INTRODUCTION Marriage is a sacred bond between a man and a woman, which makes it permissible for them to live happily

in one anothers company. Allah has described in the Quran that this eternal relationship is filled with security, love, understanding and compassion. "One of His signs is that He created for you spouses of your own species, so that you might find comfort with them, and He put mutual love and affection in your hearts. Surely in this there are lessons for the thinking people. " 1 Islam has created marriage as a solution to avoid the destruction of family structure and the relationship between mankind becomes putrefied. Marriage became an essence to purify the relation between men and women and as to develop a beautiful conduct of discipline in Islam since Islam approved only the relation between two opposite genders only through marriage. Marriage is also an important part of the Sunnah. Prophet Muhammad (peace be upon him) had said: The nikah is my Sunnah (way), whosever leaves my Sunnah is not amongst me.2

In this project, we analyzed the above situation to come out with the best solution for the young couple. This situation is closely related to the subject of eloping or runaway marriage, in
1 2

Surah al Rum, 30:21 Kitabus Sunan-Mishkat

other words, marrying without the consent of the wali (brides father). We will discuss in this paper the role of wali in marriage in Islam with justification in the Quran and hadith, as well as the types of wali. The need of the parents consent in making decisions in marriage will also be discussed. The main subject of runaway marriage and its effects are also investigated. Lastly, to assist in choosing the best solution for this question, we have looked into a few example situations with their suggested solutions on the basis of dalil from the Quran and hadith.

WALI (GUARDIAN) IN ISLAM A wali (guardian) is a very important and vital aspect in a marriage. It determines whether or not a certain marriage contract (akad nikah) that has been performed is valid. This can be clearly understood from a hadith by the Prophet (peace and blessings be upon him) : "There is no marriage without the permission of a guardian."3 And it has been stated in the Al-quran,

And when you have divorced women and they have reached (the end of) their waiting period,

do not prevent them from marrying their husbands when they mutually agree as recognized. This is how advice is given, to one of you who believes in Allah and in the Hereafter. This is more pure and clean for you. And Allah knows and you do not know." This above verse means that the woman must be marriage by her wali or guardian. Al Imam Shafie said: This verse is the clearest verse in the book of Allah which cites that an-nikah is not proper without the wali an-nikah, because the verse stated that Allah prohibits the wali from forbidding a woman's marriage. This prohibition is only effective to the person who has in his hands the power to forbid (a marriage)." Allah also said in Surah Al-Baqarah verse 221 : " And give not (your daughters) in marriage to Al-Mushrikun till they believe ( in Allah Alone) and verily ... .. "
3
4

Sunan of Abu Dawood 2080, Narrated Abu Musa Alquran, 2 :232

Therefore, it is the main task of Assistant Registrar, the Registrar of Marriages, and the society, in general to ensure that a wali complies with Islamic rulings in the matters of marriage. This is because negligence in matters of wali may cause emotional and spiritual stress, and certain wedding ceremonies had to be postponed as the status of wali is in doubt. Failure to obey it will result in a wedding that is not valid and will leave a negative impact on the marrying couple, the society and the institution of Islamic Religion Administration. There are four reasons why a person is granted with Authority to become a wali : (i) (ii) (iii) (iv) Authority due to fatherhood. Authority due to the Asobah characteristic (as in the matters of inheritance) Authority due to freeing a slave (a master who frees a slave) Authority due to empowerment as Sultan or King

The Messenger of Allah (saws) said: A marriage (contract) is not valid without a wali. And the authority is the wali of the one who does not have a wali.

A wali can be categorised into 2 types : (i) Wali Mujbir (guardian by force)

A Wali Mujbir is regarded as the perfect wali because he has full power to endorse a marriage on behalf of everyone under his care. Malik related to me from Abdullah ibn al-Fadl from Nafi ibn Jubayr ibn Mutim from Abdullah ibn Abbas that the Messenger of Allah, SAAWS, said,

"A woman who has been previously married is more entitled to her person than her guardian, and a virgin must be asked for her consent for herself, and her consent is her silence "5 Although a father may marry off her virgin daughter without her consent, it is sunat (favourable) for the father to request for her consent. And the father may not act freely using his ijbar authority. He has to make sure that his actions are just and fair for the benefits of his daughter. That is why Islam has enforced three conditions which allow for the ijbar authority of the father to be enforced upon his daughter : (a) There is no apparent dispute between father and daughter (b) The groom must be suitable for the daughter (c) The prospect husband is capable of paying the dowry (mahar) immediately For a daughter who is widowed or divorced, the father may not force her into a marriage unless by a clear and undisputed permission as explained in the hadith narrated by Abu Huraira: The Prophet said, "A matron should not be given in marriage except after consulting her; and a virgin should not be given in marriage except after her permission6

(ii)

Wali Ikhtiar

Wali Ikhtiar is a wali from Asobah guardians related to a woman at marrying a woman with her consent. Wali ikhtiar include Wali Akrab and Abaad, who are wali in the absence of Wali Mujbir who is either the father or grandfather from the fathers side. Such wali can marry off mature adult women and does not have any authority to force any marriage contract. Wali Ikhtiar may only marry off a bride after she has given her consent. The consent may be given in two ways :

5 6

Malik's Muwatta, Book 28, Number 28.2.4 Sahihbukhari, Volume 7, Book 62, Number 67

(a) For widowed/divorced women, she must pronounce her consent clearly and verbally. Silence alone is not sufficient. (b) For virgins, the consent is sufficient by virtue of her silence. The Prophet saws said, "A matron should not be given in marriage except after consulting her; and a virgin should not be given in marriage except after her permission." The people asked, "O Allah's Apostle! How can we know her permission?" He said, "Her silence (indicates her permission)."7

For a woman who does not have wali nasab (from her kinship), or has problems with her wali, she is allowed to refer to Judge/King guardian (wali hakim) because a king is a wali to those who do not have one has as indicated in the hadith by the Prophet (peace and blessings be upon him) : "If they dispute, then the sultan (man in authority) is the wali of those who have no wali."8 A woman who has problems with her wali to get married will require Wali Hakim under the following conditions : (a) Wali refuses (b) Wali disappears / lost (c) Wali for a convert (d) Wali for an illegitimate child (e) Wali for a woman who does have wali nasab Wali is one of the wedding pillars needed to be properly identified and carried out to the correct order. Failure to obey it will result in a wedding that is not valid and will leave a negative impact on the marrying couple, the society and the institution of Islamic Religion Administration. Therefore, it is everybodys responsibility especially the closest family to be brave to uphold the

7 8

Sahih Al-Bukhari 7.67 Dawud 2078, Narrated 'Aisha , also related by Tirmidhi and others. Tirmidhi said, this is a hasan Hadith. IbnMajah and Imam Ahmad, Hadith number 1880; also in Salih al-Jaami', hadeeth number 7556.)Shaykh Al Albaanee declares it authentic in Saheeh Al Jaami' vol. 2, no. 7556.

truth and the Assistant Registrar and Registrar of Marriage, Divorce and Ruju must be experts in wali issues and efficient as well as tactful in questioning the order of wali.9

http://www.islam.gov.my/sites/default/files/wali_in_islam.pdf

CHOOSING A LIFE PARTNER: RIGHTS OF PARENTS?? Parents are adults who have extensive knowledge, whether through their own experiences or friends. Marriage is not something that involves a married couple, but it also involves the families of both parties. Thus, the pleasure of parent plays an important role in ensuring happiness and survival of a family. The Prophet (S.A.W) of Allah said: "The pleasure of the Lord is in the pleasure of the father, and the displeasure of the Lord is in the displeasure of the father"10

In order for a marriage contract to be valid it should be done by the womans guardian or representative. The woman does not have the right to give herself in marriage, because the Prophet (blessings and peace of Allah be upon him) said: There is no marriage except with a guardian.11 And he (blessings and peace of Allah be upon him) said: Any woman who gets married without the permission of her guardian, her marriage is invalid, her marriage is valid, her marriage is invalid.12 If the two hadith above refers to the female child, then the following two hadith refers to the male child. 'Abd Allah ibn' Umar r.a said: I have a wife who is my love, but 'Umar (bin Al-Khaththab, his father) did not like it and told me to divorce her. But I refused. So 'Umar brought the matter to the Prophet s.a.w and tell what happened. Prophet s.a.w said to 'Abd Allah ibn'Umar, let her go.

Tirmidhi reported by Abdullah IbnAmr Narrated by Abu Dawood, 2085; al-Tirmidhi, 1101; IbnMaajah, 1881, from Abu Moosa al-Ash ari. Classed as saheeh by al-Albaani in Saheeh at-Tirmidhi. 12 Narrated by Ahmad, 24417; Abu Dawood, 2083; at-Tirmidhi, 1102. Classed as saheeh by al-Albaani in Saheeh alJaami , 2709.
11

10

Abu Huraira (

) said that he heard the Holy Prophet (

) saying:

Of the gates of Paradise, father is the Central Gate. If is now up to you to lose it or to protect it.

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The teachings of Islam recommend that the daughters should marry with the consent of their

fathers. Many of the Muslim jurists consider this consent to be an essential condition of the marriage of the girls. In this connection the following points may be noted: 1. As a marriage establishes social contact between two families both the boys and the girls have been advised to consult their parents in regard to the selection of their future wives and husbands. Such consultation means showing respect to the parents and the recognition of the trouble taken by them in bringing up their children. It is also conducive to better understanding among the relatives of both the sides. Above all that, this is an appropriate way of benefiting from the personal experience and social knowledge of the parents, in regard to the selection of the life partner and appropriate conjugal behavior. "...Her guardian should not make a promise (to somebody to get her married to him) without her knowledge..."14 2. The parents have been urged that while guiding their children, they should take into consideration their real requirements and the new conditions in which they will have to live. They should understand that marriage in the first instance, concerns their children and the future life of theirs and not themselves (i.e. the parents). AsThe Holy Prophet said: "Marry your equals; choose your partner in life from among them and select the best mothers for your offspring." 3. Hence at the time of such consultations, they should, in the first instance, pay attention to the basic and noble qualities, which the spouse of their child should possess, and not to

13 14

http://www.al-islam.org/philosophyofislam/16.htm Sahih Al-Bukhari 7.56

those of the second or third degree, and should not be influenced by fictitious considerations like the wealth or the social position of the family of the bride or the bridegroom. While he may not ignore physical looks, he must look for strong religious beliefs and practice, intelligence, and good behavior, following the advice of the Prophet (S.A.W): A woman may be married for four things: for her wealth, for her noble descent, for her beauty or for her religion. Choose the one who is religious, lest your hands be rubbed with dust! (Bukhari and Muslim) 4. The jurists who consider the consent of father to be an essential condition of marriage, hold this view only in respect of the virgins. Evidently they give importance to this condition only because in their opinion the intervention of a loving and experienced father is of great value. The basic principle is that one of the conditions of marriage is the consent of both parties, because of the hadeeth of Abu Hurayrah (may Allaah be pleased with him) which says that,

The Prophet SAW said: A virgin cannot be married until her consent has been sought and a previously-married woman cannot be married until she has been consulted. They said, O Messenger of Allaah, what is her consent? He said, If she remains silent.15 5. Even in the case of the virgins they hold that the consent of father is essential only so long as he tries to safeguard the interests of his daughter and does not impose his own will on her even though it may be against her interests. If it is found that father is bent upon imposing his will against the interests of his daughter, it is the duty of the authorities concerned to take notice of the case and, by virtue of the powers vested in a just Muslim ruler, to take proper action to safeguard the interests of the girl.

15

Narrated by al-Bukhaari, 5136; Muslim, 1419

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"Khansa bint Khidhan who had a previous marriage, related that when her father married her and she disapproved of that, she went to the Messenger of God and he revoked her marriage." (Bukhari, IbnMajah)

"A [girl who was not married] came to the Messenger of God and mentioned that her father had married her against her will, so the Prophet allowed her to exercise her choice." (Abu Da'ud, on the authority of Ibn 'Abbas) From a legal point of view Islam views marriage as an 'aqd or contract. Like any other contract the marriage contract requires full and free consent of the parties concerned. The parents or guardian of any of the parties may give advice, choose a marriage partner or use persuasion, but the final decision to enter into a marriage must be the result of a free choice on the part of each partner, even though this freely made choice may consist of nothing but accepting the choice of one's parents or guardian.

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RUNAWAY MARRIAGE Runaway marriage refers to marriage without the consent of parents, solemnized by a recognized wali hakim, usually done outside the area where the couple lives. One of the reasons a couple resorts to runaway marriage is because their parents do not agree to their marriage decision. This type of marriage comes with bad effects, mostly to the families of the couple. Firstly, it can cause disunity between the families due to the harsh decision made by these two lovers without proper thought. The purpose of marriage itself is to bring two families together to create peace and happiness. However, runaway marriage defeats this purpose. The Prophet says, No house has been built in Islam more beloved in the sight of Allah than through marriage.16 Therefore, eloping is prohibited because it may cause family feud. In addition, it does not follow the Sunnah of Prophet Muhammad s.a.w, who has established that marriage is for strengthen the ties between the two parties and bring happiness to all parties involved. Imam Ali (a.s.) exhorts, Marry, because marriage is the tradition of the Prophet. The Prophet (s.a.) also said, Whosoever likes to follow my tradition, then he should know that marriage is from my tradition. 17 The rights of marginalized son as the members of society is the other effect of elope on the family. Children borned out of wedlock which has not been registered also received the bad effects from this problem. All routine that require a valid documents cannot be made because the documents are not exist. For example, matters involving health, education and savings in the bank.

16 17

Wasaelush Shia, vol. 14, p. 3 Wasaelush Shia, vol. 14, p. 3-4, 6

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Moreover, the effect of elope on the family is eliminate the right of the father as a guardian in the solemnization. Father who is giving us sustenance, providing us shelter and fulfil the needs of a child all this time is ignored his right as a guardian in the solemnization. Of course the parents will feel the pain, anger and sad about this matter. So, without the consent of the guardian, can the children live in a happy family? Prophet s.a.w said, The pleasure of Allah lies on the pleasure of guardian and the wrath of Allah lies on the wrath of guardian.18

The effect in terms of legislation and the law Under Islamic law, a marriage solemnized by parties after complying with all requirements in accordance with the hukum syara, it is a valid marriage regardless of whether or not the marriage has been registered. This is pursuant to a provision stated that a marriage shall be void unless all conditions are satisfied.nConsequently, non compliance with the provisions relating to the solemnization and registration of marriage,nparties to the marriage commit offences and shall be punished with a fine or imprisonment or both by thenSyariah Court.
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Run-Away-Marriage to Southern Thailand

Decision: The 52nd Conference (muzakarah) of the Fatwa Committee National Council of Islamic Religious Affairs Malaysia held on 1st July 2002 has discussed run-away-marriage to Southern Thailand. The Committee has decided that marriage outside the country is valid provided that: 1. The marriage fulfils the requirements of nikah 2. The distance is more than two marhalahs

18 19

Sunan al-Tirmidh (1899) http://www.e-fatwa.gov.my/fatwa-kebangsaan/kahwin-lari-di-selatan-thailand-0

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3. There is no court decision, preventing the woman from getting married on legal reason 4. Such a marriage is solemnized by a recognized wali hakim (appointed guardian) and the marriage is solemnized in the area where the guardian has been appointed. In Malaysia, if parties failed to appear before the Registrar of Marriage within the specific period, there will be a penalty upon registration Section 125 of the IFLA provides that whoever, wilfully neglects or fails to report and submit application for registration of marriage, commits an offence and shall be punished with a fine not exceeding RM1,000.00 or imprisonment not exceeding six months or both. Nevertheless, nothing in this Act or Rules made under this IFLA shall be construed to render valid or invalid any marriage that otherwise is invalid or valid, merely by reason of its having been or not having been registered.20 Jurisdiction of provisions already exists in Section 13 (b) Islamic Family Law which provides that, "A marriage is not valid and cannot be registered under this Akta unless the both parties are consent with the marriage and whether: a) the Wali of the woman has consented with the marriage according to Islamic law, or b) Judge having jurisdiction in the place where the woman resides or a person authorized generally or specially for that purpose by the Judge has, after due inquiry before all parties concerned, to give his consent to the marriage by wali Raja according to Islamic law; such consent may be given if the woman has no guardian of the lineage according to Islamic law, or if the guardian cannot be found or if the guardian refuses to give his consent without sufficient reason. " Secret marriage whilst recognised is severely disliked in Islam and even Haram when it goes against the will of the parents.

20

www.ccsenet.org/jpl, Journal of Politics and Law Vol. 3, No. 2; September 2010

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And whoever among you cannot [find] the means to marry free, believing women, then [he may

marry] from those whom your right hands possess of believing slave girls. And Allah is most knowing about your faith. You [believers] are of one another. So marry them with the permission of their people and give them their due compensation according to what is acceptable. [They should be] chaste, neither [of] those who commit unlawful intercourse randomly nor those who take [secret] lovers. But once they are sheltered in marriage, if they should commit adultery, then for them is half the punishment for free [unmarried] women. This [allowance] is for him among you who fears sin, but to be patient is better for you. And Allah is Forgiving and Merciful.

the Prophet's Hadith narrated by Abu Dawud, IbnMajah, and Tirmidhi, which means: " Not valid marriage except with the consent of guardian. "

Dalil of Obligations Obeying Leaders From Adi bin Hatim, we asked, "O Allah! We do not ask you about obedience to the leader of the righteous, but about those who do so and so (or do the despicable cruelty). "Then the Prophet said:" Fear Allah, and listen and obey (the leader.)22 Imam Bukhari dedicated a chapter on this hadith in al-Ahkam discussion of the book authentic, the chapters Word of God, which means: Obey Allah and His Messenger and those charged with (leader) of you. Said Al-Hafiz Ibn Hajar Allaah: "In this hadith said of his compulsory to obey the leaders, but it is limited in the things that are not evil ".

21 22

4:25

Zilalul Jannah Takhrijus fees Sunnah 2 / 508. al-Albanian state traditions are hadiths. See: Al-Sunnah Ibn Abi Asim 15

SITUATIONS RELATED

First situation: When parents refuse to accept the choice based on the reasons that are allowed by syari'at. As an example, the choice is non-Muslim and he does not intend to convert to Islam. So, in this case parents are allowed to forbid child from marrying their choice and it is compulsory to obey them.

Your lord has ordered you to worship none except him, and to be good to your parents. If either or both of them attain old age with you, do not say: "fie on you", nor rebuke them, but speak to them with words of respect.23

Second situation: When parents refuse to accept our choice based on the reasons that oppose the syariat. For an example, when parents refuse to accept the choice just because she covers her aurah or just because he used to go for jemaah prayer. So, in this case parents should not prevent children from marrying their choice but this does not mean that they can "get married run away". Instead, they should discuss with the decency and wisdom with parents so that they finally approve the choice. Consent is essential in the case of the husband, and also in the case of the wife. The parents have no right to force their son or their daughter to marry someone they do not want. The duty of parents is to hasten to arrange the marriages of the women who are under their guardianship, if someone who is compatible proposes marriage and the woman agrees to that. Whoever does not do that is going against the command of the Prophet (peace and blessings

23

Alquran, 7:23

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of Allah be upon him). It was narrated from Abu Hurayrah that the Messenger of Allah (peace and blessings of Allah be upon him) said: If there comes a proposal of marriage from one with whose religious commitment and character you are pleased, then marry [your female relative under your guardianship] to him, for if you do not do that, there will be fitnah (temptation, tribulation) on earth and much corruption.24 Instead, in the case of wali refuses with some reason that not in line of syariah, the guardianship can passes to other based on the hierarchy of wali with the last one as wali hakim. Shaykh Ibn Uthaymeen said: If a father prevents his daughter from marrying someone who is compatible, then guardianship passes to a more distant relative, the closest then the closest. 25 Ibn Qudaamah said: If her more-closely related guardian treats her harshly (by not letting her get married), then the guardianship passes to one who is more distantly related. This was stated by Ahmad
26

If her wali prevents her from marrying the person she wants with no shari reason for doing so, the guardianship passes to someone who is fit to be a wali, so it may pass from her father to her grandfather, for example. The wali does not have the right to prevent a woman from marrying on the basis of his own whims and with no sharI reason.It was reported that al-Hasan said: Maqil ibn Yassaar told me that [this ayat] was revealed concerning him. He said: I married a sister of mine to a man, and he divorced her. When her iddah was over, he came and asked to marry her. I said to him, I married her to you and I treated you well and honoured you, then you divorced her. And now you come asking to marry her! No, by

Narrated by al-Tirmidhi, al-Nikaah, 1004; classed as hasan by al-Albaani in SaheehSunan al-Tirmidhi, no. 865 FataawaIslamiyyah, part 3, p. 149 26 al-Mughni by IbnQudaamah, part 7, p. 24
25

24

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Allah, she will never go back to you! He was a man who had nothing wrong with him, and the woman wanted to go back to him. Then Allah revealed this aayah (interpretation of the meaning): do not prevent them [al-Baqarah 2:232]. So I said, Now I will do it, O Messenger of Allah. So he married her to him.27

Third situation: Children and their parents are not agreeing with each other and each of them has a reason based on syari'at. Two common examples are: 1. The person want to get married but still studying and their parents do not allow them to do that until they have graduate. 2. The choice have financial problem. For the two examples above, they should talk to the parents to find the best solution. If the discussion does not have a good result, they must give the priority to the parents to make a decision. And as always in the matters of great importance to ones life, salaatul isthikhara (prayer for guidance from Allah) should be undertaken. Know that what is with Allah SubhanahuwaTa'ala is far better than the lover who is in the heart. It was narrated that Ibn Masood (may Allah be pleased with him) said: The Prophet (peace and blessings of Allah be upon him) said: O young men, whoever among you can afford to get married, let him do so, and whoever cannot, then let him fast, for it will be a shield for him.28 Prophet s.a.w said: A woman married for four reasons: her wealth, her family, her beauty and her religion. Then select as his religion, if not you will lose.

27
28

Narrated by al-Bukhaari, 4837

Narrated by al-Bukhaari, 4778; Muslim, 1400

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Sometimes children choose their own choice based on the hadith above. However, their choice is not approved by their parents. So they do the assumption that they have the right on choosing their future husband and wife, the child is willing to raise their voices against the parents because they thought they have the right. Take note of what Rasulullah (sallallaahualayhiwasallam) mentioned: A nikah without the consent of the wali is batil (void, not having any religious weight.) Here Batil can mean one of two things: such a nikah is void, and thus both of them would be living in the state of adultery and sin; or as other scholars have stated, batil means a wretched, disliked and a reprehensible action had taken place in the Sight of Allah (subhanahuwataala). Both definitions imply that one should be cautious with their independent mindset on marriage. Thus, a person insisting on marring a partner without parental consent would be aiding Shaytan to get the better of them. Parents usually toil in the best interest of their children, and their decisions are to prove this as well. Thus, parents examine areas of compatibility in order to be able to give their consent to the most suitable partner. Thus, a son or daughter should never overlook this significant aspect. Matchmakers and third parties eager to volunteer their help should not forget the importance of including parents/guardians (who raised a child worthy enough for the third party to marry off) and other persons as part of the marital process. To ignore critical guardians would be to cause an unwanted and avoidable curse-filled violation upon the self.

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CONCLUSION As a conclusion, to relate to the given question, the situation Fitri and Farhana is faced with is the third solution. Both of them have the pure intention to marry to avoid evil and fitnah. However, since they are still young and studying, their parents do not agree to their decision. The best solution for them is to discuss this matter thoroughly with their parents whether it is better to marry while they are still studying or wait until they are financially and mentally well-prepared. The couple and parents can also seek advice and help from a third party such as a counselor or religious authority. Both parties should also remember that Allah is always there for them. When in doubt, they can perform salat istikharah and hope sincerely that Allah will show them the best answer. They should also remember to observe their religious duties to get the pleasure of Allah. Constantly seek help from Allah since Allah knows what is best for us. We should keep in mind that in whatever decision we make, we should never neglect our parents feelings. Every parent would want the best for their children. Every no they say has a reason for the best of us. As Prophet s.a.w said, The pleasure of Allah lies on the pleasure of guardian and the wrath of Allah lies on the wrath of guardian.29

29

Sunan al-Tirmidh (1899)

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