Ruling on customary (‘urfi) marriage – and is it permissible for the wife to move to another wali at whim?

 

My country is fool of aglomerations of evils,this is worse on university campuses, for this reason students want to get married before graduation, the parents are the biggest problem.As for the male we hear that they do not need the permission of thier waliy, as for female we excape this by making a proposal, if the father gives an unislamic reason(e.g i don't want you to marry now,I don't like his tribe,I am not please with his jumping trouser or beard keeping or his religion when the brother is an upright sunni and the sister's waliy is not) then we abandon him for the grandfather or the brother.If they also refuse then we go ahead with the marraige with the amir of our society (MSS;muslims student society) Please is this correct, how is it done. Please explain everything about this act because it is the only way out, and already very common around us , if it is wrong what should those that have done it now do .(some of them now have kids).

Praise be to Allaah.

Firstly: 

It is not permissible for a Muslim woman to get married
without the permission of her wali (guardian), rather it is essential for
her to have a wali who will get her married, because the Prophet (peace
and blessings of Allaah be upon him) said: “There is no marriage without a
wali.” Narrated by Abu Dawood, 2085; classed as saheeh by Shaykh al-Albaani.
And he (peace and blessings of Allaah be upon him) said: “Any woman who
gets married without the permission of her wali, her marriage is invalid,
her marriage is invalid, her marriage is invalid.” Narrated and classed as
hasan by al-Tirmidhi, 1102; Abu Dawood, 2083; Ibn Maajah, 1879 – from the
hadeeth of ‘Aa’ishah. Classed as saheeh by al-Albaani in Irwa’ al-Ghaleel,
1840. 

Al-Tirmidhi said, commenting on that: 

This is the principle that was followed by the companions of
the Prophet (peace and blessings of Allaah be upon him), including
‘Umar ibn al-Khattaab, ‘Ali ibn Abi Taalib, ‘Abd-Allaah ibn ‘Abbaas, Abu
Hurayrah and others. Thus it was narrated that some of the fuqaha’ of the
Taabi’een such as Sa’eed ibn al-Musayyib, al-Hasan al-Basri, Shurayh,
Ibraaheem al-Nakha’i, ‘Umar ibn ‘Abd al-‘Azeez and others said: There is no
marriage except with a wali. This is also the view of Sufyaan al-Thawri,
‘Abd-Allaah ibn al-Mubaarak, Maalik, al-Shaafa’i, Ahmad and Ishaaq. End
quote. 

In the answer to question no.
2127 you will find an important
summary of the conditions and essentials of marriage, and the conditions to
be met by the wali. 

In the answer to question no.
7989 there are further
important details concerning the importance of having a wali in order for
the marriage to be valid. 

Secondly: 

Allaah has commanded walis to marry off the women who are
under their care, and not to mistreat them by preventing them from getting
married for no legitimate reason. Allaah says (interpretation of the
meaning): 

“And marry those among you who are single (i.e. a man who
has no wife and the woman who has no husband) and (also marry) the Saalihoon
(pious, fit and capable ones) of your (male) slaves and maid‑servants
(female slaves). If they be poor, Allaah will enrich them out of His Bounty.
And Allaah is All‑Sufficient for His creatures’ needs, All‑Knowing (about
the state of the people)”

[al-Noor 24:32] 

Similarly, the Prophet (peace and blessings of Allaah be
upon him) commanded walis not to prevent the marriage of the woman whom
Allaah has placed under their care if a suitor whose religious commitment
and character are good comes to propose marriage. He said: “If there comes
to you one with whose religious commitment and character you are pleased,
then marry (your daughter or female relative under your care) to him, for if
you do not do that there will be fitnah and widespread mischief in the
land.” Narrated and classed as hasan by al-Tirmidhi, 1084. Classed as hasan
by al-Albaani in Irwa’ al-Ghaleel, 1868). 

Both the verse and the hadeeth quoted point clearly to two
things: 

1 – The command to arrange the marriage is addressed to the
wali, which indicates that the matter has to do with him and the nikaah
cannot be done unless he is involved in giving his female relative or ward
in marriage to the one who has proposed marriage. The ahaadeeth that we have
quoted clearly indicate this and support it. 

2 – It is not permissible for a wali to mistreat his ward and
deny her her right to marriage; that is a kind of mistreatment that leads to
great fitnah that affects both religious commitment and worldly interests. 

If both the woman and her wali act in accordance with this,
the security of the family will be achieved and a great deal of evil will be
removed from matters of religion and morals. 

But if the wali refuses to give her her rights to marriage
with no legitimate reason, it is permissible for her to move to another,
more distantly-related, wali, such as her older brother, paternal uncle or
grandfather, so long as that is done on the orders of the shar’i qaadi, and
not by her or by her walis. If there is no wali from her family, it is
permissible for the qaadi or someone who is in a similar position to act as
her wali and arrange her marriage, because it is narrated that ‘Aa’ishah
(may Allaah be pleased with her) said: The Prophet (peace and blessings
of Allaah be upon him) said: “Any woman who gets married without the
permission of her wali, her marriage is invalid, her marriage is invalid,
her marriage is invalid, and if there is a dispute then the person in
authority is the wali of the one who has no wali.”  

Based on this, there is no sin on a woman whose wali denies
her her right to marriage if she refers the matter to the Muslim qaadi and
appoints her grandfather, paternal uncle or older brother as her wali. 

Shaykh Saalih al-Fawzaan was asked about a similar issue and
he replied: 

It is not permissible for a woman to arrange her own
marriage. If she arranges her own marriage, then her marriage is invalid
according to the majority of scholars, both ancient and contemporary. That
is because Allaah, may He be exalted and glorified, addresses walis with
regard to the issue of marriage and He says (interpretation of the
meaning): 

“and (also marry) the Saalihoon (pious, fit and capable
ones) of your (male) slaves”

[al-Noor 24:32] 

And the Prophet (peace and blessings of Allaah be upon
him) said: “If there comes to you one with whose religious commitment and
character you are pleased, then marry (your daughter or female relative
under your care) to him…” And he (peace and blessings of Allaah be upon
him) said: “There is no marriage without a wali and two witnesses of good
character.” 

With regard to what the questioner mentions about having read
in some books of fiqh that a woman may arrange her own marriage, this is the
weaker view, and the correct view is that which is supported by evidence
that indicates the opposite.  

With regard to what she says about her situation and that her
opinion goes against her father’s, because her father wants her to marry a
man who is of good lineage and status and is compatible with her, whereas
she does not think that is important, and rather she is inclined towards
marrying a man who she thinks is religiously committed, even if he is not of
good lineage and status or compatible with her, her father is in the right
in this case, and her father is more far-sighted. She may imagine that this
person is good for her when in fact he is not good for her, and she has no
right to go against her father’s wishes so long as he is looking out for her
best interests. If it happens that another person is good for her and is
compatible with her in status, lineage and religious commitment, but her
father refuses to give her to him in marriage, then in that case he is being
unjust in preventing the marriage, and the role of wali then passes to the
next closest guardian among her relatives. But in this case it is essential
to refer the matter to the qaadi so that the guardianship may be passed from
the unjust father to another wali. Neither she nor any of her other walis
has the right to conduct her marriage without the approval of her father. It
is essential to refer the matter to a Muslim qaadi who will examine the
matter and assess the situation. If he thinks that the guardianship should
pass to someone else, he will transfer it, according to what is best. It is
essential for things to be done properly with regard to marriage. End quote. 

Al-Muntaqa min Fataawa al-Shaykh al-Fawzaan,
5/242, 243 

Thirdly: 

Whoever gets married in a manner that is not Islamically
acceptable, such as a woman who gets married without a wali, her marriage is
invalid and the couple must be separated immediately. The children are to be
attributed to the man who married the woman, if they thought that what they
did was permissible, but if they knew that their marriage was invalid, then
the children must be attributed only to their mother. 

This invalid marriage leads to many negative consequences,
such as: loss of the woman’s rights, because there is no proof of this
marriage, so her entitlement to the mahr is not proven, nor is she entitled
to maintenance. It also leads to the spread of immorality and corruption in
society, especially among students, since it is possible, by means of these
false contracts, for every pregnant woman or every man and woman who are
found in a dubious situation, to claim that they are married by means of
customary marriage. It also means that it is not possible to prove the
children’s lineage in such a marriage, which means that they and their
lineage will be lost.  

The way to set this matter straight is to go to the wali and
tell him frankly what has happened, then to do the marriage contract again,
with his agreement. If he does not agree, then they should be separated. 

And Allaah knows best.