Nikah without the permission of the guardian (Wali)
Question: What is the legal status of marriage without a guardian? If a woman marries herself, will that marriage be valid?
Answer: Allah the Exalted has commanded marriage to protect men and women from adultery, immorality, nakedness and shamelessness. Satan, who is the eternal enemy of mankind, uses various tricks to divert him from the straight path. In present-day society too, various Jewish institutions, their followers, and many associations and organizations established in the name of women’s liberation are busy promoting immorality and shamelessness in Muslim countries in order to spread adultery and indecency within the Ummah. They want to pollute Muslim society as they have polluted Europe. Yet the Messenger of Allah ﷺ has explained the great importance of marriage for Muslim men and women, to save them from this crime and to safeguard the eyes and private parts.
Allah the Exalted says:
وَأَنْكِحُوا الْأَيَامَى مِنْكُمْ وَالصَّالِحِينَ مِنْ عِبَادِكُمْ وَإِمَائِكُمْ إِنْ يَكُونُوا فُقَرَاءَ يُغْنِهِمُ اللَّهُ مِنْ فَضْلِهِ وَاللَّهُ وَاسِعٌ عَلِيمٌ
“Marry off those among you who are single, and the righteous among your male and female slaves. If they are poor, Allah will enrich them from His bounty. Allah is All-Encompassing and All-Knowing.”
In another verse He says:
وَلْيَسْتَعْفِفِ الَّذِينَ لَا يَجِدُونَ نِكَاحًا حَتَّى يُغْنِيَهُمُ اللَّهُ مِنْ فَضْلِهِ
“And let those who do not find the means for marriage keep themselves chaste until Allah enriches them from His bounty.”
In these verses Allah the Exalted has stated the command of marriage, and has also shown that those who do not have the means to marry should keep themselves pure and chaste and remain protected from immorality and fornication. This is further explained by the following hadith.
Abdullah ibn Mas’ud (may Allah be pleased with him) narrates that the Messenger of Allah ﷺ said:
يا معشر الشباب، من استطاع منكم الباءة فليتزوج، ومن لم يستطع فعليه بالصوم فإنه له وجاء
“O assembly of young men! Whoever among you has the means to marry should marry, for it lowers the gaze and guards the private parts. And whoever does not have the means should fast, for fasting diminishes sexual desire.”
Aisha (may Allah be pleased with her) narrates that the Messenger of Allah ﷺ said:
النكاح من سنتي فمن لم يعمل بسنتي فليس مني
“Marriage is my Sunnah; whoever does not act upon my Sunnah is not from me.”
Similarly, the Quran has described marriage as a source of tranquility, love and mercy, and elsewhere it commands abstention from adultery by describing people as “muhsinin ghayra musafihin.” Therefore, to avoid adultery and fornication we should carry out an important matter such as marriage, and for its method we should take the guidance of the rules stated by the Messenger of Allah ﷺ. Among the principles and rules of marriage that the Prophet ﷺ mentioned is that a girl should not marry without the permission of her guardian. If a girl runs away from home of her own will and marries without the permission of her guardian, such a marriage is declared invalid (batil). Evidence from the Quran and Sunnah regarding the permission of a woman’s guardians is as follows:
➊ Allah the Exalted says:
وَلَا تَنْكِحُوا الْمُشْرِكَاتِ حَتَّى يُؤْمِنَّ وَلَأَمَةٌ مُؤْمِنَةٌ خَيْرٌ مِنْ مُشْرِكَةٍ وَلَوْ أَعْجَبَتْكُمْ
“And do not marry off (your daughters) to polytheists until they believe. Indeed, a believing slave is better than a polytheist, even though the latter may please you.”
In the commentary on this verse, Imam al-Qurtubi (may Allah have mercy on him) says:
فى هٰذه الآية دليل بالنص علٰي ان لا نكاح الا بولي
“This verse is explicit evidence that there is no marriage without a guardian.”
And in another verse:
وَإِذَا طَلَّقْتُمُ النِّسَاءَ فَبَلَغْنَ أَجَلَهُنَّ فَلَا تَعْضُلُوهُنَّ أَنْ يَنْكِحْنَ أَزْوَاجَهُنَّ إِذَا تَرَاضَوْا بَيْنَهُمْ بِالْمَعْرُوفِ
“And when you divorce women and they reach their waiting period, do not prevent them from marrying their husbands, when they have agreed between themselves in a proper manner.”
The occasion of revelation of this verse is that a companion gave his sister in marriage to a man, who then divorced her, and (left her) until her waiting period was completed. Then he came again to propose, and the brother refused to give her in marriage again. Upon this, Allah revealed the above verse.
Hafiz Ibn Hajar al-Asqalani (may Allah have mercy on him) writes:
وهي صرح دليل على اعتبا الولي و الا لما كان لؑضله معنى و لانها لو كان ان تزوج نفسها لم تحتج الي اخيها و من كان امره اليه لا يقال ان غيره منعه منه
“This verse is the clearest evidence for the validity of the guardian (wali), and if the guardian had no standing, then there would be no meaning in prohibiting it. If it were permissible for Ma’qil’s sister to conduct her own marriage, she would not have needed her brother, and about one who has the authority in his hand it is not said that someone has prevented him.”
Imam al-Qurtubi (may Allah have mercy on him) says in the commentary of this verse:
ففي الاية دليل على انه لا يجوز النكا ح بغير ولي . . . . .
For further detail, see:
“This verse is evidence that marriage without a guardian is not permissible, because the sister of Ma’qil ibn Yasar (may Allah be pleased with him) was divorced. If the matter of marriage had been in her hand instead of the guardian’s, she would have conducted her own marriage and would not have needed her guardian Ma’qil. And in the saying of Allah, فلا تعضلوهن, the address is to the guardians of the woman.”
Moreover, in the following verses too, Allah addressed the guardians of women:
وَأَنْكِحُوا الْأَيَامَى مِنْكُمْ
فَانْكِحُوهُنَّ بِإِذْنِ أَهْلِهِنَّ
This matter is further clarified by several authentic hadiths, some of which are the following:
➊ In the period of ignorance (Jahiliyyah), other forms of marriage were practised besides marriage with the permission of the guardian. Umm al-Mu’minin Hadrat Aishah (may Allah be pleased with her) has described them. She says:
فَنِكَاحٌ مِنْهَا نِكَاحُ النَّاسِ الْيَوْمَ يَخْطُبُ الرَّجُلُ اِلَي الرَّجُلِ وَلِيَّتَهُ اَوِ ابْنَيَهُ فَيَتَصَدَّقُهَا ثُمَّ يَنْكِحُهَا
“One of these was the marriage that is practised among people today: a man would send a proposal to another man for his daughter or the girl under his guardianship, give her a dowry, and then marry her.”
She then mentioned some other forms of marriage that were practised without the permission of the guardian. At the end she said:
فلما بعث محمد صلى الله عليه وسلم بالحق هدم نكاح الجاهلية كله الا نكاح الناس اليوم
“When Muhammad ﷺ was sent with the truth, he demolished all the marriages of the Jahiliyyah except the marriage that is practised among people today.”
➋ In a narration from Sayyidah Aishah (may Allah be pleased with her), the Messenger of Allah ﷺ said:
ايما امراة نكحت بغير اذن مواليها فنكا حها با طل فنكاحها باطل فنكاحها باطل
Any woman who marries without the permission of her guardian, her marriage is void, her marriage is void, her marriage is void.
➌ Sayyidina Abu Musa al-Ash’ari (may Allah be pleased with him) narrates that the Messenger of Allah ﷺ said:
لا نكاح الا بولي
“There is no marriage without a guardian.”
Shams al-Haq al-Azimabadi (may Allah have mercy on him) says:
و الحق ان النكا ح بغير الولي باطل كما يدل عليه احاديث الباب
“The truth is that marriage without a guardian is void, as the hadiths of this chapter indicate.”
The position of Imam Malik (may Allah have mercy on him) is that there is no marriage without a guardian, and guardianship (wilayah) is a condition for the validity of marriage, meaning that if the guardianship is absent, the marriage will not be valid.
Imam Ibn Qudamah (may Allah have mercy on him) says:
“Certainly, marriage without a guardian is not valid, and a woman has no authority to conclude her own marriage or the marriage of anyone else, nor has she the authority to appoint anyone other than her guardian to conduct her marriage. If she does so, the marriage will not be valid.”
Imam Shafi’i (may Allah have mercy on him) says:
ان العقد بغير ولي باطل
“Marriage without a guardian is void.”
Imam Sufyan al-Thawri says:
لا نكا ح بولي: و على هذا . . . . . . . . . . . .
There is no marriage without a guardian, and on this basis it is not permissible for a woman to conduct her own marriage, nor is it permissible for her to appoint anyone other than her guardian for her marriage. And when it is not permissible for her to conduct her own marriage, it is all the more not permissible for her to conduct the marriage of another woman.
Imam Hasan al-Basri (may Allah have mercy on him) says:
لا نكا ح الا بولي
“There is no marriage without a guardian.”
Imam Ibrahim al-Nakha’i (may Allah have mercy on him), who was the teacher of the teacher of Imam Abu Hanifah (may Allah have mercy on him), says:
ليس العقد بيد النساء انما العقد بيد الرجل
The establishing of a contract is not in the hands of women but in the hands of men.
From all these proofs and references it becomes clear that according to the Book and the Sunnah and the majority of the leading muhaddithun, a woman’s marriage cannot take place without a guardian. A woman who conducts her own marriage, such a marriage is void, and the two shall be separated so that they do not commit an act that is forbidden.
