Marriage without a wali for the girl || Hanafi fiqh

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  1. mezeren
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    The Evidence of the Maliki, the Shafii, and the Hanbeli

    30.2 The Evidence of the Maliki, the Shafii, and the Hanbeli

    These three sects interpreted the verses and the hadiths as instructed by the Arabic tradition. In the Arab society, the man asked the father or the custodian of a young woman if he wished to marry her. The dowry was given to them and later the marital agreement was made[18]. The man was one side of the agreement, but the woman didn’t hold such a right. Her custodian overtook her part. They maintained that this action of theirs was supported by this verse:

    “(When you divorce women) they reach their prescribed time do not prevent the womem from marrying their husbands when they agree among themselves in a lawful manner (in compliance with the Maruf)[19]”



    They state that the word (__= prevention, obstacle) used in the phrase (__________=el-imtina’ min tezviciha) has such a meaning ‘avoiding to wed the women’. And according to their reasoning this points to the fact that the wedding of the woman as a responsibility has been given to her custodians[20]. If it hadn’t been for the preliminary part of the verse, they wouldn’t have been able to reach to such an explanation, because the verse itself is: “…do not prevent the women from marrying their husbands[21]”. Preventing is what a certain person can do for a certain issue. From a lexical perspective, the subject of the active verb ‘to marry’ is the woman, from can be easily understood that the woman is one of the sides in the marital agreement. On the other hand, the prevention of something is completely different from the avoidance of something. The translation of the prevention as avoidance is nothing less than changing the verse’s significance.



    At the same time they maintain that in the section (__________= en yenkihne ezvacchunne) ‘marrying their husbands’ the usage of the word ‘woman’ as an active subject of the sentence is because, although she is no side in the marital agreement, she is the subject matter of this agreement. Then, according to this logic, if the woman cannot be side in her marital agreement, she can’t even be representative or custodian in the marriage of any single person[22].



    The Glorified Allah made the woman an active person in her marriage, while the Arabic tradition made of her a mere subject matter in such an important decision for her life. As the tradition’ directives were essential in the Arabic tradition, Allah’s direct statement and command was considered as a metaphor; multiplying so the number of mistakes.

    Those, who considered the ‘active person’ a ‘subject matter’, considered the woman’s dowry as her price and founded a whole system – from the marital agreement to divorce-over this notion. None of these sects accepted the ‘iftida’- the woman’s right to divorce- and, in fact, instead of this right they developed another system that was named ‘muhalaa’. ‘Muhalaa’ is a system that requires the woman to pay her husband a certain amount of money or goods if he wants him to divorce her. Shirbini from the Shafi sect states:

    “The man, earns the right to profit from the woman in return to the money –dowry- he gives, so he can renounce from this obtained right only in return to some goods. This is why the ‘muhalaa’ is lawful. It is just like a buying and selling issue. The marriage is the purchase process, while the ‘muhalaa’ is the vending process.”[23]



    According to Ibn Teymiyye the evidence that ‘muhalaa’ is not ‘talak’ –divorce asked and undertaken by the husband is thus:

    “Muhalaa is the escaping of the woman from her husband. It resembles the slave’s evasion from slavery. It is not counted as one of the three divorces right given to the husband…Just like in the slavery issue, where all the four sects’ imams and leaders agree that the required amount can be paid by another person, in this case too, the process can be undertaken and accomplished by another. An unknown can pay the amount required by the slave owner and free the slave. For this reason, if a person’s goal is to free the woman from her husband’s domination, he must rely on this condition while making the payment…Because, the ‘muhalaa’ payment is done in order to save the woman from being a slave and to demolish the husband’s domination over her. Obviously, it is not done in order to give the woman the control over herself.”[24]



    This school didn’t give woman as much value as to a slave. The slave obtains control over himself when freed, while, according to them, the woman if saved from her husband’s domination, she enters her custodian’s rule. As the woman is not a good that can be sold and bought, considering her as the ‘subject matter’ of the marital agreement is not acceptable. The Glorified Allah commands: ____________________

    Within the Maruf range, those women’s rights over the men are alike their (the men) rights over them (the women).” (Baqara/ The Cow 2/228)

    The verse doesn’t regard the woman as the man’s slave, because there is no point in viewing the slave’s and the slave-owner’s rights as compatible.



    The Glorified Allah commands:

    “Give women their dowries as a non-recompensed gift (with all your heart).[25]”

    The word translated as ‘dowries’ is ‘sadakat’, the plural of ‘saduka’, which derives from the root ‘sidk’. The meaning of ‘sidk’ is being loyal and trustworthy[26]. Men state that they esteem the women they marry; the donation of a small part of their wealth is the proof of this appreciation. Another word mentioned in this verse is the word ‘nihle’ translated as ‘with all your heart’. The original meaning of ‘nihle’ is a non-recompensed gift[27]. So, according to all these facts the dowry is not the price of anything, at all.

    The biased analysis of the verses has led to an unavoidable excluding of some hadiths; thi hadith has not been regarded at all:

    Once a maid came to Aysha and told her: “My father wedded me to the son of his brother, so that he can improve his position. I don’t like this.” Aysha asked the young woman to wait till the Messenger of Allah was back. When the Messenger of Allah came, she explained him everything. He sent a man to get this woman’s father and, later, gave her the privilege to decide for this issue. It was then, when the young said:



    “Messenger of Allah! In fact, I had already given my consent for what my father did. I wanted to know if women had any right at all in this issue[28].”

    While the hadith three of these sects highly regard makes word of a woman as the active person of her marital agreement.

    “Whoever the woman, who marries without the permission of her custodian, her marriage is batil, her marriage is batil, and her marriage is batil.”

    So it is impossible to accept these views, too: According to the Maliki sect, the father can wed his virgin daughter, even by force if he wishes to. The husband can be blind, ugly or even able to pay only a quarter dinar of gold, when the daughter’s dowry value is a whole kantar of gold. This decision is untouchable even if the daughter is older than 60 years old and even if she had been previously prevented from marriage by her custodians. The facts that the man’s genitals are t cut and he is not impotent are sufficient for the woman to respect her father’s decision. According to the original view, the father cannot force her daughter in such a case. The woman is not forced to marry the man her father chose if this man is insane, alaca hastaligi, cuzamli, innin, eunuch, or impotent[29].



    Also according to the Shafi sect the right to wed the virgin daughter is hold by her father. Talking to the daughters and asking for their opinion is good but not indispensable. It’s beneficial to ask for the mother’s opinion as well.
  2. mezeren
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    The Evidences of the Zahiri Sect

    30.3 The Evidences of the Zahiri Sect

    This sect in the issue of the marriage agreement gave no importance to the verses of Allah, but was based only on the hadiths, what made impossible the righteous comprehension of the hadiths. The logic of their view is:

    “The revelations of the Messenger of Allah are divided in two; the first one is the revelation that is accepted as stated (Vahy-I metuvv)[30], its words’ combination is complex and almost ungraspable by people and it is the Koran. While the second type is the narrated and conveyed revelation; its words’ combination is less complex and easier to grasp, which is not accepted as stated (gayr-I metluvv)[31], but can be read and has reached us thorough the Messenger of Allah. He tells us what Allah requires from us, as the Glorified Allah commands:”…make clear to men what has been revealed to them.”[32]. So, the Glorified Allah has made mandatory to obey the first, the Quran and has made mandatory the obedience to the second, the Sunnah of the Prophet; there is no difference between the two[33].

    If the Sunnah would really explain all what Allah wants from us, there wouldn’t be any need for the Quran; this is the reason they don’t see any difference between the two. The Glorified Allah commanded the Prophet: “…clarify to men what has been revealed to them” not “…clarify to them what has been wanted from them.” This first error has led to a number of mistakes. Ibn Hazm states:

    “The Prophet’s statement: “The widowed woman holds more rights than her custodian in relation to herself.[34]” means that she cannot undertake any action without his permission. She marries whoever she wants, but she cannot sign the marital agreement without her custodian’s permission. If the custodian rejects, the woman is wedded by the person in charge, even if his pride is somehow affected.”[35]



    If the custodian doesn’t hold the right to repudiate the decision, then what is the point in having one? Is possible the existence of such meaningless and futile notions in the religion of Allah?

    He adds: “The marital agreement of the virgin daughter can be done only if the father and the daughter concur over the same person.[36]” In other words, if both the father and the daughter do not agree about the same person, there won’t be any marriage at all. If the compliance with the Maruf is not one of the fundamental conditions, these results are inevitable.

    If Ibn Hazm had considered the fact that the Sunnah and the Hadiths are practically applied results of the verses of the Quran, and if he had first considered the verses and secondly the Hadiths, would have recognized the significance of asking for the custodian’s opinion and surely would have based his system over this. As he hadn’t preferred such a method the verses related with this issue are not included in his view
  3. sister herb
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    Salam alaykum sister;

    are you now mean islam in common or only hanafi madhab? As I know many people in the North Africa countries are following maliki madhab.

    How malikis behave as marriage then? With this wali matter?

    If someone makes mistakes in islam without knowing he/she is mistaking, isn´t it the most important to remember that Allah is the most mercifull?
  4. mezeren
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    Analysis

    30.4 Analysis

    According to the verses and Hadiths mentioned above the marital agreement should be analyzed from a different perspective; the compliance with the Maruf. The examination of the marriage is done by the woman’s janitor. If confronted with any disagreement the person in charge is included in the process. If no problem is noticed in the marriage of the couple the express their desire to marry each other in front of the witnesses and signing the marital agreement a new family has been created.

    The different viewpoints of the sects have led to a considerable number of troubles.

    As the Hanefi sect accepts the marital agreement made in front of two witnesses without the examination of the custodian, in many places girls have been kidnapped or people have done secret marriages. In front of two witnesses the kidnapped girl has been forced to admit and the action has been demonstrated as righteous.

    The view of the Shafii, Maliki, and Hanbili sects has led to spreading out of the system of recompense for the bride’s family. As the marital agreement is unlawful without the custodian’s consent, then he should be convinced; the easiest method is that of paying him. The recompense shouldn’t be confused with the dowry; the dowry is a gift given to the woman, while the recompense is an amount paid to her custodian- father, brothers, or uncle- in order to get married to her.

    If we relied on both the verses and the hadiths, we would have avoided the kidnapping of women, the marriages that would take advantage of their sentimentality and would make them suffer, and the custodian’s recompense.






    --------------------------------------------------------------------------------


    [1] Mehir; the money or goods the man gives his wife as a nuptial gift.


    [2] Buhari, Marriage 36


    [3] Tirmidi, Nikah; İbn Mace, Nikah 15. Ahmed b. Hanbel, Musned, Book VI page 260.


    [4] Ebu Davud, Nikah 20, Tirmizi, Nikah 14, İbn Madje Nikah 15. Ahmed b. Hanbel, Musned, Book IV page 66.


    [5] Şemsuddin es-Serahsi, el-Mebsut, Book XVI, page 124. Babu men la tajuzu shahadetuhu; Kasim b. Abdullah Ali; Enisu-l Fukaha fi Tarifati2l Elfazi-l Mutedavile Beyne Fukaha. Ahmed b. Abdurrezak el- Kubeysi, Cidde, 1406/1986, page 148.


    [6] Ebu Davud Nikah 26; İbn Mace Nikah 12; Nesai, Nikah 35:


    [7] Nesai, Nikah 36. İbn Madje, Nikah 12. Ebu Davud Nikah 26; Ahmed b. Hanbel, Musned Book VI, page 136.


    [8] Muslim Nikah 66, 67, 68; Ebu Davud Nikah 26; İbn Madje Nikah 11; Nesai Nikah 33, 34.


    [9] İbn Madje Nikah 1872.


    [10] Serahsi, El-Mabsut, Book V pg. 13; Omer Nasuhi bilmen, Hukuki İslamiyye ve İstilahati Fikhiyye Kamusu, İst. 1967. Book II page 49. (Bilmen uses the term Veliyy-I Akrab. Of course that father is valiyy-I Akrab.


    [11] İbn Kudame, El-Muğni. Book VII page 5.


    [12] İbn Hazm, Ali b. Ahmed b. Said, Beirut 1988, el-Muhalla, Book IX, page 25-38.


    [13] Bakara, The Cow 2/234


    [14] Bakara, The Cow 2/232


    [15] Serahsi, el-Mebsut, Book V. Page 11-12.


    [16] The down in custodian is the down that a similary woman can take.


    [17] Serahsi, el-Mebsut. Book V Page 13.


    [18] Serahsi, el-Mebsut, Book V, Page 14.


    [19] Buhari, Nikah, 36.


    [20] Bakara, The Cow, 2/232


    [21] İbn Kudame, el-Muğni, Book VII page 338.


    [22] Bakara The Cow 2/232


    [23] İbn Kudame, el-Muğni, Book VII, pg. 338


    [24] Esh-Shirbini, Muhammed el Hatip, Mugni-l Mukhtar ila Marifeti maani Elfazi-l Minhar. Egypt 1958, Book III, pg. 262.


    [25](An-Nisa/The Women 4/4)


    [26] İsfahani, Mufredat S-D-K issue


    [27] Mufredat, N-H-L I,ssue


    [28] Nesai, Nikah 36. İbn Madje Nikah 12; Ebu Davud, Nikah 26; Ahmed b. Hanbel, Musned, Book VI, pg. 136


    [29] Ebu Davud, Nikah, 20; Tirmidi, Nikah, 14; İbn Madje Nikah 15; Ahmed b. Hanbel, Musned Book VI, pg. 66.


    [30] The statements told to us by the Prophet, with the same words he was told by Gabriel, is indisputably accepted and obeyed.


    [31] The statements told to us by the Prophet, where the words are not the same he pronounced, but whose meaning has been communicated to us. The statements are not indisputably accepted and obeyed.


    [32] Nahl, The Bee.16/44
  5. sister herb
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    Salam alaykum

    Idea that female relative of man might be wali seems to be common in the North African countries. Brother from there before asked me to marriage and when we talked about this wali matter, he told that his aunt told she would be as wali to me. Now you say it is impossible by islam? Here seems to be some kind of discrepancy how people behave in maliki madhab and you say how islam teach.
  6. Aapa
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    Assalaam alaikum,

    Let's get some things clear please.

    First, the different schools help us to live Islam. However, they have to yield to Quran and Sunna, correct? That is what the great scholars suggested. If they say anything wrong to discard it?

    Second, if a woman marries and she does not have knowledge of the fact that a wali is required and that a woman can not be the wali she is not at fault is she? So the question becomes how do you go about correcting the matter?
  7. sister herb
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    Salam alaykum

    In this matter; if woman didn´t know she might made mistake it of course is not her fault. Other thing is, born muslims in maliki madhab seems to think that woman can be wali.

    Can she be or not is matter need to ask from scholar, not only read copy&pasted articles from internet. As my opinion.
  8. islamerica
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    islamerica 1 Ummah under God

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    wa'alaikum as-salaam,

    I hope you are not using that as a logic to make your point. Just because people in Africa allow a female to be a wali doesn't mean it is ok and is part of Islam. They also religiously circumcise girls where as scholars have spoken out against it. There are lot of things people do in Muslim countries, and do it so much that it is part of the norm of those people and even among themselves they start to believe that what they do is part of Islam. Lets not confuse cultural practices with Islam.

    we already know the definition of wali is: Protector, Guardian, Supporter, Helper, Friend etc.

    A woman can never be a wali of another, she is the one that is need of a wali.

    The woman’s guardian is her father; then her paternal grandfathers, no matter how far the line of ascent reaches; then her son and his sons, no matter how far the line of descent reaches (this applies if she has a son); then her (full) brother through her father and mother; then her (half) brother through her father only; then their sons, no matter how far the line of descent reaches; then her paternal uncles; then their children, no matter how far the line of descent reaches; then the father’s paternal uncles; then the ruler. (al-Mughni 9/355).


    wa'alaikum assalaam,

    We do not question the expert opinions of doctors, lawyers and other professionals of their fields. So why are we so quick to do so with scholars, who have studied a lot longer and have spent a lot more time getting their qualifications. Any layman can't discard what scholars says. What we have to do is be aware of good authentic scholars so we can go to them for knowledge. If we study islam from reputable instiution and/or scholar ourselves and become students of knowledge then do we know enough to think if some scholar is wrong or not and to discard it. For others, you are not sure of which one to follow, then they tell you to look at the two scholars in what they are saying and whichever you think is most correct or makes most sense or makes stronger point in light of the Quran and sunnah then follow that one.

    Secondly, we are not held responsible for anything done out of ignorance. If we did not know then we did not know but if we became aware then it is our responsibility to correct the matter soon as possible. How do we correct the matter? this is where we go to the experts with knowledge, the inheritors of the Prophets, the knowledge bearers and ask them.
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  9. sister herb
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    Salam alaykum

    Is this wali matter possible similar like when people take from they culture some parts and think they are what islam is teaching? What do you think? Like honour killings. female circumcision? Both haven´t any basic in islam. But people believe they have. Yesterday I read new from Pakistan where parents burnt they daughter by acid because she talked with some boy. 70% of her skin burnt and she died. Islamic way to behave? As she talked with some boy?

    :shymuslima1:

    This is not islamic text but describe how so many people are thinking about Allah:

    For the love of God is broader
    Than the measure of our mind;
    And the heart of the Eternal
    Is most wonderfully kind.

    But we make His love too narrow
    By false limits of our own;
    And we magnify His strictness
    With a zeal He will not own.
  10. Aapa
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    Assalaam alaikum,

    Part of Islam is to constantly seek the correct in our faith. And the precedent in Islam is the Quran and Sunnah. It is never how certain groups of people interpret

    decisions. It must fall back to the Quran and Sunnah. That is the correct decision.

    To enlighten this discussion we do need hadith and ayat on the matter. That way we can not narrow his Love.

    And then the question once again becomes what if a person is given false information and marries. What next?
  11. mezeren
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    Q: I liked a man in Pakistan and we both agreed for marriage. I asked him to send his parents to mine with marriage proposal, but my father denied by saying that guy is not from our caste. Then after some time, i and that guy did nikah in court. We kept meeting each other. We had witnesses and Qazi (Qadi), but there was no Wali from my side. Is this nikah acceptable? My parents now know about our marriage and they are forcing me to separate saying that our nikah is not valid.


    A: The duty of wali in marriage is to inspect the marriage. This is the family of the girl. The approval of the family or asking them any questions during nikah are not necessary. It is the spouses that say ‘yes’ or ‘no’.

    In case that Wali does not realize the nikah due to an invalid reason according to Islam (such as caste system, etc..), wali becomes the person at upper position of authority. Related hadith is as follows:

    “There is no marriage except with a Walee, and two witnesses. The marriage is void otherwise. If they conflict, the Sultan is the Walee for whomever there is no Walee.” (Abu Dawood, Nikah, 20; Tirmidhi, Nikah, 14; Ibn Majah, Nikah, 15; Ahmed b. Hanbal, Musned, 6/66.)

    The marriage you mentioned has been performed under the inspection of authorities (since the wali of the woman had become Qazi) and therefore is valid.
  12. islamerica
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    Please post references when you post something like this. I won't say anything about this post but will add that wali title isn't something that can be thrown round so carelessly. The first person is the father and should he not act in the best interest of the girl then he looses right and wali responsibility falls on the next closest kin, which would be a brother and should he fail as well then next closet kin. For the converts, think of it as your father giving you away. if father isn't around then it would be your brother or uncle or dear close male that gives you away. It is a special title and role of the guardian, and not something that can be tossed around easily or disregarded.
  13. sister herb
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    Salam alaykum

    Cultures of revert sisters in the west fathers or brothers haven´t kind of role. Thats why it feels to us so strange. So absurb. We don´t understand idea of guardian at all.
  14. hayat84
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    my husband's aunt was a witness of the marriage,but both our families agreed with the marriage.nobody asked us if we had a wali,and maybe if in sunnah it said that a marriage can't be valid if there is no wali,tell me why nobody told it to us!I don't think my marriage to be invalid and don't live a life of Zina,because we made a promise in front of Allah,when we decided to stay together.marriage in Morocco maybe is different from other parts of the world.who made us signing the marriage act took his responsibilities and the it still is useful for everything we need to do.so it's valid in every part of the world.we are officially married,and if you think that my marriage can't be valid,well,ask to if there is the same rule in every State.
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    Assalaam alaikum,

    In the Anglo culture and in the US the father is the one who gives the bride away. It is his special role. And if the father is deceased the role is given to either an uncle or a brother. Although, the role is mostly ceremonial it still is suggestive that the father approves of the bridegroom. That he has the best intentions for the bride. It was a protective gesture. Even in civil ceremonies there is the giving away of the bride.

    In Islam we take it on a very serious level. It is to protect the bride. The wali has taken the time to discuss the marriage. It has to be protection for the bride.

    What we need to understand is how much do we want to adhere to the Sunna as we live our lives.

    This is becoming a very serious post. And we have to treat it as such. We need to seek answers and post them. The questions do need to be answered to help our revert sisters. What if our revert sisters did not know the fiqh and accepted who they trusted. Sometimes born Muslims get the culture so mixed up they disregard the rulings of the faith just because it is the way things are done. That does not mean they are correct.

    And if a madhab accepts a marriage without a wali and it becomes the cultural norm then does that not validate the marriage? I think of the number of marriages in the US. The brother is a born Muslim. He marries a revert. She does not know and innocently accepts everything she is told. There are many who have civil ceremonies. What then?
  16. Seeking Allah's Mercy
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    What I mean is, that "wali" here doesn't need to be her father, brother, uncle, whoever is closest to her in kin according to the hanafi madhab.


    It's his view. That doesn't really change much.
    Ukhti, Let me remind you, Imaam Abu Haneefa was much much knowledgable than you or I. The scholars that still hold on to this view have studied usool and fiqh unlike you. To judge them as being as the likes of jews and Christians, you should think twice. You read one hadeeth in English and believe, an ocean of knowledge such as Imaam Abu Haneefa is following his desires. Really? Fiqh is not limited to IslamQA or the Hanbali Madhab. That's is why we have four Madhabs and each is valid to be followed. We are layman. To each his own and there is no blame on those who follow the Hanafee view. And I think I just proved it up there this khilaaf is valid as the qualified students of knowledge (Of Ummal Qura and Madina uni) who have studied with scholars and not just surfed the internet recognise the "difference of opinion" which means, each view is valid and can be acted upon.

    The fact that it is a matter of fiqh with valid khilaaf in it, is proof enough that the issue is not black and white. If you feel what the OP says is more of a sound opinion, then it is for you to follow. However, those who don't, are free of blame. Because the other opinion is equally valid.

    I didn't actually read any. Because I already follow the Hanbali position till I read and am conviced of the Hanafee position. The thing here is: We are not "allowed" to force our opinion down others throat since the others opinion is just as valid. AND because we are not qualified to even discussed sucha thing let alone impose it on others. Like you said, it's not black and white. It's not that what Q&A says is halal and all else is haram.


    Rest is up to the two of you, this isn't a discussion for us. It is enough for us laypeople to know that there is khilaaf in the matter and there is no need to shove the opinion we believe to be correct, down others throats by invalidating what they follow.
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  17. sister herb
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    Salam alaykum

    Every cultures aren´t Anglo. Here too has kind of tradition that father gives his daughter in church to husband. But I am not christian as my father is. It to us just as one part of seremony.

    :SMILY288: May I tell you about imam here? One Somalian man told this when he before married with Christian woman and she wanted that after islamic marrige also Christian marrige in the church. Imam said: Of cource you can go and you have to go to the church as respect of religion of your wife.

    :shake:
  18. Seeking Allah's Mercy
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    My Respected sister, we are not talking cultures here. The stuff being discussed is called fiqh or jurisprudence. Your expression of how some of "Islam" doesn't fit well into your culture is really not fitting well with the topic at hand. What I mean by this is, the people here are talking about Islam and not culture. If you don't want to follow it or "personally" believe it's not for you. Keep it to yourself 'cos Islam is not about "personal" preferances.

    Jazaakillahu khayraa.
  19. sister herb
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    Salam alaykum

    All of us spread islam with cultures. I just told what imam adviced. The scholar you see. He asked muslims be open-minded with other religions.
  20. Seeking Allah's Mercy
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    Wa`Alaykum Wa Rahmatullahi Wa Barakaatuh.
    Thanks for sharing.

    No we spread Islam by message called "Dawah" dear. It circles around Qur'an and Sunnah. Regardless, this thread isn't about cultures. So, perhaps it shouldn't be derailed by dragging it in. That's all I was saying.

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