Answered by:Mufti Mohammed Tosir Miah
Question
Assalamu Alaykum. I am an imam in Brighton and have been approached with a question regarding a sister who is looking to get married. Her walee (guardian) is in another country and is in no position to negotiate a marriage for her as he is incompetent and not responsible (it is her brother and the only male relative alive). Will this be classed as ghaibatul munqatiah and is it permissible for her to appoint a walee from the locality? As this has been discussed in the famous Hanafi book al Muhitul Burhani fee Fiqhi Numani from Imam Muhammad r.a that if her walee is not present then it is better that she appoints another man as her walee. will be waiting for your clarification.
In the name of Allah, the Most Gracious, the Most Merciful
Answer
There are three opinions regarding the exact definition of “ghaibatul munqatiah”.
- The closest Wali is in such a place where caravans visit it once a year.
- The place where the nearest Wali is is more than 48 miles.
- The nearest Wali is in such a place whereby the time one gets his consent the proposal may be revoked. This is the most correct opinion. (Athmaarul Hidayah p.120 v.4)
Your question will be looked at in two ways. Firstly, in this day and age, it is easy to contact people via mobile phones, emails, Facebook, and other social media. If a proposal did come for the sister I am certain it will not be difficult to contact the brother for his consent in the marriage. Furthermore, if it is explained to the other party, again I am sure they will probably wait a couple of weeks for the answer. However, if the brother who happens to be the closet Wali for the sister is not willing to participate and give his consent to the marriage or that he has broken ties with his sister and is not bothered about the proposal, then in that situation, the Imam of the local area or if the sister has a mother can be the Wali for her. (Mazahirul Haqq p.38 v.4)
The second point which needs to be mentioned is that the aforementioned information which I have given is based on the preferable opinion of the Hanafi Fiqh which is it is desirable for a woman to seek permission from her guardian in order to get married. (Dars Tirmizi p.373 v.3) However, if a free, sane adult woman was to get married without her guardian’s consent, the marriage will be valid. (Raddul Muhtar p.157 v.4)
Only Allah Knows Best
Written by Mufti Mohammed Tosir Miah
Darul Ifta Birmingham