There is a girl that I wish to make nikah with. She lives in a different country so I travelled to see her and I was happy and wish to make nikah with her. Her father has passed away and her brother is her Wali. I spoke to him who agreed to give her to me with a certain amount of mahr. Now, the problem is that he works very far away and is unable to be present, and her other brothers are also scattered in different countries.
Now my question is, if I am in the presence of the girl and two male shahid, and the brother wali over the phone speaks to us and tells us that he gives his sister in marriage to me, and I accept, then will this nikah be valid in shariah?
In the name of Allah, the most Beneficent, the most Merciful.
The person who has the power or choice of getting an immature boy or immature girl and mature girl is called a wali.
The wali is the “asabah” consists of the following:
(Raddul Muhtar P.190 V.4)
The general principle according to the Hanafi school of taught is that the marriage of a free sane and adult woman without the approval of her guardian (wali) like her father is valid if the person she is marrying is a legal and suitable match for her. If the person she is marrying is not a legal or suitable match there are differences of opinions with the mufta-bihi-qawl (upon which the fatwa has been given) is on the verdict of Imam Abu Yusuf and Imam Muhammad. They say due to the corrupt nature of society if a woman gets married without her guardian’s permission, the marriage will still be valid. (Raddul Muhtar p.157 v.4)
From the above we can deduce that the consent of the wali or legal guardian is not a pre-requisite for the validity of the marriage in the Hanafi Fiqh.
Therefore, the procedure of conducting the nikah which you have mentioned in the question would have no bearing whatsoever. The nikah will be correct irrespective of whether the wali is giving permission on the phone or not.
Very briefly I’ll take this opportunity to mention the ruling of Nikah over the phone. In Islam for the Nikah to be valid there must be an offer from one party and an acceptance from the other, in the presence of two male or one male and two female witnesses who know what is happening. The offer, acceptance and the presence of the witnesses must all take place in the same session and at the same place. If a man and woman conduct the marriage over the phone, this marriage will be deemed impermissible, because it is necessary that the offer (Ijab) and acceptance (Qabul) takes place in one sitting. This cannot be possible over the phone.
The same ruling will also apply through such telephones where one can see each other. (Fatawa Hindiyyah P.269 V.1)
Only Allah Knows Best
Mohammed Tosir Miah
Darul Ifta Birmingham