|Would that the
honourable court held by Justice Abdul Hafeez Cheema on 25 September 1996 giving
the verdict on a girl’s marriage without her Waliy’s
consent had given weight to these points:
1. ‘No Nikāh
[marriage] without Waliy’s consent’, a statement attributed to the Prophet (sws)
and taken by the court to mean No Nikāh is valid without the Waliy’s consent, is
actually a statement of decree rather than of the Divine law. The meaning,
therefore, would be somewhat as follows: No Nikāh shall be allowed (or we shall
not allow any Nikāh) without the Waliy’s consent. The reason for the decree?
Family values. Marriage of a man and a woman is a marriage between two families.
The consent and the good wishes of the families involved are highly important.
Disparaging this reality would amount to undermining the foundation on which the
edifice of an Islamic society rests.
For that reason, the court may declare a Nikāh without the Waliy’s consent as
void. But this consent is not a
condition the absence of which makes the contract void ab initio.
Moreover, socially, the consent of the bridegroom’s Waliy is as essential as is
that of the bride’s.
2. The verse
of the Qur’ān (4:25) used by the learned judge for his decision relates
specifically to slave-women. It is
obvious from the context of the verse that the verse allowed such Muslim men to
marry slave-women as could not afford to marry ‘free’ Muslim ladies, provided
they did that with the consent of the ahl (owners) of those slave-women.
Therefore, there are no grounds in the Qur’ān for the belief that a contract of
marriage without Waliy’s consent makes the contract void ab inito.
Linguistically, the term Nikāh has always been used in an Islamic society to
mean an openly declared contract of marriage between a man and a woman made with
their intention to live together as husband and wife for the rest of their
certain conditions for this contract which, if not fulfilled, make the contract
void ab inito, for example free consent and mental competence. And there are
some other conditions which, if unfulfilled, make the contract voidable.
conditions belonging to the first category, two important, Islamic conditions
declaration of the Nikāh. Marriage must be announced publicly (through any
reasonable means) so that there is no room for any surreptitious sexual
Intention to live together permanently as husband and wife. Pre-planned divorce
would make the contract prostitution rather than Nikāh.
conditions belonging to the second category, two important, Islamic conditions,
among others, are:
(to be paid by the man) in accordance with the conventions of the society and in
due consideration of the woman’s status and the ability of the man to pay. The
amount is a token of the man’s seriousness to take up the responsibility towards
It seems that
the underlying object of the honourable court’s verdict (on 25 September 1996)
was a check on extra-marital relationships, whereas the reasons for having
Waliy’s consent in marriage are a stronger and healthier relationship between
the families involved and greater security and privilege for the bride and the
bridegroom. It is the condition of open declaration which serves as a check on
clandestine relationships. However, even when this condition is not met, there
is room -- especially when the parties involved are ignorant of the correct
legal procedure and there is an absence of a general awareness of the correct
law -- for sentences much lighter than automatic imposition of hadd (Qur’ānic
punishment) for fornication and, in some cases, there is room even for
Would that the
Taliban, in their zeal for imposing Islam, were not unmindful of the following
of its principles:
implementation of Islam in consideration of prevailing circumstances is itself
Islam. For example, though many sins and vices as Ribā (interest) and wine were
prohibited even in the earlier Divine religions, God Almighty formally
prohibited them to the followers of the Prophet (sws) very gradually, after the
Prophet (sws) and his Companions (raa) were able to form and independent state
in Madīnah, so that no unnecessary burden would fall on those people who were
following Islam. The Prophet’s advice (sws) to a governor of his as reported in
a certain hadīth (narration) is also indicative of the desirability of gradual
implementation. God does not burden us beyond our capability (the Qur’ān 2:286)
and He has not given us such laws as unnecessarily make life difficult (the
Qur’ān 2:180). Only in certain cases does Islam require extreme measures. For
example, in Jihād Islam may require such things of a man as might pose a great
danger to his life, honour and property.
circumstances, one should not make things unnecessarily difficult for oneself
and for others. Those who do that often end up wrestling with religion. And, as
the Prophet (sws) is reported to have said, he who wrestles with religion is
often defeated by it.
government must have the vote of the majority of the Muslims in a geographically
independent area to be legitimate Islamically. This principles is based on the
Qur’ānic words amruhum shūrā baynahum (their affairs [are to be managed] by
consultation among them). Therefore, if Taliban fail to gather support for their
policies, there is a good chance that they will ultimately lose government or
continue to rule as an un-Islamic force.
without the authority of the state is not Jihād.
It is fasād (disorder or anarchy). Therefore, until Taliban form an independent
state in the areas they control by getting the vote of the Muslim majority
there, they do not have the right to wage Jihād against other rulers. And even
after they form a legitimate government, many other conditions will need to be
fulfilled before their battles with other Muslim rulers might be termed as Jihād.
4. Taqlīd, or
following the verdicts of earlier scholars without questioning them, is a
convenient way of ensuring that the very serious task of religious
interpretation does not fall into the hands of irresponsible novices. But when
truth does manifest itself -- perhaps as a result of research by a scholar in
the present times -- against the verdicts of earlier scholars, it is downright
Shirk (association with God) to deny it out of veneration for earlier scholars.
could delve into some of the research work done in modern times on Islam -- and
delve with sincerity and sagacity --, they might find an Islam, emanating from
the Qur’ān and the Sunnah, quite different from the one they have in mind. To
illustrate this point, we have included in this issue some articles already
published in Renaissance, which show that Taliban’s interpretation of religion
may be quite wrong in relation to many important aspects of religion as role and
duties of women, religious punishments, apostasy and Jihād.
call are our reader’s attention to articles in the Special Section included in
Taliban too could read these articles and could at least consider the
possibility of their being correct.
Would that the
head of the state were our Imām in the mosque as well, and his (that is
government’s) representatives the Imāms where he was not available (see The
Islamic Manifesto in this magazine). In that way, the ruler would be the mawlviy
and the mawlviy would be out of politics. In that way, the mawlviy would be
confined to his real job: learning and teaching religion. And, in that way,
there would be an effective check on sectarianism, which will remain in our
country even if religious schools are shut down.
Would that we
the Muslim were on the top of the world. Would that the true Islam and its
superiority were clear to everyone. Would that....
O Si Sic Omina!
O tempora! O