The Pillars of Nikah, Conditions of Nikah, and Conditions of the Wali
There are three pillars of the marriage contract (Nikah) in Islam:
1: The presence of the husband and wife, neither of whom has any such impediment that would prevent the validity of the marriage, such as being a Mahram relative due to lineage or breastfeeding, likewise, the man being a disbeliever while the woman is a Muslim, and so on.
2: The acceptance of the proposal (Ijab), whereby the words of proposal are uttered by the woman’s Wali or his representative in such a manner that he says to the husband, “I have married you to such-and-such girl,” or uses similar words.
3: The acceptance (Qabul), whereby the words of acceptance are uttered by the husband or his representative, such as saying, “I accept,” or using similar words.
Conditions for the Validity of Nikah
1: The identification of the spouses, whether this identification is made by pointing them out, by name, or by describing their attributes.
2: The mutual consent of the husband and wife, because the Prophet ﷺ said:
“An adult woman should not be married without consulting her, and a virgin should not be married without her permission.” The Companions asked, “How will her permission be?” The Prophet ﷺ said, “That she remains silent.”
(1) 3: The marriage of the woman should be conducted by her Wali, because Allah Almighty addressed the Wali regarding the woman’s marriage and said:
“And marry off the unmarried among you, and the righteous among your male and female slaves.”
(2) And the Noble Prophet ﷺ also said:
“Any woman who marries without the permission of her Wali, her marriage is invalid.” The Prophet ﷺ repeated these words three times.
(1) 4: Witnesses for the marriage contract, because the Prophet ﷺ said:
“Marriage does not take place without a Wali and two witnesses.”
(2) Furthermore, the marriage should also be announced, because the Noble Prophet ﷺ said:
“Announce the marriage.”
(3) Conditions for Being a Wali:
1: Intelligence, meaning that he should be of sound mind; an insane or foolish person cannot be a Wali.
2: Puberty, meaning that he should be an adult and not a child.
3: Freedom, meaning that he should be free and not a slave.
4: The same religion, because a disbeliever cannot have guardianship over a Muslim, and likewise, a Muslim cannot be the Wali of a disbeliever, male or female.
A disbelieving man may have the authority of guardianship for the marriage of a disbelieving woman, even if their religions are different. Likewise, an apostate cannot have guardianship over a Muslim.
5: Uprightness, meaning that he should be just. This justice is contrary to sinfulness (Fisq). According to some scholars, it is a condition, while some scholars do not consider it a condition.
6: Masculinity, meaning that he should be a man, because the Noble Prophet ﷺ said:
“No woman should arrange the marriage of another woman, nor should she arrange her own marriage. Indeed, the woman who arranges her own marriage is an adulteress.”
(4) 7: Rushd: The ability through which one can understand the benefits of marriage and recognize a suitable match.
According to the jurists, maintaining this order is necessary. Therefore, if the wali is absent, or is disqualified, or does not fulfill the required conditions, it is not permissible to bypass the closer wali and appoint a more distant one as the wali.
The wali of a woman is her father, followed by the person whom he appoints by will, then her grandfather, great-grandfather, and upward, then her son, followed by her grandson and downward, then her full brother, followed by her paternal brother, then the sons of both of them, then her full paternal uncle, followed by her paternal uncle, then the sons of her uncles. Thereafter, the closest male relative by lineage who is an عصبہ will become her wali, as in the rules of inheritance. Then, if a woman has no wali, her wali will be the Muslim ruler or the qadi acting on his behalf.
According to the jurists, maintaining this order is necessary. Therefore, if the wali is absent, or is disqualified, or does not fulfill the required conditions, it is not permissible to bypass the closer wali and appoint a more distant one as the wali.
The wali of a woman is her father, followed by the person whom he appoints by will, then her grandfather, great-grandfather, and upward, then her son, followed by her grandson and downward, then her full brother, followed by her paternal brother, then the sons of both of them, then her full paternal uncle, followed by her paternal uncle, then the sons of her uncles. Thereafter, the closest male relative by lineage who is an عصبہ will become her wali, as in the rules of inheritance. Then, if a woman has no wali, her wali will be the Muslim ruler or the qadi acting on his behalf.
Shaykh Abdul Rahman bin Nasir Sa‘di was asked: Is justice a condition for guardianship in marriage?
Their answer was:
The condition of justice in the guardianship of marriage is an opinion that is rejected by the practice of the Salaf and the evidence.