The muslim marriage ceremony is referred to as Nikkah. In Islam, marriage is considered both a social agreement and a legal contract. In modern times, the marriage contract is signed in the presence of an Islamic judge, imam, or trusted community elder who is familiar with Islamic Law. In terms of formal requirements, the Nikkah is effected quite simply by the two elements offer and acceptance. The offer and acceptance have to be of immediate effect but the parties do not need to be in each others presence. The element of offer and acceptance makes it clear that the consent of the bride is required because she is the other party in the contract who will fulfil the requirement of acceptance.
There have been difference of opinions from different schools on this matter. The Shia and Hanafi school says that an adult women who has attained the age of majority will have the right to contract without the consent of the guardian, BUT the guardian can challenge the Nikkah on the basis of Kaafa (Doctrine of equality) and non payment of Dower. The later challenge can be resolved if the husband pays off the dower and the first one can be resolved or cured if the couple starts living together.
Other three Sunni school says the an adult women can never conduct her own marriage contract. Consent of a guardian is equally important. Here is where the law gets tricky because these schools are the main cause of this debate of consent. The famous judgement of Abdul Waheed v Asma Jehangir played a very important role. In this case Justice Ihsan ul Haq dissenting, clearly was of the view that the consent of a guardian is essential for a nikkah to be valid but the accompanying judges, Justice Muhammad Qayyum and Justice Khalil-ur-Rehman Ramday giving the opinion of the court, that the marriage in question contracted without the consent of the wali is not invalid. This case law is based on the Hanafi school of Islamic law, which had never required the wali’s consent to bring about a valid marriage. Even though the Supreme court had difficulties in deciding this case, but in the end held by majority of two that Mrs Saima Waheed had been validly married. Only her consent is necessary.
In Saima Waheed’s case Justice Ihsan ul Haq said that if it’s a contract then there should be consideration, the consideration should be Dower that will be payed to the wali. This makes the consent of the wali important and makes him a part of the contract according to Justice Ihsan ul Haq. This view is extremely traditional because this practice was followed in the past known as Ba’al; the man would ask for the hand from the guardian in exchange of a bride price and the girl would be married. The marriage once affected will then subsequemtly make the husband, the Guardian of the wife. This practice is not followed now and even the law is written and codified on this matter. The MFLO 1961 itself does not require the wali’s consent to bring about a valid marriage.
Though the Islamic Laws recognise the consent of a woman as an indispensable element of a valid marriage; they recommend the consent of her guardian be also taken. Muslim jurists are, no doubt divided in their opinions, as to whether the consent of the bride’s guardian is essential but they all agree in holding that ‘a woman can under no circumstances be married without her own express consent.’ According to the Hanfi Islamic School of Law, the capacity of a woman who is adult and of sound mind, to contract herself in marriage is absolute. The same school explicitly lays down that ‘a woman who is an adult and of sound mind may be married by virtue of her own consent, although the contract may not have been made or acceded to by her guardian and this is whether she be a virgin, or a ‘Thayyiba’. On the same principle, marriage of an adult woman under compulsion has been held to be invalid. It is related on good authority, that an adult woman who was married by her father to a man against her will, came and spoke about it to the Prophet who declared the marriage void. The Shafie and the Maleki School of law, on the other hand, maintain that a maiden cannot personally consent to marriage. According to them, the Wali’s [the guardian’s] consent, in the case of a maiden, is one of the essential factors of marriage. But as we have seen the Saima Waheed case and what the MFLO says the consent of the bride is necessary. Nikkah being a civil contract established between the husband and the wife, they are the contracting parties and only their consent is needed in the eyes of Islamic law.
A 2018 Federal Shariat Court judgment recognises the right of a woman who has matured to marry anyone she wishes to, even without the consent of her parents. 2018 FSC 1741