Wednesday, January 11, 2012

Hanafi says that an adult virgin girl has the right to conclude her own marriage contract where as other school of thought say that virgin and deflowered cannot conclude her own contract of marriage. Discuss keeping in view the court marriage.
Hanafi school of Jurisprudence on the question of whether a woman, who is legally capable, may conclude her own marriage contract:
            According to the system the right of the wali, though no doubt a creation of the law, is exercise only by virtue of the power or special authorization granted by the women; for the woman once emancipated from the partia potestas is mistress of her own actions. She is not only entitled to consult her own interests in matrimony, but can appoint whomsoever she chooses to represent her and protect her legitimate interests. If she thinks the wali to be inimically inclined towards her, she may appoint one more remote to act for her in respect of her marriage. Under this view of the law the wali acts as an attorney on behalf of the woman, deriving all his powers from her and acting solely for her benefit.
            This doctrine has been adopted by Al-Karkhi, Ibn-ul-Qasim, and Ibn-i-Salamun and has been formally enunciated by the Algerian Kazis in several consectutive judgments.
            When the wali preferentially entitled to act is absent, and his whereabouts are known; or when he is a prisoner or has been reduced to slavery; or is absent more than ten days’ journey from the place where the woman is residing; or is insane, or an infant, then the waliyat passes to the person next in order to him.
Hanafi Rule:
            The Hanafis hold that an adult woman is always entitled to give her consent without the intervening of a wali. When a wali employed and found acting on her behalf, he is presumed to derive his power solely from her so that he cannot in any circumstances act in contravention of his authority or instruction. When the woman has authorized her wali to marry her to a particular individual, or has consented to a marriage proposed to her by a specific person, the wali has no power to marry her to another. “When a girl is adult and discreet, no one has a right to be her guardian, but it is nevertheless becoming and proper for her to authorize he father or grandfather to settle the terms of the contract for her. If she has no father or grandfather, it would be well for her to appoint her brother to act on her behalf.” [1]
Evidances by Hanafi School:
            The hadith ‘la nikah ila biwali’ is reported in Jami’ Tirmidhi, Kitab an-Nikah, as follows:
            “Abu Musa (ra) reported that Allah’s Messenger
said, ‘Marriage is not performed if (the consent of guardian) is not there."
            This hadith has also been reported in Ahmad, Abu Dawood, Ibn Majah and Darmi.
            Maulana Shah Abdul Haq Muhaddith Dehalwi in Ashi‘-‘at al-Lama’aat, Sharh Mishkat vol.4 pg. 286 writes:
            "There has been kalam (discussion) whether this hadith is sahih or not. Many a’imma hadith do not accept it to be sahih"
In Sharh Ma’ani al-Athar vol.3 pg 17-18, Imam Tahawi writes:
            “The people of the first opinion (la nikah ila biwali) consider as evidence that which has been narrated from Abu Ishaq through Israel. He narrates from Abu Barda who narrates from his father that the Prophet Muhammad
said, ‘no nikah without (consent of) the wali."
            So the evidence against them is that according to their rules it is not correct to use this hadith as proof because those people who have stronger memory than Israel, like Sufyan and Shu’bah, have narrated it ‘munqati’an’ (broken) from Abu Ishaq.
. . . .If they say Abu ‘Awanah narrated this hadith marfu’an like Israel, Abu ‘Awanah narrates from Ishaq who narrates from Abu Burdah who narrates from Abu Musa that, the Prophet Muhammad
said, ‘no nikah without (consent of) wali.’
            Then it will said that this hadith has been narrated through Abu ‘Awana but the origin of the hadith has been checked and it is narrated from Abu ‘Awana from Israel and he narrates it from Abu Ishaq and thus the narration of Abu ‘Awana also returns to Israel.
Dr. Maulana Fadhal Ahmed, in his commentary on the English translation of Jami Tirmidhi Vol. 1 pg. 403 has noted:
            “As for the hadith of Abu Musa (ra) it is not a worthy piece of evidence because there is a contradiction in its reporting and connection. Imam Tirmidhi (rh) has himself confirmed this. Hence, the correct position is that this hadith is mursal, as Imam Tahawi also confirms, while Ibn Hajr Asqalani (rh) said that it is not correct to deduce from it.”
            “Some hadith experts have stated that three ahadith are not proven to be from the Prophet Muhammad and one of them is the hadith ‘la nikah ila biwali’ and this is why it has not been recorded in the Sahihain; there is extreme ikhtilaf in the hadith.” (Sunan Ibn Majah vol.2 pg 31)
            Apart from the mentioned evidence, the Ahnaf derive their evidence from another hadith which appears in Sahih Muslim, in Kitab an-Nikah, and is as follows:
            “Ibn Abbas (ra) reported Allah's Messenger as saying: An unmarried woman (al-Aym) has more right to her person than her guardian. And a virgin should also be consulted, and her silence implies her consent."
            There is a disagreement among the scholars regarding the meaning of ‘al-Aym’. Its basic meaning is ‘an unmarried woman’. The disagreement lies in whether it means a previously married woman only or does it include an unmarried virgin (bikr) as well. Some have considered it to mean ‘thaib’ and these are the people who say a woman cannot do nikah without permission of wali. The others have said ‘al-Aym’ includes a woman who was never married. This latter meaning is confirmed by the ahl al-lughah. Imam Nawawi (rh) confirms this in his Sharh Muslim vol.9 pg 203 and adds that this was said by Ibrahim al-Harbi and Isma’eel al-Qadhi and others.
Allama Shabbir Ahmed Uthmani, in I’laa us-Sunan, writes:
            “If one asks why the prophet mentioned bikr again if Aym was supposed to include it, I say, bikr was mentioned so that one does not think bikr is not included because she is shy, so the prophet mentioned her to confirm hukm on her. So this is takhsees (specialization) after ta’meem (generalization) to show difference between the 2 permissions."
            In Sahih Muslim other variants of this hadith are also transmitted where the word ‘thaib’ is used. Thus those opposing the Hanafi opinion say ‘al-Aym’ means ‘thaib'.
Mufti Taqi Uthmani (db), in Dars e Tirmidhi vol.3 pg 379, explains:
            “If we accept the tafsir of Imam Shafi’i and state that ‘Aym’ means ‘thaib’ only, even then the argument agrees and supports the Hanafi view. This is because it at least proves that a woman who has been previously married (thaib) has more rights on her nikah than the wali. (Imam Shafi’i says thaib cannot enter into contract by herself)”
            In Muwatta Imam Malik, Kitab at-Talaq (Chapter: The ‘iddah of the widow if she is pregnant), a hadith appears as follows:
            “Umm Salama said, ‘Subai’a al-Aslamiyya had delivered after her husband’s death by half a month. Two men asked to marry her. One was young, and the other was old. She preferred the young man. The old man said, ‘You are not free yet (to marry).’ Her family was away, and he hoped that when her family would come, they may prefer him over the other man. She came to the Messenger of Allah and he said, ‘You are free (of the ‘iddah), marry whoever you desire."
            Mufti Taqi Uthmani (db), in Dars e Tirmidhi vol.3 pg 378, lists a number of ahadith to support the Hanafi view,
            “There is a hadith reported in Muwatta Imam Malik (Kitab an-Nikah; Chapter: What was said in the dower and un-returnable gifts) and Sahih Bukhari (Kitab an-Nikah; Chapter of the woman who gives herself in marriage to salih man), which states that a woman came to Prophet Muhammad and said, ‘Messenger of Allah! I have given myself to you.’ The prophet maintained silence and the woman stood there for long. Then a man got up and said, ‘Messenger of Allah, marry her to me if you have no need of her.’ The prophet asked him what dowry he can afford to give after which he said, ‘I have married her to you for what you know of the Qur'an"
            It is mentioned in Tahawi (Kitab an-Nikah; Chapter of marriage without wali of authority), ‘Umm Salmah narrates that after the death of Abu Salmah the Messenger of Allah came and proposed to me. I said, ‘O Messenger of Allah! At this moment I do not have any wali present.’ He said, ‘No wali of yours, whether present or away, will dislike your marriage with me.’ So Umm Salmah said to her son, ‘O ‘Umar! Get up and do my nikah with the Messenger of Allah . Hence, he did their nikah.
            This nikah also took place without any wali as ‘Umar bin Abi Salmah was a minor and hence it was not proper according to shari'ah for him to carry out the nikah. This was just a formality and to say that this nikah was carried out under the universal guardianship of the prophet , then this is something farfetched because such a guardianship is in effect when guardians from among the family are not alive.:
            “There is a narration in Kanz ul ‘Ummal (vol.12 pg 532) that ‘Ali (ra) used to tell people nikah without wali is impermissible but if such a nikah would take place then he would declare it valid"
            Maulana Ahmed Mirpuri (rh) who was one of the leading scholars of the ghair muqalid, replies, in Islamic Verdicts (Fatawa Sirat-e-Mustaqeem) pg 228.
“We have the following conditions for Nikah: 1) Acceptance from both sides, 2) Two witnesses, 3) Mahr (dowry). Basically, these are the requirements for a nikah. In some cases, the bride’s attorney is also conditional, and is recommended in some cases. Proper conduct of the ceremony, the khutbah and explanation of the duties after marriage, are all considered as Sunnah but not a condition"[2]
Maliki and Shafi’i Law:
Under the Maliki and Shafii law, the marriage of an adult virgin girl is not valid unless her consent is obtained to it, but such consent must be given through a legally authorized wali, who would act as her representative. [3]
Evidence for Maliki, Shafi’i and Hanbali schools:
            Qadhi Abu’l Waleed Muhammad bin Ahmed Ibn Rushd Maliki (rh), in Bidayatul Mujtahid vol.2 pg. 6-7, writes:
            “Imam Malik (rh), in Ashhab’s narration from him, said that there is no marriage without a guardian and that it (guardianship) is a condition of validity.
. . . .The fourth opinion is Malik’s (rh), as derived from ibn al-Qasim’s narration that its stipulation as a demand is Sunnah, but not Fardh. This is because it is narrated from him that he used to view inheritance among parties married without a guardian (as valid), and permitted an unchaste woman to appoint a man as her guardian for her marriage, and he held as recommended that a deflowered woman present a guardian who could contract on her behalf. Thus, guardianship for him is one of the complementary demands and not a condition for validity, as against the statement of Malik’s (rh) disciples from Baghdad, who consider it a condition of validity and not that of perfection. The reason for their disagreement is the absence of a verse or tradition that is apparent, not to say explicit, about the stipulation of guardianship as a condition of marriage."
            In Sharh Muslim vol.9 pg 205 [Publication: Matba'a Misriyya bil Azhar; 1929], Imam Nawawi (rh) states:
            “There is disagreement in the issue of permission by wali for the nikah to be valid. Imam Malik (rh) and Imam Shafi’i (rh) have said the validity of the nikah rests on the permission of the wali... Imam Malik (rh) and Imam Shafi’i (rh) have derived their opinion from the hadith ‘la nikah ila biwali’ (There is no nikah without wali).”
It is stated in al-Mughni vol.7 pg 5, by Ibn Qudama (rh):
            “Nikah without wali is not valid and a woman can neither do her own nikah nor do someone else’s nikah. A woman cannot make a non-wali her wali and if she does this then such a nikah will be invalid. ‘Umar, ‘Ali, Ibn Mas’ud, Abu Hurraira (rha) and ‘Ayesha (raa) had the same view. Sa’eed bin Musaib, Hasan, ‘Umar bin Abdul Aziz, Jabir bin Zaid Thawri, Ibn Abi Laila, Ibn Shabirma, Ibn al-Mubarak, Shafi’i, Ishaq and Abu ‘Ubaid also hold the same opinion. And it is narrated from Ibn Sireen, Qasim bin Muhammad, Hasan bin Salih, Abu Salih and Abu Yusuf that nikah without permission of wali is not correct and if she does the nikah then the validity depends on the permission of the wali... And our evidence is the hadith where Prophet Muhammad has said ‘la nikah ila biwali’ (There is no nikah without wali). Imam Ahmad (rh) and Yahya (rh) have declared this hadith to be sahih"[4]
The girl’s statement as to puberty will be preferred to that of the Guardian:
If a father of a girl is to marry her to a person on the supposition that she was a minor, and the girl was to assert that she had attained puberty, and that consequently her nikkah was not valid, and the father and the husband were to assert that she was under puberty, her statement should be accepted if the girl be nine years of age or over.[5]
Option of puberty:
            Ibn Abbas (R.A) reported that a virgin grownup girl came to the Messenger of Allah (PBUH) and narrated that her father had given her in marriage, which was disliking to her. The Messenger of Allah (PBUH) gave her option. (Abu Daud)
            Khansa’ ibn Khezam reported that her father gave her in marriage while she was a woman having consummation. She disliked it, and so she came to the Messenger of Allah (PBUH). He annulled her marriage. And in a narration of Ibn Majah: Marriage of her father. (Bukhari) [6]
Marriage concludes by a free woman…of full legal capacity (irrespective of whether or not she is a virgin) is valid (even if such a marriage is concluded without the consent and presence of a matrimonial guardian. This is the authoritative opinion of Abu Hanifa (d.767) and Abu Yousuf (d.798). This is so because she disposes of something to which she is exclusively entitled by being sound of mind and of age. For this reason she is entitles to dispose of her property and the principle here is that whoever may dispose of his property by his own right may conclude his own marriage and whoever may not [dispose of his own property by his own right[, may not [conclude his own marriage].[7]
At another place, Abu Hanifa says that the guardianship of the women is cancelled when she reaches buloogh. Her marriage will not subject to consent of the guardian, although consent is recommended. [8]
It is narrated that Abu Hanifa had another opinion. The women who have no father may marry any competent man. If she has a father, she may marry a competent man without his consent, but she may to marry a non competent man without her father’s consent. [9]
Imam Abu Hanifa permits women to contract their own marriages though with restrictions they do not apply to men.[10] For Abu Hanifa, women must marry a man who is at least her social equal (kuf). Though various criteria’s for suitability are givin, the text notes pragmatically that “he is not an equal for her in any way if he can not find the means for her dower or maintenance.” Indeed, the bride must specify the full dower appropriate to a woman of her family, status, and where relevant, personal qualities. “If she selects a suitable match and does not settle for a reduced dower,” Abu Hanifa declares, “then the marriage is allowed.” [11]
Abu Hanifa appeals a statement attributed to the caliph ‘Umer ibn al-khitab: “A woman is not married except with the permission of her marriage guardian, someone of her family with sound judgment, or the constituted authority (al-sultan). If the marriage she contracts meets these criteria, she could herself be considered a “a member of her family with sound judgment. If it does not, her marriage guardian could challenge the marriage. [12]
According to Imam Abu Hanifa, the guardian has full authority to marry his minor girl whether she is a virgin or previously married. 
Hanafi law, however allows an incumbent at the age of puberty to repudiate a marriage contracted before puberty by guardians other then the fathers or grandfather. Furthermore, Hanafi law allows a mature woman to choose her husband and conclude the marriage contract herself. [13]
So a Muslim woman has the freedom of marital choice: she is at liberty to choose her prospective husband, look at him and get to know him” without coercion on the part of the father or other relatives. If force or pressure takes place, she has the right to appeal to the court to redress the wrong. Her consent is essential for the validity of the marriage contract.
Abu Hanifa… ruled that” if the woman contracts herself in marriage without a guardian, and the bridegroom is of equal social standing (Kafu). The contract is permissible.”
Imam Abu Hanifa, 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.[14]

Abu Hanifa, on the other hand, permitted a woman to marry without the consent of
Her guardian due to the evidences he took form the Noble Quran, Sunnah and analogy as
Follows:
Allah, The Almighty, says, "Then do not pose problems for them from their marrying their spouses…"1 Abu-Hanifa interpreted the verse that a woman is allowed to marry without the consent of their guardian, and they should not be prevented.[15]
Marrige of a virgin adult girl without guardian by shafi and Maliki school of thoughts.

“Imam Malik (rh), in Ashhab’s narration from him, said that there is no marriage without a guardian and that it (guardianship) is a condition of validity.
. . . .The fourth opinion is Malik’s (rh), as derived from ibn al-Qasim’s narration that its stipulation as a demand is Sunnah, but not Fardh. This is because it is narrated from him that he used to view inheritance among parties married without a guardian (as valid), and permitted an unchaste woman to appoint a man as her guardian for her marriage, and he held as recommended that a deflowered woman present a guardian who could contract on her behalf. Thus, guardianship for him is one of the complementary demands and not a condition for validity, as against the statement of Malik’s (rh) disciples from Baghdad, who consider it a condition of validity and not that of perfection. The reason for their disagreement is the absence of a verse or tradition that is apparent, not to say explicit, about the stipulation of guardianship as a condition of marriage.”[16]
“There is disagreement in the issue of permission by wali for the nikah to be valid. Imam Malik (rh) and Imam Shafi’i (rh) have said the validity of the nikah rests on the permission of the wali.
. . . .Imam Malik (rh) and Imam Shafi’i (rh) have derived their opinion from the hadith ‘la nikah ila biwali’ (There is no nikah without wali).”[17]
“Nikah without wali is not valid and a woman can neither do her own nikah nor do someone else’s nikah. A woman cannot make a non-wali her wali and if she does this then such a nikah will be invalid. ‘Umar, ‘Ali, Ibn Mas’ud, Abu Hurraira (rha) and ‘Ayesha (raa) had the same view. Sa’eed bin Musaib, Hasan, ‘Umar bin Abdul Aziz, Jabir bin Zaid Thawri, Ibn Abi Laila, Ibn Shabirma, Ibn al-Mubarak, Shafi’i, Ishaq and Abu ‘Ubaid also hold the same opinion. And it is narrated from Ibn Sireen, Qasim bin Muhammad, Hasan bin Salih, Abu Salih and Abu Yusuf that nikah without permission of wali is not correct and if she does the nikah then the validity depends on the permission of the wali. . . . .And our evidence is the hadith where Prophet Muhammad has said ‘la nikah ila biwali’ (There is no nikah without wali). Imam Ahmad (rh) and Yahya (rh) have declared this hadith to be sahih.”[18]
Imam Yusuf and Imam Muhammad opinions:
These both imam have the opinion that ;
If any women do her nikah, if the partner is according to his status then the nikah of both of them will be done. Only the Wli has the right to do objection if the husband is not according to her status, if both are agree and they both are the same status the right of the Wli has abrogated. But if the Wali want to marry a girl without the consent of the girl so it is not allowed for him to do this.[19]
 Shafi arguments.
Married without Wali, Imam Shafi stated that:
“if a women got the consent of her Guardian  her marriage is void ,Shafi describe this verse which prohibited guardians from obstructing their wards to remarry their former husbands as the clearest verse in Quran to indicate that the guardian has a right over the ward in (giving)herself (in marriage) ...the verse states
“And when you have divorced women and they have fulfilled the term of their prescribed period, do not prevent them from marrying their (former) husbands, if they mutually agree on reasonable basis. This (instruction) is an admonition for him among you who believe in Allah and the Last Day. That is more virtuous and purer for you. Allah knows and you know not.”
(2:232)
Shafi assumed that this verse addressed the guardians and called upon them not to prevent their wards from remarrying .From this he inferred ‘the marrige of a women cannot be concluded except by her guardians[20]
The Zahiri jurist Ibn Hazm Law
The zahiris are of the opinion that it is permissible for the non-virgin women to conduct her own marriage but not the virgin.  The zahiris hold that it is permissible for only the non-virgin women to conduct her own marriage not the virgin.[21]
The Zahiri jurist Ibn Hazm opined the same and stated. It is not permitted for women, whether a virgin or a thayyib (deflowered that is a widow or divorce) to marry except with the consent of her guardian.[22]
Hanbali Law
In this school father also has the power to give their children of both the sexes in marriage without their consent, until they reach the age of puberty.[23] An adult girl cannot conclude her marriage coontract without the consent or presence her guardian. According to Imam Ahmad the consent or the presence of wali is compalsry for the marriage of an adult girl.[24]
 Shia law
Under Shia Law, the father and grandfather are the only guardian for marriage of a minor girl. The mother has no power of giving a minor child in marriage if she is an executrix of the father. The order of priority between the two is first father father’s father then the father. A Wali or guardian must be major, sane and free. He must not be a minor or lunatic, with or without lucid intervals or slave.[25]
Right of an Adult Girl to Enter for Marriage
“It is not lawful for a guardian” ,says the Hedaya, “to force an adult virgin into marriage. None, not even a father nor the sovereign, can lawfully contract a woman in marriage who is adult and of sound mind without her permission, whether she be a virgin or not.”
Similarly, the Shia Law declares that neither a father nor a grandfather has authority over an adult and discreet virgin, who is herself competent to enter into a marriage contract. This rule applies also to a woman who is not a virgin.[26]


[1] Khan. Tauqir. M, (2007), Law of Marriage and Divorce in Islam, New Delhi: Pentagon press, p. 27-28
[2] Saifuddin. E, Marriage without Wali, retrieved from. http://www.peopleofsunnah.com/fiqh/rulings/marriage/62.html retrieved at 7/1/12
[3] Khan. Tauqir. M, (2007), Law of Marriage and Divorce in Islam, New Delhi: Pentagon press, p. 28
[4] Saifuddin. E, Marriage without Wali, retrieved from. http://www.peopleofsunnah.com/fiqh/rulings/marriage/62.html retrieved at 7/1/12
[5] Khan. Tauqir. M, (2007), Law of Marriage and Divorce in Islam, New Delhi: Pentagon press, p. 31
[6] Ashraf. Shahid, (2006), Family Culture in Islam, New Delhi: Anmol Publications, p. 136
[7]. Rida, Nasser. “The Leap”. (England, Published by AuthorHouse, 2006) p. 71

[8] . Ali, kecia.” Marriage and slavery in Islam”. Library of congress cataloging-in-publication Data, America. (2010) p.42.

[9] Roberson, B.A. “Shaping the current Islamic reformation”. (London, Frank Cass Publishers, 2003)
[10] Arabi, Oussama. “Studies in modern Islamic law” (America, Kluwer law intyernational) p.138
[11] Ahmed, Naseem. “Women in Islam”. (New dehli, A.P.H publishing corporation, 2003)p.563
[12] Anwer, syed M. “Nikah main Wali ki Hasiyat”. (Islamabad, Wahdat foundation Pakistan, 1999) p.55
[13] Siddiqi, Muhammad,Iqbal. “The Family law of Islam”. (Virginia, kazi publications, 1984)p.115.
[14] Masud, Muhamad k. “Islamic laws and women”. (Islamabad, Giant Forum, 1996) p 56.

[15] Welchman, Lynn. “Muslim family law and the Judiciary”. (Canada, Published by Kluwer law International, 2000) p.124.
[16]  Maliki, Qadhi Abu’l Waleed Muhammad bin Ahmed Ibn Rushd Maliki , “ Bidayatul Mujtahid “vol.2 pg. 6-7.
[17] Nawawi,Imam .” Sharh Muslim”, (Publication: Matba'a Misriyya bil Azhar; 1929) vol.9 pg 205

[18]  Ibn Qudama, “al-Mughni” vol.7 pg 5,
[19] Anwar,muhammad noor, “Nikah may wali ki hasiyat” Whadat foundation (1999) Pakistan.pg-155

[20] Mansoori,Dr  muhammad tahir  , “Family law in Islam” Islamic research institute,(2009) Pakistan.pg -59-60
[21] Ayyoub,Hasan “Fiqh of the Muslim Family”(Egypt,publishing Islamic INC), p.26-27
[22] Mansoori, Dr.M.Tahir “Family Law in Islam” (pakistan,shariah Academy,2009), p.59
[23] Fatima, Tanzeem “Marriage Contract in Islam” (New Delhi,Deep & Deep pub,2007), p.50
[24] Anwar, M.syed “Nikah Main Wali ki Heseyat” (pakistan,Wahadat Foundation,1999), p.158
[25] Fatima, Tanzeem “Marriage Contract in Islam” (New Delhi,Deep & Deep pub,2007), p.52
[26] Khan, Arif Ali “Family Law in Islam” (New Delhi,pentagon press,2007), p.225

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