What is the ruling of the pre-married woman marrying without a waliy?
This has become popular in some countries. People of the Hanafi Madhab, and it is an (unecessary) extention of the topic along with it’s opposing of the proofs.
Many harms have resulted due to it, for the woman if something bad happens to her, it is easy for it to be said about her that this one married herself off, or with the judge as a middle man without giving importance to a suitable match and religious devoteness.
For verily the waliy has not been legislated except to regulate this matter, and men have guardianship and pay attention and look after, and the woman has many a time been described with not dealings with things properly, due to the occurring weakness she has.
From her weakness is that she can be manipulated, so for this (reason), this statement is a false statement, that a woman that is described as being right-minded can marry herself, and indeed the Prophet ﷺ said:
لا نكاح إلا بولي
“There is no marriage except with a waliy.”
An authentic hadith on the authority of the Prophet ﷺ, and he said:
فإن اشتجروا فالقاضي ولي من لا ولي له
“So if they dispute then the judge is the waliy of one who has no waliy.”
So he didn’t entrust her affair to herself at all, but if she doesn’t have a waliy then the judge assumes that position.
The judge is responsible before Allāh, and he pays attention to taking care and looking for a suitable match and what is of that nature, and he does the marriage contract.
So a woman marrying herself off whether she is a virgin or pre-married is false, insufficient. And the children (from that marriage) are awlād shubhah (children that were a result of a false marriage being conducted due to a doubt that the marriage was indeed a legal marriage), they inherit from their mother and father, and the marriage has no blessing in it, it was built upon corruption from the beginning, and this is due to a religious verdict in opposition to the evidence, so we ask Allāh for safety and well-being,
(لِيَحْمِلُوا أَوْزَارَهُمْ كَامِلَةً يَوْمَ الْقِيَامَةِ وَمِنْ أَوْزَارِ الَّذِينَ يُضِلُّونَهُم بِغَيْرِ عِلْمٍ أَلَا سَاءَ مَا يَزِرُونَ)
“That they may bear their burdens entirely on the day of resurrection and also of the burdens of those whom they lead astray without knowledge; now surely evil is what they bear.” [An-Nahl, 25]
Answered by: Shaykh, the Allamah, the Trustworthy Advisor, Abu Abdirrahman Yahya bin Ali Al-Hajuri – may Allah preserve him
Translated by: Abū ‘Abdillāh ‘Omar bin Yahya Al-‘Akawi