices) are strong, then there will be greater disagreement between the spouses and this may lead to a marital breakdown. The institution of Nikah, fulfilling one another’s right is defeated. It is for this reason, the Fuqahaa have discussed the issue of Kafa’at between the spouses. It is very important to address the issue of Kafa’at. Islam does not discriminate between race, colour and creed but on the other hand, Islam also does not ignore the nature of mankind. If we have to only consider discrimination and allow marriages across race and colour without compatibility, then the institution of marriage in Islam could never be successful.

Hence, Kafaat in marriage should not only be viewed on racial, cultural or national grounds. It should be viewed in conjunction with the spirit and purpose of the institution of Nikah. At most, Kafaat could be considered as fair discrimination.

If there is compatibility between two people who are of different races, then there is no problem. It is a great responsibility to ascertain compatibility before entering into a marriage. That is done by looking at the family of the spouses closely. The boy or girl must also be compatible primarily in thought and approach. This will assist in fulfilling the purpose of marriage and minimize the risk of a marital breakdown. We do agree that no two persons are the same, but they should not be so different that they cannot get along.

Now, reverting to your question, whether you should marry a person of another culture or not. If both of you are of two different cultures and both of you are sensitive to your cultures, then there may be a fear that there will be genuine differences based on culture which will impact on the marriage. In that case, you should marry a person of your own culture. If both of you are not sensitive to your cultures and that is diluted due to your environment, etc. and you could tolerate one another, then you may marry a person of a different culture. In such a situation, our advice is to exercise precaution and consult with seniors and responsible people of your family before you decide.

Kafa’at literally means equality and it refers to the equality between man and woman related to the institution of marriage.

Nabi [sallallaahu alayhi wasallam] is reported to have said, ‘Behold, women should not be contracted in marriage, but by their proper guardians, and they should not be contracted in marriage except with their equals.’ (Dar-eQutni vol.2 pg.151 – Darul Fikr; Bayhaqi vol.7 pg.133 – Idara Talifat Ashrafiyya)

The Imaams of all four Madhabs are unanimous that Kafa’at is a condition for the success of a marriage, but not a condition for the contract to be enacted. Thus, if a woman contracts her own Nikah and the guardians don’t object to the Nikah, then the Nikah will remain intact. The only time the Wali (Shar’ee guardian) has the right to object, is if there is no Kafa’at. This right lasts until pregnancy. Once she becomes pregnant, this right falls away. If there is Kufu (compatibility) and a woman contracts her own marriage, the guardians will have no right to object. (al-Fiqhul Islam vol.9 pg.6735)

Similarly, if the Wali performs her Nikah without her knowledge and she feels that there is no compatibility, then she has the right to annul the Nikah or endorse it. Hence, Kufu (compatibility) is a right related to the wife.

Kafa’at will depend on the Urf (social practice of that place). In some societies, it is acceptable for a girl of a particular race, colour and creed to marry a boy of another race, colour and creed. This may not be acceptable in other societies. Generally, Kafa’at is considered in: a) lineage, b) piety and righteousness, c) wealth, and d) profession and trade. (Hidaaya vol.pg.319 – Shirkat Ilmiyah)

The Wali of a girl in sequence is her father, grandfather, great-grandfather, blood brother, paternal brother, nephew, then nephew’s son, nephew’s grandson and blood uncle. (Fataawa Aalamgiri vol.1 pg.283 – Rashidiyya)

It is of pivotal importance that the guardians refer their case to a reputable, reliable and competent Aalim who will determine whether the Nikah will be valid or not based on the laws of Kafa’at.

And Allah Ta’ala Knows Best

Mufti Ebrahim Desai

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This answer was collected from Askimam.org, which is operated under the supervision of Mufti Ebrahim Desai from South Africa.

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