The third pillar: The one who should conclude the marriage contract is the woman's guardian because of the Prophet's saying: “There is no marriage without the permission of a guardian.”
If a woman gives herself in marriage without the consent of her guardian, her marriage will be null and void because of the Prophet's saying: “The marriage of a woman who marries without the consent of her guardians is void. (He said these words) three times.”
Who is the guardian: The majority of jurists said that a guardian in marriage should be from the male relatives, headed by the woman's father because no one can be a guardian in the presence of the father. Next if a father writes a will about who will be the guardian after him, then the father's father, then the son, then the full-brother, then a parental brother, then the nephews then the uncle then the uncle's sons.
Conditions of guardianship are: Islam, puberty, `Aql (reason), masculinity, and uprightness.
Compulsion of guardians: A guardian has no right to force a woman to prevent a woman to marry a person who is good and competent and by the dower of her family girls in the same age and status. She may submit the complaint to the emir to conclude the marriage contract himself. However, if the father is the guardian, there is a disagreement among scholars in this case.
Allah (Glory be to Him) says: “And when you have divorced women and they have fulfilled the term of their prescribed period, do not prevent them from marrying.” Al Hasan said: “Concerning the Verse 'Do not prevent them' Ma'qil ibn Yasar told me that it was revealed in his connection. He said: “I married my sister to a man and he divorced her, and when her days of `Iddah (three menstrual periods) were over, the man came again and asked for her hand, but I said to him: 'I married her to you and made her your bed (your wife) and favored you with her, but you divorced her. Now you come to ask for her hand again? No, by Allah, she will never go back to you (again)!' That man was not a bad man and his wife wanted to go back to him. So Allah revealed this Verse 'Do not prevent them.' So I said: 'Now I will do it (let her go back to him), O Allah's Messenger.” So he married her to him again.”
A virgin may refuse to marry a lewd and a ruler may separate between them if that happens.
The wisdom behind stipulating a guardian in marriage is:
One of the objectives of this wise ruling is protecting a woman against concluding the marriage contract herself which may indicate her rudeness and inclination to men and that is not the case of people of good-manners.
Sheikh Walyyullah Ad-Dahlawy (may Allah be merciful with him) said: “If women are given the freedom to marry themselves, this shows rudeness due to her lack of shyness, transgression against guardians, and indifference. Moreover, marriage should be distinct from adultery by declaration which should be attended by her guardians.”
A woman, because of her little experience with the society and her lack of knowledge about men, is not safe to take that responsibility because she may be tricked easily. A woman may be deceived by appearances without thinking about consequences. Therefore, the permission of a guardian is a must to maintain her interests because he is more far sighted, more experienced, and has the best estimation, wisdom and objectivity; because he passes his judgment according to the most competent, the well-mannered, and the best for marital life. How come a guardian has nothing to do with her marriage while he, whether she likes it or not, the first reference in case of disagreement and in case of marriage failure! He will bear the responsibility and consequences of her mistake if she married herself without his permission and consent.
The objective of giving supervision to the guardian to choose a husband is not only to facilitate marriage but also to secure it and provide for it the stability factor as well as maintaining the interests of the girl upon whom Allah entrusted. From this objective, guardianship was based on good choice and pity, so the closest to her will be more merciful which is mostly ascertained in male relatives.
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