Is guardianship a condition for the validity of the contract of marriage?
Is guardianship a condition for the validity of the contract of marriage?


The book of Marriage -


The Conditions of the Contract

Section:The Guardians
Topic/Issue:4006 - Is guardianship a condition for the validity of the contract of marriage? --
Opinion FromOpinionExplanation
Imam Malik,Imam ShafiThere is no marriage without a guardian and that it (guardianship) is a condition of validity. Verse 2:232 is addressed to the guardians. If they had no right of guardianship how is it that they were prohibited from prevention (of marriage). 2:221 is also addressed to the guardians.
Among the narrations, they use the one reported by Aisha (RA). They also argued on the basis of the tradition of Ibn Abbas, who said, "There is no marriage without a guardian and two adal witnesses ".
Imam Abu HanifaIf a woman contracts her marriage without a guardian, and with someone of equivalent status (kuf ), it is permitted2:234 They maintain that this is proof of the permissibility of her entering into a contract for her marriage on her own. They said that in addition to this, the act (of marrying independently) is attributed to them in , several other verses. Thus, the words, "In marrying their husbands" in 2:232 and "until she hath wedded another husband " in 2:230
They also use the narration of Ibn Abbas

In their response to the arguments of the other side, they said that in 2:232 there is nothing more than a proscription for the relatives and residuaries that they may not prevent her (the woman) from marrying, and from this proscription for non-prevention it is not understood, either in its metaphorical or actual meaning, that their (the guardian's) consent is stipulated for the validity of the contract.

Similarly, the words of the Exalted in 2:221 are better understood as a communication for the rulers (ulul amr) of the Muslims or for all the Muslims collectively rather than a communication for the guardians. On the whole, it vacillates between being a communication for the guardians or for the rulers. If we say that it is a communication addressed to the guardians, making it obligatory that they stipulate their consent for the validity of marriage, it would nevertheless be an unelaborated (mujmal) communication and acting according to it would be difficult as there is no indication in it about the kinds of guardians, their qualifications and their grades. The explanation (bayan) must not be delayed from the time of its need. Had there been a known law practised on this issue it would have come down through a collective communal transmission or through a transmission close to it as this was a point of general need and it is known that there were those in Medina who had no guardians.

The tradition of Aisha is disputed with respect to the obligation of acting upon it. The preferred course is that a tradition disputed with respect to its soundness does not give rise to the obligation of acting upon it, and even if we concede the soundness of the tradition, there is nothing in it beyond the stipulation of seeking -the permission of the guardian by one who has a guardian i.e. female ward. In fact, it is evident from it that if the guardian grants her his permission, it is permitted to her to form her own contract without there being the stipulation of including the guardian among the witnesses for the validity of the contract. The considered this tradition to be weak for the reason that it is a tradition narrated by a group from Ibn Jurayj from al-Zuhri, and Ibn Ulayya related from Ibn Jurayj that he (Ibn Jurayj) asked al -Zuhri about it, but he did not know of it. They added: "The evidence confirming this is that al -Zuhri did not make the stipulation of wilaya, nor is wilaya upheld in Aisha's opinion."
Imam Malik (another opinion)Its stipulation as a demand is recommended (sunna), but not obligatory.
DawudHe distinguished between a virgin and a deflowered woman and stipulated the existence of a guardian as a condition in the case of a' virgin, but he did not stipulate it in the case of a deflowered womanNarration of Ibn Abbas
The reason for their disagreement is the absence of a verse or tradition that is apparent (zahir), not to say explicit, about the stipulation of guardianship as a condition of marriage. In fact the verses and traditions that are quoted in practice, by those who stipulate it as a condition, are all subject to interpretation. Similarly, the verses and traditions that are quoted in support of its absence as a condition are also not so clear on the issue. The traditions, besides being unclear in meaning, are disputed as to their authenticity
Evidences :1 - Quran [2:232], 2 - Quran [2:221], 3 - Sunan Abi Dawud [# 2078], 4 - Quran [2:234], 5 - Quran [2:232], 6 - Quran [2:230], Hadith of Ibn Abbas [Hide/Show]
Tags :Worship,Marriage, Wali, Guardian,Consent
Last Updated:2011-09-18

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