There Is No Marriage Without A Guardian, And The Conditions of a Valid Nikaah. Shaikh Fawzaan, Book of Marriage, Buloogh al-Maraam (no. 982)

BISMILLAH

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:

عَنْ أَبِي بُرْدَةَ بن أَبِي مُوسَى عن أبيه قَالَ، قَالَ رَسُولُ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ لَا نِكَاحَ إِلَّا بِوَلِيٍّ

From Abu Burdah Ibn Abee Moosaa from his father (radiyallaahu `anhumaa) who said that Allaah’s Messenger (salallaahu `alaihi wassallam) said:

“There is no marriage except with a guardian.” [1]

Also it is reported by Imaam Ahmad from Hasan, from `Imraan Ibn Husayn ascribed to Allaah Messenger (salallaahu `alaihi wassallam) that he said:

“There is no marriage except with a guardian and two witnesses.” [2]


[1] Ahmad, 19518. Abu Dawood, 2085. Ibn Maajah, 1881. At-Tirmidhee, 1101. Ibn Hibbaan, 4077. It is not reported by an-Nasaa’ee. It is reported in Mursal form (with a Companion missing in the chain of narration) from `Abdur-Razzaaq, 10475. At-Tirmidhee in “Al-`Ilal”, 1/428. At-Tahaawee, 3/9.

[2] We did not find it with Ahmad, however it is reported by At-Tabaraanee in “Al-Kabeer” 19/299. Ad-Daaruqutnee, 1101. Al-Bayhaqee, 7/125. In the chain is `Abdullaah Ibn Muharar, and he is Matrook (abandoned) in hadeeth. Also reported from Ibn `Abbaas with Ash-Shaaf`ee in his “Musnad”, 2/12. At-Tabaraanee, 11343. Al-Bayhaqee, 7/112, 124. Also from `Aa’ishah with Ibn Hibbaan, 4075. Al-Bayhaqee, 2/125. With these two latter witnesses, the hadeeth is considered “Hasan li-ghairihi.”


 

In this hadeeth with its narrations contains two conditions for the correctness of a marriage. We have already mentioned in the previous hadeeth (no. 981), the first condition which is to announce.

The Second Condition: The presence of a “waliyy” meaning a guardian. So a marriage is not sound and correct except with a guardian who contracts the marriage for the woman. If she was to marry herself off by herself, then he marriage would be null and void just as the hadeeth proves due to the absence of the guardian. The guardian is the closest male blood relative on her fathers side. As for her blood relatives through her mother, such as the maternal uncle, or her grandfather on her mother’s side, or her brother through her mother but not through her father, or the son of her maternal aunt, then all of these are male relatives from her mother’s side – and from this side they are not considered as her guardians. Rather her guardians are males from the father’s side beginning with the closest (i.e. her father) then the next in closeness. And if she does not have a guardian, then her guardian is the Muslim ruler, as will be discussed later – and this is due to the fact that the ruler is the guardian of the one who has no guardian.

So therefore, the guardian (waliyy) is a necessity. And were she to marry herself off (without a guardian), then the marriage would be null and void according to the overwhelming majority of the scholars, with the exception being the Hanifees [in their madh’hab]. They hold that a woman can marry herself off, even without a guardian. They make an analogy (Qiyaas) with the selling of goods, so they say: “Just as you can sell what you yourself possess, then likewise she can give herself away in marriage.” However this opinion is false and futile because it seeks to make an analogy (Qiyaas) in the presence of an established textual evidence, and there can be no analogy once there is a textual proof. So a marriage wherein a woman gives herself away is not valid, even if there are those from the people of knowledge who say it is valid. The attention is given to the proofs – so the presence of a guardian is necessary, and it is a condition for the correctness and soundness of a marriage. (See Bidaayatul-Mujtahid, 1/675)

The Third Condition: The presence of two witnesses upon the contract of marriage (`aqdun-Nikaah). And they must be trustworthy.

The Pillars of the Nikaah: Establishing the proposition of marriage and accepting that, and that both parties, the bride and groom are free from having any impediment that prevents the marriage from going ahead and concluding.

The Conditions are Four:

  1. The guardian.
  2. Two witnesses.
  3. The willingness of both the bride and the groom, each one being pleased with the other.
  4. That both parties are named, the groom is named and the bride is named. It is not sufficient that the guardian merely states: “I have hereby married my daughter to you.” Rather he must name her specifically because it is possible that he has a few daughters, so it is not known which one he has married off. Likewise it is not said, “I have married her to your son,” because he may have a few sons, so it is not known which one. So it is necessary to name each of them.

As for spreading news of the marriage, then it is obligatory, or even a condition according to some of the Scholars – however it is necessary to do so. And that is the intent behind announcing the marriages.

End

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