Wali

Definition

It is derived from Arabic word al-wilayah meaning the willingness to take responsibility or to manage or to take authority or to administer something. Terminologically it refers to someone who possesses or has been granted by syara’ the authority to perform a marriage contract.  Wali has been defined as a person who is qualified under hukm syara’ to be the wali for the marriage of a woman. The right of guardianship is called wilayah. Wilayah is an essential requirement of marriage.

According to Shafie School, wilayah is one of the rukn to a valid marriage; but according to Hanafi School, wilayah is not a condition to a marriage unless in certain circumstances; example the parties to the marriage have not reached the age of puberty.

The wali must be male; according to Shafie School a wali must be a male Muslim; whereas Hanafi School of the views that in the absence of the male guardian, a mother or paternal grandmother can act as wali

Authorities for the need of wali

The Prophet said: 

“There is no marriage without guardian and two witnesses who are just”.

“A woman cannot contract a marriage by herself, only adulterer who contract her own marriage”.

 “Al-ayyim (divorcee or widow) has more right of herself than her guardian and the virgin is consulted and her silence implies her permission”.

Abu Musa reported that the Prophet as saying: “there is no marriage without the permission of guardian”.

Aishah reported that the Prophet SAW said: “the marriage of woman without the consent of guardian is void”. He said it three (3) times.

Aishah reported that the Prophet said: “if there is a difference, then the Sultan will be the wali of the person who has no wali”.

Law

Section 12 of the IFLTE 2017 provides a marriage shall not be recognized and shall not be registered, unless both parties have consented thereto and either:-

  1. The wali of woman has consented in accordance with hukum syara’; or
  2. The syariah judge after due inquiry,  granted his consent thereto as wali raja: such consent may be given wherever there is no wali by nasab in accordance with hukum syara’ available.

Conditions of wali

The condition of the wali under hokum Syara’ are:

  1. Muslim
  2. Man
  3. Baligh
  4. Voluntary
  5. Not within ihram haji or umrah
  6. Not fasiq
  7. Sound mind

Types of wali

There are two kinds of wali:

  1. Wali nasab
  2. Wali hakim
  1. WALI NASAB 

It is divided into two that are:

  1. Wali aqrab: wali aqrab can be further divided into wali mujbir and wali ghair al-mujbir.
  1. Wali mujbir that consists of father or paternal grandfather, in the opinion of Iman Shafei they can contract a marriage of a virgin without her consent;  and 
  2. Wali ghair al-mujbir that consists of
  1. Brother of the same father and mother
  2. Brother of the same father
  3. Nephew of the same father and mother and below
  4. Nephew of the same father and below
  5. Paternal uncle of the same father and mother
  6. Paternal uncle of the same father
  7. Son of the paternal uncle of the same father and mother and below
  8. Son of the paternal uncle of the same father
  1. Wali ab’ad consist of
    1. Paternal grand uncle of the same mother and father
    2. Paternal grand uncle of the same father
    3. Son of the paternal grand uncle of the same father and mother
    4. Son of the paternal grand uncle of the same father
    5. Great grand uncle of the same father and mother
    6. Great grand uncle of the same father
    7. Son of the great grant uncle of the same father and mother and below
    8. Son of the great grand uncle of the same father

List of priority of wali nasab

  1. Natural father
  2. Paternal grandfather
  3. Brother of the same father and mother
  4. Brother of the same father
  5. Nephew of the same father and mother and below
  6. Nephew of the same father and below
  7. Paternal uncle of the same father and mother
  8. Paternal uncle of the same father
  9. Son of the paternal uncle of the same father and mother and below
  10. Son of the paternal uncle of the same father
  11. Paternal grand uncle of the same mother and father
  12. Paternal grand uncle of the same father
  13. Son of the paternal grand uncle of the same father and mother
  14. Son of the paternal grand uncle of the same father
  15. Great grand uncle of the same father and mother
  16. Great grand uncle of the same father
  17. Son of the great grant uncle of the same father and mother and below
  18. Son of the great grand uncle of the same father
  19. Sultan or ruler (wali raja)
  1. WALI HAKIM

Wali hakim is the person that be appointed as a wali by the court. For a woman who does not have wali nasab, or has problems with her wali, she is allowed to refer to a judge/king guardian based on the hadith: “Ruler is the guardian for those who do not have a guardian”. The ruler does not usually perform such duties personally, but delegated them to the judges, who can appoint deputies to perform them.

Reason for the Transfer of Wali

From wali aqrab to wali ab’ad; 

  1. wali aqrab has not attained baligh 
  2. wali aqrab is insane.

From wali nasad to wali hakim

  1. When wali nasab is not available
  2. When wali nasab lives 2 marhalah or more
  3. Absence of wali nasab: his whereabouts is unknown and not known whether he is alive or death either because he had gone to war, accident or been captured by the enemy or any other cause and no presumption of his death has been made by any Kadhi.
  4. Wali nasab refuses to be wali and the Kadhi is satisfied that there is no reasonable reason for refusal
  5. Wali nasab is within ihram haji or umrah
  6. Wali nasab is about to be married to the woman concerned.

Section 17 of IFLTE 2017 provides for reference to and action by Syariah Judge. Subsection (1) states that in any of the following cases, that is to say—

  1. where either of the parties to the intended marriage is below the age specified in section 8; or
  2. where the woman is a janda to whom subsection 13(3) applies; or
  3. where the woman has no wali from nasab, according to Hukum Syarak,

the Registrar shall, instead of acting under section 16, refer the application to the Syariah Judge having jurisdiction in the place where the woman resides.

Subsection (3) of section 13 provides that if the woman alleges she was divorced before the marriage had been consummated, she shall not, during the ordinary period of ‘iddah for a divorce, be married to any person other than her previous husband, except with the permission of the Syariah Judge having jurisdiction in the place where she resides.

And section 16 provides that subject to section 17, the Registrar, on being satisfied of the truth of the matters stated in the application, of the legality of the intended marriage, and, where the man is already married, that the permission required by section 22 has been granted, shall, at any time after the application and upon payment of the prescribed fee, issue to the applicants his permission to marry in the prescribed form.

Section 22 talks about the polygamous marriage. This section provides that no man, during the subsistence of a marriage, shall, except with the prior permission in writing of the Court, contract another marriage with another woman.

Subsection (2) of section 17 of IFLTE 2017, states that the Syariah Judge on being satisfied of the truth of the matters stated in the application and the legality of the intended marriage and that the case is one that merits the giving of permission for the purposes of section 8, or permission for the purposes of subsection 13(3), or his consent to the marriage being solemnized by wali Raja for the purposes of paragraph 12(b), as the case may be, shall, at any time after reference of the application to him and upon payment of the prescribed fee, issue to the applicants his permission to marry in the prescribed form.

Cases

Azizah bt. Mat v Mat b. Salleh [1976]; the plaintiff aged 21 years applied for permission of wali raja to marry a man. The father had been asked for his consent on several occasions but he had refused pleading that the applicant should work first. The father also said that if his daughter married through the wali hakim, he claimed the cost of maintain her until she reached the age of 21. In this case, the judge lays down the principle that the factors to be considered by the wali in giving or refusing his consent; are whether the girl has already been betrothed to someone else, or whether the man is unable to maintain a wife, or suffering from a disease in communicable form. In this case, there was no valid reason for the refusal of the father and therefore, the plaintiff was entitled to marry through wali raja.

Ismail v Aris Fadilah [1990]; where the plaintiff asked the court to annul the marriage between the first defendant and his sister. The plaintiff stated that he had acted as wali when his sister was married to the first defendant but since then, he was learn that there was, at that time, a nearer wali that is paternal grandfather of them. The kadhi annulled the marriage.

Hashim v Fatimah [1997]; the Chief Kadhi held that the marriage which took place in Thailand was not valid. Both parties to the marriage and the wali of the woman were resident in Kedah but the marriage was held at Padang Besar, Thailand. As the distance between the residence of the wali and the place of marriage was less than two marhalah. He ordered that the woman should be separated from the man and should observe iddah.

Hussin v Saayah [1980]; the plaintiff applied for the marriage of his daughter to be annulled as it was held without the consent of the wali or his representative. The court held that the marriage was void as there was no proof to show that the consent of the wali was obtained before the marriage or that the wali was asked for his consent but refused to give it. 

Consent of Wali

Section 13 of the FT’s Act provides a marriage shall not be recognized and shall not be registered, unless both parties have consented thereto and either:-

  1. The wali of woman has consented in accordance with hukum syara’; or
  2. The syariah judge … after due inquiry … granted his consent thereto as wali raja: such consent may be given wherever there is no wali by nasab in accordance with hukum syara’ available.

Therefore there is a need of the consent of wali to validate the marriage.

In the case of Salmah v Soolong (1878); an Arab Shafie female having arriving at puberty wishes to marry a kling Mohemadan, her wali (uncle) refused to give consent to the marriage on the ground that she being an Arab could not marry any person than her own nationality. The girl went through the marriage with the man without the consent and the wali obtained an injunction restraining the consummation of the marriage. The girl asked for the dissolution of the injunction. The court refused to do so, the girl being a Shafie, according to which, a virgin could not contract a marriage at any age without the wali’s consent.

Hussein v Saayah [1980]; the plaintiff applied for the marriage of his daughter to be annulled as it was held without the consent of the wali or his representative. The court held that the marriage was void as there was no proof to show that the consent of the wali was obtain before the marriage or that the wali was asked for his consent but refused to give it.