Fatwa's Insights - Kinship
The Legal Ruling On Marriage Contracts Conducted With An Erroneous Guardian
THE 56TH MEETING OF THE PERLIS STATE FATWA COMMITTEE / 2022
11 - 12 MAC 2022 / 8 - 9 SYA'BAN 1443H
THE LEGAL RULING ON MARRIAGE CONTRACTS CONDUCTED WITH AN ERRONEOUS GUARDIAN
The term "erroneous guardian" (wali khata') in the context of a marriage contract refers to a marriage contract conducted with a guardian other than the rightful guardian according to Islamic law. Pertaining to this matter, the Council has resolved the following matters:
1. The guardian constitutes a fundamental pillar in determining the validity or invalidity of a marriage. This is based upon the position held by the majority of Islamic scholars.
2. Should a marriage have been contracted with an erroneous guardian and it is ascertained that the rightful guardian consents thereto, such marriage shall be deemed valid.
3. Should a marriage have been contracted with an erroneous guardian and the rightful guardian withholds consent, the religious authorities may render a decision with reference to one of the following circumstances:
a) The marriage shall be maintained if consummation has occurred, in order to safeguard the welfare of the couple concerned.
b) The marriage shall be annulled if consummation has not occurred. The parties may be remarried with the rightful guardian should both parties (the man and the woman) consent. Should the rightful guardian refuse without reasonable justification, they may be married by appointing a judicial guardian.
c) Should the couple who married with an erroneous guardian be able to demonstrate that the refusal of the rightful guardian necessitated the selection of an alternative guardian, then the marriage contracted with such alternative guardian is valid.
Approval of the Members of the Perlis State Fatwa Committee:
1. S.S Prof Madya Dato' Arif Perkasa Dr Mohd Asri Bin Zainul Abidin – Mufti of the State of Perlis
2. Sahibul Fadhilah Ustaz Tajul Urus bin Abdul Halim – Deputy Mufti of Perlis
3. Sahibul Fadhilah Dato' Dr. Johari Bin Mat
4. Sahibul Fadhilah Profesor Dr. Basri bin Ibrahim
5. Sahibul Fadhilah Prof Madya Dr. Muhamad Rozaimi bin Ramle
6. Sahibul Fadhilah Dr. Hj Zaharuddin Bin Hj Abdul Rahman
7. Sahibul Fadhilah Prof. Madya Dr. Azman Bin Mohd Noor
8. Sahibul Fadhilah Prof Madya Dr. Mohd Akram Bin Dato' Dahaman @ Dahlan
9. Sahibul Fadhilah Prof Madya Dr Ahmad Wifaq Bin Mokhtar
10. Sahibul Fadhilah Ustaz Syed Abu Bakar Bin Syed Kamal Bharin
11. Sahibul Fadhilah Dr. Muhammad Lukman Bin Mat Sin
12. Ustaz Muhammad Khidhir Bin Abdul Ghani – Secretary
Endorsed at the Meeting of the Perlis Islamic Religious Council and Malay Customs (Majlis Agama Islam dan Adat Istiadat Melayu Perlis) Bil. 2/2022 on 24 March 2022.