Title: Kitaabun-Nikaah (The Book of Marriage) from Shaikh Saalih al-Fawzaan’s explanation of Buloogh al-Maraam min Adillatil-Ahkaam of Al-Haafidh Ahmad Ibn `Alee Ibn Hajr al-Asqalaanee (Born 773H, Died 852H). Shaikh Al-Fawzaan’s tremendous explanation is entitled Tas-heel al-Ilmaam bi-fiqhil-Ahaadeeth min Bulooghil-Maraam and is printed in seven volumes. The following is a translation of this important and very enlightening chapter, adapted in places for brevity and simplicity. The following is from volume 4.
Al-Haafidh Ibn Hajr (rahimahullaah) said:
983. (English no. 836) `Aa’ishah (radiyallaahu `anhaa) said that Allaah’s Messenger (salallaahu`alaihi wassallam) said:
أَيُّمَا امْرَأَةٍ نَكَحَتْ بِغَيْرِ إِذْنِ وَلِيِّهَا فَنِكَاحُهَا بَاطِلٌ فَنِكَاحُهَا بَاطِلٌ فَنِكَاحُهَا بَاطِلٌ فَإِنْ دَخَلَ بِهَا فَلَهَا الْمَهْرُ بِمَا اسْتَحَلَّ مِنْ فَرْجِهَا فَإِنْ اشْتَجَرُوا فَالسُّلْطَانُ وَلِيُّ مَنْ لَا وَلِيَّ لَهُ
“Any woman who gets married without the permission of her guardian (waliyy), then her marriage is invalid.”
He repeated it three times. Then he said:
“If he consummates with her, she is entitled to the dowry due to his making permissible her private parts. And if they dispute over her guardianship, then ruler is the guardian of the one who has no guardian.”
Reported by Abu Dawood, no. 2083. Ibn Maajah, no. 1879. At-Tirmidhee, no. 1102. Abu `Awaanah in his Musnad, no. 4259. Ibn Hibbaan, no. 7074. Al-Haakim, 2/168-169. The hadeeth is Saheeh.
Shaikh Saalih al-Fawzaan (hafidhahullaah) said:
This hadeeth has three matters that are discussed:
Firstly: The condition of the woman having a guardian to give her away in marriage, as has preceded (in hadeeth number 982). The woman who marries without the permission of her guardian, then her nikaah (marriage) is invalid. The Prophet (salallaahu `alaihi wassallam) said: “Any woman who gets married without the permission of her guardian (waliyy), then her marriage is invalid.” He repeated it three times. So this is a refutation upon the one who says that a woman can give herself away in marriage.
Secondly: If her guardians dispute, and differ between themselves or the woman differs with her guardians, then the guardianship transfers to the ruler or to the deputy of the ruler, such as the Ameer or the Qaadee (Judge), or the one who takes the role or place of the ruler, such as the Islamic organisations in the non-Muslim lands: that would be the head of an Islamic organisation, or the head of an Islamic centre, who takes on the role of the guardian, because he has the role of religious responsibility, and takes on the role of guardianship.
Nevertheless, the guardianship is necessary. A woman cannot independently marry herself off in any condition whatsoever, because a woman on her own is short sighted – she may become amazed with one who is not religiously suitable and not good in character. If she is tied to her waliyy (guardian), then that will gather together what is in her benefit and in the benefit of her guardians. Allaah, the Most High, addresses the men saying:
وَأَنكِحُوا الْأَيَامَىٰ مِنكُمْ وَالصَّالِحِينَ مِنْ عِبَادِكُمْ وَإِمَائِكُمْ ۚ
“And marry those among you who are single (i.e. a man who has no wife and the woman who has no husband) and (also marry) the Salihun (pious, fit and capable ones) of your male slaves and maid-servants (female slaves).” An-Noor: 32
And Allaah said:
وَلَا تُنكِحُوا الْمُشْرِكِينَ حَتَّىٰ يُؤْمِنُوا
“And do not marry polytheistic men [to your women] until they believe.” Al-Baqarah: 221
His saying here is an address to the men. The Qur’aan addresses the men in terms of marriage and that proves that they are the guardians (awliyaa). And Allaah, the Most High, said:
“So do not prevent them from remarrying.” Al-Baqarah: 232
This again is an address to men. And the meaning here is that the guardian should not prevent her from marrying one whom she is pleased with.
This all proves that the ones being addressed with marriage are the men, and if the guardians prevents her, then it is transferred from him to another near relative. And if there is no near relative, then it is transferred to the ruler. So the affairs is under the guidelines of the Sharee`ah, not disorder – alhamdulillaah.
And if the affair was left to women to marry themselves off, then much corruption would come about.