Women: Marriage Without a Guardian
Which View is Correct?
Reprinted from the questions and answers
You have replied to many questions about
marriage and divorce and dealt with many aspects of the problems
faced by people. My question is about the case when a woman acts
directly to get married to someone without the presence of her
father or a guardian. As you have mentioned, many scholars, including
major schools of thought, consider such a marriage invalid. Imam
Abu Hanifah is of the view that it is valid. In support of the
first view, quotations from the Qur'an and Hadith are always
cited. How is it that Imam Abu-Hanifah takes a different view?
Does he rely on Qur'anic verses and Hadiths? Why cannot the weightier
view invalidate the less weighty one?
Many scholars, including Imam Al-Shaf'ie,
Ahmad ibn Hanbal and Ibn Hazm state clearly that no woman may
be married without the presence of her guardian. It is well known
that when the woman's father is present, no one other than him
may act as a guardian. If he is dead or if he is incapable of
acting in such a matter as in the case when the father is insane,
then other relatives may act as guardians, according to a particular
order which makes the woman's grandfather first in line after
the father, then her brother, or her uncle, or her cousin, then
other relatives, provided that proximity of relations takes precedence.
A woman's adult son may act for her in her marriage contract
only if her next of kin is a cousin. If a woman has no guardian,
or if her guardian does not agree to act for her, when she is
willing to accept the proposal of someone who is of good character
and equal to her in social status, then the ruler may take over.
In support of this view, the Qur'anic
verse is quoted which may be translated:
the marriage of the single woman from among you, as well as such
of your male and female slaves who are righteous."
(24;32) Another Qur'anic verse is quoted, which may be rendered
in translation: "And do not give
your women in marriage to men who ascribe divinity to aught beside
They consider that this latter verse
addresses guardians, not women. It speaks of the normal state
of affairs which is acceptable to Islam that a woman is given
away in marriage by her guardian.
Right to the point is the Hadith in which
Aisha, the Prophet's wife, quotes him as saying: "A
woman may not be married without the presence of her guardian.
If she is, then her marriage is invalid, invalid, invalid."
(Related by Abu Dawood and At-Tirmithi). Another Hadith is quoted
in this respect which states: "No
marriage may be made without the presence of a guardian."
There are other Hadiths confirming the same opinion.
There is no doubt that the evidence supporting
this view is overwhelming. It is true that the first verse which
we have quoted may be understood differently as indeed some of
the translators of the Qur'an have rendered it in different ways.
Similarly, an argument may be made that the second verse addresses
the Muslim community as a whole and makes it obligatory on the
Muslim community not to allow a marriage between a Muslim woman
and a polytheist. But we cannot really say that the community
as a whole is ordered to do something in particular and ignore
the fact that individual Muslims are also required to make sure
that this order is complied with. Moreover, the Hadiths which
we have quoted address the point directly and make it absolutely
clear that such marriages are invalid.
Imam Abu Hanifah, on the other hand,
is of the view that since a woman is allowed in Islam to enter
into all sorts of contracts without referring to a guardian or
a husband or a father or any relative, she may enter into a marriage
contract as well. In support of his view, Imam Abu-Hanifah quotes
the Qur'anic verse which speaks of a woman who has been divorced
three times. It may be rendered in translation: "Should
he (divorce her a third time) she will not thereafter be lawful
for him to remarry until she has wedded another husband."
Imam Abu-Hanifah says that in this verse,
the usage is clear that the woman has herself wedded a new husband.
He argues that if the presence of the guardian was necessary,
the Qur'anic verse would have made that clear and Allah would
have said, "until she has been made to wed another husband."
Imam Abu-Hanifah also quotes in support
of his view the verse which speaks of women who have finished
their waiting period after the death of their husbands. It says:
"When they have reached the end
of their term, you shall incur no sin in whatever they do with
themselves with decency." (2;234). Again in this
verse, the word "do" is attributed to the women themselves.
Hence, if a woman does make a marriage contract by herself, her
action is valid. As for the Hadiths, Imam Abu-Hanifah says that
they are in conflict with the clear and apparent meaning of the
Qur'anic statement. As such, he discounts them.
In counter argument, we may say that
this latter verse quoted by Imam Abu Hanifah does not specifically
mean marriage. It is rather a general statement which refers
to actions a woman may take in order to organize her life after
having become a widow.
Moreover, it does not follow if what
she wants to do is to get married to a new husband, that she
enters into the contract without the presence of a guardian.
It simply means that when she wants to get married, she has to
have her marriage done properly, which means, from the Islamic
point of view, that the marriage contract must be attended by
I have tried to give you the arguments
supporting both views on this question. I hope that I have made
it clear that no scholar of repute in our history makes judgment
without looking at the question from all angles. He eventually
makes his judgment after weighing up the evidence available to
him. It may happen that a great scholar makes a mistake. Indeed,
every one makes mistakes. We have the Prophet's Hadith which
says that "he who makes a ruling
in a matter, after studying the question thoroughly, and his
judgment happens to be the correct one will have a double reward.
But the one who makes a judgment in a certain question and his
judgment is mistaken will have a single reward."
There is no doubt in my mind that the
first opinion supported by Imam Ahmad, Al-Shaf'ie, Ibn Hazm and
others is the weightier opinion on this particular question.
Moreover, it is closer to the Islamic spirit of doing everything
suitable to protect women and protect the family. It is indeed
much more honorable for a woman that her father or guardian acts
on her behalf when she gets married. This is more in line with
the high standard of serious morality which Islam establishes
in its community.
We do not just dismiss an opinion like
that of Abu-Hanifah on a certain matter, simply because we have
a weightier opinion. What we do is to implement the weightier
opinion as far as possible. Certain circumstances may make a
less weighty opinion more appropriate in a particular case or
situation. Suppose that a community embraces Islam after having
lived for centuries allowing women to conduct their own affairs
by themselves. It will not come easy to that community that women
should no longer act for themselves when they get married. If
a Muslim ruler favors a less weightier opinion, his support adds
to its weight. Moreover, the cultural and scholarly heritage
belongs to the whole nation of Islam and to all its generations.
Therefore, we will not just dismiss scholars' opinions because
we feel that opposite views are weightier.