Episode 28: Woman's guardianship for concluding a marriage contract (Second view)

Details: Published: 03 October 2011; Hits: 15386

The second view is: The Hanafi school of Fiqh hold the view that a woman may conclude the marriage contract of herself or conclude the marriage of another woman, but they differed concerning the ruling if she marries herself to incompetent person whether a woman was a virgin or not.

According to Abu Hanifah (may Allah bestow mercy on his soul) marriage is valid but the guardians have the right to object. In the narration of Al Hasan (may Allah bestow mercy on his soul) if a husband is competent, marriage is permissible and valid, but if he is incompetent, marriage is invalid. Abu Yusuf (may Allah bestow mercy on his soul) first used to say: it is not permissible to marry herself to a competent or incompetent if she has a guardian, then he changed his view and said: If the husband is competent, marriage is valid. Then he changed his view by saying: marriage is valid whether a husband is competent or incompetent. Muhammad (may Allah bestow mercy on his soul) said: her marriage is suspended until her guardian permits it whether she marries herself to a competent or incompetent person.

However, if a guardian permits it, it will be valid, but if the guardian does not permit it, it will be null and void. However, if a husband is competent for her, a judge should renew the contract if the guardian refused to do so. (1)

They hold the following as a proof:

1- Allah's Saying: "Do not prevent them from marrying their (former) husbands." They said: a woman has the right to conclude the marriage contract for herself and others as she has the right to authorize others in marriage because Allah (may He be Exalted) added marriage to them and prohibited anyone to prevent them from marriage.

2- It was reported in Al Muwatta' on the authority of `Abdur-Rahman ibn Al Qasim from his father from `A'ishah (may Allah be pleased with her) that she gave Hafsah bint `Abdur-Rahman in marriage to Al Mundhir ibn Az-Zubayr while `Abdur-Rahman was away in Syria. When `Abdur-Rahman arrived, he said: "Shall someone like me have this done to him? Am I the kind of man to have something done to him without his consent?" `A'ishah (may Allah be pleased with her) spoke to Al Mundhir ibn Az-Zubayr, and Al Mundhir said: "It is in the hands of `Abdur-Rahman." `Abdur-Rahman said: "I will not oppose something that you have already completed." Hafsah stayed with Al Mundhir, and there was no divorce. (2)

3- It is her sole right to conclude marriage because she is grown up and can conclude contracts, so her contract is valid such as selling her slave girl. When she has the right to sell her slave girl which is an action she can do by herself as other actions, she can conclude the marriage contract which contains some of her benefits. They refuted the proof of the majority as follows:

• They refuted the Hadith of "There is no marriage without the permission of a guardian." with two things:

The first is: The meaning of a guardian is the one whose permission is necessary to conclude the marriage to prevent the marriage of an infidel to a Muslim woman.

The second is: The meaning is to achieve perfection of the marriage procedures and to do the Sunnah, but it is not related to the validity of marriage or not.

• They also refuted the Hadith of `A'ishah (may Allah be pleased with her) "The marriage of a woman who marries without the consent of her guardians is void." by saying that the meaning is the validity of marriage by the permission of a guardian, and because preventing a woman is one of the rights of a guardian, it is permissible for him to conclude the marriage such as the marriage of a slave which is valid by the permission of his master.

The most preponderant view is the opinion of the majority, and the proofs of the Hanafi school of Fiqh can be refuted as follows:

• As for adding marriage to women in Allah's Saying: "Do not prevent them from marrying their (former) husbands." that is because they are affected with marriage and not because they have the sole right to marry themselves without the permission of their guardians, otherwise the prevention which a guardian has would have no meaning.

• As for their argument that `A'ishah (may Allah be pleased with her) did that, it can be interpreted that she gave permission to marriage and prepared the way for it, but when it was the time for concluding the marriage contract, she asked one of her male relatives to conclude the marriage contract because of the absence of the girl's father. This is supported by the narration of `Abdur-Rahman ibn Al Qasim on the authority of his father who said: `A'ishah (may Allah be pleased with her) used to betroth a girl from her family then she would witness the contract, but when it was the time to conclude the marriage contract, she would say to some of her male relatives: conclude the marriage contract for a woman cannot conclude a marriage contract." In another wordings: "Women cannot give the hand of a girl in marriage." [Reported by Al Bayhaqy from `Abdur-Rahman]. (3)

It was said to Imam Malik who reported the Hadith: Regarding the Hadith of `A'ishah who concluded the marriage of Hafsah, the daughter of `Abdul-Rahman, to Al Mundhir ibn Az-Zubayr, did not `A'ishah conclude the marriage contract? He said: "We do not know the explanation of this Hadith. All we know that she authorized someone to conclude the marriage contract." (4)

• As for the Hadith of `A'ishah (may Allah be pleased with her) "The marriage of a woman who marries without the consent of her guardians is void," it can be refuted as follows: stipulating a guardian because it is common known that a guardian should be present at the time of concluding the marriage because in common a woman does not conclude her marriage contract by herself but needs the permission of a guardian. When a guardian agrees, he would be the one who concludes the marriage contract and not the woman. As for the case of the marriage of a slave, there is a difference between the two cases because a woman is not trusted to give herself to anyone because of the deficiency of her mind, so it is not permissible to give her the power to conclude her marriage contract because she would be like the one who wastes his money. Unlike the case of a slave because the prevention is the sole right of a guardian. And Allah knows the best!

Dr. Ilham Badr Al Jabry

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(1) See: Fathul-Qadir 6/465, Sharh Fathul-Qadir 2/11, Al Mabsut 5/16-19, and Tabiin Al Haqa'iq 2/117.

(2) Reported by Imam Malik in his Muwatta', the narration of Muhammad ibn Al Hasan, chapter on a man gives the permission to his girl to conclude her marriage contract p. 568-2/499 and the narration of Yahya Al Laythy, chapter on things that are not included in possession contracts, p.1160-2/555.

(3) As-Sunan Al Kubra of Al Bayhaqy 7/112, and that was the view of Al Bayhaqy.

(4) Al Mudawwinah 2/117.

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Episode 28: Woman's guardianship for concluding a marriage contract (Second view)

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