There is no Marriage without the consent of the Walee
The Walee is supposed to be from the close or immediate family of the women. So in the presence of the father of the girl, no other man can be the walee of the girl.. However in the absence of the father a close member of the family whether this is a paternal or maternal uncle or grandfathers are to be the girls walee.
Imaam Qudaamah said, “If a supposed walee who is distantly related to the girl gives her permission to marry in the presence of a walee who is closer to her in the family then her nikah (wedlock) is not valid, even if she agrees to it.” (al-Mughnee (7/364) of Imaam Ibn Qudaamah.
The deduction for the principle above is taken from the distribution of inheritance, the closer relative receives first and more. The closer walee will know the girl better and will have more mercy and compassion in the judgements.
As for Nikah (wedlock) without walee then it is invalid and not accepted as a nikah. The evidences for this are abundant. This was also the position of numerous companions and scholars.
“And when you have divorced women and they have fulfilled the term of their prescribed period, do not prevent them from marrying their (former) husbands, if they mutually agree on reasonable basis…..” (soorah al-Baqarah (2(:232)
This verse was revealed when the sister of Ma’aqil ibn Yasaar was divorced by her husband. So after the waiting period had elapsed they got back together and wished to re-marry. But Ma’aqil ibn Yasaar who was the walee of his sister refused her marriage and so the above verse was revealed.
(Bukhaari (11/19,908), Tirmidhee (4/76), Abu Dawood (2/192), Musnad Tayaalisee (1/35), Daarqutnee (3/223), Haakim (2/174), Ibn Jareer at-Tabaree in his tafseer (2/448). see also Ahkaam al-Qur’aan (1/210)
This verse proves nikah without a walee is not valid Imaam Shaafi’ee also said this verse is a clear evidence that there has to be a walee for the women for the marriage.
Abu Moosaa al-Asha’aree (Radhiallaahu Anhu) said, “The Messenger of Allaah (Sallalahu Alayhee Was-Sallam) said, “There is no Nikah (wedding, marriage) without a walee (for the woman).” (Abu Dawood with Au’n al-Ma’bood (6/101), Tirmidhee (4/226), Ibn Maajah (1/580), Daarimee (2/61), Saheeh Ibn Hibbaan (no.1423), Musnad Ahmad (4/394, 413), Daarqutnee (3/218), Baihaaqee (7/107), Sharh us-Sunnah and al-Muntaqa of Ibn al-Jarood (no’s. 701, 702, 703, .704), Tahaawee (4/8-9, 4/364).
Imaams, Abu Dawood. Nasaa’ee Tirmidhee, Ibn Maajah, Ibn Hibbaan, Haakim, Ibn Qayyim and Allaamah Naasir ud deen Al-Albaanee all declared this hadeeth to be authentic.
Aisha’h (Radhiallaahu Anha) said, “The Messenger of Allaah (Sallalahu Alayhee Was-Sallam) said, “The nikah of a women is invalid who marries without the permission of her walee…” (Abu Dawood with Au’n al-Ma;bood (6/98), Tirmidhee (4/227), Ibn Maajah (1/580, 2/62), musnad Ahmad (2/47, 165), Musnad Humaidee (1/12, 113), Saheeh Ibn Hibbaan (no.1248), Daarqutnee (3/221), Baihaaqee (7/105), Sharh us-Sunnah (2/39) and al-Muntaqa of Ibn al-Jarood (no’s. 700), Shaafi’ee (2/11), Musnad Tayaalisee (no.1463).
Imaam Abu Tayyib Shams ul-Haqq Adheemabaadee said in explanation of this hadeeth, “This hadeeth proves, nikah (marriage) without a walee is not valid.” he further says, “And what is correct is that the nikah without the walee is invalid as the ahadeeth in this chapter prove.” (Au’n al-Ma’bood (2/191).
In another hadeeth Aish’ah (Radhiallaahu Anha) said …”It is invalid, It is invalid, It is invalid.” (saheeh Jaami as-Sagheer, Mustarak al-Haakim and Sunan Tirmidhee.
Imaam Tirmidhee said it is Hasan-Good. Allaamah Naasir ud deen al-Albaanee declared it to be authentic.)
Haafidh Ibn Hajr and Imaam Shawkaanee mention the names of at least 30 companions with narrations of similar meaning. (Talkhees al-Habeer (1/295) and Nayl al-Awtaar (1/36).
Imaam Mundhiree said, “No companions differ concerning this.” (Nayl al-Awtaar (6/136)
The position of the nikah being invalid without the walee was also held by the following Imaams.
Imaam Maalik (Bidaayatul-Mujtaahid (2/7).
Imaam Ahmad ibn Hanbal (al-Mughnee (9/345) of Ibn Qudaamah.
Imaam Shaafi’ee (Kitaab al-Umm (p.163)
Imaam Sufyaan ath-Thawree (Muwasisah Fiqh Sufyaan ath-Thawree (p.793).
Imaam Hasan al-Basree (Muwasisah Fiqh Hasan al-Basree (p.897).
Imaam Ibraaheem Nakhaa’ee (Musannaf Ibn Abee Shaybah 1/208), Muwasisah Fiqh Ibraheem Nakhaa’ee (1/677).
And Allaah Ta’ala knows best
Abu Khuzaimah Ansaari.