Marrying Without the Consent of the Wali (a Case Study of Pakistan) Compatibility of Pakistani Family Laws with UDHR

13 Pages Posted: 12 Nov 2017

Date Written: November 8, 2017

Abstract

Marriage and family institution occupies a very pivotal and important position in the legal system of Islam. The Holy Qur’an describes marriage as mithaqanghaliza. The phrase mithaqanghaliza implies that marriage is a sacred and sanctified contract, which is higher in status than ordinary civil contracts. Marriage in Islam is essentially a righteous act and is an act of devotion (‘ibadah’). Women, according to some, require a Wali (Guardian) who ensures their rights in a marriage. The question here is whether the woman needs permission from her wali to marry or whether she has the right to marry anyone whom she likes without permission from her wali. The Shafi’i, Maliki and Hanbali schools say that nikah entered into by a woman herself, without the permission of her wali, is invalid and void. However, the Hanafi ruling on the said matter is that a woman can enter into a marital contract by herself without the permission from her wali. The right to marry with free and full consent, by a woman, is clearly given by Islam and is also incorporated in the national laws of the country. Moreover, it is established under international human rights law in many conventions such as Universal Declaration of Human Rights, 1948. However, in many Muslim countries, it is crushed by the customary and traditional old practices practiced by many families. It also shows the lack of religious knowledge, ineffectiveness of the law and inappropriate policies and procedures adopted by the states.

Keywords: Marriage, consent of wali/guardian, Pakistani laws, Muslim scholars, shariah laws, human rights and relation with CEDAW

Suggested Citation

Khan, Asmat Ali, Marrying Without the Consent of the Wali (a Case Study of Pakistan) Compatibility of Pakistani Family Laws with UDHR (November 8, 2017). Available at SSRN: https://ssrn.com/abstract=3067457 or http://dx.doi.org/10.2139/ssrn.3067457

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