PERMITON OF WALI, SUE JURIS, THE LAW OF FULL AGE, LEGAL DEFINITION OF SUI JURIS, NOT MARRIAGE IN THE EYE OF LAW

 

PERMISSION OF WALI

SUI JURIS

Marriage without the permission of wali by a girl who is SUI JURIS is neither irregular nor invalid provided it is free from the taint of fraud and misrepresentation and there is no legal bar or disability to the union of the parties. In Hedaya the principle of Hanafi Law is stated as follows:

             "AN ADULT FEMALE MAY ENGAGE IN CONTRACT WITHOUT HER GUARDIAN'S 

             CONSENT. A WOMAN WHO IS AN ADULT AND OF SOUND MIND MAYBE         

             MARRIAGE BY VIRTUE OF HER OWN CONSENT ALTHOUGH THE CONTRACT 

            MAY NOT HAVE BEEN MADE OR ACCEDED TO BY HER GUARDIAN."

ACCORDING TO SHAFI SCHOOL

"The consent at marriage should be of the wife, the wali only communicate the wish of the bride.

The wali's power is emanant from the authority of the woman. She may choose a remote relative 

as Wali in preference to a nearer one who is inimical to her interest ."  

The Federal Shariat Court of Pakistan following the Hanafi Law has held that Nikah of adult girl 

is not invalid for want of permission from wali.

The Federal Shariat Court of Pakistan holding that consent of"wli" is not required and a sui juris 

Muslim females can enter into a valid marriage of their own free will.

A girl attaining puberty marrying with her own consent, marriage ought to be treated as valid.

The verdict given in the Arif Hussain case held binding on the High court and Courts subordinate to the High

Court.

LEGAL DEFINITION OF SUI JURI

Possessing full social and Civil rights, not under any legal disability, or power of another, or guardianship.

Having the capacity to manage one's affairs, not under legal disability to act for oneself    

NOT MARRIAGE IN THE EYE OF LAW

However, a marriage entered into by a girl while she has not attained puberty is no marriage at all 

in the eye of the law, and therefore void. 

The presence of an uncle who had acted as vakil is not sufficient. There should be a lawful guardian conscious of such a right, which of course be exercised in the welfare and interest of the  minor

A witness who claimed to be Vakeel (wali) a young boy of 25/26 years of age, neither related to female within the prohibited degree nor was her near relative nor resident of the same locality, has no lawful authority to give consent on behalf of the bride. Such a wali cannot perform Ijab-o-Qabool, consent of the woman being missing or secured through duress, such a marriage is not a valid marriage 

   FINDINGS OF THE FAMILY COURT ACT, 1964 TO BE CONCLUSIVE

 

Question of the validity of marriage to be raised before the family court constituted under West Pakistan 

Family Court Act, 1964 and findings of the court to be conclusive and binding upon the Supreme Court. 

THE RIGHT OF MARRIAGE IS PROTECTED BY THE CONSTITUTION

The right of marriage is a constitutionally protected right in terms of article 35 of the constitution 

and it is the right and desire of sui juris Muslim girl to marry a person of her choice and

no person, including the court, can dictate a sue Juris girl to disconnect her marital tie with her 

husband, just at the wishes or pleasure of her parents or to strike balance in the society.