Is a marriage contract valid by the woman's own word, or is it invalid and must the guardian or his deputy conclude the marriage contract?

By lawyer Nevine Al-Fakhouri, Hebron office
To begin with, let us learn the meaning of the guardian in the light of the jurists' uses of the term. It is: the person's capacity in sharia to create a valid, effective disposition over themselves, or their property, or over another's person and property.
As for the law, article (19) of the personal status law states: (the guardian in marriage is: the agnate himself in the order provided for in the preponderant view of the Hanafi school).
As for the question of the woman concluding her own marriage contract, let us leave the discussion to the jurists and the law and to the articles that provide for that, as follows:
Abu Hanifa said: it is valid, so the woman may conclude her own marriage contract and may conclude it for another, as long as she is able to bring it about without the guardian's agreement. This is supported by the verses that attribute the marriage contract to women: "Do not prevent them from marrying their husbands" and "until she marries a husband other than him".
Malik and Al-Shafii said: the woman's words in a marriage contract are not valid, as long as she cannot do that except with the guardian's permission, because the Qur'an made the creating of the contract the right of the guardians, as in His saying: "And marry off the unmarried among you". And the custom of people from the age of prophethood until today has been that women do not conclude the contract; rather men do that.

The truth is that Abu Hanifa's school is consistent with the rules and principles of sharia, for as long as the woman is of full capacity and can conclude whatever financial contracts she wishes, she may conclude her own marriage contract. The verses that attributed the creating of the contract to the guardians went on what is customary in society's convention, and that does not indicate the invalidity of a marriage by the woman's words.
As for the law's position on that:
The law adopted Abu Hanifa's view in not requiring the guardian's agreement for the validity of the marriage contract; rather it permitted the guardian to express his view on the marriage of an adult woman within a period specified by the judge. If he does not object, or if his objection is out of place, the law permits the marriage on condition that she marry an equal. Here is the text of the article as it appears in the law:
In (article 20), an adult woman who has completed seventeen years, if she wishes to marry, the judge asks her guardian for
a statement of his view within a period he sets for him, and if he does not object or if his objection is not worthy of consideration, the judge permits her marriage on condition of equality.
It is noted from the text of the law that it did not address two matters: the signs of consent in the virgin and the previously married woman, and the disagreement over the validity of a marriage contract by the woman's words. This is a shortcoming the drafters of the law should not have fallen into. Perhaps their excuse for neglecting the first matter is that it is among the well-known rulings so that omitting it does no harm, and their excuse for neglecting the second matter, the validity of a marriage contract by the woman's words, is that establishing her capacity by puberty, and not requiring the guardian's agreement, necessarily entails the validity of her own contract on the basis of the general rules.

Another question: Imam Abu Hanifa did not require the guardian in a woman's marriage, so did he leave the matter thus without safeguarding the guardian's right??
To answer the above I say: when I read some of the books of jurisprudence I found that Abu Hanifa did preserve the guardian's right, even though he did not require the guardian in the marriage of an adult, sane woman as the majority did. He did not abolish the guardian's right; rather he gave him the right to suspend and annul the contract if the husband is not an equal, and he was expansive in the qualities that enter into equality.
He also gave him the right to demand the annulment of the contract if the dower is less than the customary dower. The majority made guardianship a condition of the validity of the marriage and did not permit the woman to marry herself off on her own initiative, while Imam Abu Hanifa gave the woman the right to marry herself off, but gave the guardian the right to suspend the contract if the husband is not an equal. Thus the majority and the Hanafis agreed in giving the guardian a right in the marriage of the woman under his guardianship, even if the way of giving this right differed.
As for equality according to the Hanafis, it lies in six matters: [lineage, Islam, freedom, wealth, religion, trade]. These are the matters in which equality is considered according to the Hanafi school, which is the broadest of the four schools in this respect, because when Abu Hanifa released the woman's freedom in marriage he safeguarded the guardian by being expansive in the meaning of equality and strict in requiring it, so that the woman should not wrong him in marriage.
If we look at the wisdom behind requiring guardianship over the adult, sane woman:
What confirms the obligation of requiring the guardian is the wisdom sought behind it, and I sum it up in the following points:
1- That men are more able than women to look into the circumstances of the suitor, for if the woman were left alone to decide her fate with no help from her family or her relatives, she might not succeed in choosing the man suitable for her.
2- That requiring the guardian in a woman's marriage gives added announcement and publicity to the marriage, and for that reason the guardian, the witnesses, the wedding feast and the congratulations were prescribed.

3- The woman's attachment to the man she chooses is not a matter particular to the woman alone and not to the rest of the family, for marriage links families in a way that forms a network of relations between the two families. Therefore fathers and brothers are concerned that the family they are linked to should be of a certain level of virtue and morals, for when the woman is attached to a righteous husband of religion, character and virtue, it relieves her family of having to worry about her on his account in the future.

4- That by the nature of her affections the man is able to deceive the woman and to toy with her feelings, so that her choice is unsound, and afterwards problems and cases arise, and above all and most importantly the children become homeless and lost, and so on. The family fails, and enmity and hatred arise between the two families. Therefore the man is more able to grasp the circumstances of the suitor without being deceived, because he knows how to look into and ask about that suitor, knowing the importance of this matter.
Sheikh Abu Zahra, may God have mercy on him, says: [The basis of guardianship is that the consequences of the marriage contract do not fall on the two contracting parties alone; rather the family receives from it something of shame or of pride].
Whoever knows the rulings of sharia knows that this legislation contains good for the woman, since it spares her pitfalls and perils and gives her protection from the human devils who wish to toy with her. God Almighty did not prescribe guardianship to oppress the woman or humiliate her as some see and suppose; rather on the contrary it contains an honouring and an ennobling of the woman, in that it shows that behind her is a family that protects her, cares for her, seeks her interest and plans for her future in looking for her a suitable husband of sound religion and good character, so that she may live with him the rest of her life in its sweetness and its bitterness without his wronging her.
The ruling on a guardian compelling an adult, sane woman to marry:
The school of the majority is the more preponderant in requiring the guardian in the marriage of an adult, sane woman, whether virgin or previously married. But does this mean that Islamic sharia permits the guardian to compel the woman under his guardianship to marry without her consent???
To answer that: I hold that there is confusion among some researchers between requiring the guardian in a woman's marriage and the guardian's powers to compel the woman whose affairs he oversees to marry. The two matters are not at all inseparable.
Not all those who required the guardian in marriage permitted the guardian to compel the woman under his guardianship to marry whoever he wishes without her consent; indeed the stronger view is that the guardian may not compel the woman under his guardianship to marry without her choice, since the view that the guardian may not compel a previously married woman is agreed upon, while in the case of the virgin it is disputed.
The examination of these two questions is set out as follows:
First: the guardian compelling a previously married woman to marry.
We know that the previously married woman is one who has married before and been separated from her husband either by divorce or by his death, that is, she is one who has already gone through the experience of marriage and understood the meaning of marriage, and knows that in marriage there is responsibility and that she must bear those responsibilities.
The people of knowledge, except for a few outliers, agreed on barring the guardian from compelling an adult, sane, previously married woman to marry without her consent.
Sheikh al-Islam Ibn Taymiyya says: (the adult previously married woman may not be married except with her permission) by the agreement of the imams. And he said elsewhere: (the adult previously married woman may not be given in marriage without her permission, neither by the father nor by anyone else, by the consensus of Muslims).
The people of knowledge argued for the invalidity of the guardian compelling an adult previously married woman to marry with the following:
They argued with the saying of the Messenger, peace and blessings be upon him, in the hadith of Abdullah ibn Abbas: (the guardian has no say with the previously married woman, and the orphan girl is consulted, and her silence is her assent).

And Muslim narrated the hadith of Ibn Abbas in the wording: (the previously married woman has more right over herself than her guardian, and the virgin is asked permission regarding herself and her permission is her silence). This does not mean abolishing the guardian's right.

Al-Bukhari and others narrated from Al-Khansa bint Khidam Al-Ansariyya (that her father married her off while she was previously married, and she disliked that, so she came to the Messenger and he annulled her marriage).
Al-Bukhari made a chapter heading on this, saying: (chapter: if a man marries off his daughter while she is unwilling, his marriage is annulled).
They also argued by reason, since the adult previously married woman is mature and knows what is meant by marriage and has experienced it, so compelling her to it is not permitted, for she has passed through such an experience before.

Second: compelling the adult, sane virgin.
The people of knowledge differed regarding the adult, sane virgin who has not married before. A group of the people of knowledge held that the guardian may marry her off without her permission, and others held that he may not do that, and those who permitted him that differed over determining which guardians have the right to compel.
Ibn Qudama, setting out the difference on this question from Ahmad, said that on compelling the adult virgin to marry there are two narrations, as follows:
The first: he may compel her to marry and marry her off without her permission, like the minor, and this is the school of Malik, Ibn Abi Layla, Ishaq and Al-Shafii.
The second: he may not do that, and Abu Bakr chose this, and it is the school of Al-Awzai, Al-Thawri, Abu Ubayd, Abu Thawr, the people of opinion and Ibn Al-Mundhir.

The preponderant view on that is the second narration, as Sheikh al-Islam Ibn Taymiyya held, saying of that: (the scholars differed over the guardian asking the permission of the adult, sane virgin: is it obligatory? Or recommended? And the correct view is that it is obligatory).
Those who did not permit the guardian to compel the adult, sane woman to marry without her permission argued with evidence, of which I mention the following:
* The texts expressly stating that the Messenger, peace and blessings be upon him, annulled the marriage of one whose guardian married her off without her permission. Al-Nasai narrated from Aisha, may God be pleased with her, that a young woman came in to her and said: my father married me to his brother's son to raise his standing by me, and I am unwilling. She said: sit until the Messenger of God comes. The Messenger of God, peace and blessings be upon him, came and she told him, so he sent for her father and called him, and he left the matter to her. She said: O Messenger of God, I have allowed what my father did, but I wanted to let people know that fathers have no say in the matter.
* Among the texts expressly stating that the Messenger annulled a young woman's marriage without her permission, Abu Dawud narrated from Ibn Abbas: that a virgin girl came to the Messenger and mentioned that her father had married her off while she was unwilling, so the Messenger of God, peace and blessings be upon him, gave her the choice in that.

* Texts have come requiring the virgin's permission in her marriage, and among these hadiths (and the virgin is asked permission regarding herself), and in a narration (and the virgin, her father asks her permission), and in a narration (and the orphan girl is consulted and her silence is her assent). And in the hadith of Abu Huraira, may God be pleased with him (the previously married woman is not married until she is consulted, and the virgin is not married until her permission is sought. They said: O Messenger of God, and how is her permission? He said: that she be silent). Al-Bukhari made a chapter heading on the hadiths forbidding the marrying of the previously married woman until she is consulted, and of the virgin until her permission is sought, saying: (chapter: neither the father nor anyone else may marry off the virgin or the previously married woman except with their consent).
Ibn Hajar said, commenting on the heading in Al-Bukhari's chapter arrangement: (the heading is framed for requiring the wife's consent, whether virgin or previously married, minor or adult, and this is what the apparent meaning of the hadith requires, and the minor is excepted).
Marrying off a young woman when she dislikes a husband is contrary to principles and to reason, for God did not allow her guardian to compel her to a sale or a lease except with her permission, or to food, drink or clothing she does not want, so how can he compel her to live with one she dislikes? God Almighty has placed affection and mercy between spouses, so if that cannot be obtained except with her hatred of him and her aversion to him, what affection and mercy is there in that?
* The people of knowledge have successively stated the invalidity of contracts concluded under compulsion, such as sale, purchase and lease, so we see that the view permitting the marrying of a woman without her consent is contrary to the general rule laid down by Islamic sharia and adopted by the people of knowledge.

In the event of discord between the spouses, Islamic sharia has provided the woman with a way out of that husband she does not want, prescribing for that two ways out:
1- That an arbiter be appointed from the husband's side and an arbiter from the wife's side, and if they agree on separating the spouses, the ruling is carried out.
2- That she obtain khula from her husband by paying him the dower she took from him, and she may resort to the judiciary if the husband refuses khula.
So if sharia has prescribed for the woman a way out of her husband in the event that she dislikes him, how can she be married to him in the first place? What I have said, that she may not be married off without her permission, does not mean that requiring her permission makes the guardian unnecessary in her marriage, for the correct view is that the agreement of her will and her guardian's will in the marriage is obligatory.