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Can I Prevent a Child from Seeing His Birth Parents?

Answered by Ustadh Salman Younas

Question: Asslamu Alaykum

I have legal guardianship of a baby who is two years of age. Both his parents are addicts and have lost custody of their child. At present, neither parent has joined a rehabilitation programme to stay clean. I am looking after the child on my own – I am a single female. I am being pressured by the child’s family to allow the child to see the parents. What is the Islamic perspective? Should I allow the parents to see their child with the hope that it will help them change? What are the rights of the child regarding this?

Answer: Assalamu alaykum

This is clearly a sensitive situation. On the one hand, birth-parents have a privileged position in Islam when it comes to the rights they possess over, and are owed by, their children. Yet, in this particular situation, there was clearly good reason to transfer guardianship of the child to a responsible adult who could provide the child the care and nurturing he or she requires.

Therefore, what we have is a conflict between the basic rights of the parents and the interests and well-being of the child. The state has already determined that the parents are in no position to care for the child, and the reason cited (drug addiction) makes clear that the interests of the child may be undermined if the parents are allowed to have a sustained relationship with him or her especially when they are not attempting to ameliorate their situation.

Given this, you need to strike a balance between the rights of your child’s birth-parents and his or her interests/well-being. One way to approach the matter is by thinking of it along a spectrum running between very limited or no contact to a regular relationship with frequent visitations. It may be best to start off from one end of the spectrum and then move your way across when you feel the time is right based on the parents improving their own situation and not being a negative/harmful impact on the child.

The basic rights of the parents in such a situation, for example, may initially be fulfilled by keeping them updated regarding child’s progress, sending them pictures, through letters, etc., otherwise known as indirect contact. When you feel it is appropriate, you may wish to allow them to speak to the child on the phone or through video chat. And then the situation might improve to an extent where some form of direct contact is possible, such as supervised visitations. It is important that even when one has reason to limit contact between child and parent, that the former grow-up knowing that the latter deserve some degree of respect and possess rights that children are meant to fulfill.

Of course, all of this would be subject to any local laws surrounding the issue of the rights of birth parents and the type of contact they are permitted to maintain in such situations. Therefore, you should take the above advice merely as general suggestions that you can take into consideration when consulting legal experts.

Wassalam,

[Ustadh] Salman Younas

Checked and Approved by Shaykh Faraz Rabbani

Ustadh Salman Younas graduated from Stony Brook University with a degree in Political Science and Religious Studies. After studying the Islamic sciences online and with local scholars in New York, Ustadh Salman moved to Amman. There he studies Islamic law, legal methodology, belief, hadith methodology, logic, Arabic, and tafsir.

Can I Marry Without My Parents’ Consent?

Answered by Ustadha Raidah Shah Idil

Question: I was engaged to a guy and my family later found out that that he has a past. My parents have refused to let him marry me, but I am already emotionally attached to him. I tried to convince them but it’s not working. Can I still marry him without my parents’ consent?

Answer: Assalamualaykum wa rahmatullahi wa barakatuh,

I pray this finds you well. Dear sister, this is a difficult situation to be in. I pray that Allah facilitates a way out for you.

Consent

The most favourable situation would be for you to marry this man with your family’s consent. In Islam, marriage is about two families coming together as well as a husband and wife. Women who marry without their family’s blessings are often in vulnerable situations because they lack family support. The first year of marriage is challenging for everyone, especially when they no longer have the bedrock of their family to lean on in times of hardship.

Although the exception to the rule is marriage without your parents’ consent, it would be a very, very difficult path to tread.

Solution

1) Pray Salatul Hajat and ask Allah for ease; Pray Salatul Istikhara and be open to taking the path which Allah opens up for you. This will be difficult because you are already emotionally attached to this man. The truth of the matter is that whatever Allah has written will come to pass, and this may or may not mean marriage to this man.

2) Consult with a trusted community elder, family member or family friend, and ask him/her to advocate for the man you wish to marry. Choose someone who is kind and fair, and who will help reason with your parents. It helps to pick someone whom your parents already trust and respect.

3) Take the time and effort to exhaust all means to win your family over. At the end of the day, they love you dearly and want what is best for you. Perhaps because of his past, they are reluctant and afraid to entrust you to him.

4) Remember to always treat your parents with respect and compassion, no matter how they treat you or the man you want to marry.

Consequence

If you do decide to marry him against your parents’ wishes, then be prepared to cope with the fallout. If they disown you, ban you from visiting etc, then be steadfast and continue to reach out to them with respect and kindness. Your responsibility is still to keep ties with them even if they do not wish to keep ties with you. In most cases, the passage of time will smooth things over. If not, then the arrival of grandchildren will, inshaAllah. If you do not have the support of your immediate family, then ensure you have support from close friends, extended family etc. Adjusting to marriage is challenging, even in the most ideal circumstances.

May Allah guide you to whatever is best in both worlds.

Wassalam,
Raidah

Please refer to the following links:

What to Do When My Parents Reject My Choice of Spouse Because of Cultural Reasons?
Are There Any Legal Leeways to Get Over the Refusal of a Guardian Regarding an Interracial Marriage?
Obeying Parents In Matters of Marriage

Checked & Approved by Shaykh Faraz Rabbani

Can You Give Me Clarification on the Question Regarding a Woman’s Stepbrother From Her Mother’s Side Being a Wali? (Shafi’i)

Answered by Shaykh Shuaib Ally

Question: Assalam alaykum,

Recently, I have read one of your answer: Is My Marriage Valid? (Shafi’i School)

However, I need some clarification.

Your answer is correct: a stepbrother was a sufficient and acceptable guardian (wali) for her for purposes of the marriage contract.

However the stepbrother is accepted if only the stepbrother is from the father of the female. In this question, the questioner said the stepbrother was born from the SAME MOTHER. Moreover, this stepbrother was born out of the wedlock with the muslim man which means the stepbrother was born by the mother and muslim man without marriage.

Therefore, the stepbrother cannot be wali for the marriage because:

1. He is not the valid wali for the female because he has the same mother but not the same father.
2. He is a child born out of wedlock.

Dear Ustadh, I am doubt with your answer based on my little knowledge and my country situation. It is possible that my knowledge is not applied with the questioner and the country where the questioner is living?

Answer: Wa alaikum assalam wa rahmatullah,

God reward you for seeking clarification.

You are correct in that a woman’s stepbrother (from her mother) would not be considered a valid wali by virtue of lineage, for one of the reasons you mentioned: he would need to have been born of the same father to be so (his being born out of wedlock is immaterial; he is still attributed to the mother, and is still legally the woman’s stepbrother).

In many scenarios in which some part of the marriage contract had not been conducted validly, oftentimes due to good faith errors, the school wouldn’t consider the marriage and everything that derived from it null. It would rather simply require that the contract be redone properly. In this scenario, had a valid wali been present, the school would have required that the contract be redone with that person acting as the wali.

When a woman does not have a valid wali, as is the case here, she would resort to using a Qadi or Hakim (that is, a person with Islamic legal authority) to serve as her wali. In the absence of such a legal authority, as is the case in the modern Western world, from which the question originated, a woman can appoint a man to serve as her wali. The marriage would then be valid.

Such a person could be her stepbrother from her mother. Thus, even though he is not a valid wali by virtue of lineage, he was a valid wali that was acceptable to both parties of marriage in the absence of an actual wali or a recognized legal authority. Because he could serve as such, and has done so, the marriage would be valid, and there wouldn’t appear to be any legal or practical purpose in redoing the contract.

It also isn’t relevant that the parties did not know what kind of wali he was; he suffices given the circumstances described above, as well as their acceptance of his role in the marriage. It is also more than likely that the Shafi’i scholar who originally conducted their marriage for them was aware of this.

In short, taking all of the foregoing into consideration, it appears that the stepbrother in her specific circumstance was a sufficient and acceptable guardian for her, and that the marriage is valid.

God knows best.

Shuaib Ally

Is My Marriage Valid? (Shafi’i School)

Answered by Ustadh Shuaib Ally

Question: Assalam’aleykum,

My wife and I have been married for many years and we currently have children together. Our marriage ceremony was carried out according to the Shafi’i madhab by a Alim (ra) now deceased. My wife’s father is Christian and her mother Muslim. Her elder half brother did act as wali when our nikah was conducted. He was born to my wife’s mother out of wedlock and from a Muslim man. Is our marriage valid? Are my offspring attributed to me?

Answer: Assalam ‘aleykum,

Your wife’s Muslim stepbrother was a sufficient and acceptable guardian (wali) for her for purposes of the marriage contract.
Your marriage contract is therefore valid in the Shafi’i school, as well as everything that followed it.

May Allah bless your marriage and keep you together in goodness.

Shuaib Ally

Are There Any Legal Leeways to Get Over the Refusal of a Guardian Regarding an Interracial Marriage?

Answered by Ustadh Tabraze Azam

Question: Assalamu ‘alaykum,

I would like to know what are the options available for a woman whose guardian prevents her to marry another respectable muslim based only on cultural and racial considerations?

Answer: Wa alaikum assalam wa rahmatullahi wa barakatuh,

I pray that you are in the best of health and faith, insha’Allah.

The basis is that a woman needs the permission and consent of her guardian (wali) before marrying, and doing anything otherwise would be wrong, and even sinful if it causes undue hurt to her parents.

The Messenger of Allah (Allah bless him and give him peace) said, “There is no marriage without the consent of the guardian.” [Tirmidhi & Abu Dawud]

However, in cases of serious difficulty in obtaining the permission of the guardian, there is legal basis for her to marry without his permission.

As Mufti Muhammad ibn Adam writes, “…this acceptability is merely a concession which may be resorted to in situations of need and a blessing for those women who fall victim to their parents’ mistreatment and abuse. In cases where parents force their daughter to marry against her wishes– based purely on caste, wealth, and other similar preferences– and give more importance to their personal gain over and above her interests, this ruling can be an important haven.” [Elucidation of Forty Hadiths on Marriage]

Though this is not a general ruling, and it is certainly not permission for “couples” to make their own mind up about whether or not they have a legitimate excuse.

Hence, I’d advise getting in touch with a local, righteous scholar who can directly assist in your situation. With that, pray the Prayer of Need (salat al-hajah). [see: How Does One Perform The Prayer Of Need (salat al-haja)?]

Please also see: Video: Finding a spouse, maintaining strong marriages and: Marriage in Islam: A Reader and: Supplicating So Parents Accept My Choice for Marriage

And consider taking: Islamic Marriage: Guidance for Successful Marriage and Married Life

And Allah alone gives success.

wassalam,

Tabraze Azam

Checked & Approved by Shaykh Faraz Rabbani