Maliki Fiqh QA

Islamic Questions & Answers according to the Maliki School

A Muslim wali for a non-Muslim Woman – Shaykh Abdullah Bin Hamid Ali

Question:

Can I please have some clarification on the issue of guardian in case the woman is from Ahl-Kitab (Christian or Jewish)? Does she still require a wali (marriage guardian), and if so, who performs the task? Also, is marrying women from Ahl-Kitab considered muhbah (neutrally permissible) or mahkruh (disliked)?

Answer:

If a Muslim man is marrying a Christian or Jewish woman, the woman is required to have a wali from her particular religious faith, and a Muslim cannot be the guardian of a non-Muslim woman, just as a non-Muslim man cannot be the guardian of a Muslim woman because of Allah’s saying,

“The believers, men and women, are guardians, one of the other.” (Tawba: 71)

And He said,

“And those who disbelieve are guardians, one of the other” (Anfal: 73)

Shaykh Khalil says in his Mukhtasar,

“And the unbeliever marries off [an unbelieving women] to a Muslim…” (Mukhtasar Khalil: Bab Al-Nikah).

Shaykh Salih Al-Abi says,

“The unbeliever marries off an unbelieving woman – over whom he possesses the guardianship of marriage – to a Muslim while combining the chief elements of the
marriage and its conditions as they are in Islam with the exception of the guardian not being Muslim…” (Jawahir Al-Iklil Sharh Mukhtasar Shaykh Khalil)

As for the ruling of marrying a Christian or Jewish woman, Shaykh Al-’Adawi says while commenting on Ibn Abi Zayd’s statement,

“And it is permissible to have intercourse with the free women of them (i.e. women of the People of the Book) through marriage…”

Al-’Adawi says,

“It is possible that he meant by the permissibility [of it] ‘that it is not prohibited.’ In that case, it would not negate the dislike [of such a marriage]. And the Most-Learned Khalil adopted it [as a vie] because it is the view of Malik. And the dislike is more emphasized in the lands dominated by non-Muslims. Malik disliked it merely because the husband does not have the right to prevent her from eating swine or from going to church. This might lead to raising the kids on her way of life (din). Likewise, she might die while she is pregnant, and then buried in the cemetery of the pagans while the child in her belly is given the ruling of being a Muslim…” (Hashiyat Al-’Adawi ‘ala Al-Risala)

Amongst the Sahaba who married women from the People of the Book are Hudhayfa b. Yaman, Talha b. ‘Ubayd Allah, Al-Jarud ibn Al-Mu’alla, Udhayna Al-’Abdi, ‘Uthman b. ‘Affan, Jabir b. ‘Abd Allah, and others. But ‘Umar b. Al-Khattab and his son ‘Abd Allah considered it undesirable to marry non-Muslim women. It has been related that the reason that ‘Umar disliked it was so that Muslim men would not leave Muslim women husbandless. {Masalik Al-Dilala fi Sharh Masa’il Al-Risala of Shaykh Ahmad b. Muhammad b. Siddiq}

Was Salam

source : http://www.lamppostproductions.com/a-muslim-wali-for-a-non-muslim-woman-2/

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