Fatwa ID: 08296
Answered by Maulana Abdurrahman Mohammad
Question:
In Sep 2024 (approx) a boy and his family asked to marry my youngest daughter, Khadijah (not her real name). I refused because I was not happy with the quality of his deen, e.g. major sins like regularly missing Jumma, taking a loan on interest, and regularly missing salah in the masjid.
My daughter Khadijah still wishes to go ahead and marry the boy. I have explicitly told her no, she cannot marry him. We are a family who follow Hanafi fiqh. I am aware that in Hanafi fiqh the wali permission is not required and the marriage is valid without it. However, from an article on the daruliftaa.com website, I read that ‘kafaa’ has to be present. Please can I present the following points and please can you answer if ‘kafaa’ is present?
- Islamic schooling: My wife & I sent Khadijah (and all our other children) to an Islamic school for every year of her schooling. The boy’s parents sent him to a state-school, run and managed by kaafir teachers following a kaafir syllabus.
- Halal earnings: All the money earned in our house is 100% halal. The boy’s father earned haram for many years as a manager of a riba-based bank.
- Purdah: My wife & I have instilled the concept of purdah in Khadijah and all our children. They visit relatives but sit in a separate room to ghair mahrams. The boy’s family do not adhere to purdah.
- Salah: Since becoming baaligh, Khadijah has prayed all her salah on time except maybe the odd occasion of waking up late for fajr. She went to an Islamic school so even during the school day she prayed salah on time. The boy has regularly missed jumma according to his father, citing the reason that he has work. This is during his work life. During his school life he missed the time of many salahs, even though he was baaligh at the time.
- Free-mixing: Khadijah went to an al-girls Islamic school (Jameah Girls Academy) for every year of her schooling since being baaligh. She never interacted with any male students or any male teachers. The boy went to a mixed-gender school, college, then university and interacted with female students and female teachers regularly.
- Music & dancing: Khadijah went to an Islamic school and was not exposed to music and dancing. The boy went to a state-school and has been exposed to music and dancing as part of assemblies, lessons and school events.
- Bad-language: Khadijah went to an all-girls Islamic school and has very limited exposure to bad-language from a limited number of students. The boy went to a state-school where bad language is used by lots of students regularly.
- Exposure to awra: Khadijah went to an all-girls Islamic school and has not been exposed to part of the male awra. The boy went to a state-school, then college, then university and has been exposed to parts of the female awra many times.
- Private schooling: From a dunya point of view, the Islamic school that Khadijah went to (Al Aqsa then JGA) is considered to be a ‘private’ school. The boy went to a state-school. From a dunya point of view a ‘private school education’ is considered to be superior to a state-school education.
- Teacher role-models: Khadijah went to Jamea Girls Academy, where her teachers were qualified aalimas. The boy went to a state-school where most of his teachers were kaafir.
- Islamic learning: Khadijah attended JGA up to year 11. As such she studied basic nahw and sarf, Quran translation, Fiqh. The boy has not studied to this level, going to an after-school madrassa for Quran reading mainly.
- Adherence to sunnah: My wife & I have taught our children and Khadijah adherence to sunnah. We sit on the floor to eat, we wear Islamic clothes. Khadijah wears hijab & jalbiya. The boy does not cover his head and has a makhroo hair cut.
- Interest-based loan: My wife & I have taught Khadijah & all our children the importance of shariah. We did not take an interest-based mortgage to buy our house. Khadijah has not taken any loan on interest, ever. The boy’s family house was purchased with an interest-mortgage. The boy took an interest-based loan to pay for his university fees.
- Salah-location: When not at work, Khadijah prays her salah in the best location for a woman – her home. When the boy is not at work, he does not tend to pray his salah in the best location for a man, the masjid, but prays many at home. For example, he never prays fajr in the masjid (as at the time of coming to ask to marry Khadijah this was the situation).
- TV: Khadijah has been raised in a house without a TV, whereas the boy has been raised in a house with a TV.
In the name of Allah, the Most Gracious, the Most Merciful
Answer:
I have mentioned below some information regarding Kafā’ah (equality/compatibility). It is incorrect for a woman to marry herself off to someone who is not compatible (Kafā’ah). According to Imam Hasan bin Ziyād, whose opinion is chosen for this particular Mas’alah, if she were to marry herself off (without the permission of her Walī) to someone incompatible, the Nikāh would not happen. Imam Abu Hanifah and Imam Abu Yusuf say the Nikāh would happen but the Awliyā’ (guardians) have the right to object. Based on the information provided, it may be that the person is not compatible with your daughter in religiosity. It is important to understand that Nikāh was legislated to be easy and protect people from falling into sin. If preventing your daughter from marrying this person will cause problems, then it is better to agree to the marriage and make it easy for the couple. Otherwise, it would be better to find your daughter someone who is a better match for her in religiosity.
Fatāwā Hindiyyah:
(Chapter Five: On Equal Men) Equality is considered in men for women in order for marriage to be binding, as stated in Muhit al-Sarakhsi. However, it is not considered in women for men, as stated in al-Bada’i’. So if a woman marries a man better than her; The guardian has no right to differentiate between them, as the guardian is not disgraced by the fact that the man has someone under his care who is not equal to him. This is stated in the explanation of Al-Mabsut by Imam Al-Sarakhsi.
Compatibility is considered in several matters (including lineage) …
(And among them is the Islam of the fathers). A person who has converted to Islam and has no father in Islam is not compatible with someone who has one father in Islam. …
(And among them is financial compatibility), which is that he owns the dowry and maintenance, and this is what is considered in the apparent meaning of the narration, to the extent that someone who does not own both or does not own one of them, he is not a suitable match. This is stated in Al-Hidayah, whether the woman is wealthy or poor….
(And among them is religiosity). Compatibility is considered in religiosity. This is the opinion of Abu Hanīfah and Abu Yusuf – may God Almighty have mercy on them – and it is the correct opinion. This is stated in Al-Hidayah. So, the immoral person [Fāsiq] is not a suitable match for the righteous woman. …
Then, if a woman marries herself to someone who is not suitable for her, the marriage is valid, according to the apparent meaning of the narration from Abu Hanifa – may God Almighty have mercy on him – and it is the last statement of Abu Yusuf – may God Almighty have mercy on him – and the last statement of Muhammad – may God Almighty have mercy on him – also, so that before separation, the ruling of divorce, zihar, ila’, inheritance, and other things are established. However, Guardians have the right to object. Al-Hasan narrated on the authority of Abu Hanifa – may God Almighty have mercy on him – that the marriage contract is not valid. Many of our sheikhs – may God Almighty have mercy on them – took this view. This is the view of Al-Muhit and Al-Mukhtar. What’s chosen in our time is the narration of Al-Hasan. Sheikh Imam Shams Al-A’immah Al-Sarakhsi said: Al-Hasan’s narration is closer to precaution. Like this is in Fatawa Qadi Khan in the chapter on the conditions of marriage. …
If she marries herself to someone who is not suitable for her without the guardian’s consent, and the guardian collects her dowry and provides/prepares for her, then this is his consent and submission.
Only Allah knows best
Written by Maulana Abdurrahman Mohammad
Checked and approved by Mufti Mohammed Tosir Miah
Darul Ifta Birmingham
(الْبَابُ الْخَامِسُ فِي الْأَكْفَاءِ) الْكَفَاءَةُ مُعْتَبَرَةٌ فِي الرِّجَالِ لِلنِّسَاءِ لِلُزُومِ النِّكَاحِ، كَذَا فِي مُحِيطِ السَّرَخْسِيِّ وَلَا تُعْتَبَرُ فِي جَانِبِ النِّسَاءِ لِلرِّجَالِ، كَذَا فِي الْبَدَائِعِ. فَإِذَا تَزَوَّجَتْ الْمَرْأَةُ رَجُلًا خَيْرًا مِنْهَا؛ فَلَيْسَ لِلْوَلِيِّ أَنْ يُفَرِّقَ بَيْنَهُمَا فَإِنَّ الْوَلِيَّ لَا يَتَعَيَّرُ بِأَنْ يَكُونَ تَحْتَ الرَّجُلِ مَنْ لَا يُكَافِئُوهُ، كَذَا فِي شَرْحِ الْمَبْسُوطِ لِلْإِمَامِ السَّرَخْسِيِّ. الْكَفَاءَةُ تُعْتَبَرُ فِي أَشْيَاءَ (مِنْهَا النَّسَبُ)
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(وَمِنْهَا إسْلَامُ الْآبَاءِ) مَنْ أَسْلَمَ بِنَفْسِهِ وَلَيْسَ لَهُ أَبٌ فِي الْإِسْلَامِ لَا يَكُونُ كُفْئًا لِمَنْ لَهُ أَبٌ وَاحِدٌ فِي الْإِسْلَامِ،
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(وَمِنْهَا الْكَفَاءَةُ فِي الْمَالِ) وَهُوَ أَنْ يَكُونَ مَالِكًا لِلْمَهْرِ وَالنَّفَقَةِ وَهُوَ الْمُعْتَبَرُ فِي ظَاهِرِ الرِّوَايَةِ حَتَّى أَنَّ مَنْ لَا يَمْلِكُهُمَا أَوْ لَا يَمْلِكُ أَحَدَهُمَا لَا يَكُونُ كُفْئًا كَذَا فِي الْهِدَايَةِ مُوسِرَةً كَانَتْ الْمَرْأَةُ أَوْ مُعْسِرَةً هَكَذَا فِي التَّجْنِيسِ وَالْمَزِيدِ
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(وَمِنْهَا الدَّيَّانَةُ) تُعْتَبَرُ الْكَفَاءَةُ فِي الدَّيَّانَةِ وَهَذَا قَوْلُ أَبِي حَنِيفَةَ وَأَبِي يُوسُفَ – رَحِمَهُمَا اللَّهُ تَعَالَى – وَهُوَ الصَّحِيحُ، كَذَا فِي الْهِدَايَةِ فَلَا يَكُونُ الْفَاسِقُ كُفْئًا لِلصَّالِحَةِ، كَذَا فِي الْمَجْمَعِ سَوَاءٌ كَانَ مُعْلَنَ الْفِسْقِ أَوْ لَمْ يَكُنْ، كَذَا فِي الْمُحِيطِ وَذَكَرَ السَّرَخْسِيُّ أَنَّ الصَّحِيحَ مِنْ مَذْهَبِ أَبِي حَنِيفَةَ – رَحِمَهُ اللَّهُ تَعَالَى – أَنَّ الْكَفَاءَةَ مِنْ حَيْثُ الصَّلَاحِ غَيْرُ مُعْتَبَرَةٍ، كَذَا فِي السِّرَاجِ الْوَهَّاجِ رَجُلٌ زَوَّجَ ابْنَتَهُ الصَّغِيرَةَ مِنْ رَجُلٍ عَلَى ظَنِّ أَنَّهُ صَالِحٌ لَا يَشْرَبُ الْخَمْرَ فَوَجَدَهُ الْأَبُ شِرِّيبًا مُدْمِنًا وَكَبُرَتْ الِابْنَةُ فَقَالَتْ: لَا أَرْضَى بِالنِّكَاحِ إنْ لَمْ يَعْرِفْ أَبُوهَا بِشُرْبِ الْخَمْرِ وَغَلَبَةُ أَهْلِ بَيْتِهِ الصَّالِحُونَ فَالنِّكَاحُ بَاطِلٌ أَيْ يَبْطُلُ وَهَذِهِ الْمَسْأَلَةُ بِالِاتِّفَاقِ، كَذَا فِي الذَّخِيرَةِ وَإِنَّمَا الْخِلَافُ بَيْنَ أَبِي حَنِيفَةَ – رَحِمَهُ اللَّهُ تَعَالَى – وَصَاحِبَيْهِ فِيمَا إذَا زَوَّجَهَا مِنْ رَجُلٍ عَرَفَهُ غَيْرَ كُفْءٍ فَعِنْدَ أَبِي حَنِيفَةَ – رَحِمَهُ اللَّهُ تَعَالَى – يَجُوزُ؛ لِأَنَّ الْأَبَ كَامِلُ الشَّفَقَةِ وَافِرُ الرَّأْيِ فَالظَّاهِرُ أَنَّهُ تَأَمَّلَ غَايَةَ التَّأَمُّلِ وَوَجَدَ غَيْرَ الْكُفْءِ أَصْلَحَ مِنْ الْكُفْءِ، كَذَا فِي الْمُحِيطِ ثُمَّ الْكَفَاءَةُ تُعْتَبَرُ عِنْدَ ابْتِدَاءِ النِّكَاحِ وَلَا يُعْتَبَرُ اسْتِمْرَارُهَا بَعْدَ ذَلِكَ حَتَّى لَوْ تَزَوَّجَهَا وَهُوَ كُفْءٌ ثُمَّ صَارَ فَاجِرًا دَاعِرًا لَا يُفْسَخُ النِّكَاحُ، كَذَا فِي السِّرَاجِ الْوَهَّاجِ
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ثُمَّ الْمَرْأَةُ إذَا زَوَّجَتْ نَفْسَهَا مِنْ غَيْرِ كُفْءٍ صَحَّ النِّكَاحُ فِي ظَاهِرِ الرِّوَايَةِ عَنْ أَبِي حَنِيفَةَ – رَحِمَهُ اللَّهُ تَعَالَى – وَهُوَ قَوْلُ أَبِي يُوسُفَ – رَحِمَهُ اللَّهُ تَعَالَى – آخِرًا وَقَوْلُ مُحَمَّدٍ – رَحِمَهُ اللَّهُ تَعَالَى – آخِرًا أَيْضًا حَتَّى أَنَّ قَبْلَ التَّفْرِيقِ يَثْبُتُ فِيهِ حُكْمُ الطَّلَاقِ وَالظِّهَارِ وَالْإِيلَاءِ وَالتَّوَارُثِ وَغَيْرِ ذَلِكَ وَلَكِنْ لِلْأَوْلِيَاءِ حَقُّ الِاعْتِرَاضِ وَرَوَى الْحَسَنُ عَنْ أَبِي حَنِيفَةَ – رَحِمَهُ اللَّهُ تَعَالَى – أَنَّ النِّكَاحَ لَا يَنْعَقِدُ وَبِهِ أَخَذَ كَثِيرٌ مِنْ مَشَايِخِنَا رَحِمَهُمْ اللَّهُ تَعَالَى، كَذَا فِي الْمُحِيطِ وَالْمُخْتَارُ فِي زَمَانِنَا لِلْفَتْوَى رِوَايَةُ الْحَسَنِ وَقَالَ الشَّيْخُ الْإِمَامُ شَمْسُ الْأَئِمَّةِ السَّرَخْسِيُّ رِوَايَةُ الْحَسَنِ أَقْرَبُ إلَى الِاحْتِيَاطِ، كَذَا فِي فَتَاوَى قَاضِي خَانْ فِي فَصْلِ شَرَائِطِ النِّكَاحِ
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وَإِذَا زَوَّجَتْ نَفْسَهَا مِنْ غَيْرِ كُفْءٍ بِغَيْرِ رِضَا الْوَلِيِّ فَقَبَضَ الْوَلِيُّ مَهْرَهَا وَجَهَّزَهَا فَهَذَا مِنْهُ رِضًا وَتَسْلِيمٌ
(Al-Fatāwā Al-Hindiyyah, vol. 1, pg. 290-292, Al-Maṭba’ah Al-Kubrā Al-Amīriyyah)
