When a Nikaah takes place in the Masjid, the bride is represented by a representative and there are witnesses that testify that the bride had consented to the Nikaah being solemnized to the groom. According to the Kitaabs of Fiqh, witnesses are supposed to be Muslims. Does this apply to the representative of the bride as well?
In order for us to furnish a reply, it is important to know what is meant by the word representative. Consider the following two terms of the Fuqaha (Jurists):
1. Wali: An authorized Shar’i agent who has Wilaayah (authority or guardianship) over the affairs of somebody else. The sequence of the Awliya in different aspects of Shar’iah is stipulated and fixed by Shari’ah with specific qualifications. With regard to the aspect of Nikaah, the fuqaha have stated that the Wali has to be a Muslim because a Kaafir cannot be given authority over a Muslim.
2. Wakeel: A person deputed by someone to carry out a certain act on his/her behalf.
It is permissible for a person to appoint someone to get one married. The Fuqaha (jurists) have stated that a Wakeel in the aspect of Nikaah, does not necessarily have to be Muslim. A Kaafir can also be Wakeel. From the above-mentioned explanation, it is clear that in the aspect of Nikaah, it is necessary for a Wali to be a Muslim and a Wakeel does not necessarily have to be a Muslim.
Hence, in the enquired scenario, if what you refer to is a Wali (the guardian of the bride) who seeks permission from the bride to get her married, then the Wali necessarily has to be a Muslim. On the contrary, if what you refer to is a Wakeel (a person deputed by the bride to get her married), then it is not necessary for such a person to be a Muslim because the Wakeel is only interpreting to what the bride has said, the actual Ijaab (proposal) and Qabool (accepting the proposal) is done by the bride and groom themselves.
One point that needs to clarified is that when a Wali seeks permission from the girl or when the girl herself deputes someone as her wakeel, it is not necessary for two witnesses to be present at that very moment; rather two witnesses only have to be present at the time when the actual Nikaah (i.e. Ijaab and Qabool) takes place.
Checked and Approved By:
Mufti Muhammed Saeed Motara Saheb D.B.
( رد المحتار على الدر المختار ٥٣:٣دار الفكر-بيروت)
«معجم المصطلحات والألفاظ الفقهية ٣ ٥٠٢ دار الفضيلة»
(رد المحتار على الدر المختا ٧٦:٣الفكر – بيروت)
(المختصر للدوري ١٢٧ المصباح)
(البحر رائق ١٣٦:٣ كوئته)
(الفتاوى الهندية ٢٩٤:١ دار الفكر)