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Old Sunday, May 13, 2012
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@ Special One

It's true that Marriage is a Civil contract in Islamic Shariah and Shariah requires mere offer and acceptance from both sides. It is for this reason that the jurists have not fixed particular words for the formation of particular contracts.

Whatever conveys the meaning of with clarity is considered sufficient for the formation of a contract. It doesn't matter whether words are explicit or implicit.

A marriage may be valid but against the moral values of our society and even you can say It'll be null and void because Islam is religion of human morality. Imam Shafi doesn't say that you cannot purpose a woman but he requires you should be serious in your obligations because marriage has a sacred place in Islam and we people should not humilate it every now and then.

Note that marriage is not a laughing matter and is very serious matter (a matter of two lives) so we cannot decide it even wandering about in the streets or parks. The mere words make the marriage happen and intention is not required. Also, as we have seen, there is no Khiyaar al-Majlis (a choice to back out until the sitting is concluded and the parties part ways) in marriage as there is in sales and other contracts. The Prophet (sas) said:

"Thalaathun jidduhunna jiddun wa hazluhunna jiddun: an-nikaahu wa at-talaaqu wa ar-ruj'atu."
"Three things which when serious are serious and when vain are serious: marriage, divorce and returning (to one's wife after a divorce)." Ahmad & others (sahih).


Allah wants that no one should transgress the limits

Islam doesn't say that you can't marry with your will and choice, there are some Arkaan and Sharoot of a moral and valid marriage, it requires you to go through prescribed manner means you should tell you WALLI and he'll organize the marriage with your will in a proper way. And in Shariah WALLI of a women (bride) is more required than a man regarding this issue i wanna quote

The presence of the guardian or representative (wali) of the woman.
The wali is a Muslim man charged with marrying the one under his charge to a man who will be good for her. There is no disagreement that the first wali is her natural father if he is Muslim and that the last in line is the ruler. Between those two, there is some disagreement about the order but agreement that they come from the girl's fathers relatives - no one from her mother's side enters into the picture. The order, according to many is: father, paternal grandfather, son, grandson, full brother, paternal half-brother, paternal uncle. The wali is an absolute requirement for a marriage, and any marriage done without him is null and void according to the following hadith:

"Laa nikaaha illa bi waliyyin wa as-sultaanu waliyyu man laa waliyya lahaa."
"No marriage except with a guardian and the ruler is the guardian of she who has no guardian." Abu Daud & others (sahih)

"Ayyumaa imra'atin nakahat bi ghairi idhni waliyyihaa fa nikaahuhaa baatilun fa nikaahuhaa baatilun fa nikaahuhaa baatilun."
"If any woman marries without the permission of her guardian, then her marriage is void, then her marriage is void, then her marriage is void." Abu Daud & others (sahih)

It is the job of the wali to marry her to the best possible husband. He must not be guided by his desires nor by her desires. If the person is acceptable in both his religion and his character and appropriate to her in some other way discussed by the scholars, then he must facilitate the marriage and not refuse it for his own desires or biases. If the conditions are not right, then he must refuse the marriage, even if both the woman under his charge and the man desire it. This is a grave trust and he must do his best to fulfill it properly and not bring harm to the woman and/or to society. Allah said:

{Yaa ayyuhaa alladhina aamanoo laa takhunoo Allaha wa ar-rasoola wa takhunoo amaanaatikum wa antum ta'lamoon.}
{O, you who believe, do not commit treachery against Allah and against the Prophet (sas) nor betray your trusts though you know.} Al-Anfaal:27

What about the case where the wali refuses someone on a non-Islamic basis? As was stated earlier, it is the job of the wali to act in the best interest of the woman according to the standards established by Islam. If a qualified person asks to marry the woman and he turns him down, then he is not doing his job. In such a case, the woman can complain to the judge or ruler and have her wali "fired" (removed). The scholars then differ as to who becomes her new wali, the next male relative in line or the ruler.

The wali must be the same religion as the woman. A non-Muslim father cannot be the wali for his Muslim daughter.



(Anyways.... I am going to post full fledge notes on such different queries after reading that Inshallah everything will be clear.)
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