A woman from the People of the Book desires to marry a Muslim.
As her father expects her to embrace Islam after getting married to that Muslim man, he not only refuses to act as her Waliy (a legally accountable person acting for a woman regarding marriage) but also refuses that the marriage should take place. As she has not yet embraced Islam, who can act as her Waliy in this case? Kindly tell us the most preferable view in this regard.
(Part No. 18; Page No. 162)
The father of a woman from the People of the Book should be her Waliy. If he is absent or is present but refuses to marry her to a Muslim person, her Waliy will be one of her next of kin. If there is none or there is but refuses to act as her Waliy, the Waliy will be a Muslim judge. If there is no Muslim judge, the head of the Islamic center will act as her Waliy. The basic rule concerning Wilayah (legal accountability to act for a woman seeking marriage) is that it has to be assigned to the father and then to the nearest of kin. If they are absent, or do not have the legal capacity to undertake this task for any reason, or refuse the marriage for any reason, then Wilayah is transferred to the Muslim ruler or to someone who acts on his behalf. Allah (Exalted be He) says:
The believers, men and women, are Auliyâ’ (helpers, supporters, friends, protectors) of one another
It was narrated that the Prophet (peace be upon him) wanted to marry
Um Habibah bint Abu Sufyan. Even though she was a Muslim, her father
Abu Sufyan had not embraced Islam at that time. The Prophet (peace be upon him) appointed as his Wakil (legally accountable person who acts on behalf of another for a specific permissible matter)
`Amr ibn Umayyah Al-Damry and her Muslim cousin
Khalid ibn Sa`id ibn Al-`As acted as her Waliy.
If the closest Waliy of a free woman refuses to marry her to someone whom she consents to marry, her next of kin may act as her Waliy. If she has no other agnates, the ruler will take on the role of the Waliy. This is based on the Hadith in which the Prophet (peace be upon him) said:
"The Sultan (ruler) is the Waliy of the one who has no Waliy."
(Part No. 18; Page No. 163) May Allah grant us success. May peace and blessings be upon our Prophet Muhammad, his family, and Companions.