TL;DR The question is regarding the wali (Guardian) for a marriage contract.
I am proposing to a sister whose parents are divorced. She is living with her mother while still in touch with her father. Her family would like for her maternal uncle to be her wali because her father doesn’t pray and is not practicing. It is not confirmed if her father will attend or not, but the invite will be presented. Given the situation, can her maternal uncle be the wali?
Answer by Sheikh Abdurrahmann Murad:
Assalaamu Alaykum brothers and sisters,
I pray to Allah that you are all in the best of health and spirits. Ameen.
It is mentioned that the father is a Muslim, albeit not a practicing one and you have clarified that ‘not practicing’ is about him not praying and generally being lenient in his faith.
So, the actual question here is if this would prevent someone from being a wali?
If you go online, you will find multiple fatawa that state it is haram for a person who abandons prayers to be the wali and there are also others that state that he is allowed to as long as he has not abandoned the prayers on account of disbelief. So, the issue actually goes back to whether one who abandons prayers is considered a Muslim or not.
The scholars categorize one who abandons prayers into one of two:
a. Those who abandon prayer out of disbelief – seeing the prayers as not necessary.
b. Those who abandon the prayers out of laziness – they realize it is a part of the faith, but are not motivated to do it.
In relation to the first category, all scholars are in agreement that this person would have left the folds of Islam. Thus, this person cannot be a wali.
In relation to the second category, there is a difference of opinion. The majority opinion considers this person a Muslim but as one who has committed a major sin. The minority opinion, which is held by the Hanbali Madth’hab, states that the ruling here is similar to the first category.
Aside from this, the majority of scholars do indicate that لا يشترط العدالة في الولي – that it is not a requirement for the wali to be عدل.
So, back to the question – if the father is of the second category, one who doesn’t pray because he is not motivated or is simply lazy but he does concur that it is part of the faith, then in accordance to the majority opinion, he can be the wali. If for some reason, the family still doesn’t want him, the maternal uncle can be deputized/authorized by the wali to act on his behalf.
If in advance they call him and ask him to authorize the said uncle to act as a wali, then, in that case, this would be completely lawful. In the scenario that some dynamic shifts, if he refuses to deputize or he is actually from the first category (doesn’t believe in prayers) or if the family takes by the fatwa of the scholars who combine the two categories into one, then, in this case, a wali would be appointed for her.
As you may be aware, the wali are the following:
b. her paternal grandfather
c. her son
d. her grandson
e. her full brother
f. her half brother
g. The children of her full/half brother
h. Her paternal uncle
If, in theory, none of the above are available (none of the Asabah) – then in accordance with the view held by Imam Abu Hanifah, may Allah have mercy on him, the wilayah (guardianship of marriage) would be given to the khaal / maternal uncle. Although the majority of scholars state that if there are no Asabah, the one who would act as wali would be a Muslim judge or one who takes his place.
And Allah knows best.
Sheikh Abdurrahmann Murad