Question:
There are two witnesses present, the dower is also agreed upon, and the offer and acceptance have taken place, but there is no permission from the guardian. Will the marriage be valid?
Answer:
Marriage is not contracted without the permission or consent of the girl’s guardian. This is one of the conditions of marriage.
وَإِذَا طَلَّقْتُمُ النِّسَاءَ فَبَلَغْنَ أَجَلَهُنَّ فَلَا تَعْضُلُوهُنَّ أَنْ يَنْكِحْنَ أَزْوَاجَهُنَّ
And when you divorce women and they have fulfilled their term, do not prevent them from marrying their former husbands.
❀ Imam Ibn Jarir al-Tabari, may Allah have mercy on him
, says under this verse:
This noble verse clearly indicates that those who say that marriage is not valid without the permission of the guardian are correct, because if a woman wishes to marry, Allah Almighty has forbidden the guardian from preventing her. If a woman could marry without a guardian or appoint anyone she wished as her guardian, then there would be no meaning in forbidding the guardian from preventing her marriage, because in that case the guardian would have no way to prevent her, as she could marry whenever she wished or have her appointed guardian marry her (there would be no meaning in forbidding the original guardian).
❀ Hafiz Ibn Kathir, may Allah have mercy on him
, writes:
This verse is evidence that a woman cannot marry herself, rather the presence of a guardian is necessary for marriage. This is also stated by Imam Tirmidhi, may Allah have mercy on him, and Imam Ibn Jarir, may Allah have mercy on him, in their exegesis of this verse.
❀ Sayyiduna Mu’adh ibn Yasar, may Allah be pleased with him, narrates:
A proposal for marriage came to me from a sister of mine. One of my paternal cousins also came, and I married my sister to him. Then he gave her a revocable divorce, then let her go until her waiting period was completed. When proposals for marriage started coming to me (from others), he also brought a proposal. I said, “No, by Allah! I will never marry my sister to you.” This verse was revealed about me:
وَإِذَا طَلَّقْتُمُ النِّسَاءَ فَبَلَغْنَ أَجَلَهُنَّ فَلَا تَعْضُلُوهُنَّ أَنْ يَنْكِحْنَ أَزْوَاجَهُنَّ
Then I paid the expiation for my oath and married my sister to him.
❀ Imam Tirmidhi, may Allah have mercy on him
, says:
This hadith is evidence that marriage without a guardian is not permissible, because Sayyiduna Mu’adh ibn Yasar’s sister was divorced, and if the matter of marriage was in her own hands, she would have married herself and would not have needed her guardian Mu’adh ibn Yasar. Allah Almighty addressed the guardians in this verse:
فَلَا تَعْضُلُوهُنَّ أَنْ يَنْكِحْنَ أَزْوَاجَهُنَّ
Do not prevent them from marrying their former husbands. Therefore, it is understood from this verse that the matter of marriage is in the hands of the guardians, though the consent of the women is also necessary.
❀ Imam Ibn Khuzaymah, may Allah have mercy on him
, says:
This hadith contains clear evidence that Allah Almighty has entrusted the authority of marriage contract to the guardians, not to the women themselves. It is also evidence that women, even if they are widows, do not have any authority in marriage.
فَانْكِحُوهُنَّ بِإِذْنِ أَهْلِهِنَّ وَآتُوهُنَّ أُجُورَهُنَّ بِالْمَعْرُوفِ
Marry them with the permission of their people and give them their due dowries in a fair manner.
❀ Imam Ibn Jarir al-Tabari, may Allah have mercy on him, says:
بإذن أهلهن بإذن أربابهن وأمرهم إياكم بالنكاح ورضاهم
Marry them with the permission, command, and consent of their guardians.
ولا تنكحوا المشركين حتى يؤمنوا
Do not marry your women to polytheists until they believe.
Imam Bukhari, may Allah have mercy on him, has deduced from this verse that marriage without the guardian’s permission is not valid.
Hafiz Ibn Hajar, may Allah have mercy on him
, writes:
The deduction from this verse and the following verse is that Allah Almighty addressed men regarding marriage, not women, as if He said: O guardians! Do not marry your women under your guardianship to polytheists.
وأنكحوا الأيامى منكم
Marry the unmarried among you.
Imam Bukhari, may Allah have mercy on him, also proved from this verse that marriage without the guardian’s permission is not valid.
Sayyida Aisha, may Allah be pleased with her, describing the forms of marriage in the pre-Islamic period, says:
In the era of ignorance, there were four ways of marriage, one of which is the one people follow today, that is, a man sends a marriage proposal to another man regarding a woman or daughter under his guardianship, then marries her by giving her the dowry. When Muhammad, peace be upon him, was sent with the truth, he abolished all forms of pre-Islamic marriage except the one people follow today.
Imam Bukhari, may Allah have mercy on him, proved from the words إلا نكاح الناس اليوم in this hadith that the guardian’s permission is necessary in marriage, because the marriage that the Prophet Muhammad, peace be upon him, maintained is the one Sayyida Aisha, may Allah be pleased with her, described as the guardian himself marrying the woman.
❀ Sayyida Aisha, may Allah be pleased with her, states that this command of Allah:
وَمَا يُتْلَى عَلَيْكُمْ فِي الْكِتَابِ فِي يَتَامَى النِّسَاءِ الَّتِي لَا تُؤْتُونَهُنَّ مَا كُتِبَ لَهُنَّ وَتَرْغَبُونَ أَنْ تَنْكِحُوهُنَّ
Also gives a ruling regarding orphan girls who are not given their fixed dowry and whom you do not desire to marry.
This was revealed about an orphan girl who was with a man who shared in her wealth, and that man was not interested in marrying her and prevented her from marrying others, fearing that someone else might share in his wealth.
❀ Sayyiduna Abdullah ibn Umar, may Allah be pleased with him, narrates:
When Sayyiduna Umar’s daughter Sayyida Hafsa, may Allah be pleased with her, was widowed after her husband Sayyiduna Ibn Hudhafah Sahmi, may Allah be pleased with him, who was a Badri companion, passed away in Medina, Sayyiduna Umar, may Allah be pleased with him, met Sayyiduna Uthman ibn Affan, may Allah be pleased with him, and offered, saying: If you wish, I will marry Hafsa to you. He said: I will think about it and let you know. After staying for some nights, Uthman met me and said: I have decided not to marry at this time. Umar said that then he met Sayyiduna Abu Bakr, may Allah be pleased with him, and said: If you wish, I will marry Hafsa to you (eventually her marriage was with the Prophet Muhammad, peace be upon him).
From these two hadiths, Imam Bukhari, may Allah have mercy on him, derived that marriage without the guardian’s permission is not permissible, because in the first hadith the prohibition of marriage was attributed to the guardian and this was declared impermissible. If the guardian had no authority to prevent the woman from marriage in Islam, then the revelation of this verse would have no purpose, which is absolutely not the case. In the second hadith, it is also clear that despite being a widow, the arrangement of Sayyida Hafsa bint Umar’s marriage remained with her guardian, i.e., Sayyiduna Umar, may Allah be pleased with him. Also, the words إن شئت أنكحتك حفصة (If you wish, I will marry Hafsa to you) explicitly indicate the necessity of the guardian’s permission in the woman’s marriage, because if the guardian had no authority, attributing marriage to him would be both illogical and unreasonable.
Sayyiduna Abu Musa al-Ash’ari, may Allah be pleased with him, narrates that the Messenger of Allah, peace be upon him, said:
لا نكاح إلا بولي
There is no marriage without a guardian.
This hadith has been declared authentic by Imam Ibn al-Jarud, may Allah have mercy on him
, Imam Ibn Hibban, may Allah have mercy on him
, Imam Ali ibn al-Madini, may Allah have mercy on him
, Imam Muhammad ibn Yazid Dhahli, may Allah have mercy on him
, Imam Abdul Rahman ibn Mahdi, may Allah have mercy on him
, Imam Bukhari, may Allah have mercy on him
, Imam Bazzar, may Allah have mercy on him
, Imam Ibn Mundhir, may Allah have mercy on him
, and Imam Hakim, may Allah have mercy on him, and Hafiz Dhahbi, may Allah have mercy on him, agreed with it.
Allama Manawi, may Allah have mercy on him, said this hadith is mutawatir.
This hadith is a clear text that marriage without the guardian’s permission is not valid.
Amir San’ani, may Allah have mercy on him
, says:
This hadith is evidence that marriage without the guardian’s permission is not valid, because negation here means negation of the original validity, not just perfection.
Sayyida Aisha, may Allah be pleased with her, narrates that the Messenger of Allah, peace be upon him, said:
A woman who marries without the permission of her guardian, her marriage is invalid, her marriage is invalid, her marriage is invalid. If a man has intercourse with her, she will be entitled to the dowry as compensation for making the private part lawful. If there is disagreement among the guardians (other than the father), the ruler of the time is her guardian if she has none.
This hadith has been graded Hasan by Imam Tirmidhi, may Allah have mercy on him, and Hafiz Ibn Asakir, may Allah have mercy on him
, and authentic by Imam Ibn al-Jarud, may Allah have mercy on him
, Imam Abu Awana, may Allah have mercy on him
, Imam Ibn Khuzaymah, may Allah have mercy on him
, Imam Ibn Hibban, may Allah have mercy on him
, Hafiz Bayhaqi, may Allah have mercy on him
, Hafiz Ibn al-Jawzi, may Allah have mercy on him
, and Imam Hakim, may Allah have mercy on him.
❀ Hafiz Bayhaqi, may Allah have mercy on him, writes:
كلهم ثقة حافظ
All narrators are trustworthy and memorisers.
Imam Ibn ‘Adi, may Allah have mercy on him, says:
هذا حديث جليل في هذا الباب لا نكاح إلا بولي وعلى هذا الاعتماد في إبطال نكاح بغير ولي
There is no marriage without the guardian’s permission. This is a great hadith and it is relied upon to declare marriage without a guardian invalid.
Imam Ibn Hibban, may Allah have mercy on him, dedicated a chapter to this hadith:
ذكر بطلان النكاح الذي نكح بغير ولي
Explanation of the invalidity of marriage conducted without a guardian.
Allama Manawi, may Allah have mercy on him, said this hadith is mutawatir.
Sayyiduna Ali ibn Abi Talib, may Allah be pleased with him, says that the Messenger of Allah, peace be upon him, said:
أيما امرأة نكحت بغير إذن وليها فنكاحها باطل لا نكاح إلا بإذن ولي
A woman who marries without the permission of her guardian, her marriage is invalid. There is no marriage without the guardian’s permission.
❀ Imam Bayhaqi, may Allah have mercy on him, says:
هذا إسناد صحيح
This chain is authentic.
Imam Ibn Mundhir, may Allah have mercy on him
, says:
There are mutawatir narrations from the Messenger of Allah, peace be upon him, and his companions regarding the guardian’s permission. To our knowledge, no companion has narrated anything contrary to our position. When a matter is established from the Quran and the hadith of the Messenger, it is not permissible to abandon it for any reason.
