Sep 3, 2018

Role of guardians in Muslim marriages By Mass L. Usuf



The Bible states: Children, obey your parents in everything, for this pleases the Lord.   (Bible: Colossians 3:20)
The Buddha said: The fourth of the five duties of the parents is to see that they (children) are married to suitable individuals. (Sigalovada Sutta: Digha Nikaya 31)
There is this misleading campaign in relation to guardianship (wali) in the Muslim Marriage and Divorce Act (MMDA) which betrays true intellectualism and honesty. In this analysis, an attempt will be made to explain the concept of guardianship.  Remember, this has nothing to do with women’s fundamental rights, women’s freedom, any deficiency of women, lack of intellectual capacity of women or men trying to control women. This exercise will transcend all these boundaries. Seeking the blessings of parents before and after marriage is an act of reverence practised by all communities in Sri Lanka, be it Sinhala, Tamil, Muslim, Christian, or others.
HAYA and HIRI
An understanding of the concept of guardianship (wilayah) will help to develop suitable solutions capable of retaining the essence of the concept, while keeping abreast with change. Guardianship is certainly not regressive. The purpose of guardianship in nikah is due to the social set-up in Islam. Free social intermingling and mixing are prohibited. The free movement of Muslim women in society are limited only to necessities. 

These behavioural ethics are followed because Islam teaches these values in order to build a healthy society. A majority of Muslim girls do not socialise excessively. In Islam, modesty, chastity and shyness (haya) are engrained in children from their formative stages. Even in today’s modernistic world Muslim women maintain that restraint and are conscious of their modesty and boundaries for social interaction.

Ven. Medagama Vajirañāṇa Nayaka Thera in his book, Parents and Children Transmitting the Buddhist Heritage across Generations refers to shame (hiri). “Hiri is the embarrassment we feel when we find ourselves not adhering to the good behavioural pattern that we expect of ourselves.” For these reasons, the chances for a woman to have all round first hand practical experience of men are remote, except for the mundane relationship they have in office, school, and similar places. It has to be borne in mind that all these values are not only applicable to women, they are also applicable to men.
Marriage is a solemn act that pertains to the whole lifetime; a wrong choice in the matter of marriage can have serious consequences. To receive guidance from her nearest agnate guardian can ease her situation. 
 Protecting the moral integrity and the material interest of the daughter becomes the guardian’s priority. Every father (wali) will make double sure that the security and safety of the daughter’s rights are not breached. Explaining parental responsibility to the family, the Thera writes, In the family the parent is committed to guarding, supporting and guiding the child, equally in pain and pleasure, in success and failure, remembering that authority is bound up with forgiveness. Meanwhile, also note that Islam clearly emphasises the fact that the will of the guardian should not be in conflict with the girl’s consent. The wali must take express consent and permission of the girl and guide her in making the correct decision. This is a religious responsibility of the wali, which falls into the category of trust (amanah).
Functional and not absolute

Any authority that men have over their female relatives is always linked with the responsibility to provide full maintenance (nafaqa). A single, divorced, or widowed woman who is in need has the right to support from her male relatives. Even married women whose husbands are unable to support them can demand support from male relatives. The Quran states: men are responsible for women (al-rijàlqawwamùnaalan-nisà). (4:34)
This authority, however, is functional, and never absolute. It can be taken away by an Islamic State, if a man abuses or neglects his position. Though we are living in a non-Islamic State, Section 47 (2) of the MMDA is a good example of how abuse of authority can be dealt with. In this Section, where the wali unreasonably withholds consent, the Quazi (Judge) has the power to overrule this decision and permit the marriage.
We have noticed in several instances tears in the eyes of parents, when the bride is ushered to the throne. Even the bride sheds tears sometimes. Are these the symbolisms of wilful control by man of the woman or the expression of deep love and concern? A momentary thought of their loving daughter going away from them and for the daughter the spontaneous feeling of sadness that she is leaving her loving parents.
The Buddha said:
 “one can never repay two people, namely mother and father. Even if one carries about one’s mother on one shoulder and one’s father on the other, and doing so would live a hundred years. Why so? The reason is that parents do much for their children; they give life to them, nourish and bring them up, and introduce them to the world.” (Aṅguttara Nikāya II 4.2)

Financial and emotional
There is then this potential financial and emotional burden for the father. It is clearly in the father’s interests to find a husband who is caring, loving and able to support the daughter. One instrument for protecting the daughter and her interests, under the Shafie school of thought was the requirement that a previously unmarried woman must have the consent of her male guardian for her marriage. This consent cannot be unreasonably withheld by the wali. The Hanafì school of thought did not opt for consent of the wali, but ensured the family’s interests and the daughter’s protection by the rule of equality (kafàa), where the family can block the marriage of a female virgin if her partner was not her ‘equal.’ Equality has a broad application among other things. It also includes profession, ethnicity, social status, and religiosity. What is wrong in ensuring your daughter’s welfare, interest, and security? Does this violate her fundamental rights?
The rule of equality of the Hanafi school of thought is also seen in The Buddha’s teachings, which emphasise the equality of four qualities to be present in the partners, namely, faith, virtue, generosity, and wisdom.
If both husband and wife, hope to be in one another’s sight so long as this life lasts, they should have the same faith, the same virtue, the same generosity, the same wisdom. (Aṅguttara Nikāya IV 55).
Moreover, Section 25(1)(a)(ii) of the Muslim Marriage and Divorce Act expressly provides as follows:
 “No contract of marriage of a woman belonging to the Shafie sect is valid unless a person entitled to act as her wali (guardian), communicates her (bride) consent to the contract.”
How can any right-minded person say that the Muslim woman is not protected under the MMDA? Is not making such an allegation misleading society and misrepresenting facts besides engaging in deceptive propaganda?

Reductionist approach
It is wrong to take a reductionist (trying to simplify a complex issue, especially to the point of distorting it) approach and give fancy explanations. The guardian is not a macho man wilfully exercising control over an innocent woman. If this is the case, why does the Muslim law then permit a previously married woman to contract her own marriage? Some others idiotically say that guardianship is like treating grown up women as children. They allege that it disregards the intellect of the woman and disrespects her maturity. If that was so, how is it that Muslim law allows women to handle their own wealth? Why does the Quran give the equal position to men and women in acts of piety?    
It is necessary to understand the institution of guardianship as the protection given by male relatives, because women are psychologically and physiologically more vulnerable to poverty, harm, and exploitation than men, not because of the misrepresented reasons we hear these days of underestimating the status, capabilities, and intelligence of women. A business can be closed down, if required. A marriage is not so. It is a lifelong commitment. It creates additional responsibilities with the birth of offspring. It constitutes the Islamic family unit. This unit forms the nucleus of the body of the Islamic (ummah) society. So, there is a whole lot at stake in a marriage. The reductionist approach tries to simplify and distort the whole concept of wilayah.

Here comes the bride
When the daughter walks down the aisle, she walks with honour, respect, and dignity as a bride, proudly accompanied by her loving father (the wali) and the mother, confident that her father has done everything that is good for her and her future. Is this symbolic of men trying to dominate women? Does this in any way connect with undermining her intelligence? Further, she receives accolades from the onlookers, for her obedience as a daughter to the parents. She will, in addition, be admired and held in esteem by her in-laws, as the apple of her father's eye. All of these humiliate the woman or glorify her?
On the other hand, if the woman goes out and performs her own marriage, she exhibits herself as being presumptuous, inconsiderate, which actions will stigmatise her character. Such conduct has no bearing on gender equality or women’s freedom or rights, but reflects an uncharitable, unkind, and selfish idiosyncrasy.
Did Fatimah (May Allah be pleased with her) the daughter of the Prophet say, I am capable of making my own decision, do not treat me like a child, I can find my partner? Or, was she given in marriage by the wali, who was her father, after obtaining her consent?  

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