P L D 1981 F S C 308 (PLP)

14. Two traditions are noted in Tirmize, Vol. 1, pp. 508 and 509 under the heading 'No Nikah without Wali'. One is the Hadis of Abu Muse that the Holy Prophet observed `there is no marriage without Wali'. It is stated by the Compiler that similar traditions are related from Hazrat Aisha and others. The other tradition is from Hazrat Aisha that the Holy Prophet said "Whoever among women marries without permission of Wali, her marriage is void; her marriage is void; her marriage is void. If the male cohabits with that female, he is bound to pay her dower because he was benefited from her private parts. In case of dispute regarding marriage, the King will be considered to be her Wali."

15. According to Tirmizi this Hadis is Hassan, Similar Traditions have been related by others including Shuaba & Sauri but according to Tirmizi the tradition from these are preferable than those related by the above named persons. A Hadis of similar type is also ascribed to Zohri but it is stated that some learned persons in Hadis Literature have doubted its authenticity because Ibn-e-Juraij said that he had met Zohri but the latter had refused to accept it. For this reason the learned called the Hadis as zaeef (weak).

16. From the quotation from Tabeen ul Haqaiq it is clear that traditions similar to those mentioned above are hot considered authentic by our Scholars. Several other citations may be given in support of this opinion.

17. In (aldariya) by Ibn Hajar Usqallani, Vol. 2, p. 60 it is stated that Zohri replied on an enquiry from Ibn Juraij. "I am afraid that it may be the misunderstanding of Salman." According to Ahmad, Zohri is stated to have said that he did not know about It. Similarly according to Tirmizi, Yahya bin Moeen had also called the traditions from Ismail to be weak. As far as the traditions from Hazrat Aisha are concerned, Ibn Hajar discusses the view of Ahmad and Ibne Moeen in rejecting that tradition on the ground that Hazrat Aisha had herself married Hafsa, daughter of Abdul Rehman her brother to Munzir Ibne Zubair, during the absence of the bride's father, Abdul Rehman. On his return he was angry but later was reconciled. This according to Ibne Hajar is stated by Malik as Sahih. Although Baihaqi thinks that in this Hadis the word (married) may mean to prepare for marriage not that she gave her actually in marriage. At page 61 Ibne Hajar reproduces the Hadis of Ibne Abbas that there is no marriage without the consent of the Wali and in the absence of any Wali the Sultan is the Wali of a woman. However after relating the sources of this Hadis he states (assaneedha wa hiyat).

18. In Al-Mabsoot by Sarakhsi Vol. III at p. 10 is given a pertinent example of the validity of the Nikah of an adult woman without the intervention of Wali. It is stated that it has been reported to us on the authority of Ali Ibne Abi Talib (God be pleased with him) that a woman married with her consent. Her Walis went to Hazrat Ali to dispute the correctness of the Nikah but he decided in favour of its validity and this is an argument that the marriage of a woman with her own consent and without the permission of the Wali or her marriage by a person solemnised on her order that be marry her, is valid. Imam Abu Hanifa has deduced from this that if a woman whether virgin or already married marries with her free will, her Nikah is valid irrespective of the fact whether the husband was of equal status or not. The marriage is correct except in case it is with a male of unequal status when the Walis have right of objection. According to a tradition related from Hassan (Allah be pleased with him) her marriage with a man of equal status is valid but with one of unequal status is invalid. Imam Abu Yusuf first said that such a wedding whether with a person of equal status or not is not Correct. He then changed his view and said that in case of marriage with a person of equal status, the Nikah is valid. He again reviewed this view and stated that the Nikah would be correct whether it be with a man of equal status or not. Attahawi has mentioned the opinion of Imam Abu Yusuf that when the marriage be with a man of unequal status the Qazi should order the Wali to approve it and if he refuses to approve be cannot dissolve it only the Qazi has a right to dissolve it.

19. Badruddin Aini in his Commentary on Sabih Bukhari named Umdatul Qari, Volume XXIX, pages 120 and 121 has stated that Imam Bukhari has not related the Traditions of Nikah without Wali on the ground that these are not according to his standard. But as he himself is of the opinion that Nikah must be with the consent of wali, he has related the verse (ann yankahan azwajahan) which as he argues, has forbidden she Walis not to prevent the woman from marrying. This verse was revealed in the case of Maaqil who prevented his sister from marrying. But Badruddin Aini says that this Hadith has been related from different sources in which case a different reason for revelation of this verse has been stated. According to some the order of prevention in this verse is to the Walis, but according to others this is to the husbands who have divorced them while other say that it is to all persons. It would not be correct to base any argument on this Hadis. It may also be possible that Maaqil might have persuaded his sister and might have done this on account of his piety but this cannot be made basis for generalisation. Abu Bakar Jassas after relating the Hadith of Maaqil Bin Yasir has stated that this Hadith is not authentic according to Ahl-e -Naqal due to the fact that there is an unknown person in the link of relators . . . . .

20. Further on page 129 Aini has explained the Hadith that the father of Khansa Bint-e-Khizam Ansaria married her and she was not willing and so came to the Prophet who declared the Nikah as void. Though in the words of Bukhari she was a widow, but according to Sori she was adult and unmarried. In many sources of this Hadith it is not mentioned whether she was a widow or unmarried. Moreover there are many other traditions like the Hadith of Jabir who said that a man married his unmarried daughter without her consent, and when she came to the Holy Prophet be declared the Nikah as void. Abdullah Ibn-e-Umar married the daughter of his maternal uncle who was given in marriage by her uncle without consent. She came to the Prophet and he declared the Nikah as void.

21. In Tuhfatul Abawazi by Abdul Raheem Al-Mumbarak Furi after discussing the different sources of Hadis of Hazrat Aisha in Tirmizi and referring to the questions and replies of Alzohri the writer gives his opinion that the Hadis is weak for this reason.

22. In Muzeelul Ghawashi an Urdu commentary of Usul Ul Shashi it is stated at pages 22 to 24 that the order of Allah Almighty, (hatta tankah gerah) in verse 230 of Chapter 2 which means "until after she has remarried" is directed towards women in respect of their rights to marry . . .It is evident from this that a married woman is entitled to wed herself and this order cannot be ignored on account of the tradition that the marriage of a woman without permission of Wali (guardian) is void . . . . . It is related from H. Aisha that in case a woman is married without the permission of wali, her marriage is void (and the void nature of the marriage is stressed by repetition of the word Baatil thrice). The view of Imam Malik and Imam Shafei is that want of permission by the Wali negates the Nikah but this tradition is not acceptable because H. Aisha . . . . has herself acted contrary to it and this would make it doubtful. After this Hadith was related by her she married the daughter of her brother Abdul Rehman when Abdul Rehman was in Syria. When he returned and came to know about the marriage he was displeased. This proves that this tradition is not worthy of being acted upon because the action of H. Aisha to the contrary proves that she must have come to know that this Hadith is either abrogated or weak. It cannot be said that she acted carelessly or in ignorance : . . ., . Same comment shall apply to other traditions related from H. Aisha that marriage without Wali is not valid and one who has no Wali, has the King as his Wali. Similarly, the tradition related from other to the same effect on which reliance is placed by Shafei are also not free from weakness. Apart from this . . . . . there is a Hadith Sahih from Imam Ibn Abbas which is related by Muslim that the Holy Prophet said which means that a woman who has, already once married is to be preferred in regard to her person over her Wali and permission (to marry) shall be obtained from an unmarried woman and her permission is when she keeps quite . . . . . This Hadith is preferable and this finds support from the verse of the Holy Qur'an already referred to above . . . . . The Hadith about the requirements of the Wali for Nikah is acted upon only in those cases where the marriage is not with the socially equal . . . (But) Imam Abu Hanifa and Imam Shafei have differed on this point too. Thus if any adult woman marries without permission of Wali, according to Imam Abu Hanifa her husband has a right to cohabit with her and he will be liable to pay her dower and maintenance. The husband can also divorce her and divorce given by him would be complete. According to Imam Shafei the husband cannot even cohabit since the Nikah is not valid in the absence of permission of the Wali nor will the husband be liable to dower or maintenance.

23. It appears that Imam Abu Hanifa did not rely upon these traditions when he opined that the marriage of a woman is subject to her personal consent. This is clear from page 233 of the same book "Tuhfatul Ahawazi".; "The Ulema have differed in making Nikah of a woman subject to the consent of the Wali. So most of them say that a woman will not marry herself and their arguments are based upon the above traditions. But, Abu Hanifa does not make the consent of Wali a pre-condition of a woman's marriage. He is of the opinion that it is permitted that she can marry herself without Wali. This opinion is based on the analogy of Nikah with sale in which she is competent (as an adult) and he (Imam Abu Ham a) confines the operation of these traditions on non adult girls and thus by using analogical reasoning he limits the general sense of the tradition."

24. This opinion of Imam Abu Hanifa is to be found in all other books too. See; "(1) Fathul Bari Sharh Sahih Bukbari by Ibn-e-Hajar Asdalani, Volume IX, page 182, printed by Darul Fikar, Beirut, (2) Nailul Autar by Shokani, Volume V, page 136, printed by Mustafa Albaby & Sons, Cario. (3) Fiqhussumah by Syed Sabiq Volume II, page 113, printed by Darul Fikar, Beirut. (4) Misqatul Mafatih Sharh Mishkatul Masabih by Mulla Ali Qari, Volume VI, page 204, printed by Maktaba Imdadiyya, Multan. (5) Subulussslam by Kahlani Al-amir, Volume III, p. 117, printed by Darul Fikar, Beirut. (6) Badayatul Mujtahid by Ibn-e-Rashad, Volume II, pages 6 and 7, printed by Maktabatul Ilmiyya, Lahore. (7) Al-Mughni by Ibn-e-Qudama, Volume VI, page 487, printed by Maktaba Jumburiyya, Cario. (8) Sharh Sahih, Muslim by Imam Naawi, Volume IX, page 203, printed by Darul Fikar, Beirut. (9) Ahkamul Qur'an by Abu Bakar Jassas, Volume 1, page 401, printed by Darul Fikar, Beirut. (10) Kitabul Fiqh Alal Mazahibil Arbaa (Urdu) by Allama Jaziri, Volume IV, page 97, printed by Auqaf Department, Punjab, Lahore. Also see Mst. Sughran Mai v. The State P L D 1980 Lah. 386."

25. It may be pointed out that the Hadith of Hazrat Aisha which is the main plank of the Shafies does not go to that extent since in case of cohabitation, the parties to cohabitation are not to be charged with Zina; on the other hand the male has to pay the dower of the female which is paid in case of valid marriage.

26. Now I may produce the passages from Hidaya and Mullas Muhammadan Laws. In Hidaya the principle of Hanafi Law is thus stated :-- "An adult female may engage in the contract without her guardian's consent . . . . . A woman who is an adult, and of sound mind, may be married by virtue of her own consent although the contract may not have been made or acceded to by her guardians."

27. In Mulla's Mohammadan Law 1980 Edition, p. 250 the difference of of view of the Shafei and Maliki School on the hand and of Hanafi School of thought on the other hand is pointed out in these words; "Shafe'i School.--The consent at marriage should be of the wife. The Wali only communicates the wish of the bride. Muhammad Ibrahim v. Ghulam Ahmad (1862) Bom. H. C. R. 236 dissented from. An adult virgin of the Shafei School can give herself in marriage through a Wali and the marriage is not valid because the father's consent was not obtained. The Wali's powers emanate from the authority of the woman. She may choose a remote relative as Wali in preference to a nearer one who is inimical to her interests. A marriage is not valid unless consented to by an adult girl. Shafei and Maliki Schools hold that the consent must be given through a Wali. Under Hanafi Law, the woman can give consent with or without a Wali."

28. This citation lays down the correct law since according to the view of Imam Abu Hanifa, the marriage of a woman is like the sale of her property. Just as after achieving adulthood she has a right to part with her own property without seeking the permission of any one else, so she has the right to give over her person in marriage also without the consent of any Wali. The principle of law relied upon by the learned Sessions Judge is not correct.

29. The learned Sessions Judge has also ignored the principle that assuming that the Nikah of a woman without Wali is invalid, despite this, if a man and woman marry in good faith and believe themselves so married, the benefit of doubt should go to them. It is established that in such a case they cannot be subjected to Hadd (vide section 5 of the Ordinance). There is no reason why the principle of benefit of doubt which is the prevailing principle of Criminal Law in Islam should not be extended in case of Tazir.

30. The result is that this appeal is allowed and the appellants are acquitted. They shall be released forthwith if not required in any other case. S. A. H. Appeal allowed.