انتقال ولاية النكاح من الولي إلى الحاكم في الفقه الشافعي : دراسة ظاهرة زواج بعض الماليزيين في جنوب تايلاند أنموذجا

Abstract

Salafu and Kẖalfa scholars argue that the consent of the guardian (Wali) is an essential condition for the validity of marriage. Recently, the Muslim community in Malaysia has witnessed a growing phenomenon related to marriages where the jurisdiction of marriage is transferred to a judge. Some Malaysians are traveling abroad to transfer the right of guardianship from their obligated guardians to an appointed judge, seeking their services to solemnize their marriages. This type of marriage is recognized as legally and religiously valid by Islamic institutions and Sharia courts in Malaysia. This recognition is based on the jurisprudence of the Shāfʿī school, the official school in the country. Based on this reality, a the researcher decided to conduct a study to determine the validity of marriages of Malaysians who seek to remove the right of guardianship from their closest relatives and transfer it to the ruler in southern Thailand, in accordance with the adopted opinion in the Shāfʿī school of jurisprudence. The researcher aimed to explain the motivations behind this behavior. To reach this conclusion, the researcher utilized both inductive and analytical methods, conducting field interviews to gather the opinions of scholars, judges, lawyers, mufti, academic experts, and members of the Islamic Religious Council in Malaysia and Thailand. The researcher concluded that the marriage of a runaway woman from her compelled guardian with the intention of transferring the guardianship to the judge in southern Thailand is invalid. This is due to the failure to meet the requirements and conditions for the validity of marriage under the judge’s jurisdiction, as outlined by Shāfʿī scholars. As a result, several negative consequences arise at the individual, familial, social, and legal levels. This behavior is considered one of the factors leading to the disintegration of family relationships and the collapse of the moral value system in Malaysian society as a whole. It is expected that this study will draw the attention of official authorities, responsible individuals, and experts to re-evaluate certain fatwas that do not align with the correct opinions endorsed in the Shāfʿī school of jurisprudence. Additionally, it aims to improve certain legal and administrative procedures for Malaysians who wish to solemnize their marriages through the ruler in Thailand. This is done to limit manipulation regarding the guardianship issue and to close the channels used by irresponsible individuals, such as unauthorized agents who seek profit without considering the potential negative consequences.