1. ‘No Nikāh [marriage] without Waliy’s consent’, a statement attributed to the Prophet (sws) and taken by the court to mean No Nikāh is valid without the Waliy’s consent, is actually a statement of decree rather than of the Divine law. The meaning, therefore, would be somewhat as follows: No Nikāh shall be allowed (or we shall not allow any Nikāh) without the Waliy’s consent. The reason for the decree? Family values. Marriage of a man and a woman is a marriage between two families. The consent and the good wishes of the families involved are highly important. Disparaging this reality would amount to undermining the foundation on which the edifice of an Islamic society rests.2 For that reason, the court may declare a Nikāh without the Waliy’s consent as void.3 But this consent is not a condition the absence of which makes the contract void ab initio.4 Moreover, socially, the consent of the bridegroom’s Waliy is as essential as is that of the bride’s.
2. The verse of the Qur’ān (4:25) used by the learned judge for his decision relates specifically to slave-women.5 It is obvious from the context of the verse that the verse allowed such Muslim men to marry slave-women as could not afford to marry ‘free’ Muslim ladies, provided they did that with the consent of the ahl (owners) of those slave-women. Therefore, there are no grounds in the Qur’ān for the belief that a contract of marriage without Waliy’s consent makes the contract void ab inito.6
3. Linguistically, the term Nikāh has always been used in an Islamic society to mean an openly declared contract of marriage between a man and a woman made with their intention to live together as husband and wife for the rest of their lives.
There are certain conditions for this contract which, if not fulfilled, make the contract void ab inito, for example free consent and mental competence. And there are some other conditions which, if unfulfilled, make the contract voidable.
Of the conditions belonging to the first category, two important, Islamic conditions are:
i) Open declaration of the Nikāh. Marriage must be announced publicly (through any reasonable means) so that there is no room for any surreptitious sexual relationships.
ii) Intention to live together permanently as husband and wife. Pre-planned divorce would make the contract prostitution rather than Nikāh.
Of the conditions belonging to the second category, two important, Islamic conditions, among others, are:
i) Dowry (to be paid by the man) in accordance with the conventions of the society and in due consideration of the woman’s status and the ability of the man to pay. The amount is a token of the man’s seriousness to take up the responsibility towards his wife-to-be.
ii) Waliy’s consent.
It seems that the underlying object of the honourable court’s verdict (on 25 September 1996) was a check on extra-marital relationships, whereas the reasons for having Waliy’s consent in marriage are a stronger and healthier relationship between the families involved and greater security and privilege for the bride and the bridegroom. It is the condition of open declaration which serves as a check on clandestine relationships. However, even when this condition is not met, there is room -- especially when the parties involved are ignorant of the correct legal procedure and there is an absence of a general awareness of the correct law -- for sentences much lighter than automatic imposition of hadd (Qur’ānic punishment) for fornication and, in some cases, there is room even for exoneration.
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Would that the Taliban, in their zeal for imposing Islam, were not unmindful of the following of its principles:
1. Gradual implementation of Islam in consideration of prevailing circumstances is itself Islam. For example, though many sins and vices as Ribā (interest) and wine were prohibited even in the earlier Divine religions, God Almighty formally prohibited them to the followers of the Prophet (sws) very gradually, after the Prophet (sws) and his Companions (raa) were able to form and independent state in Madīnah, so that no unnecessary burden would fall on those people who were following Islam. The Prophet’s advice (sws) to a governor of his as reported in a certain hadīth (narration) is also indicative of the desirability of gradual implementation. God does not burden us beyond our capability (the Qur’ān 2:286) and He has not given us such laws as unnecessarily make life difficult (the Qur’ān 2:180). Only in certain cases does Islam require extreme measures. For example, in Jihād Islam may require such things of a man as might pose a great danger to his life, honour and property.
In normal circumstances, one should not make things unnecessarily difficult for oneself and for others. Those who do that often end up wrestling with religion. And, as the Prophet (sws) is reported to have said, he who wrestles with religion is often defeated by it.
2. A government must have the vote of the majority of the Muslims in a geographically independent area to be legitimate Islamically. This principles is based on the Qur’ānic words amruhum shūrā baynahum (their affairs [are to be managed] by consultation among them). Therefore, if Taliban fail to gather support for their policies, there is a good chance that they will ultimately lose government or continue to rule as an un-Islamic force.
3. Jihād without the authority of the state is not Jihād7. It is fasād (disorder or anarchy). Therefore, until Taliban form an independent state in the areas they control by getting the vote of the Muslim majority there, they do not have the right to wage Jihād against other rulers. And even after they form a legitimate government, many other conditions will need to be fulfilled before their battles with other Muslim rulers might be termed as Jihād.
4. Taqlīd, or following the verdicts of earlier scholars without questioning them, is a convenient way of ensuring that the very serious task of religious interpretation does not fall into the hands of irresponsible novices. But when truth does manifest itself -- perhaps as a result of research by a scholar in the present times -- against the verdicts of earlier scholars, it is downright Shirk (association with God) to deny it out of veneration for earlier scholars.
If Taliban could delve into some of the research work done in modern times on Islam -- and delve with sincerity and sagacity --, they might find an Islam, emanating from the Qur’ān and the Sunnah, quite different from the one they have in mind. To illustrate this point, we have included in this issue some articles already published in Renaissance, which show that Taliban’s interpretation of religion may be quite wrong in relation to many important aspects of religion as role and duties of women, religious punishments, apostasy and Jihād.
Therefore, we call are our reader’s attention to articles in the Special Section included in this issue.
Would that Taliban too could read these articles and could at least consider the possibility of their being correct.
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Would that the head of the state were our Imām in the mosque as well, and his (that is government’s) representatives the Imāms where he was not available (see The Islamic Manifesto in this magazine). In that way, the ruler would be the mawlviy and the mawlviy would be out of politics. In that way, the mawlviy would be confined to his real job: learning and teaching religion. And, in that way, there would be an effective check on sectarianism, which will remain in our country even if religious schools are shut down.
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Would that we the Muslim were on the top of the world. Would that the true Islam and its superiority were clear to everyone. Would that.... O Si Sic Omina! But O tempora! O 8
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1.
Parent (or guardian), who represents the whole family as
its head and who is therefore usually a man in most societies. The Plural (Awliyā’)
may connote all the people responsible for the person (man or woman) to be
married.
2. See Parental Consent in Marriage, Shehzad Saleem, Renaissance, July & August 1996.
3. And it may, if it deems it appropriate, impose some other penalty for example, a fine.
4. There is a difference in a contract’s being void and in its being voidable. In the first case, a contract, owing to some reason, is not regarded as valid per se and is therefore deemed to be non-existent ab inito. In the second case, the contract, owing to some reason, is regarded as revocable at the option of either or both of the parties involved or by court decree. For example, in case of an unwritten business contract between two person to which there are no witnesses, it is not necessary (especially, when it is obvious from circumstantial evidence that the contract did take place) for the court to declare the contract as void simply on account of the fact that it was not written and there were no witnesses. The Qur’ānic directive (2:292) that contracts be written down and there be two witnesses is a social directive rather than a legal condition. However, the court can impose a penalty, which may go to the extent of revoking the contract, for violation of a social norm beneficial to the interests of all parties involved.
5. See Tadabur-e-Qur’ān, Amin Ahsan Islahi, volume II, Faran Foundation, Lahore, 1983.
6. Though, as already explained, the court has the right -- on the basis of the doctrine of common good and maintenance of order in society -- to declare such a marriage void.
7. See No Jihād without the State, Asif Iftikhar, Renaissance (in this issue -- Special Section)
8. O the times! O the manners!