The Woman Denies Consent to the Nikah and the Man Claims It: Whose Witnesses Are Accepted?

Question

Ms Halima, who is now adult (baligha), was, while a minor, promised (betrothed) by her paternal uncle, by right of guardianship (wilaya), to one Zayd; but afterwards the uncle refused to give her to Zayd. Zayd brought a claim of nikah against the girl’s uncle and presented two witnesses. The uncle went about crying out that this was a betrothal, not a nikah — nobody listened. The qadi ruled in favour of Zayd’s nikah and said this: since the girl is a minor, her guardian (wali)

Answer

If the events stated in the question are true, then it is correct for the mufti to give a fatwa on the narration of “al-Khulasa”, [ar]كما أفتى به المفتي العلامة، وإن كان المذهب المشهور والرواية الظاهرة خلاف ذلك[/ar] “as the learned mufti has given a fatwa, even though the well-known position of the madhhab and the zahir al-riwaya (the manifest transmitted position)

Source: Fatawa Mahmudiyya

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