Fath al-Rabbani

Benefits: … The presence of a guardian (wali) is a condition for marriage, as is evident from the aforementioned blessed ahadith. This is the opinion of Imam Malik, Imam Shafi’i, and the majority of scholars. However, Imam Abu Hanifah did not consider the permission of the wali to be necessary, but this opinion is not correct in light of the ahadith of this chapter, and there is no clear evidence in support of this view.

It should be clear that by wali is meant the agnate relatives, among whom the father comes first; in the absence of the father, then the grandfather, then the brother, and then the paternal uncle. If a woman has two or more guardians and there is a disagreement at the time of marriage, preference will be given to the closer guardian, and if both guardians are of equal status, then in case of disagreement, the ruler (hakim) will act as the guardian.

In both the Qur’an and hadith, a widow or divorced woman, like a virgin, is also under the authority of her guardians. Allah the Exalted says: {وَلَا تَعْضُلُوْہُنَّ اَنْ یَّنْکِحْنَ اَزْوَاجَہُنَّ} (Surah al-Baqarah: 232) … “If those women (after the completion of their waiting period for the first or second divorce) wish to marry their former husbands, do not prevent them.”

In this verse, the guardians of divorced women whose waiting period (‘iddah) has ended are being instructed that if they are willing to remarry their former husbands, the guardians should arrange the marriage. The meaning of this verse is that such a woman can also be prevented by her guardians. Furthermore, according to the narration in Sahih Bukhari, this verse was revealed when a brother refused to allow his divorced sister to remarry her former husband. When this verse was revealed, he arranged the marriage again. Imam Bukhari established this chapter on this hadith: “Chapter: Whoever said there is no marriage except with a guardian, due to the saying of Allah the Exalted {فَـلَا تَعْضُلُوہُنَّ} thus including the previously married woman (thayyib) as well as the virgin (bikr), and said: {وَلَا تُنْکِحُوا الْمُشْرِکِینَ حَتّٰییُؤْمِنُوا} and said: {وَأَنْکِحُوا الْأَیَامٰی مِنْکُمْ}.” In this chapter, Imam Bukhari mentions these three verses to prove that the guardian has authority in the marriage of the girl, for this is why Allah the Exalted is commanding them.

Two verses regarding the condition of a guardian and their explanation:

Allah the Exalted says: {وَلَا تُنْکِحُوْا الْمُشْرِکِیْنَ حَتّٰییُؤْمِنُوْا وَلَعَبْدٌ مُّؤْمِنٌ خَیْرٌ مِّنْ مُّشْرِکٍ وَلَوْ اَعْجَبَکُمْ} … “And do not give your daughters in marriage to polytheists until they believe, and indeed a believing slave is better than a polytheist, even though he may please you.” (Surah al-Baqarah: 221)

Imam Qurtubi said in the commentary of this verse: “In this verse is explicit evidence that there is no marriage except with a guardian. … This verse is a text on the matter that there is no marriage without a guardian (for this is why the guardians are being commanded not to marry their daughters to polytheists).” (Tafsir Qurtubi: 3/49)

Allah the Exalted said: {وَاِذَا طَلَّقْتُمُ النِّسَائَ فَبَلَغْنَ اَجَلَھُنَّ فَـلَا تَعْضُلُوْھُنَّ اَنْ یَّنْکِحْنَ اَزْوَاجَھُنَّ اَذَا تَرَاضَوْا بَیْنَھُمْ بِالْمَعْرُوْفِ} … “And when you divorce women and they have reached the end of their waiting period, do not prevent them from marrying their (former) husbands if they agree with each other in a good manner.” (Surah al-Baqarah: 232)

The context of revelation (sha’n al-nuzul) of this verse is that a Companion married his sister to a man, but he divorced her, and her waiting period (‘iddah) was completed. When the waiting period ended, the same Companion sent a marriage proposal again, but the brother intervened and refused to marry his sister. At this occasion, this verse was revealed.

Hafiz Ibn Hajar said: “This is the clearest evidence for the consideration of the guardian, otherwise there would be no meaning to preventing her, and if it were permissible for her to marry herself, she would not be in need of her brother, and for one who has authority in a matter, it cannot be said that someone else prevented him from it.” (Fath al-Bari: 9/94)

The phenomenon of girls running away from home and going to court to marry their lovers is a great tribulation of the present age and an encouragement to secret love affairs. This not only results in the humiliation and disgrace of the parents, but also affects the entire atmosphere of society, while such a marriage is invalid (fasid).

Along with the permission of the guardian, the following blessed ahadith present Islam’s extremely balanced and unparalleled law: in the matter of marriage, while the consent of the guardians is necessary, the girl cannot in any way be considered powerless; rather, her preference or lack thereof must be fully taken into account in the choice of a life partner.