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Taḥkīm.8°. When a man and a woman having no wali at her disposal desire to wed one another, they may by mutual consent select as wali another than the official charged with this duty, provided that other entirely fulfils the requirements that the Law makes of the qādhī.
The function of a wali thus selected is designated by the same name as that of an arbitrator in a dispute: ḥakam. The authorization to undertake the duty (given by the man or woman) is known as taḥkīm.
Where there is no lawful authority according to Mohammedan ideas, or no official lawfully charged with the wali-ship of women who are without a wali, the taḥkīm is the only way of uniting a couple desirous of marriage. But in the case of this make-shift wali the requirement of suitability for the office of qādhī is no longer insisted on, and anyone may be appointed ḥakam who shows himself moderately fitted to perform the duties in the prescribed manner.
In Batavia all such contracts of marriage are concluded in this way, since it is assumed that there cannot be in that town any legally appointed official to take the wali's place. The incapacity of pangulus in this respect is not based on their appointment by a government of infidels (in fact the Mohammedan books of the law recognize the legality of the appointment of a qādhī by a de facto kafir authority) but from the nullity of their appointment by written decree; since Islam acknowledges the appointment of officials as valid only when verbal.
In other parts of Java this is less strictly insisted on, and the pangulu of a division is recognised as endued with the kuwasa kakim.
Thus a wali may be either an agnate of the bride, or the representative of the civil authority, or one appointed to discharge the duties of taḥkim by the man and woman themselves. The second party to the contract is the bridegroom, or if he be a minor, his guardian.
The wali usually appoints another to act for him.Every wali, however, and every bridegroom and guardian may empower another to conclude the contract is his stead, as wakīl. This only occasionally happens in the case of the bridegroom; the wali on the other hand is almost invariably represented by a wakīl, even though he be actually present at the making of the contract. The reason of this is not far to seek.
To conclude a valid contract of marriage, those concerned must have
with wali nasab is not regarded in any part of the Archipelago as a special, not to speak of its being an indispensable, ministration; it is generally understood that he simply takes oyer as an expert substitute the task of the wali.
