لاَ نِكَاحَ إِلاَّ بِوَلِيٍّ وَشَاهِدَيْنِ مِنَ الْمُسْلِمِيْنَ.
The Book of Marriage
Chapter on Guardianship
in Marriage
وِلاَيَة ِالنِّكاَحِ
The Book of Purification
The Book of Prayer
Importance of Prayer & Ruling of its Abandonment
Facing the Qiblah & Intention in the Prayer
Etiquettes of Walking to Prayer and its Description
Description of Prayer Continued
Description of Prayer Continued
Description of Prayer Continued
Pillars and Mandatory Acts of Prayer
Two Prostrations of Forgetfulness
Supererogatory (Voluntary) Prayers
Supererogatory (Voluntary) Prayers Continued
Times of Prohibition of (Supererogatory) Prayer
Congregational Prayers & Latecomers
Jumu'ah (Congregational Friday) Prayer
The Book of Funerals
The Book of Fasting
The Book of Hajj and 'Umrah
Book of Zakat
The Book of Selling and Commercial Transactions
Introduction & Commercial and Selling
Selling of Primary & Secondary Commodities
Cancellation Options in Transactions
Cancellation Options Continued
Debt Transference & Guarantor-ship
Mortgaging & Security Deposits
Partnership & Companies Continued
Reviving Barren Lands & Per-Job Wage
Lost and Found Property & Foundlings
Prize Money & Deposits for Safekeeping
The Book of Bequests
The Book of Inheritance
The Book of Marriage
The Book of Divorce
The Book of Sadaq
The Book of Dhihar
The Book of Lian
The Book of Foods
Book of Fatal and Non-Fatal Assault
The Book of Indemnities
The Book of Hudood
The Book of Jihad
The Book of the Judiciary
The Book of Testimonies
Appendix
Glossary
Guardianship in Marriage
1205. The Wali as a Condition of Validity of Marriage
This is a matter of controversy between the imams.
(A) + (+M, +S): The permission of the wali is a condition of validity of the marriage.
(-H, -m): It is not a condition, but he can demand annulment of the marriage if his ward marries herself to a man who is not a suitable match (kufu’). The textual proofs are more abundant and stronger on the side of the jumhoor (majority of scholars), although they are not completely definitive in their authenticity and implication. In addition to the textual proofs (some of which are discussed below), there are rational arguments in support of demanding the approval of the wali and requiring his participation in conducting the marriage contract. Men who are concerned about the woman’s welfare, such as her father or brother, would have better access into the world of men, enabling them to verify the suitability of a proposal. It is also known that some men engage in predatory behavior and may try to exploit the naiveté of some women. The wali would feel responsible for his ward’s wellbeing and her support, even after the marriage. This ruling is part of a legal system that seeks to provide women with the protection and support they need. Moreover, marriage is not only about the union between two individuals; it is also about the coming together of two families. The responsibility of the woman’s ‘aṣabât (closest male relatives) toward her does not end with her marriage, so they should be entitled to take part in the decision to bring someone foreign into the family. Additionally, the involvement of the bride’s father, for instance, would be conducive to greater future harmony between him and the groom. Finally, Islam did not give the guardian unchecked power. If he was acting unreasonably, she would be able to get a legal severance of his guardianship as in the hadith herebelow and the discussion on the ‘âḍil (one who unjustly prevents his ward from marrying).
Can the Woman Conduct the Marriage Contract with Permission from the Wali?
(a): Yes. The Prophet (SA) said:
“Any woman who gets married without the permission of her guardian, her marriage is invalid, her marriage is invalid, her marriage is invalid. But if the marriage is consummated, then the mahr (ṣadâq) is hers because he had intercourse with her. If they dispute, then the ruler is the guardian of the one who has no guardian.” (T,D, Ma – from ‘Â’ishah. T:S)
أَيُّمَا امْرَأَةٍ نَكَحَتْ بِغَيْرِ إِذَنِ وَلِيِّهَا ، فَنِكَاحُهَا بَاطِلٌ ، فَنِكَاحُهَا بَاطِلٌ ، فَنِكَاحُهَا بَاطِلٌ ، فَإِنْ أَصَابَهَا فَلَهَا الْمَهْرُ بِمَا اسْتَحَلَّ مِنْ فَرْجِهَا ، فَإِنِ اشْتَجَرُوا ، فَالسُّلْطَانُ وَلِيُّ مَنْ لا وَلِيَّ لَهُ.
The divergent implication (mafhoom al-mukhâlafah) of this hadith is that she may conduct the marriage contract with the permission of her guardian.
(A): She may not conduct her marriage contract because of the general implication of another hadith in which the Prophet (SA) said:
“There is no nikâḥ without a guardian and two trustworthy witnesses.” (Ḥib and others – from ‘Â’ishah and ‘Imrân ibn Ḥuṣayn. Controversial authenticity)
لا نِكاحَ إلَّا بوليٍّ وشاهدَيْ عَدلٍ.
What If a Marriage Contract Was Performed Without a Wali?
According to the jumhoor, this marriage is invalid or contingent upon the subsequent approval of the wali. They do consider it consequential, however, in establishing paternity because it is valid according to some mujtahid imams (those imams who are qualified to exercise ijtihâd). Wherever a judge has jurisdiction over a certain area, he may require that the marriage contract be redone if he believes it was invalid.
In the West, and wherever Muslims do not have their own judiciaries, one imam or preacher may not demand the redoing of a marriage that was conducted according to an excusable (sâ’igh) opinion of a mujtahid.
If a Mâliki, Shâfi‘i or Ḥanbali imam is approached by a couple to marry them, and her wali is absent and not reachable, but the imam fears they may fall into sin if he turns them away, then it is prudent to marry them without the wali, based on the Ḥanafi position that validates such a marriage. (Please refer to the appendix on talfeeq: patching or mixing between the different madh-habs.)
1206. The Witnesses
See the opinions about the witnesses in the previous chapter’s discussion of the announcement.
(A) + (+S): The witnesses must be adult, sane, Muslim men.
The one who is most entitled to marrying the free woman off is her father, and then his (father), and so on; then her son and his descendants; then the closer of her paternal relatives; then the one who freed her; then the closest of his paternal relatives; then the sultan (ruler). 1207
وَأَوْلى النَّاسِ بِتَزْوِيْجِ اْلحُرَّةِ أَبُوْهَا، ثُمَّ أَبُوْهُ وَإِنْ عَلاَ، ثُمَّ ابْنُهَا ثُمَّ ابْنُهُ وَإِنْ نَزَلُوْا، ثُمَّ اْلأَقْرَبُ فَاْلأَقْرَبُ مِنْ عَصَبَاتِهَا، ثُمَّ مُعْتِقُهَا، ثُمَّ اْلأَقْرَبُ فَاْلأَقْرَبُ مِنْ عَصَبَاتِهِ، ثُمَّ السُّلْطَانُ.
The agent of each one of those acts on his behalf and takes his position. 1208
وَوَكِيْلُ كُلِّ وَاحِدٍ مِنْ هَؤُلاَءِ يَقُوْمُ مَقَامَهُ.
It is not permissible for a more distant relative to marry (a woman) off if there is one who is closer, unless (the closer one) is a child, insane, or of a different religion than hers; if he prevents her from marrying a suitable person without a legitimate reason; 1209 or if he is absent for a long period. 1210, 1211
وَلاَ يَصِحُّ تَزْوِيْجُ اْلأَبْعَدِ مَعَ وُجُوْدِ اْلأَقْرَبِ مِنْهُ، إِلاَّ أَنْ يَكُوْنَ صَبِيًّا، أَوْ زَائِلَ اْلعَقْلِ، أَوْ مُخَالِفًا لِدِيْنِهَا، أَوْ عَاضِلاً لَهَا، أَوْ غَائِبًا غَيْبَةً بَعِيْدَةً.
(a) + (-H): A man and two women may suffice as witnesses. Remember that (-M) does not require witnesses but only the announcement.
It is best if there are two male witnesses and an announcement, but if there are witnesses without an announcement, or an announcement without witnesses, then it should not be repeated because it would be valid according to some excusable positions of mujtahid imams. If the marriage is done in secret, without witnesses or an announcement, it is invalid and must be repeated.
1207. In the Absence of the Sultan
In the absence of a sultan or an Islamic judiciary, some of their functions, such as guardianship, will be assumed by the imams and scholars who have recognition and authority in their respective communities. This obviously does not apply to establishing physical punishments or imprisonment because these verdicts require judges with full jurisdiction.
1208. The guardian may authorize someone to conduct the marriage contract on his behalf. The same is true for the groom.
1209. Who Is the ‘Âḍil?
There are no guardianship rights for anyone of a different religion, except for the Muslim if he is a sultan (ruler) or the master of a slave-woman. 1212
وَلاَ وِلاَيَةَ لأَحَدٍ عَلى مُخَالَفَةٍ لِدِيْنِهِ إِلاَّ الْمُسْلِمُ إِذاَ كَانَ سُلْطَانًا، أَوْ سَيِّدَ أَمَةٍ.
It is permissible for the father to marry off his young children, both male and female, 1213 as well as his previously unmarried daughters, without
وَلِلأَبِ تَزْوِيْجُ أَوْلاَدِهِ الصِّغَارِ، ذُكُوْرِهِمْ وَإِنَاثِهِمْ، وَبَنَاتِهِ اْلأَبْكَارِ بِغَيْرِ إِذْنِهِمْ، وَيُسْتَحَبُّ اسْتِئْذَانُ اْلبَالِغَةِ.
In al-Mughni, Imam Ibn Qudâmah explained that a man is an ‘âḍil (one who unjustly prevents his ward from marrying) if he prevents her from marrying a man whom she desires and who is a suitable match, even if he allows her to marry others who are also suitable. He is not an ‘âḍil if he prevents her from marrying a man who is not a suitable match.
1210. The Sharia does not specifically define this, so it is determined by the customs of the people.
“Whatever is not regulated by the Sharia or in the language, the custom is resorted to.”
"إنَّ ما لَيْسَ له ضابِطٌ في الشَّرْعِ ولا في اللغَةِ، يَرجِع إلى العُرْفِ"
1211. If a brother marries his sister off, but her father is alive and does not authorize it, then the marriage is not valid. A different report from the imam says that it is not invalidated, but its validity becomes contingent on the approval of the closer guardian, who is the father in this case..
1212. See the appendix on slavery.
1213. The Approval of the Prepubescent Bride and Groom for Their Marriage
As for prepubescent brides or grooms, the jurists did not require their approval for conducting the marriage contract, but this applies only when married by their fathers (or his appointee) (S: or grandfathers). This is due to their compassion for, and protectiveness of, their children. This is the position of all jurists, aside from Ibn Shubrumah and al-Aṣamm, who prohibited marrying them. It was meant in certain cases, such as the presence of a suitor whom the father fears may otherwise pass her (or him) up. None of them allow the husband to consummate the marriage before the bride is physically and mentally ready. (See the appendix on the age of marriage in Islam and the appendix on ‘buloogh’ for an explanation of puberty or sexual maturity in Islamic law.)
their permission. As for a postmenarcheal woman, it is recommended to seek her approval. 1214
1214. The Approval of the Postmenarcheal Woman In al-Mughni, Ibn Qudâmah mentions a second narration from Aḥmad in which he concurred with Imam Abu Ḥaneefah that it is not permissible for the father to marry his postmenarcheal girls to anyone without their permission. This is the position chosen by the shaykh of the later Ḥanbalis, Imam Ibn Taymiyah (may Allah bestow mercy on him), who said:
“The parents do not have the right to force their child to marry someone they do not want, and if they refuse, it is not considered disobedience. This is like eating something they do not want.” (al-Ikhtiyârât)
"و لَيْسَ لِأَحَدِ الْأَبَوَيْنِ أَنْ يُلْزِمَ الْوَلَدَ بِنِكَاحِ مَنْ لَا يُرِيدُ، فإن امْتَنَعَ لَا يَكُونُ عَاقًّا، كَأكْلِ ما لَا يُرِيدُ."
He also said:
“As for forcing her into marriage against her desire, this is counter to the legal maxims and sound reason. Allah did not permit the guardian to force her in the matters of selling and leasing, except with her permission, not even in eating, drinking, and wearing what she desires. Then how would He force her into having intercourse and living with someone she hates to have sex and live with? Allah put compassion and mercy between the spouses, so what compassion or mercy is expected to be there with her dislike of him and aversion to him?” (Majmooo‘at al-Fatâwâ, Chapter on Pillars and Conditions of Marriage)
"وَأَمَّا تَزْوِيجُهَا مَعَ كَرَاهَتِهَا لِلنِّكَاحِ، فَهَذَا مُخَالِفٌ لِلْأُصُولِ وَالْعُقُولِ وَاَللَّهُ لَمْ يُسَوِّغْ لِوَلِيِّهَا أَنْ يُكْرِهَهَا عَلَى بَيْعٍ أَوْ إجَارَةٍ إلَّا بِإِذْنِهَا وَلَا عَلَى طَعَامٍ أَوْ شَرَابٍ أَوْ لِبَاسٍ لَا تُرِيدُهُ. فَكَيْفَ يُكْرِهُهَا عَلَى مُبَاضَعَةِ وَمُعَاشَرَةِ مَنْ تَكْرَهُ مُبَاضَعَتَهُ وَمُعَاشَرَةَ مَنْ تَكْرَهُ مُعَاشَرَتَهُ وَاَللَّهُ قَدْ جَعَلَ بَيْنَ الزَّوْجَيْنِ مَوَدَّةً وَرَحْمَةً فَإِذَا كَانَ لَا يَحْصُلُ إلَّا مَعَ بُغْضِهَا لَهُ وَنُفُورِهَا عَنْهُ. فَأَيُّ مَوَدَّةٍ وَرَحْمَةٍ فِي ذَلِكَ ؟"
The following reports may be cited in support of the position of (A2) + (+H, +t): The Prophet (SA) said:
“No ayyim* should be married off without her explicit mandate, and no virgin should be married off until her consent is sought.” They said, “O Messenger of Allah, how does she indicate her consent?” He said, “Her silence.” (Ag – from Abu Hurayrah)
لَا تُنْكَحُ الْأَيِّمُ حَتَّى تُسْتَأْمَرَ، وَلَا تُنْكَحُ الْبِكْرُ حَتَّى تُسْتَأْذَنَ. قَالُوا: يَا رَسُولَ اللَّهِ، وَكَيْفَ إِذْنُهَا؟ قَالَ: أَنْ تَسْكُتَ
It is not for him to marry the postpubescent sons or the previously married daughters except with their permission. 1215
وَلَيْسَ لَهُ تَزْوِيْجُ اْلبَالِغِ مِنْ بَنِيْهِ وَبَنَاتِهِ الثُّيَّبِ إِلاَّ بِإِذْنِهِمْ.
It is not for any of the other guardians to marry off a young boy or girl. Nor is it for them to marry off an older girl without her permission.
وَلَيْسَ لِسَائِرِ اْلأَوْلِيَاءِ تَزْوِيْجُ صَغِيْرٍ وَلاَ صَغِيْرَةٍ، وَلاَ كَبِيْرَةٍ إِلاَّ بِإِذْنِهَا.
For the previously married woman, her permission is given by verbal expression. The permission of the previously unmarried is given by silence, based on the Messenger of Allah’s statement, “The previously married has more right to herself
وَإِذْنُ الثَّيِّبِ اْلكَلاَمُ، وَإِذْنُ اْلبِكْرِ الصُّمَاتُ، لِقَوْلِ رَسُوْلِ اللهِ "الأيِّمُ أَحَقُّ بِنَفْسِهَا مِنْ وَلِيِّهَا، وَالْبِكْرُ تُسْتَأْذَنُ فِي نَفْسِهَا، وَإِذْنُهَا صُمَاتُهَا."
The word ayyim is left without translation because its meaning is controversial and legally consequential.
(A) + (+S, +M): It means a woman who was previously married.
(-H): It means a woman who is not currently married.
It is noteworthy also that there are other wordings of this hadith in Bukhari and Muslim in which the same word (tusta’mar, meaning that her explicit consent should be sought) is used in reference to the virgin as well.
A virgin young woman came to the Prophet (SA) and complained that her father had married her off against her wishes, and the Prophet (SA) gave her the choice. (D – from Ibn ‘Abbâs. al-Albâni:Auth) Umm Salamah (RAH) narrated that:
“A young woman was married off by her father, but she wanted to marry someone else. She came to the Prophet (SA) and mentioned this to him. He took her away from the man her father married her to, and he married her off to the man she wanted.” (Haythami said, “Reported by aṭ-Ṭabarâni, and the narrators are those of the authentic collections.”)
>>أَنَّ جَارِيَةً زَوَّجَهَا أَبُوهَا، وَأَرَادَتْ أَنْ تَتَزَوَّجَ رَجُلا آخَرَ، فَأَتَتِ النَّبِيَّ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ، فَذَكَرَتْ ذَلِكَ لَهُ، فَنَزَعَهَا مِنَ الرَّجُلِ الَّذِي زَوَّجَهَا أَبُوهَا، وَزَوَّجَهَا النَّبِيُّ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ مِنَ الَّذِي أَرَادَتْ.
1215. Bukhari reported from Khansâ’ bint Khizâm that she was a thayyib but her father married her off against her wishes, so the Messenger of Allah (SA) annulled the marriage.
Chapter on Guardianship in Marriage
( Page : no 109)