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Is it permissible to marry without the permission of the bride’s wali, despite a Hadith saying it is not?

Answered as per Hanafi Fiqh by Darulifta-Deoband.com
I have very minimal knowledge about our Shariah so I am approaching you in-shaAllah will be expecting an answer which is correct in the vision of Allah and his messenger. I have learnt in some hadith it is stated that a marriage without the permission of bride’s wali is not legal as per Shariah and there are fatwas issued by Deoband that marriages are legal as per Shariah even without consent of the parents. Please do clarify on the basis which these fatwas are issued and whether it is correct to follow the fatwas even when hadith says it is not correct. I am also mentioning the hadith for your reference. Please clarify clearly with reasons. The Prophet (peace and blessings of Allah be upon him) said: Any woman who marries without the permission of her wali, her marriage is invalid, her marriage is invalid, her marriage is invalid? (Reported by al-Tirmidhi, 1021 and others; it is a Sahih Hadith?)

Answer

(Fatwa: 1433/L=532/TL=1433)

Deoband did not forge the fatwa, rather it is taken from Hadith. It is mentioned in Hadith clearly that the nikah of mature girl cannot be done without her permission.

عَنْ أَبِي هُرَيْرَةَ قَالَ قَالَ رَسُولُ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ لَا تُنْكَحُ الْأَيِّمُ حَتَّى تُسْتَأْمَرَ وَلَا تُنْكَحُ الْبِكْرُ حَتَّى تُسْتَأْذَنَ قَالُوا كَيْفَ إِذْنُهَا قَالَ أَنْ تَسْكُتَ . (مشكوة)
وعن ابن عباس أن النبى صلى الله عليه وسلم قال: الأيم أحق بنفسها من وليها والبكر تستاذن فى نفسها وإذنها صامتها (مشكوة)
And it is mentioned in Sahih Muslim:
الأيم أحق بنفسها من وليها.
The first hadith is mentioned there in Sahih Bukhari and Sahih Muslim while the second one is of Muslim. Both these hadiths are of high ranks in contrary to the hadith mentioned in the question without any doubt. It says clearly that the nikah of a mature girl cannot be done without her permission and she can marry without the permission of her wali. As far as this hadith is concerned it cannot be compared with the above mentioned two hadiths, secondly the negation of nikah mentioned in the hadith means the negation perfection, not the negation of validity of nikah. Also it is probable that this hadith talks about the nikah of small bandi (slave girl) etc for which the permission of wali is necessary.

Allah (Subhana Wa Ta’ala) knows Best

Darul Ifta,
Darul Uloom Deoband

This answer was collected from the official ifta website of Darul Uloom Deoband in India.

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