A Woman who Marries without the Permission of her Guardian: By Shaikh Fawzān (Bulūgh Al-Marām)

BISMILLAH

Al-Hāfidh Ibn Hajr (rahimahullāh) said:

983. (English no. 836) ‘A’ishah (radiyallahu ‘anha) said that Allah’s Messenger (salallahu’alaihi wasallam) 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 the ruler is the guardian of the one who has no guardian.”

Reported by Abu Dawood, no. 2083. Ibn Mājah, no. 1879. At-Tirmidhee, no. 1102. Abu ‘Awānah in his Musnad, no. 4259. Ibn Hibbān, no. 7074. Al-Hākim, 2/168-169. The hadeeth is Saheeh.

Shaikh Sālih al-Fawzān (hafidhahullāh) 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 nikāh (marriage) is invalid. The Prophet (salallāhu ‘alaihi wasallam) 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 impressed by 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. Allah, 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’an addresses the men in terms of marriage and that proves that they are the guardians (awliyā). And Allaah, the Most High, said:

فَلَا تَعْضُلُوهُنَّ

“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 guardian 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 Shariah, not disorder – alhamdulillāh.

And if the affair was left to women to marry themselves off, then much corruption would come about.

Adapted from volume 4: Kitābun-Nikāh (The Book of Marriage) from Shaikh Sālih al-Fawzān’s explanation of Bulūgh Al-Marām min Adillatil-Ahkām of Al-Hāfidh Ahmad Ibn ‘Ali Ibn Hajr Al-Asqalāni (born 773H, died 852H), entitled Tas-heel al-Ilmām bi-fiqhil-Ahādeeth min Bulūghil-Marām and is printed in seven volumes.

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