Praise be to Allaah.
It is confirmed that
guardianship in the case of marriage belongs to the ‘asbah, who are
the male relatives on the father’s side, such as the father, grandfather,
son, brother, and paternal uncle.
With regard to the relatives
on the mother’s side, they are not among the ‘asbah and there is no proof
that they have the right of guardianship with regard to marriage.
We have previously discussed
the ‘asbah and their order of precedence with regard to guardianship in
marriage in the answer to question number
But there are some cases in
which it is valid for the maternal uncle to assume guardianship with regard
to the marriage contract. They are:
When he has been appointed as a
guardian by the father or the guardian who has the authority to do the
The scholars of the Standing
Committee for Issuing Fatwas said:
If a person has the authority
to do the marriage contract for a woman when one who is closer to her than
him has given it up to him, or the rightful guardian has instructed that he
should do the marriage contract for the woman under his guardianship, then
it is permissible for him to do the marriage contract and that marriage is
valid, because it is a right that was given to the one who was appointed and
acted in his stead. End quote.
Shaykh ‘Abd al-‘Azeez ibn
Baaz, Shaykh ‘Abd al-‘Azeez Aal al-Shaykh, Shaykh ‘Abd-Allah ibn Ghadyaan,
Shaykh Saalih al-Fawzaan, Shaykh Bakr Abu Zayd
If he is the wali (guardian)
when there are no male relatives on the father’s side.
This is the view of some of
the scholars, such as Imam Abu Haneefah (may Allah have mercy on him). But
the majority of the scholars are of the view that the Muslim qaadi should be
given precedence over him.
This has been discussed
recently in the answer to the question referred to above.
When the maternal uncle does
the marriage contract in the presence of the woman’s guardian and with his
approval of the marriage contract. The silence of the guardian in this case
is indicative of his approval, so the marriage contract is valid.
al-Fiqhiyyah (22/237, 238) it says:
There is no doubt that
negative silence is not indicative of approval or its absence. Hence the
fiqhi principle is based on the idea that no opinion can be attributed to
the one who remains silent, but silence in a context where there is a need
to speak is a statement. This applies if it is accompanied by circumstantial
evidence which may indicate his approval.
The fuqaha’ are unanimously
agreed that the silence of a virgin is indicative of her consent, because of
the saheeh hadeeth that was narrated concerning that, as the Prophet
(blessings and peace of Allah be upon him) said: “A virgin should not be
given in marriage until her permission has been sought.” They said: O
Messenger of Allah, what is her permission? He said: “If she is silent.”
According to another report: “The previously married woman has more right to
decide concerning herself than her guardian, and the father of the virgin
should ask her permission concerning herself, and her permission is her
silence.” End quote.
Where the marriage contract has
been completed and documented in an Islamic state that follows the opinion
that it is valid for the maternal uncle to do the marriage contract for his
sister’s daughter, or the view that it is permissible to do a marriage
contract without a guardian, because the verdict of the ruler in matters
that are subject to ijtihaad is valid and cannot be overruled.
This has been discussed in
the answer to question no. 98546,
where it says:
If the judiciary system in
your country follows the Hanafi madhhab and the regard the marriage without
a guardian as valid, then the marriage remains in effect and cannot be
annulled. But if the judiciary system in your country does not follow that
madhhab, then the marriage contract is invalid. Moreover, if you both still
want to be married to one another, a new marriage contract should be redone
in the presence of your guardian. End quote.
These are the cases in which
the maternal uncle may act as the guardian with regard to doing the marriage
contract and it will be valid.
And Allah knows best.