The Third Pillar of Marriage Contract
- :Sachiko Murata
Adopted from the Book : "Temporary Marriage in Islamic Laws" by : "Sachiko Marata"
C. Guardianship (wilaya)
The legal guardian in the marriage contract may be the father, the father's father (Hanafi, Shafi'i, Shi'i), the executor of the father's will concerning the marriage (wasi), the governor of the town (hakim) in case of the nonexistence of the others (Hanbali), and the owner of a slave (Maliki). The mother has no guardianship except in the Hanafi school, which holds that if there is no close male relative, close female relatives may assume the guardianship and conclude the marriage contract.1
In the Maliki and Shafi'I schools, the participation of the legal guardian is one of the pillars of the marriage; in the Hanbali school it is a condition (shart) of the contract, which means that if the contract is concluded without the guardian, it will be valid only on condition that the guardian gives permission afterwards.2 Hence in these three schools the woman does not have the right to conclude a marriage contract without the participation of her guardian.3 In the Shi'i and Hanafi schools the presence of the guardian is required only at the marriage contract of a girl not of age, that is, one who has not yet reached puberty (saghira), or of an incompetent or insane girl or woman of age. In both these schools a girl who is physically mature may marry whomsoever she wishes, and the validity of the contract is not conditional upon the presence of the guardian.4 However, the Hanafis add that since social equality (kafa') is a condition for a valid contract, a guardian may annul a contract concluded by a woman on her own behalf with an unequal man.5
In the Maliki, Hanbali, and Shafi'i schools, the guardian may give a virgin in marriage without her consent, whether or not she is of age. But a woman or girl who has been married before may not be given in marriage without her permission.6 The Hanafis and Shi'is hold that only a girl not of age may be given in marriage without her consent.7 The Shafi'is add here that if an underage girl has already been married, she may not be given in marriage again until she comes of age.8
The regulations of guardianship also apply to boys not of age (saghir) and mentally incompetent men.9
1. Fiqh,IV, 27.
2. Ibid., 46--47.
3. The major sources for this ruling are two hadith: 'If any of your women marry without the permission ofher guardian, the marriage is invalid (batil)' (Abu Dawud, Nikah 19; al-Darimi, Nikah 11). 'A woman may not be given in marriage by a woman, nor may a woman give herself in marriage' (Ibn Maja, Nikah 15 Malik, Nikah 5).
4. Fiqh, IV, 46--47; Sharh al-lum'a, V, 112; Muhammad b. al-Hasan al-Hurr al-'Amili (d. 1104-1693), Wasa'il al-shi'a, Tehran, 1385/1965-66, XIV, 220-221, hadith 1-3.
5. Fiqh, IV, 46.
7. Ibid., Sharh al-lum'a, v, 116.
8. Fiqh, IV, 51-52.
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