Answered by our Shaykh, the 'Allāmah, the Trustworthy Advisor, Abu 'Abdirrahmān Yahya bin 'Ali Al-Hajūri - may Allāh preserve him - on the 16th, Muharram, 1442H
Question: If the father prevents (his daughter) from marrying, does the guardianship transfer to the wali next in line or to the judge straight away?
Answer: In the Hadith,
فَالسُّلْطَانُ وَلِيُّ مَنْ لاَ وَلِيَّ لَهُ
"Then the ruler/judge is the wali (guardian) of the one who has no wali (guardian)."
So if it is possible for the brother for example to take the place of the father and take guardianship of her, then verily she has guardians other than the father, it enters into the (Hadith) one who has no wali and he is a wali to her and he is the brother.
So if that is not possible because he (the father) prevents the brother and doesn't let him take guardianship of her as he has refrained from her, then from there it transfers to another wali from the close relatives who the marital contract is correct from him to her. If he (the father) refrains then he the highest wali becomes as one not present.
For verily the father if he prevents and refrains, his presence is like his non-presence. So if someone else is present he takes his place, and if there isn't someone present whose guardianship is accepted, it transfers to the judge ~ one who has no wali ~
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Translated by:
Abū 'Abdillāh 'Omar bin Yahya Al-'Akawi
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Original Fatwa Audio:
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