ArticlesWomen: Marriage Without a Guardian
Which View is Correct?
Reprinted from the questions and answers of OurDialogue.com
Question:
You have replied to many questions about marriage and divorce and dealt with many aspects of the problems faced by people. My question is about the case when a woman acts directly to get married to someone without the presence of her father or a guardian. As you have mentioned, many scholars, including major schools of thought, consider such a marriage invalid. Imam Abu Hanifah is of the view that it is valid. In support of the first view, quotations from the Qur'an and Hadith are always cited. How is it that Imam Abu-Hanifah takes a different view? Does he rely on Qur'anic verses and Hadiths? Why cannot the weightier view invalidate the less weighty one?
Answer:
Many scholars, including Imam Al-Shaf'ie, Ahmad ibn Hanbal and Ibn Hazm state clearly that no woman may be married without the presence of her guardian. It is well known that when the woman's father is present, no one other than him may act as a guardian. If he is dead or if he is incapable of acting in such a matter as in the case when the father is insane, then other relatives may act as guardians, according to a particular order which makes the woman's grandfather first in line after the father, then her brother, or her uncle, or her cousin, then other relatives, provided that proximity of relations takes precedence. A woman's adult son may act for her in her marriage contract only if her next of kin is a cousin. If a woman has no guardian, or if her guardian does not agree to act for her, when she is willing to accept the proposal of someone who is of good character and equal to her in social status, then the ruler may take over.
In support of this view, the Qur'anic verse is quoted which may be translated:
"Arrange the marriage of the single woman from among you, as well as such of your male and female slaves who are righteous." (24;32) Another Qur'anic verse is quoted, which may be rendered in translation: "And do not give your women in marriage to men who ascribe divinity to aught beside Allah." (2;221)
They consider that this latter verse addresses guardians, not women. It speaks of the normal state of affairs which is acceptable to Islam that a woman is given away in marriage by her guardian.
Right to the point is the Hadith in which Aisha, the Prophet's wife, quotes him as saying: "A woman may not be married without the presence of her guardian. If she is, then her marriage is invalid, invalid, invalid." (Related by Abu Dawood and At-Tirmithi). Another Hadith is quoted in this respect which states: "No marriage may be made without the presence of a guardian." There are other Hadiths confirming the same opinion.
There is no doubt that the evidence supporting this view is overwhelming. It is true that the first verse which we have quoted may be understood differently as indeed some of the translators of the Qur'an have rendered it in different ways. Similarly, an argument may be made that the second verse addresses the Muslim community as a whole and makes it obligatory on the Muslim community not to allow a marriage between a Muslim woman and a polytheist. But we cannot really say that the community as a whole is ordered to do something in particular and ignore the fact that individual Muslims are also required to make sure that this order is complied with. Moreover, the Hadiths which we have quoted address the point directly and make it absolutely clear that such marriages are invalid.
Imam Abu Hanifah, 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. In support of his view, Imam Abu-Hanifah quotes the Qur'anic verse which speaks of a woman who has been divorced three times. It may be rendered in translation: "Should he (divorce her a third time) she will not thereafter be lawful for him to remarry until she has wedded another husband." (2;230).
Imam Abu-Hanifah says that in this verse, the usage is clear that the woman has herself wedded a new husband. He argues that if the presence of the guardian was necessary, the Qur'anic verse would have made that clear and Allah would have said, "until she has been made to wed another husband."
Imam Abu-Hanifah also quotes in support of his view the verse which speaks of women who have finished their waiting period after the death of their husbands. It says: "When they have reached the end of their term, you shall incur no sin in whatever they do with themselves with decency." (2;234). Again in this verse, the word "do" is attributed to the women themselves. Hence, if a woman does make a marriage contract by herself, her action is valid. As for the Hadiths, Imam Abu-Hanifah says that they are in conflict with the clear and apparent meaning of the Qur'anic statement. As such, he discounts them.
In counter argument, we may say that this latter verse quoted by Imam Abu Hanifah does not specifically mean marriage. It is rather a general statement which refers to actions a woman may take in order to organize her life after having become a widow.
Moreover, it does not follow if what she wants to do is to get married to a new husband, that she enters into the contract without the presence of a guardian. It simply means that when she wants to get married, she has to have her marriage done properly, which means, from the Islamic point of view, that the marriage contract must be attended by her guardian.
I have tried to give you the arguments supporting both views on this question. I hope that I have made it clear that no scholar of repute in our history makes judgment without looking at the question from all angles. He eventually makes his judgment after weighing up the evidence available to him. It may happen that a great scholar makes a mistake. Indeed, every one makes mistakes. We have the Prophet's Hadith which says that "he who makes a ruling in a matter, after studying the question thoroughly, and his judgment happens to be the correct one will have a double reward. But the one who makes a judgment in a certain question and his judgment is mistaken will have a single reward."
There is no doubt in my mind that the first opinion supported by Imam Ahmad, Al-Shaf'ie, Ibn Hazm and others is the weightier opinion on this particular question. Moreover, it is closer to the Islamic spirit of doing everything suitable to protect women and protect the family. It is indeed much more honorable for a woman that her father or guardian acts on her behalf when she gets married. This is more in line with the high standard of serious morality which Islam establishes in its community.
We do not just dismiss an opinion like that of Abu-Hanifah on a certain matter, simply because we have a weightier opinion. What we do is to implement the weightier opinion as far as possible. Certain circumstances may make a less weighty opinion more appropriate in a particular case or situation. Suppose that a community embraces Islam after having lived for centuries allowing women to conduct their own affairs by themselves. It will not come easy to that community that women should no longer act for themselves when they get married. If a Muslim ruler favors a less weightier opinion, his support adds to its weight. Moreover, the cultural and scholarly heritage belongs to the whole nation of Islam and to all its generations. Therefore, we will not just dismiss scholars' opinions because we feel that opposite views are weightier.