5-Endless Bliss Fifth Fascicle - Hakikat Kitabevi

cousin who does not have a walî closer than he, he can marry
her to himself without the girl’s permission if she is small, and
with her permission if she is old enough. A small girl’s nikâh can
be performed by her father and the wakîl of the prospective
husband in the presence of two witnesses.
A girl cannot be forced to marry her fiancé.
For performing the nikâh of a girl who has reached the age
of discretion and puberty, it is not a condition that her walî be
her wakîl at the same time, yet it is mustahab. For the nikâh of a
boy or girl who is not pubescent, it is necessary for his or her
walî to act as his or her wakîl or to give permission. The walî is
the (relative called) Asaba who has the authority to take the
property inherited by a child (on its behalf). According to the
Shaikhayn [1] ‘rahmatullâhi ta’âlâ alaihimâ’, the order of
closeness [precedence] in being the walî (for a person who is
insane or below the age of discretion and puberty) is as follows:
the son, the son’s son, the father, the grandfather, the brother,
the paternal uncle, the paternal uncle’s son. If an adult girl’s
walî performs nikâh for her without her permission, her silence
or weeping upon hearing about it is an indication of consent. So
is the case with asking for (her) permission before the nikâh. It
is sunnat to ask for the permission before the nikâh. A father or
grandfather who is a sâlih Muslim can force a small child to
(give consent to) the nikâh, and a nikâh performed in this
manner is sahîh. A nikâh performed by male walîs except these
two will be sahîh only with the mahr-i-mithl and if they marry the
girl to her kufw, and then the girl can have the judge annul the
nikâh when she becomes pubescent. In case there is no male
walî, first the mother, then the father’s mother, then the
daughter, and then the son’s daughter have precedence to act
as the walî. As long as a closer walî is alive, a walî who is next
in order of precedence cannot be a (small child’s) walî in nikâh.
If the closest walî does not perform a nikâh with mahr-i-mithl
and by marrying the girl to her kufw, then the Hâkim-i shar’
performs the nikâh. If a woman marries someone who is not her
kufw, her male walî can have the judge annul the nikâh. That
this nikâh is not sahîh anyway is written in Fatâwâ-i-khayriyya.
Being kufw means the man’s being suitable for the woman in
ancestral lineage, in wealth, in piety and in honour.
[1] Imâm-i-a’zam Abû Hanîfa and Imâm-i-Abû Yûsuf.
- 163 -