Some important aspects of the issue are discussed here.3
1. 'No Nikah [marriage] without Wali's consent', a statement attributed to the Prophet (sws) and taken by the court to mean No Nikahis valid without the Wali'sconsent, is actually a statement of decree rather than of the Divine law. The meaning, therefore, would be somewhat as follows: No Nikahshall be allowed (or we shall not allow any Nikah)without the Wali'sconsent. 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.4 For that reason, the court may declare a Nikahwithout the Wali'sconsent as void.5 But this consent is not a condition the absence of which makes the contract void ab initio.6 Moreover, socially, the consent of the bridegroom's Waliis as essential as is that of the bride's.
2.The verse of the Qur'an (4:25) used by the learned judge for his decision relates specifically to slave-women.7 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'anfor the belief that a contract of marriage without Wali'sconsent makes the contract void ab inito.8
3.Linguistically, the term Nikahhas 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. 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 Nikah. 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 Nikah.
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) Free consent of the man and the woman entering into the contract of marriage.
iii) Wali'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 Wali'sconsent 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'anic punishment) for fornication and, in some cases, there is room even for exoneration.
4. In case a man and a woman have reasonable bases for marriage against the wishes of their families, they can take the matter to the court, which has the right to decide in favour of either the Wali/Awliya' (plural of Wali) or the man and the woman. This principle is a corollary of the social directives of Islam and is corroborated by the following H~adith[a reported statement or act of the Prophet (sws)]:
A Nikahdoes not solemnise unless it takes place through the Wali, and, if someone does not have Wali, the ruler of the Muslims is the Wali (Tirmidhi, Kitab-al-Nikah)
In his article on Parental Consent in Marriage, Shehzad Saleem writes:
This Hadi$this actually a corollary of the social directives of Islam pertaining to the institution of family and is based on great wisdom. Since the preservation and protection of the family set up is of paramount importance to Islam, it is but natural that each marriage take place through the consent of the parents who are the foremost guardians. It is obvious that a marriage solemnised through the consent of the parents shields and shelters the newly formed family. For reasons stated earlier, it is essential that the newly formed family be part of another larger family.
However, as is evident from the H~adi$th also, there can always be an exception to this general principle. If a man and a woman feel that the rejection on the part of the parents has no sound reasoning behind it or that the parents, owing to some reason, are not appreciating the grounds of this union, they have all the right to take this matter to the courts of justice. It is now up to the court to analyse and evaluate the whole affair. If it is satisfied with the stance of the man and woman, it can give a green signal to them. In this case, as is apparent from the H~adith, [from the words 'and if someone does not have a Wali, the ruler of the Muslims is the Wali]the state shall be considered the guardian of the couple.On the other hand, if the court is of the view that the stand of the parents is valid, it can stop the concerned parties from engaging in wedlock. Similarly, if a case is brought before the judicial forums in which the marriage has taken place without the consent of the parents, it is up to the court to decide the fate of such a union. If it is not satisfied with the grounds of this union, it can order for their separation and if it is satisfied, it can endorse the decision taken by the couple.
5. If the court finds that the consent of the man or the woman was obtained through undue influence or coercion, it may declare the Nikahas voidable at the option of the person whose consent was so obtained.
It is reported that a girl once came to 'A%'ishah (raa) and said 'My father has married me to his nephew to alleviate his poverty through me. I dislike him.' 'A%'ishah (raa) replied 'Wait here until the Prophet (sws) comes.' The Prophet (sws) arrived shortly and she informed him of the matter. At this, the Prophet (sws) sent for her father. When he arrived the Prophet (sws) gave the girl the choice to do whatever she liked. She said: 'I accept my father's decision. I only wanted to know whether a girl has authority in this regard or not'. (Nisaiy, Kitab-al-Nikah)
In Parental Consent in Marriage, Shehzad Saleem comments:
In differences of opinion it seems proper that the individual accommodate the opinion of the parents as far as possible, and only in extraordinary circumstances should he persist in his decision. An individual no doubt has total freedom in decision making in this regard but he should give top priority to the protection of the institution of family. This freedom is so absolute that Islam disapproves of parents who forcibly marry their sons and daughters and makes it clear that it is the concerned man and woman who have the final say in this regard....
If in a society envisaged by Islam it is important that an individual give due regard to the opinion of the parents in marriage, it is even more important that the parents be extra cautious in this matter since they hold moral authority over their children. Misuse and abuse of such authority can produce grave consequences. Parents must give deep consideration to the inclinations and tendencies of their children in deciding their future in an affair as delicate as marriage. They should understand that once their children become mentally mature they must not impose their ideas on them.