Guardian's Permission (Idhn al-Wali)
Idhn al-Walī (Arabic: إذن الولي) means the permission of someone who has guardianship over others in certain matters. According to Shi'a jurists, the permission of the guardian (wali) is necessary in several cases, including the disposal of a child's property (with the guardianship of the father and paternal grandfather or their executor), the disposal of a Safih (prodigal) property (with the guardianship of the father and paternal grandfather or their executor), the marriage of a virgin girl (with the guardianship of the father and paternal grandfather), the preparation of the deceased for burial (with the guardianship of individuals in the inheritance hierarchy), retaliation against a murderer (with the guardianship of individuals in the inheritance hierarchy), and judging between people or disposing of Anfal (with the guardianship of the jurist).
Meaning and Significance
In jurisprudence, a wali is someone who has authority over property or other affairs,[1] such as the father and paternal grandfather who have guardianship over an immature child, an insane person, and a Safih (a prodigal person).[2] Idhn al-wali is a term used in various jurisprudential subjects, such as loan (ʿāriya),[3].[4] Zakat,[5] Marriage,[6] interdiction (ḥajr),[7] preparation of the deceased for burial,[8] Friday Prayer,[9] and endowment.[10]
Application of Guardian's Permission in Jurisprudence
The applications and rulings of the guardian's permission (idhn) in Shi'a jurisprudence include:
Permission of Father and Paternal Grandfather
The permission of the father and paternal grandfather is considered necessary in the following cases:
- Permission for a child to dispose of their property,[11] such as lending property[12] or paying zakat on property.[13]
- Permission for a Safih (a prodigal person) to dispose of their property, such as buying and selling.[14]
- Permission for the marriage of a minor boy or girl.[15]
- Permission for the marriage of a virgin girl: There is a difference of opinion among Shi'a jurists regarding the marriage of a mature virgin (rashīda).[16].[17]
Permission of the Executor of Father and Paternal Grandfather
According to al-Shaykh al-Tusi and al-Allama al-Hilli, Shi'a jurists, the father and paternal grandfather can appoint an executor (wasi) to oversee the child's financial affairs, in which case, after their death, the child's financial affairs are conducted with the executor's permission.[18] Permission from the executor applies where, upon the death of either the father or paternal grandfather, the other is not alive; because if either the father or paternal grandfather is alive, he himself is the guardian of the child.[19]
There is a difference of opinion among Shi'a jurists regarding the executor's guardianship in the marriage of a child;[20] according to Sayyid Musa Shubayri Zanjani, there are two famous opinions in this regard:
- Al-Shaykh al-Tusi in al-Khilaf, al-Allama al-Hilli in Mukhtalaf, Shahid al-Awwal in Ghayat al-murad, Fadil al-Miqdad in al-Tanqih, al-Muhaqqiq al-Karaki in Jami' al-maqasid, al-Shahid al-Thani in his three books (al-Rawda al-bahiyya, Masalik, and Hashiyat al-Irshad), al-Hurr al-'Amili in Wasa'il al-Shi'a, and Muhammad Hasan al-Najafi in Jawahir believe that the executor can give permission for the child's marriage.
- Conversely, al-Shaykh al-Tusi in al-Mabsut, al-Muhaqqiq al-Hilli in Shara'i' al-Islam, al-'Allama al-Hilli in his six books (Qawa'id al-ahkam, Tahrir al-ahkam, Tadhkirat al-fuqaha, Tabsirat , Irshad al-adhhan, and Talkhis al-maram), al-Shahid al-Awwal in Lum'a, Fadil Sabziwari in Kifaya, Sayyid Ali al-Tabataba'i in Riyad al-masa'il, and Mulla Ahmad al-Naraqi in Mustanad al-Shi'a believe that the executor does not have this right.[21]
Guardian's Permission in Preparing the Deceased for Burial
Ghusl, shrouding, prayer, and burial of the deceased are among the cases where it is said that permission must be obtained from the deceased's guardian.[22] The guardian of the deceased in this matter is the father, mother, and children, and similarly, other individuals in the inheritance hierarchy.[23] According to the fatwa of Imam Khomeini, a Shi'a marja', if the deceased is a woman, her husband is her guardian, and after the husband, men who inherit from her take precedence over women; whoever takes precedence in inheritance takes precedence in this matter as well.[24]
Guardian's Permission in Qisas
Sayyid Abu l-Qasim al-Khoei, a Shi'a marja' (d. 1371/1992), holds that if a Muslim is killed, the right of retaliation against the murderer belongs only to the victim's guardian (walī al-dam),[25] and if a person other than the guardian kills the murderer without their permission, they must be killed.[26]
According to Nasir Makarim Shirazi, a Shi'a marja', in case of disagreement among the guardians (in choosing diya or qisas), if some demand diya (blood money), the rest have the right to qisas, provided they pay the share of diya to the others, and if some of them pardon the murderer, the rest have the right to qisas but must pay the share of diya to the murderer and their heirs.[27]
Permission of Wali al-Faqih
According to what is written in Mawsu'at al-fiqh al-Islami, it has become well-known among Shi'a jurists that during the Occultation of Imam al-Mahdi (a), guardianship over people in establishing justice in society, implementing Shari'a laws, resolving people's disputes, and protecting their interests has been delegated to just jurists,[28] and their permission is necessary in the following cases:
- Jihad against disbelievers, or rebels, or other Muslims in case of war.[29]
- Judgement among people to resolve disputes and establish hudud and Qisas.[30]
- The right to dispose of Anfal.[31]
- Establishing Friday Prayer: According to al-Muhaqqiq al-Karaki, one of the conditions for establishing Friday Prayer is the presence of the Infallible Imam or his deputy (such as the Wali al-Faqih during the Occultation).[32]
- Delivering zakat to those entitled to it.[33]
- Giving charity from property that is found (Luqata), after access to the owner is impossible.[34]
- Selling endowed property if it is exposed to ruin.[35]
- Equipping the deceased if their guardian is unable or absent.[36]
- Making changes in public endowments such as construction within the limits of a Mosque.[37]
Notes
- ↑ Ṭabāṭabāʾī, al-ʿUrwat al-Wuthqā, vol. 6, p. 413.
- ↑ ʿAllāma Ḥillī, Qawāʿid al-Aḥkām, vol. 2, pp. 20–21.
- ↑ ʿĀriya (loan) means that a person places their property at the disposal of another for their use, without receiving anything in return. See: Imam Khomeini, Taḥrīr al-Wasīla, vol. 1, p. 591.
- ↑ ʿAllāma Ḥillī, Qawāʿid al-Aḥkām, vol. 2, p. 194.
- ↑ Najafī, Jawāhir al-Kalām, vol. 15, p. 26.
- ↑ Irawānī, Durūs Tamhīdiyya fī al-Fiqh al-Istidlālī, p. 23.
- ↑ ʿAllāma Ḥillī, Taḥrīr al-Aḥkām al-Sharʿiyya, vol. 2, p. 541.
- ↑ Aḥkām-i Kullī-yi Marbūṭ bih Tajhīz-i Mayyit, Official Website of the Office of Ayatollah Sīstānī.
- ↑ ʿĀmilī Kirakī, Jāmiʿ al-Maqāṣid, vol. 2, p. 371.
- ↑ Imām Khomeinī, Kitāb al-Bayʿ, vol. 3, p. 131.
- ↑ ʿAllāma Ḥillī, Qawāʿid al-Aḥkām, vol. 2, p. 20.
- ↑ ʿAllāma Ḥillī, Qawāʿid al-Aḥkām, vol. 2, p. 194.
- ↑ Najafī, Jawāhir al-Kalām, vol. 15, p. 26.
- ↑ Ḥillī, al-Jāmiʿ li-l-Sharāʾiʿ, p. 360.
- ↑ Irawānī, Durūs Tamhīdiyya fī al-Fiqh al-Istidlālī, p. 23.
- ↑ Rashīda refers to a person whose decision-making regarding her marriage is based on a rational manner, and who recognizes her own best interest in matters of marriage, such as choosing a suitable spouse, the amount and manner of the dower (mahr), and the conditions stipulated in the marriage contract. See: Wilāyat bar Dukhtar-i Bāligha-yi Rashīda-yi Bākira (Guardianship over a Mature, Rashīda, Virgin Girl), Official Website of the Office of Ayatollah Sīstānī.
- ↑ Ṭūsī, al-Mabsūṭ, vol. 4, p. 162; Group of researchers, Mawsūʿat al-Fiqh al-Islāmī, vol. 8, p. 293.
- ↑ Shaykh Ṭūsī, al-Mabsūṭ, vol. 2, p. 200; ʿAllāma Ḥillī, Taḥrīr al-Aḥkām al-Sharʿiyya, vol. 2, p. 541.
- ↑ ʿAllāma Ḥillī, Taḥrīr al-Aḥkām al-Sharʿiyya, vol. 2, p. 541; Wilāyat-i Waṣī bar Nikāḥ-i Ṣighār az Dīdgāh-i Imām Khomeinī, Official Portal of Imam Khomeini.
- ↑ An Examination of the Guardian-Executor's Right to Marry Off the Insane, the Minor Boy, and the Minor Girl, Website of Madrasa-yi Fiqāhat.
- ↑ An Examination of the Guardian-Executor's Right to Marry Off the Insane, the Minor Boy, and the Minor Girl, Website of Madrasa-yi Fiqāhat.
- ↑ General rulings regarding the preparation of the corpse
- ↑ Rulings of deceased
- ↑ The rulings of ritual bathing, shrouding, prayer, and burial of the deceased
- ↑ The avengers of blood (awliyāʾ al-dam) are those who inherit from the estate according to the order of the inheritance classes, except for husband and wife, who do not have the right to retaliation (qiṣāṣ), but they do share in the blood money (diya).
- ↑ Khūʾī, Mabānī takmilat al-minhāj, vol. 2, p. 69.
- ↑ Disagreement among the heirs of the victim regarding pardon, blood money, and retaliation
- ↑ Group of researchers, Mawsūʿat al-Fiqh al-Islāmī, vol. 8, p. 295.
- ↑ Group of researchers, Mawsūʿat al-Fiqh al-Islāmī, vol. 8, p. 295, 296.
- ↑ Group of researchers, Mawsūʿat al-Fiqh al-Islāmī, vol. 8, p. 296.
- ↑ Group of researchers, Mawsūʿat al-Fiqh al-Islāmī, vol. 8, p. 297.
- ↑ ʿĀmilī Kirakī, Jāmiʿ al-Maqāṣid, vol. 2, p. 371.
- ↑ ʿĀmilī Kirakī, Jāmiʿ al-Maqāṣid, vol. 15, p. 425.
- ↑ Ṭabāṭabāʾī, Minhāj al-Ṣāliḥīn (al-Muḥashshā), vol. 2, p. 166.
- ↑ Imām Khomeinī, Kitāb al-Bayʿ, vol. 3, p. 131.
- ↑ Imām Khomeinī, Taḥrīr al-Wasīla, vol. 1, p. 67.
- ↑ Shahīd-i Awwal, al-Durūs, vol. 3, p. 343.
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