The Book of Marriage

Guardianship Continued and

Un-marriageable Women

النِّكاَحِ

Glossary

The Book of Marriage (Nikâḥ)

than her guardian, and the previously unmarried should have her permission sought regarding herself; her permission is (indicated) by her silence.” ¹²¹⁶

than her guardian, and the previously unmarried should have her permission sought regarding herself; her permission is (indicated) by her silence.” ¹²¹⁷

وَلَيْسَ لِوَلِيِّ امْرَأَةٍ تَزْوِيْجُهَا بِغَيْرِ كُفْئِهَا بِغَيْرِ رِضَاهَا، وَاْلعَرَبُ بَعْضُهُمْ لِبَعْضٍ أَكْفَاء، وَلَيْسَ اْلعَبْدُ كُفُءَ اْلحُرَّةِ، وَلاَ اْلفَاجِرُ كُفُءَ اْلعَفِيْفَةِ.

1216. (Ag)

1217. Consideration of Proper Matching
Firstly, note that the requirement of equality applies to the man only. It is solely for the protection of women, so that they will not be married off to incompatible men. The situation where the woman is of lower status is not part of this discussion. (a) + (-M, -s, -Z, -t): The only factor required for establishing equality is religious commitment. This position was narrated from Ibn Mas‘ood, Muhammad ibn Seereen, al-Ḥasan al-Baṣri, ‘Umar ibn ‘Abdul-‘Azeez, and what can be understood from Bukhari’s choice of titles in his authentic collection. The Messenger of Allah (SA) said:

“If someone comes to you, and his religiosity and manners are accepted by you, marry him off (to your wards), lest there be trials and great corruption on Earth.” (T – from Abu Hurayrah. Auth)

إِذَا جَاءَكُمْ مَنْ تَرْضَوْنَ دِينَهُ وَخُلُقَهُ فَأَنْكِحُوهُ ، إِلَّا تَفْعَلُوا تَكُنْ فِتْنَةٌ فِي الْأَرْضِ وَفَسَادٌ كَبير

This position is also consistent with the saying of Allah:

“There is no superiority of an Arab over a non-Arab, or of a non-Arab over an Arab, or of a white man over a black man, or of a black man over a white man, except on the basis of taqwâ (piety).” (A – from Abi Naḍrah. S)

لَا فَضْلَ لِعَرَبِيٍّ عَلَى أَعْجَمِيٍّ ، وَلَا لِعَجَمِيٍّ عَلَى عَرَبِيٍّ ، وَلَا لِأَحْمَرَ عَلَى أَسْوَدَ ، وَلَا أَسْوَدَ عَلَى أَحْمَرَ إِلَّا بِالتَّقْوَى

The Prophet (SA) emphasized this concept in many hadiths, one of which is:

(A2): Only two factors may be considered: religious commitment and position in the society.

According to (A), the other factors of compatibility in addition to the lineage, freedom, and religious commitment, are profession and wealth. In our times, educational level may be a more accurate indicator of the position in the society.
Equality Is Not a Condition of Validity According to the very vast majority (including the majority of the latter Ḥnbalis), equality, beyond the condition of the groom being Muslim) is not a condition for the validity of the marriage contract. The bride and her guardians have the right to demand annulment only if one of them disapproves of the marriage. For example, if she married herself (without a wali, as permitted by -H) to someone who is deemed to not be her match, (H) gives the guardian the right to demand annulment; likewise, if the guardian married her off to him, she can demand annulment. When the adult bride and her guardians are pleased with the groom, no one has the right to contest the marriage. In al-Mughni, Imam Ibn Qudâmah mentions several examples from the first community of Muslims in which freed slaves were married to noble women from Quraysh. Sâlim, the freed slave of Abu Ḥudhayfah, married Hind bint ‘Utbah; Zayd ibn Ḥârithah married Zaynab bint Jaḥsh; the Prophet (SA) married Zayd’s son Usâmah to Fâṭimah bint Qays; and Bilâl was married to the sister of ‘Abdur-Raḥmân ibn ‘Awf. Moreover, there are many examples of Hashemite women (from the subclan of the Prophet [SA]) – including the Prophet’s own daughters Ruqayyah, Umm Kulthoom and Zaynab – marrying non-Hashemite men. The Prophet (SA) said:

“O Bani Bayâḍah, marry Abu Hind off to your female relatives, and marry his female relatives.” (D – from Abu Hurayrah. al-Albâni:R)

يَا بَنِي بَيَاضَةَ أَنْكِحُوا أَبَا هِنْدٍ وَأَنْكِحُوا إِلَيْهِ

Abu Hind was a cupper (ḥajjâm), and this was considered one of the lowest professions in their society.

After citing many of the proofs above and more, Imam Ibn al-Qayyim (the great Ḥanbali scholar and most notable student of Imam Ibn Taymiyah) said in his book Zâd al-Ma‘âd:
What is implied from the decrees of the Prophet (SA) is that consideration should be given only to compatibility in religious commitment. A Muslim woman should not be given in marriage to a non-Muslim, or a chaste woman to an immoral man. The Qur’an and Sunnah do not consider any compatibility beyond that. No consideration is given to lineage, profession, wealth, or whether the man is free or a slave. It is permissible for a slave who is the son of slaves to marry a free woman of noble birth, if he is chaste and Muslim. Allah made it permissible for non-Qurayshi men to marry Qurayshi women, for non-Hashemite men to marry Hashemite women, and for poor men to marry wealthy women.
How to Understand the Scholarly Discourse on Compatibility After establishing the fundamental Islamic principle that the most noble in the sight of God is the most pious, it is important that we understand the scholarly discourse on proper matching, within this context, as an attempt to alert women and their guardians to the importance of compatibility, and to prevent the guardians from marrying their wards to incompatible husbands. When ‘Â’ishah bought Bareerah and freed her, Bareerah wanted to separate from her husband Mugheeth, who was still a slave, so the Prophet (SA) gave her the choice. Some scholars cited this in support of their view that a slave is not a match for a free woman. However, we should not forget that she was the one who wanted separation from him. Moreover, the Prophet (SA) personally interceded with her on behalf of Mugheeth to stay with him.

“O Bani Bayâḍah, marry Abu Hind off to your female relatives, and marry his female relatives.” (D – from Abu Hurayrah. al-Albâni:R)

فَقَالَ النَّبِيُّ صلى الله عليه وسلم لَوْ رَاجَعْتِ قَالَتْ يَا رَسُولَ اللَّهِ تَأْمُرُنِي قَال إِنَّمَا أَنَا أَشْفَعُ قَالَتْ لاَ حَاجَةَ لِي فِيه

Whoever wants to marry his ward may marry her to himself with her permission. ¹²¹⁸

وَمَنْ أَرَادَ أَنْ يَنْكِحَ امْرَأَةً هُوَ وَلِيُّهَا، فَلَهُ أَنْ يَتَزَوَّجَهَا مِنْ نَفْسِهَا بِإِذْنِهَا.

وَإِنْ زَوَّجَ أَمَتَهُ عَبْدَهُ الصَّغِيْرَ، فَلَهُ أَنْ يَتَوَلىَّ طَرْفَـيْ اْلعَقْدِ، وَإِنْ قَالَ لأَمَتِهِ: أَعْتَقْتُكَ وَجَعَلْتُ عِتْقَكَ صَدَاقَكَ بِحَضْرَةِ شَاهِدَيْنِ، ثَبَتَ اْلعِتْقُ وَالنِّكَاحُ؛ لأَنَّ رَسُوْلَ اللهِ " أَعْتَقَ صَفِيَّةَ وَجَعَلَ عِتْقَهَا صَدَاقَهَا.

While Islam points out to us the highest peaks of virtue, it does not force us to climb faster than we can. It is a fact that the more compatible a couple is, the more likely they will have a successful marriage, and wide gaps in socioeconomic class and educational level may be a catalyst for conflict. However, if the adult bride and her guardians are willing to overlook those gaps because there are factors that make up for them, such as the knowledge or piety of the groom, or if they simply want to disregard them, then there is nothing to impede the marriage.

1218. Such as when a cousin becomes the closest guardian to a woman and then wishes to marry her.

Chapter on Marrying the Slaves ¹²¹⁹

فَصْلٌ فِيْ نِكَاحِ اْلعَبِيْدِ وَاْلإِمَاءِ

وَلِلسَّيِّدِ تَزْوِيْجُ إِمَائِهِ كُلِّهِنَّ، وَعَبِيْدِهِ الصِّغَارِ بِغَيْرِ إِذْنٍ، وَلَهُ تَزْوِيْجُ أَمَةِ مُوَلِّيَتِهِ بِإِذْنِ سَيِّدَتِهَا، وَلاَ يَمْلِكُ إِجْبَارَ عَبْدِهِ اْلكَبِيْرِ عَلىٰ النِّكَاحِ، وَأَيُّمَا عَبْدٍ تَزَوَّجَ بِغَيْرِ إِذْنِ سَيدِهِ فَهُوَ عَاهِرٌ، فَإِنْ دَخَلَ بِهَا فَمَهْرُهَا فِيْ رَقَبَتِهِ، كَجِنَايَتِهِ، إِلاَّ أَنْ يَفْدِيَهُ سَيِّدُهُ بِاْلأَقَلِّ مِنْ قِيْمَتِهِ أَوِ الْمَهْرِ، وَمَنْ نَكَحَ أَمَةً عَلىٰ أَنَّهَا حُرَّةً ثُمَّ عَلِمَ فَلَهُ فَسْخُ النِّكَاحِ وَلاَ مَهْرَ عَلَيْهِ إِنْ فَسَخَ قَبْلَ الدِّخُولِ، وَإِنْ أَصَابَهَا، فَلَهَا مَهْرُهَا، وَإِنْ أَوْلَدَهَا، فَوَلَدُهُ حُرٌّ يَفْدِيْهِ بِقِيْمَتِهِ، وَيَرْجِعُ بِمَا غَرِمَ عَلىٰ مَنْ غَرَّهُ، وَيُفَرَّقُ بَيْنَهُمَا، إِنْ لَمْ يَكُنْ مِمَّنْ يَجُوْزُ لَهُ نِكَاحُ اْلإِمَاءِ، وَإِنْ كَانَ مِمَّنْ يَجُوْزُ لَهُ ذٰلِكَ فَرَضِيَ بِهَا، فَمَا وَلَدَتْ بَعْدَ الرِّضَا، فَهُوَ رَقِيْقٌ.

1219. See the appendix on slavery.

The Sources of Proofs Imam Aḥmad Relied on ¹²²⁰

1220. Introduction and Types of Unmarriageable Women

There are two different types of prohibitions of marriage: permanent and temporary. As for the permanent prohibition, there are four reasons for it: consanguinity, marriage, breastfeeding, and li‘ân.
The Permanent Prohibition (using the woman as the reference case) Maḥrams by Nasab (Consanguinity)

Ancestors: Paternal and maternal forefathers.

Progeny: Sons, including sons’ and daughters’ sons. Brothers:

Full brothers, paternal half brothers, and maternal half brothers. Nephews and great-nephews, meaning the progeny of all of her siblings.

Paternal and maternal uncles, including her ancestors’ uncles.
Maḥrams by Muṣâharah (marriage) Stepsons, meaning her husband’s male progeny from another wife. Fathers-in-law, meaning her husband’s male ancestors (father, grandfathers, etc.).

Stepfathers, meaning her mother’s husbands.

Sons-in-law, meaning her daughters’ husbands.
Maḥrams by Raḍâ‘ (Breastfeeding)

Just like maḥrams by consanguinity and marriage as well, according to the vast majority. Therefore, it is forbidden for the man to marry his wife’s wet-nurse or her milk-daughter whom she fostered while being married to another man. (A) + (+M, +S): It is forbidden for an individual to remarry someone he made li‘ân against.
(-H): They may get married if he denies his previous li‘ân.

(A) + (+H, +M, +S): It is also forbidden for him to marry his daughter whom he denied via li‘ân.

باَبُ اْلمُحَرَّماَتُ فِيْ النِّكاَحِ

These are: the mothers, daughters, sisters, daughters of the brothers, daughters of the sisters, paternal aunts, ¹²²¹ maternal aunts, mothers of wives, wives of fathers, wives of sons, and daughters of wives (given that their mothers have been “entered on”). ¹²²², ¹²²³

وَهُنَّ اْلأُمُّهَاتُ، وَاْلبَنَاتُ، وَاْلأَخَــوَاتُ، وَبَنَــاتُ اْلإِخْــوَةِ، وَبَنَـــاتُ اْلأَخَــــوَاتِ، وَاْلعَمَّــاتُ، وَاْلخَالاَتُ، وَأُمُّهَاتُ النِّسَاءِ، وَحَلاَئِلُ اْلآبَاءِ والأبْنَاءِ، والرَّبَائِبُ اْلمَدْخُوْلُ

The Causes of Temporary Prohibition Marriage:

If a woman is married or observing her ‘iddah (waiting period after being divorced or widowed), she cannot marry another man. In addition, a man cannot marry another woman if he is already married to four wives (even if some of them are divorced, unless their divorce is finalized).

A woman whom he has divorced three times – unless she marries another man, consummates the marriage with him, and is divorced from him, and her ‘iddah from that marriage expires.

Forbidden co-wifery: A woman cannot be a co-wife with her sister or aunt (maternal or paternal).

Disbelief and fornication: A Muslim man cannot marry a woman who is not a Muslim, Christian or Jew until she believes. A Muslim woman can only marry a Muslim man. A Muslim man cannot marry a fornicator until she repents (A). The same applies to the Muslim woman (a, t).

In the following diagram, the dark-shaded boxes indicate all permanent prohibitions for a woman:

1221. In this chapter, the terms ‘mothers’ and ‘fathers’ include grandmothers and grandfathers of all generations. ‘Daughters’ and ‘sons’ refer to all of the progeny, females and males respectively. ‘Sisters’ include full sisters and half sisters, but not stepsisters. ‘Aunts’ include the sisters of all mothers and fathers of all generations.

1222. Meaning that marriage with their mothers has been consummated. According to the majority, it is considered consummated once seclusion between the husband and wife is established. According to the Ḥanbalis, it is considered consummated in this case after intercourse.

Note that this applies to the stepdaughter (the wife’s daughter), but it does not apply to the mother in-law (the wife’s mother), for whom the prohibition is immediate once the contract is finalized with her daughter.

1223. Allah (st) addressed this matter in detail in His book, indicating its importance. He said:

Breastfeeding results in the same restrictions caused by consanguinity. ¹²²⁴

بِأُمَّهَاتِهِنَّ.
وَيَحْرُمُ مِنَ الرَّضَاعِ مَا يَحْرُمُ مِنَ النَّسَبِ.

The daughters of unmarriageable women are also unmarriageable except the daughters of: paternal and maternal aunts, mothers of wives, and wives of fathers and sons. The mothers of unmarriageable women are unmarriageable except the mothers of: daughters, daughters of wives, and the wives of fathers and sons.

وَبَناَتُ الْمُحَرَّمَاتُ مُحَرَّمَاتٌ، إِلاَّ بَنَاتِ اْلعَمَّاتِ وَاْلخَالاَتِ، وَأُمَّهَاتِ النِّسَاءِ، وَحَلاَئِلِ اْلآبَاءِ وَاْلأَبْنَاءِ؛ وَأُمُّهَاتُهُنَّ مُحَرَّمَاتٌ، إلَّا اْلبَنَاتِ وَالرَّبَائِبَ وَحَلاَئِلَ اْلآبَاءِ وَاْلأَبْنَاءِ.

He who had intercourse with a woman, whether lawfully or unlawfully, she becomes unmarriageable for his father and son. Her mother and daughters become unmarriageable to him.

وَمَنْ وَطِئَ امْرَأَةً حَلاَلاً أَوْ حَرَامًا حَرُمَتْ عَلىٰ أَبِيْهِ وَابْنِهِ، وَحَرُمَتْ عَلَيْهِ أُمُّهَاتُهَا وَبَنَاتُهَا.

{Prohibited to you [for marriage] are your mothers, your daughters, your sisters, your father's sisters, your mother's sisters, your brother’s daughters, your sister's daughters, your [milk] mothers who nursed you, your sisters through nursing, your wives' mothers, and your step-daughters under your guardianship [born] of your wives unto whom you have gone in. But if you have not gone in unto them, there is no sin upon you. And [also prohibited are] the wives of your sons who are from your [own] loins, and that you take [in marriage] two sisters simultaneously, except for what has already occurred. Indeed, Allah is ever Forgiving and Merciful.} (an-Nisâ’ 4: 23)

حُرِّمَتْ عَلَيْكُمْ أُمَّهَاتُكُمْ وَبَنَاتُكُمْ وَأَخَوَاتُكُمْ وَعَمَّاتُكُمْ وَخَالَاتُكُمْ وَبَنَاتُ الْأَخِ وَبَنَاتُ الْأُخْتِ وَأُمَّهَاتُكُمُ اللَّاتِي أَرْضَعْنَكُمْ وَأَخَوَاتُكُم مِّنَ الرَّضَاعَةِ وَأُمَّهَاتُ نِسَائِكُمْ وَرَبَائِبُكُمُ اللَّاتِي فِي حُجُورِكُم مِّن نِّسَائِكُمُ اللَّاتِي دَخَلْتُم بِهِنَّ فَإِن لَّمْ تَكُونُوا دَخَلْتُم بِهِنَّ فَلَا جُنَاحَ عَلَيْكُمْ وَحَلَائِلُ أَبْنَائِكُمُ الَّذِينَ مِنْ أَصْلَابِكُمْ وَأَن تَجْمَعُوا بَيْنَ الْأُخْتَيْنِ إِلَّا مَا قَدْ سَلَفَ إِنَّ اللَّهَ كَانَ غَفُورًا رَّحِيمًا

{There is no blame upon you for that to which you [indirectly] allude concerning a proposal to women or for what you conceal within yourselves...} (al-Baqarah 2: 235)

{ وَلَا جُنَاحَ عَلَيْكُمْ فِيمَا عَرَّضْتُم بِهِ مِنْ خِطْبَةِ النِّسَاءِ أَوْ أَكْنَنتُمْ فِي أَنفُسِكُمْ ... }

1224. This is the exact statement of the Prophet (SA) as reported by Bukhari and Muslim from ‘Â’ishah. See the details in the next chapter.

Guardianship Continued and Un-marriageable Women

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The Book of Marriage

Guardianship Continued and

Un-marriageable Women

النِّكاَحِ

Introduction

The Book of Purification

The Book of 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

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

The Book of Oaths

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 Continued and Un-marriageable Women