Is it valid for the maternal uncle to be the wali in the marriage contract of his sister’s daughter?

It is confirmed that guardianship in the
case of marriage belongs to the ‘asbah, who are the
male relatives on the father’s side, such as the father,
grandfather, son, brother, and paternal uncle.

With regard to the relatives on the
mother’s side, they are not among the ‘asbah and there is no
proof that they have the right of guardianship with regard to
marriage. 

We have previously discussed the ‘asbah and
their order of precedence with regard to guardianship in
marriage in the answer to question number 99696. 

But there are some cases in which it is
valid for the maternal uncle to assume guardianship with
regard to the marriage contract. They
are: 

1.    
When he has been appointed as a guardian by
the father or the guardian who has the authority to do the
marriage contract. 

The scholars of the Standing Committee for
Issuing Fatwas said: 

If a person has the authority to do the
marriage contract for a woman when one who is closer to her
than him has given it up to him, or the rightful guardian has
instructed that he should do the marriage contract for the
woman under his guardianship, then it is permissible for him
to do the marriage contract and that marriage is valid,
because it is a right that was given to the one who was
appointed and acted in his stead. End
quote. 

Shaykh ‘Abd al-‘Azeez ibn Baaz, Shaykh ‘Abd
al-‘Azeez Aal al-Shaykh, Shaykh ‘Abd-Allah ibn Ghadyaan,
Shaykh Saalih al-Fawzaan, Shaykh Bakr Abu
Zayd 

Fataawa al-Lajnah
al-Daa’imah, 18/174,
175 

2.    
If
he is the wali (guardian) when there are no male relatives on
the father’s side.

 This is the view of some of the
scholars, such as Imam Abu Haneefah (may Allah have mercy on
him). But the majority of the scholars are of the view that
the Muslim qaadi should be given precedence over
him. 

This has been discussed recently in the
answer to the question referred to above. 

3.    
When the maternal uncle does the marriage
contract in the presence of the woman’s guardian and with his
approval of the marriage contract. The silence of the
guardian in this case is indicative of his approval, so the
marriage contract is valid. 

In al-Mawsoo‘ah al-Fiqhiyyah
(22/237, 238) it says: 

There is no doubt that negative silence is
not indicative of approval or its absence. Hence the fiqhi
principle is based on the idea that no opinion can be
attributed to the one who remains silent, but silence in a
context where there is a need to speak is a statement. This
applies if it is accompanied by circumstantial evidence which
may indicate his approval. 

The fuqaha’ are unanimously agreed that the
silence of a virgin is indicative of her consent, because of
the saheeh hadeeth that was narrated concerning that, as the
Prophet (blessings and peace of Allah be upon him) said: “A
virgin should not be given in marriage until her permission
has been sought.” They said: O Messenger of Allah, what is
her permission? He said: “If she is silent.” According to
another report: “The previously married woman has more right
to decide concerning herself than her guardian, and the
father of the virgin should ask her permission concerning
herself, and her permission is her silence.” End
quote. 

4.    
Where the marriage contract has been
completed and documented in an Islamic state that follows the
opinion that it is valid for the maternal uncle to do the
marriage contract for his sister’s daughter, or the view that
it is permissible to do a marriage contract without a
guardian, because the verdict of the ruler in matters that
are subject to ijtihaad is valid and cannot be
overruled. 

This has been discussed in the answer to
question no. 98546,
where it says: 

If the judiciary system in your country
follows the Hanafi madhhab and the regard the marriage
without a guardian as valid, then the marriage remains in
effect and cannot be annulled. But if the judiciary system in
your country does not follow that madhhab, then the marriage
contract is invalid. Moreover, if you both still want to be
married to one another, a new marriage contract should be
redone in the presence of your guardian. End
quote. 

These are the cases in which the maternal
uncle may act as the guardian with regard to doing the
marriage contract and it will be valid. 

And Allah knows
best.