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Question: I’m surprised as to how a father can be given Shari’ah authority by some scholars to break our marriage.

Answered according to Hanafi Fiqh by Mahmoodiyah

Question:

I’m surprised as to how a father can be given Shari’ah authority by some scholars to break our marriage.

DETAILS:

A.S. Dear Mufti Saheb,

Recently my wife questioned Mufti Taqi about our situation as she is

originally from the same country as he, hoping that he’ll reply back in Urdu & in a manner that it will serve as an admonition to her parents to unite us together and highlight the evils of harbouring “Asabiyyat” for me.

The reply my wife got was astonishing, firstly he Mufti saheb confirms that Nikah was done correctly, 2ndly he say’s our marriage can be broken by her father based on Kufwu (i.e. her lineage supposedly stems to Zainul Abedeen) and that her parents were not willing.

Rather than Mufti Taqi addressing the evils of ‘Asabiyyat and for parents to accept me as their own, instead Ulamaa are giving further opportunity for ‘Asabiyyat to breed on.

I myself am very pleased & content with my wife, she is also with me. I am able to fluently speak her language, her brother is a close friend as well as a brother in law to me.

I am always willing to do whatever possible to please my parents in law but they themselves harbour ‘Asabiyyat against me.

The last thing I want is for her parents to have the Shari’ah authority to break our marriage when we want to stay together.

After all, who will gain if they parents succeeded? What will be the state of me & my wife?

Basically fatwa’s like this will ruin me & my wife’s life completely and would have helped Shaitaan in doing what he does best.

I’ve always sought knowledge from yourself, please advice me.. Jazakallah


Answer:

 

                  

It is narrated in a Hadith that:  “There is no Nikah except with a Wali (representative) present” i.e. a female’s Nikah is not correct without the permission of the Wali.  In light of this Hadith the Hanafi jurists have mentioned this that if any mature female gets married without the consent of her Wali, i.e. father, grandfather, etc to such a male whose family (lineage) is lower in some important aspects to that of the female and in their living this differences has an effect upon them, then this Nikah will not be valid. 

The Mas’ala of Kufwu is not the same as the Mas’ala of ‘Asabiyyat but Nikah, just as it is religious association it is also a social association.  In fact the social association is greater than the religious one.  When a male and female get married, it is not only a joining of ties between the two but it is the joining of ties between the two families as well.  The female’s family take pride in saying that a certain family’s son has become a part of our family and vice versa.  Normally the female becomes a part of the male’s family, therefore if such a female who is, according to tradition, from a higher class family marries into a family which is of a lower class than hers, it is considered as inappropriate and people begin to mock the female’s family.  The outcome of this is that the reason for Nikah i.e. “To instil love and relations between two families” will be destroyed and slowly the love between the husband and wife will also die out.  Experience is witness to this. 

Therefore if the female’s father gets her married into such a family which is of a lower class than his and he is happy with it, there will be no problem but if she marries without the consent of her father then this will become a source of shame and disgrace for him, because the Shari’at has given the father the responsibility of marrying the daughter off.  It is for this reason that the Nikah will not be enacted without his permission or happiness.

It is apparent that every human in this world is not equal in terms of qualities and society.  There is a difference and we cannot deny this.  The Shari’at too has taken this in consideration and this does not fall in the category of ‘Asabiyyat, which is disliked.  Islam teaches us that every human should honour and respect the next human.  The one who is of a higher class should not understand the one of a lower class to be disgraceful.  ‘Asabiyyat is when one stands with someone who is of the same class even though that person may be wrong and does not stand with the truth and justice. 

This is the explanation with regards to the Mas’ala.  The answer that Mufti Taqi has given with regards to your Nikah is correct in its apparent form as he is a senior ‘Aalim of the Shari’at.  We cannot pass any judgement with regards to your Nikah as we do not know in which condition you had married this girl and we do not know the differences between your family and the girl’s family.  We are also not apprised of whether the girl’s father had prior knowledge of your Nikah or not.  If you sent us a detailed account of these points than we can advise you further.

From our side we would also like to advise the girl’s father that if the girl is happy to get married then you should not oppose the marriage and you should enact this Nikah from your side with happiness.                    

And Allah Ta’ala knows best

Mufti Muhammad Ashraf

Darul Iftaa

Jameah Mahmoodiyah

Springs

02 September 2004

16 Rajab 1425

This answer was collected in 2012 from the website of Jameah Mahmoodiyah, South Africa. The original website no longer exists.

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