A big marriage issue that raised questions about the Wali (guardian)

The High Court has ordered the registration of a marriage solemnized abroad in accordance with Islamic Shari'a, with the Hakim acting as the Wali. In this case, the biological father of the bride refused to consent to the marriage without valid justification, and further claimed that he was not the girl's father. As a result, he allegedly refused to act as her Wali.

The High Court issued a significant ruling yesterday in a major family law case. The case, which reflects broader issues commonly seen in family courts, involves multiple legal and familial complexities.

The case began when a woman married abroad in Sri Lanka without the consent of her father, who is recognized as her legal guardian (Wali) under Islamic law. The marriage was submitted to the Family Court for registration, which then reviewed whether proper guardian consent had been obtained in line with the Family Act. The guardian claimed he had not been consulted and did not approve of the marriage. The court dismissed the registration request after the woman stated she no longer wished to proceed, but it did not rule on the validity of the marriage itself.

Meanwhile, the woman traveled to Sri Lanka and entered into another marriage, once again without her legal guardian's (Wali) consent. According to the court, the marriage was conducted with the judge acting as Wali. When the groom sent witnesses to seek the guardian’s approval, the guardian explicitly refused to grant consent.

When the woman attempted to register her second marriage abroad, the court registrar informed her that it could not be registered because her previous marriage had not been legally resolved. In response, she filed a lawsuit seeking a formal ruling on the status of the first marriage and a declaration of its dissolution, claiming that she had been verbally divorced from her first husband. Despite her repeated requests, the man did not submit the divorce for court registration. Ultimately, the Family Court ruled that the first marriage was null and void, as it had been conducted without the consent of her legal guardian (Wali), rendering it invalid under the applicable law.

After the court ruled the first marriage null and void, the woman reapplied to register her second marriage. However, the Family Court again held that the marriage was invalid due to the absence of the guardian’s (Wali’s) consent. By the time of the ruling, the couple had a child, but the issue of the child’s legal parentage (nasab) remains unresolved.

The woman's father continues to refuse to act as her Wali, claiming she is not his daughter, despite a court ruling that legally recognizes her as his child. This denial has caused significant psychological distress to both the woman and her mother.

Dissatisfied with the Family Court’s decision, the man appealed to the High Court, arguing that the Family Court erred in ruling that he had married without the guardian’s consent. He contended that although the guardian was displeased, the guardian’s main objection was his claim that the appellant was not his daughter.

The lawsuit asserts that the guardian (father) never granted his consent (Wali) for the marriage. Since the father’s consent was the only requirement missing, and there was no alternative way to obtain it, the marriage was conducted under the Wali of the judge. The judge, acting as Wali, officially solemnized the marriage in Sri Lanka after notifying the Maldives Embassy of the circumstances and completing the necessary documentation.

The High Court ruled that there was no judicial or legal basis to declare the marriage solemnized in Sri Lanka invalid. The Family Court was instructed to register the marriage upon submission, as the guardian’s objection to the registration was found to be clearly unfounded. This decision was made by a majority of the judges hearing the case. Presiding Judge Dheebanaz affirmed the validity of the marriage and ordered its registration accordingly. However, the other two judges held the view that since two individuals were involved in the marriage registration, the Family Court should register the marriage if either party applied.

Judge Dheebanaz's opinion states:

- Although the marriage certificate states that the marriage was conducted under the guardianship of the judge, the new Family Act and its regulations do not provide specific procedures for appointing a guardian in marriages conducted abroad.

- The woman’s father refused to grant guardianship to the judge, claiming the woman was not his daughter.

- The father’s refusal to grant the Wali stems from his continued denial of the woman’s paternity.

- Since marriage abroad is permitted and there is no established procedure for appointing a guardian in such cases, there is no legal basis to declare the marriage null and void solely on procedural grounds.

- The law clearly states that if a lineal guardian (such as the father) is alive but unjustifiably refuses to grant consent (Wali), the judge may act as Wali to enable the marriage.

Islamic Shari'a established this rule to prevent a woman from being indefinitely prevented from marrying when her legitimate guardian withholds consent without valid reason.

Judge Deebanaz emphasized that, in cases where the judge acts as Wali, the consent given by the judge should be regarded as valid consent. Consequently, the marriage in question was declared valid.

The Judge also strongly condemned the actions of the woman’s father, stating that his claim denying the woman’s paternity, despite clear proof under Sharia law, amounts to gazf (slander) against the child’s mother according to Islamic jurisprudence.

Judge Dheebanaz noted the social implications of such false claims, highlighting that in close-knit communities, misinformation spreads easily and causes deep social harm. Quoting an old saying, the Justice wrote, "The shame of this world is more painful than the guilt of the Hereafter," underscoring the severe social consequences of the father’s denial.

Judge Hussain Mazeed noted that marriage conducted under the guardianship (Wali) of a judge does not invalidate the marriage. He emphasized that neither the Family Act nor its regulations specify a legal procedure for obtaining judicial guardianship in marriages performed abroad by citizens. He affirmed that individuals authorized to solemnize marriages in accordance with Islamic Sharia through the legal or judicial systems of other countries validly perform such marriages under the guardianship of the Hakim.

Regarding the registration of marriages conducted abroad, he stressed that the guardian’s consent should only be scrutinized if there is a valid reason to question it. According to Section 17 of the Family Act, a valid marriage must be registered if no legitimate reason exists for the guardian’s refusal to consent.

Judge Fatimath Farheeza, another member of the bench, added that even when a judge acts as guardian in registering a marriage abroad, it is important to consider whether the guardian has legitimate authority over the bride’s lineage. She noted that under the Family Act of Maldives, marriage under the guardianship of the Hakim is not automatically permissible in every case.

Additional comments states:

- In cases where the judge acts as guardian (Wali) for the marriage, there may be situations where no effort was made to obtain the guardian’s consent, or the guardian might be unaware of the marriage altogether.

- The requirement to check for the guardian’s consent during marriage registration serves to minimize the possibility of a marriage occurring without the guardian’s knowledge.

- However, the language of the relevant law indicates that the mere absence of guardian consent does not automatically annul the marriage.

- If the guardian refuses to grant consent for registration without valid reason, the judge should exercise the authority of guardian and decide on the registration of the marriage accordingly.