Episode 27: Woman's guardianship for concluding a marriage contract (first view)
Scholars have differed concerning this issue according to two views:
The first view: The majority of scholars from the Maliki school of Fiqh, the Shafi`i school, the Hanbaly school, and some scholars from the Hanafi school of Fiqh who hold that marriage is invalid without a Waly (a guardian). A woman cannot conclude her marriage contract, conclude the marriage of another girl, nor authorize other than her guardian to conclude her marriage contract; and if she does so, her marriage shall be null and void.
This view is reported from `Umar, Ali, Ibn Mas`ud, Ibn `Abbas, Abu Hurayrah, and `A'ishah (may Allah be pleased with them) (1).
They quoted several texts as a proof, of which:
1- Allah's Saying: "Do not prevent them from marrying their (former) husbands." (2) The cause of the revelation of this Ayah is that Ma`qil ibn Yasar gave the hand of his sister in marriage to his cousin who divorced her then she and her divorcee wanted to go back in marriage after the end of her `Iddah (woman's prescribed waiting period after divorce or widowhood). However, Ma`qil refused and said: I preferred you to others and gave my sister to you in marriage, but you divorced her. So, I shall never let you marry her again.
Al Shafi`y (may Allah bestow mercy on him) said: This is the clearest Ayah in the book of Allah (may He be Exalted) which shows that marriage is not permissible without a guardian because Allah prohibited a guardian to prevent women to marry without his permission which is not achievable except if the guardian only has that right.
2- Abu Musa (may Allah be pleased with him) narrated that the Messenger of Allah (peace be upon him) said: "There is no marriage without the permission of a guardian." (3)
This Hadith indicates that marriage cannot be done and cannot be valid except by the permission of the guardian.
3- `A'ishah (may Allah be pleased with her) narrated that the Prophet (peace be upon him) said: "The marriage of a woman who marries without the consent of her guardians is void. (He said these words) three times. If there is cohabitation, she gets her dower for the intercourse her husband has had. If there is a dispute, the sultan (manin authority) is the guardian of the one who has no guardian." (4)
4- The Hadith of Abu Hurayrah (may Allah be pleased with him) who narrated that the Prophet (peace be upon him) said: "A woman cannot conclude the marriage contract of another woman. It is only a whore who marries herself." In another narration: "A woman can neither conclude the marriage contract of another woman nor can she marry herself." Abu Hurayrah (may Allah be pleased with him) said that we used to call the woman who concludes her marriage by herself an adulteress. (5)
These proofs are clear in confirming that a woman cannot conclude a marriage contract neither for herself nor for others.
5- `Abdur-Rahman ibn Al Qasim reported from his father that he said: People used to ask for the hands of girls from `A'ishah (may Allah be pleased with her) until it was the time to conclude the marriage, `A'ishah would say to some of her male relatives: conclude the marriage contract for a woman cannot conclude a marriage contract. (6)
6- Marriage is an important contract, its seriousness is great, and its objectives are noble, therefore the Shari`ah showed its seriousness by stipulating the presence of two witnesses and giving the responsibility of concluding it to men because women are deficient in mind. The proof to that deficiency is that the Shari`ah did not give her the right of divorce but a husband is the one who terminates the marriage.
7- It was reported from `Umar (may Allah be pleased with him) that he cancelled the marriage of a girl who concluded her marriage without the permission of her guardian in more than one instance, and no one of the companions object to that. (7)
8- A logical evidence: The guardians have the right to object to the marriage if a woman marries herself to incompetent person and if she has the full right of concluding a marriage contract, the guardians have no right to object. Another proof: a woman has the right to ask her guardian to conclude the marriage contract, but if she had got the right to conclude the contract, she would not have asked the guardian to conclude the marriage contract.
(1) See: Al Mudawwinah 2/117, I`anat At-Talibin 3/308, Al Um 9/12, Al Mughny 7/337, Al `Uddah Sharh Al `Umdah 2/516, Sharh Muslim of An-Nawawy 9/204, M`alim As-Sunan of Al Khattaby 3/176, and Fathul-Bary 9/193. If a judge or a ruler gave a verdict that the marriage contract is valid, it is not permissible to set it invalid, as well as all corrupted marriage contracts because it is a controversial matter and the door ofIjtihad (juristic effort to infer expert legal rulings) is open in them. Therefore, it is not permissible to invalidate these contracts. See: Al Mughny 7/337.
(2) [Surat Al Baqarah: 232].
(3) [Reported by Abu Dawud, book of marriage, chapter on guardians, p. 2085- 2/236, At-Tirmidhy, book of marriage, chapter 14 "There is no marriage without the permission of a guardian." p.1107- 2/280, Ad-Darimy, book of marriage, chapter on the prohibition of concluding a marriage contract without the permission of a guardian 2/137, Ahmad 4/394, and Ibn Hibban, book of marriage, chapter on a guardian —the explanation that marriage contract is the sole right of guardians without women, p. 4071- 6/154 and said: This narration was reported by Abu Burdah on the authority of Abu Musa. Sometimes Abu Musa reported this Hadith on the authority of his father with the chain of transmission and another time he would narrate it without the chain of transmission. However, the narration is authentic whether with or without the chain of transmission, and reported by Al Hakim, book of marriage, chapter on "There is no marriage without the permission of a guardian." 2/170 and said after he mentioned several chain of transmission: Allthese chain of transmissions are authentic and we followed the chain of transmission until we reached beyond Israel [one of the narrators]. Moreover, the former scholars who authenticate narrations mentioned the full chain of narrations; those scholars are: `Abdur-Rahman ibn Mahdy, Waki`, Yahya ibn Zakariya ibn Abu Za'idah, and others who graded this Hadiths as authentic. Al Albany also graded this Hadith as authentic in Irwa' Al Ghalil because of the reported similar narrations 6/238.
(4) Reported by Abu Dawud, book of marriage, chapter on a guardian, p. 2083- 2/235, At-Tirmidhy, book of marriage, chapter 14 on "There is no marriage without the permission of a guardian." p. 1108- 2/80 and said: This is a good Hadith, An-Nisa'i in As-Sunan Al Kubra, book of marriage, chapter 34 on a the formerly married woman authorizes other than her guardian, p. 5394- 3/285, Ad-Darimy, book of marriage, chapter on the prohibition of concluding a marriage contract without the permission of a guardian 2/137, Ibn Hibban, book of marriage, chapter on a guardian —the invalidity of marriage contract that was concluded without the permission of a guardian 4062-151\6and Al Hakim, book of marriage, chapter on "The marriage of a woman who marries without the consent of her guardians is void." 168\2 and said: This is an authentic Hadith according to the conditions of Al Bukhari and Muslim, but they did not report it. Adh-Dhahaby said as such and graded it as authentic by following the view of Ibn Hajar in Fathu-Bary 9/194, and Al Albany in Irwa' Al Ghalil p. 1840- 6/243.
(5) Reported by Ash-Shafi`y in his Musnad by the arrangement of As-Sindy vol. 28, p. 1113, and its chain of transmission is authentic, Ibn Abu Shaybah concerning a woman who marries herself 16210- 4/135, reported by Al Bayhaqy in As-Sunan Al Kubra, chapter on "There is no marriage without the permission of a guardian." p. 13411-110\7 and Ad-Daraqutny p. 30- 3/228.
(6) Reported by Al Bayhaqy in As-Sunan, chapter on "There is no marriage without the permission of a guardian." p. 14023- 7/112.
(7) Mentioned by Imam Ash-Shafi`y in his book "Al Um" 9/12.
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