Praise be to Allaah.
In order for the marriage to be valid, the woman’s wali
(guardian) or the one who takes his place, such as his deputy, must be
involved, because the Prophet (peace and blessings of Allaah be upon
him) said: “There is no marriage except with a wali.” Narrated by Abu Dawood
(2085), al-Tirmidhi (1101) and Ibn Majaah (1881) from the hadeeth of Abu
Moosa al-Ash’ari; classed as saheeh by al-Albaani in Saheeh al-Tirmidhi.
And he (peace and blessings of Allaah be upon him) said:
“Any woman who gets married without the
permission of her guardian, her marriage is invalid, her marriage is
invalid, her marriage is invalid. If they dispute, then the ruler is the
guardian of the one who has no guardian.” Narrated by Ahmad (24417),
Abu Dawood (2083), al-Tirmidhi (1102); classed as saheeh by al-Albaani in
Saheeh al-Jaami’ no. 2709.
If the woman is a Muslim, then is essential that her wali
should also be a Muslim, according to scholarly consensus.
Ibn Qudaamah said: As for the kaafir, he cannot be the wali
of a Muslim woman under any circumstances, according to the consensus of the
scholars, including Maalik, al-Shaafa’i, Abu ‘Ubayd and ashaab al-ra’y. Ibn
al-Mundhir said: All of the scholars from whom we acquired knowledge are
unanimously agreed upon that. End quote from al-Mughni (9/377).
If a person does not pray because he denies that it is
obligatory, then he is a kaafir according to scholarly consensus. If he does
not pray because he is lazy and heedless, then the scholars differed as to
whether he is a kaafir or not, but the correct view as indicated by the
texts of the Qur’aan and Sunnah and the views of the Sahaabah is that he is
a kaafir. See the answer to question no.
Based on this, the one who does not pray is not permitted to
act as the wali or guardian in the marriage of a Muslim woman.
Based on this, guardianship passes to the next closest
relative (after the father), namely the grandfather. If there is no
grandfather or if he is not fit to act as the wali, then it passes to her
brothers. If the youngest of them is the one who prays , then guardianship
passes to him if he is grown up, otherwise it passes to those who come after
him, such as brothers’ sons, then paternal uncles, then their sons, then to
the sharee’ah judge if there is one. See the answer to question no.
In order to avoid hardship in this case, her brother or one
who is fit to act as her wali – as discussed above – could do the marriage
contract for you in the presence of two witnesses of good character, and
this will be the valid marriage contract. As for the marriage contract done
by her father, it will not be valid, but there is nothing wrong with you
doing it with him, so as to avoid embarrassment and ward off problems,
whilst striving to call him to pray regularly.
We ask Allaah to help and guide you.
And Allaah knows best.