Is Guardianship a Condition for the Validity of a Marriage Contract?
[Taken from Imaam ibn Rushd’s “Bidayat al-Mujtahid wa-Nihayat al-Muqtasid” ‘The Book of Nikah’]
The jurists disagree whether guardianship is one of the conditions for the validity of marriage. Malik, Ashhab’s narration from him, said that there is no marriage without a guardian and that it is a condition of validity. ash-Shafi’i held the same opinion. Abu Hanifa, Zufar, al-Sha’bi and al-Zuhri said that if a woman contracts her marriage without a guardian, and with someone of equivalent status (kuf’), it is permitted. Dawood (ath-Thaahiri) distinguished between a virgin and a deflowered woman and stipulated the existence of a guardian as a condition in the case of a virgin, but did not stipulate it in the case of a deflowered woman. The fourth opinion is Malik’s, as derived from Ibn al-Qasim’s narration, that its stipulation as a demand is recommended (sunna), but not obligatory. This is because it is narrated from him that he used to view inheritance among parties married without a guardian (as valid), and permitted an unchaste woman to appoint a man as her guardian for her marriage, and he held as recommended that deflowered woman present a guardian who could contract on her behalf. Thus, guardianship for him is one of the complementary demands and not a condition for validity, as against the statement of Malik’s disciples from Baghdad, who consider it a condition of validity and not that of perfection. The reason for their disagreement is the absence of a verse or tradition that is apparent (thaahir) not to say explicit, about the stipulation of guardianship as a condition of marriage. In fact the verses and traditions that are quoted in practice, by those who stipulate it as a condition, are all subject to interpretation. Similarly, the verses and traditions that are quoted in support of its absence as a condition are also not so clear on the issue. The traditions, besides being unclear in meaning, are disputed as to their authenticity, except the tradition of Ibn ‘Abbas, which negates it, but it lacks persuasive force as the original rule requires freedom from all liability.
We will state the most prominent sources from among those cited for support by both parties and explain the aspects of probability in them. The most prominent sources used from the Qur’an, by those who lay down guardianship as a condition, are the words of the Exalted: “[When] they reach their term, place not difficulties in the way of their marrying their husbands” [al-Baqara 2:232] They said that this is addressed to the guardians. If they had no right of guardianship how is it that they were prohibited from prevention (of marriage)? About the words of the Exalted: “And do not marry idolaters till they believe” [al-Baqara 2:221] they said that this too is addressed to the guardians. The most prominent tradition used by them is narrated by al-Zuhri from ‘Urwa from ‘A’isha that she said, “The Messenger of Allaah (Allaah’s peace and blessings be upon him) said: ‘Any woman who marries without the consent of her guardian, her marriage is void, void, void, and if the wedding takes place she is entitled to dower according to her status (mahr al-mithl). And if they should disagree, then, the sultan is the guardian of whoever is without a guardian’.” It is narrated by al-Tirmidhi who said it is a hasan tradition.
Among the verses from the Qur’an and the traditions, used by those who do not lay down guardianship as a condition, are the words of the Exalted: “Then there is no sin for you in aught that they (widowed women) may do with themselves in decency.” [al-Baqara 2:234] They maintain that this is proof of the permissibility of her entering into a contract for her marriage on her own. They said that in addition to this, the act (of marrying independently) is attributed to them in several other verses. Thus, the words, “In marrying their husbands” [al-Baqara 2:232] and “until she has wedded another husband” [al-Baqara 2:230]
In their reliance on traditions, they argued on the basis of a report by Ibn ‘Abbas, the authenticity of which is agreed upon. It is the saying of the Prophet (God’s peace and blessings be upon him) that “the deflowered woman has a greater right over herself than her guardian, and the virgin is to be asked about herself, and her silence is her consent.” [Agreed upon] It is on the basis of this tradition that Dawud (ath-Thahiri) argued about the distinction he made between the deflowered woman and the virgin. These, then, are the best-known evidences put forward by both parties from the transmitted texts.
In the words of the Exalted: “And [when] they reach their term do not place difficulties in their way of marrying their husbands” [al-Baqara 2:232] there is nothing more than a proscription for the relatives and residuaries that they may not prevent her (the woman) from marrying, and from this proscription for non-prevention it is not understood, either in its metaphorical or actual meaning, that their (the guardian’s) consent is stipulated for the validity of the contract. I mean, from any aspect of the apparent or explicit indication of the communication (khitab). In fact, the opposite may be understood from it, which is that there is no way the guardians can prevent their wards (from marrying). Similarly, the words of the Exalted: “And do not marry idolaters till they believe” [al-Baqara 2:221] are better understood as a communication for the rulers (ulul amr) of the Muslims or for all the Muslims collectively rather than a communication for the guardians. On the whole, it vacillates between being a communication for the guardians or for the rulers. Thus, those who have argued on the basis of this verse are under the obligation to explain how the communication is addressed, through its apparent meaning, to the guardians not to the rulers.
If it is maintained that it has a general implication, and being general it includes both rulers and guardians, it will be said that this communication implies the denial of a right in which the guardians and others are equal, and their being addressed does not grant them exclusive authority for giving consent. If we say that it is a communication addressed to the guardians, making it obligatory that they stipulate their consent for the validity of marriage, it would nevertheless be an un-elaborated (mujmal) communication and acting according to it would be difficult as there is no indication in it about the kinds of guardians, their qualifications and their grades. The explanation (bayan) must not be delayed from the time of its need. Had there been a known law practiced on this issue it would have come down through a collective communal transmission or through a transmission close to it as this was a point of general need and it is known that there were those in Medina who had no guardians. In addition, it has not been related from the Prophet (Allaah’s peace and blessings be upon him) that he used to administer their marriage contracts or that he appointed someone who performed this function. Further, the purpose of the verse is not to expound the hukm of wilaya, but the (purpose is) to prohibit marriage with the polytheists, men and women. This is evident—Allaah knows best.
‘A’isha’s tradition is disputed with respect to the obligation of acting upon it. The preferred course is that a tradition disputed with respect to its soundness does not give rise to the obligation of acting upon it, and even if we concede the soundness of the tradition, there is nothing in it beyond the stipulation of seeking the permission of the guardian by one who has a guardian, I mean, the female ward. If we concede that it is general for all women, it does not contain the prohibition for a woman to contract her own marriage, that is, she cannot herself conclude the contract. In fact, it is evident from it that if the guardian grants her his permission, it is permitted to her to form her own contract without there being the stipulation of including the guardian among the witnesses for the validity of the contract.
The meaning of what is adduced as proof by the other party of the words of the Exalted, “There is no sin for you in that which they do of themselves within the recognized limits” [al-Baqara 2:240] indicates a prohibition of attributing blame to them for acting independently to the exclusion of the guardians, and there is no act through which a woman can go against the wishes of her guardian except the contract of marriage. The apparent meaning of the verse, then, Allaah knows best, is that a woman has the right to contract her own marriage and the guardians have a right to revoke it if it is not in conformity with her status. This is the manifest requirement of the law, but none of the jurists has expressed it. Arguing on the basis of a part of a verse and not arguing on the basis of the remaining part exhibits weakness (of method). There is no evidence of exclusivity in the verse in attributing the contract of marriage to them (the women), but the principle is that it is exclusive, unless an evidence to the contrary is adduced to contradict this.
The tradition of Ibn ‘Abbas is, upon my life, explicit in indicating the distinction between a deflowered woman and a virgin, for if permission from each one of them is to be sought and it is their guardian who supervises the contract, then, in what, I wish I knew, does the widow have a greater right over herself than her guardian? The tradition of al-Zuhri would be better (understood) if it is considered to be in conformity with this tradition rather than being in conflict with it. It is probable that the difference between the two is only to the extent of one being explicit and the other not being so, and silence is sufficient for the contract.
The proof in the words of the Exalted, “There is no sin for you in that which they do of themselves within their recognized limits” [al-Baqara 2:240] indicating that a woman has a right to form her own contract, is stronger than the implication of the words of the Exalted, “And do not marry idolaters till they believe” [al-Baqara 2:221] which are claimed to convey that the guardian has the right to conclude the contract.
The Hanafites deemed the tradition of ‘A’isha as weak for the reason that it is a tradition narrated by a group from Ibn Jurayj from al-Zuhri, and Ibn ‘Ulayya related from Ibn Jurayj that he (Ibn Jurayj) asked al-Zuhri about it, but he did not know of it. They added: “The evidence confirming this is that al-Zuhri did not make the stipulation of wilaya, nor is wilaya upheld in ‘A’isha’s opinion.”
They also argued on the basis of the tradition of Ibn ‘Abbas, who said, “There is no marriage without a guardian and two ‘adl witnesses.” The completeness of its chain, however, is disputed. In the same manner, they differed about the tradition concerning the marriage of the Prophet (Allaah’s peace and blessings be upon him) to Umm Salama and his ordering her (young) son to give her away himself in marriage.
The argument of the parties based on reason is equivocal, as it is possible to say that when discretion (rushd) is found in a woman, it is sufficient for purposes of the marriage contract, for it is deemed to be so in the case of financial transactions. It may be said, however, that a woman is inclined toward men more than she is inclined toward wealth, and it is for this reason that the Shari’ has been cautious in interdicting her permanently in this respect; the shame that may result from her casting herself in a place out of her status will most likely affect the guardians. It is, however, sufficient to say here that the guardians do have a right of revocation and inquiry. The issue is ambivalent, as you can see, but the point which forces itself upon the mind is that if the Lawgiver had intended the stipulation of guardianship, he would have elaborated the categories of the guardians, their types, and grades. Delay of the elaboration, beyond the time of its need, would be harmful. If delay in the needed explanation is not permitted to him (Allaah’s peace and blessings be upon him), especially when the general public need requires that the stipulation of guardianship be transmitted through a general communal transmission or in a manner close to it—and yet it is not transmitted—it makes it necessary to believe in one of two possibilities: that guardianship is not a condition for the validity of marriage, and that the guardians have only the right of inquiry in it, or that if guardianship is a condition, then, the explanation of qualifications, types, and grades of the guardians is not a condition for its validity, and it is for this reason that the opinion of those who nullify the contract by a remote guardian in the presence of an immediate guardian, is to be deemed as weak.