4

In this answer it is claimed that Non-Muslim women need a Muslim wali to get married under sharia rule:

the wali(guardian) of the Christian woman is a Muslim

In a comment to it, it is claimed that Non-ahl-kitab Non-Muslim women need a wali as well:

a Muslim wali is only needed for a Muslim lady or a lady which is not of among people of the book

Both these claims are surprising to me as I had never come across similar claims. It was my understanding that in matters of family law, dhimmis were mostly left to their own devices.

Question: which madhahib (schools of law) require that a Non-Muslim woman must have a wali for getting married, and which of those require the wali to be a Muslim?


Remark: The accepted answer does not offer references for the individual madhahib; if you have any, please add them as an answer.

  • A wali is requited by the Quran (in surat al-Maaidah i guess 5:5) The quran says that we need the agreement of the wali if we want to marry a woman from among poeple of the book. So IMO any different view needs a good explanation. You misinterpreted my comment a revert (to Islam) needs a Muslim wali, as in her case the rules of any other shari'a won't count no more. – Medi1Saif May 23 '17 at 13:26
  • 1
    @Medi1Saif Can you please elaborate where 5:5 mentions wilaya. AFAIK the verses which people use to provide evidence for wilayah include 2:221, 2:232, 4:25 and 24:32 ... I don't see how any of these is about the people of the book, unless it is extended that walis are needed for all marriages and marriage with the people of the book is included in it. – UmH May 23 '17 at 14:10
  • 2
    @Uma i realzed later that I have joined different verses, but I'm pretty sure that (4:25) combined with (5:5) will be used as evidence, maybe I can find a proof for this claim later. On the whole the first part of my earlier comment now is questionable as you said. – Medi1Saif May 23 '17 at 20:51
  • See also Legal basis for kuffar women needing a wali?. – G. Bach Jun 17 '17 at 18:01
4

A non-Muslim woman needs only a Muslim wali when she has no other wali from her family. Under normal circumstances, the wali should be of the same religion as the bride. I could not find any distinction on this specific matter based on schools of jurisprudence, but I could be wrong. The differences that I found were related to pillars (requirement of a wali being for a mature, adult woman of sound mind), and conditions (multiple), and even in the order of who should be wali, but not the belief of the wali. I do not know if an English version exists for the book Al-Fiqh 'Ala Al-Madhahib Al-Arba'a (Arabic: الفقه على المذاهب الأربعة) by 'Abdul-Rahamn Al-Jaziri (Arabic: عبد الرحمن بن محمد عوض الجَزِيري) for access to more information on the topic.

The answer to question 39757 you are referring to partially quotes a fatwa by the Permanent Committee (Al-Lajnah Ad-Da'imah) Vol. 1, Chapter 18 (Book of Nikah), pp. 162, which is fatwa 11242. The conditions that need to be fulfilled in a wali are derived by scholars based on analogy:

  • Male
  • Adult
  • Mature
  • Of sound mind
  • Free
  • Of good character
  • Shares common belief with the bride

An elaboration on the fatwa by Abd Al-Aziz Fawzan Al-Fawzan, a member of this Permanent Committee, may shed some light on this matter:

فلا ولاية لغير المسلم على المسلم، ولا لمسلم على غير المسلم ولا لمرتد على أحد مطلقا ،فإنه لا يرث غير المسلم من المسلم ولا المسلم من غيره، ولا المرتد من أحد؛ لأن اختلاف الدين من موانع الإرث، والولاية كالإرث كلاهما مستند إلى القرابة

Al-Fawzan states that both the wali and the bride have to be of the same religion. Non-Muslims have no wilaya (jurisdiction) over Muslims, and Muslims have no wilaya over non-Muslims. This is the analgous to inheritence [jursidiction over property of the deceased]: Non-Muslims do not inherit from Muslims, and Muslims do not inherit from non-Muslims. As difference of religions prohibits inheritance , then wilaya follows suit, as both are functions of kinship.

وفي خصوص المسلمة فلا يصح أن يتولى عقد نكاحها كافر ولو كان أباها

Al-Fawzan states that in the matter of a Muslim woman, it is not allowed to have her marriage contract by supervised by a disbeliever, even if this disbeliever is her father.

وأما الكافرة الكتابية يتزوجها مسلم ،فإنه يجوز لأبيها الكافر أن يعقد لها عليه لثبوت التوارث بينهما و لقوله تعالى: « والذين كفروا بعضهم أولياء بعض » الأنفال ٧٣. وقوله تعالى: « وَلَن يَجْعَلَ اللّهُ لِلْكَافِرِينَ عَلَى الْمُؤْمِنِينَ سَبِيلاً » (النساء ١٤١) فقد قطع الله الموالاة بين المؤمنين والكافرين ولو كان لها أخوان أحدهما كتابي والآخر مسلم وليس لها أب ولاجد، فالولاية للكتابي كذلك

Al-Fawzan explains that for a Muslim man getting married to a woman from the People of the Scripture (Jews or Christians), her father as a disbeliever is allowed to be her wali, as she can inherit from him, and because Allah says "And those who disbelieved are allies of one another." (Al-Anfal 73). Allah says: "and never will Allah give the disbelievers over the believers a way [to overcome them]." (An-Nisa 141), so Allah has severed the muwalah between believers and disbelievers. If this woman from the People of the Scripture has two brothers, one is a Muslim and the other is from the People of the Scripture, the one who is from the from the People of the Scripture is her wali.

ولا يكون المسلم وليا لكافرة فإن عقد لابنته الكافرة لكافر فلا نتعرض لفسخه وقد ظلم المسلم نفسه، وأما لو عقد لكتابية على مسلم فإنه يفسخ أبداً؛ أن المولى عليها غير مسلمة فيكون لقريبها غير المسلم ولاية تزويجها

Al-Fawzan further elaborates that a Muslim man cannot be the wali of a woman who is a disbeliever. If a Muslim man enters a marriage contract for his daughter who is a disbeliever to a man who is also a disbeliever, the marriage contract does not get invalidated, but the man has committed transgression. If a Muslim man enters a marriage contract for his daughter who is a disbeliever to a Muslim man, the marriage contract is null and void. Since the woman is a non-Muslim, only a non-Muslim can be her wali.

وقد استثنى العلماء من هذا الشرط الولاية العامة وذلك كولاية الحكم والقضاء لأنها تتناول المسلمين وغيرهم فيجوز للحاكم المسلم أو القاضي المسلم أن يزوج غير المسلمات إذا لم يكن لهن ولي نسيب لقوله ﷺ السلطان ولي من لا ولي له

Scholars exempted from this condition the general mandate of wilaya when replaced by an executive or a judiciary entity. It is permitted for a Muslim ruler or a Muslim judge to execute marriage contracts between a Muslim man and a non-Muslim woman based the hadith in (Sunan Ibn Majah, Book 9, Hadith 1953) that the ruler is the guardian of the one who does not have a guardian.

  • Could you translate the Arabic? I don't understand it, nor will some people who might come through here. It would also be helpful to know which texts are considered evidence that a Non-Muslim woman needs a wali at all; as far as I can tell, the quotes you give only show that if she has one, he needs to be of the same religion as her. – G. Bach May 24 '17 at 9:10
  • @G.Bach — The Arabic is translated right below each paragraph, but not word for word. This matter is scholarly opinion, but no direct text as such. The ones used are linked in the answer (two verses from the Qur'an, and one hadith). – III-AK-III May 24 '17 at 9:48
  • 1
    Hm, if there are no texts, does that mean this is a matter of 'urf? Maybe I should ask a new question about that. – G. Bach May 24 '17 at 10:26
  • 1
    I'll be asking another question about the reasoning behind this, but could you add some English references to works for the major madhahib that say a woman needs a wali irrespective of which religion she adheres to, if any? – G. Bach May 24 '17 at 17:33
  • 1
    @G.Bach, a non-Muslim woman needs a wali only when marrying a Muslim man. All the above rules apply only when Muslims (either party or both parties) are involved regardless of their place of residence. When non-Muslims get married under Islamic rule, they follow their own traditions and their marriage is recognized under Islamic law. See conditions of marriage for more information. – III-AK-III Jun 9 '18 at 19:12

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.