Marriage Without a Guardian According to the Ḥanafī Madhhab & the Other Schools of Thought

By Adil Sadique (6th Year Alim Student, DarusSalam Seminary)

The Imāms of the schools of jurisprudence differed regarding an adult woman marrying without a guardian (ar. walī). Generally, when a woman marries, her walī oversees the process of her marriage contract with the groom. The bride’s guardian ensures that she marries someone compatible. In most cases, the guardian is her father. But, in his absence, this responsibility may go to her grandfather or her other agnate relatives. These men are given this authority because they are the ones who will see that her interests are maintained. When no guardians are found in her family, the authority is transferred to the magistrate.

The Ḥanafī School

In the Ḥanafī madhhab, there is a difference of opinion on this matter. According to the relied-upon opinion, it is permissible for a woman to marry on her own. This is Imām Abū Ḥanīfah’s opinion.

This ruling applies whether she is a virgin or not, and whether the groom is compatible with her or not. Ḥasan b. Ziyād narrated another opinion from Imām Abū Ḥanīfah, which maintains that the marriage is valid with the condition that they are compatible.^[1]

Qāḍī Abū Yūsuf held three opinions. The first opinion is that, in all scenarios, a marriage without a walī is invalid. He retracted this opinion. Thereafter, he said that her marriage is valid if she marries someone compatible, but otherwise it is invalid. His third and final opinion is the same as Imām Abū Ḥanīfah’s.^[2]

Similarly, Imām Muḥammad employed his legal reasoning and concluded that if a woman married on her own, her marriage contract would remain in a state of abeyance until her walī effectuated it. If her walī decides that there is no compatibility between them, he may annul the contract.^[3] However, if they are compatible and the walī refuses, the magistrate will administer the contract.^[4] It has been narrated that later on Imām Muḥammad retracted this view. Thereafter, he maintained the same position as Imām Abū Ḥanīfah and Qāḍī Abū Yūsuf.^[5]

Imām Abū Ḥanīfah’s Evidence

Imām Abū Ḥanīfah based his view on evidence from the Qurʾān, the Sunnah, judgements of the Companions, and juristic reasoning.

In the Qurʾān, there are three main evidences:

(1) In Q 33:50, Allāh says:

وَامْرَأَةً مُّؤْمِنَةً إِن وَهَبَتْ نَفْسَهَا لِلنَّبِيِّ

“A believing woman may offer herself to the Prophet in marriage.”

In this verse, Allāh mentions a woman marrying herself off without any mention of a walī.^[6]

(2) In Q 2:230:

فَإِن طَلَّقَهَا فَلَا تَحِلُّ لَهُ مِن بَعْدُ حَتَّىٰ تَنكِحَ زَوْجًا غَيْرَهُ

“If he divorces her, she is not lawful for him until after she marries another man.”

Similarly, in this verse, Allāh mentions a woman marrying and attributes that act to her without any indication to the stipulation of a guardian. He says: “until after she marries another husband.”^[7]

(3) In Q 2:232:

وَإِذَا طَلَّقْتُمُ النِّسَاءَ فَبَلَغْنَ أَجَلَهُنَّ فَلَا تَعْضُلُوهُنَّ أَن يَنكِحْنَ أَزْوَاجَهُنَّ إِذَا تَرَاضَوْا بَيْنَهُم بِالْمَعْرُوفِ

“If you divorce your wives and they reach the end of their term, do not stop them from marrying their husbands again when they consent in accordance with what is right.”

This verse serves as evidence in two ways. Firstly, as mentioned above, Allāh mentioned the act of a woman marrying without mentioning her guardian.

And secondly, here in this verse, Allāh prohibits the walī from preventing her from marrying her previous husband. This prohibition proves that a woman can, in fact, get married on her own, based on the principle:

النهي يقتضي تصوير المنهي عنه

“The prohibition necessitates that the existence of what was prohibited from be possible to actualize.”

This means that for an action to be forbidden, the possibility of that action occurring must first exist, otherwise there would be no point in forbidding it.^[8]

Then, from the Sunnah, there are two primary pieces of evidence:

(1) One of them is:

عَنِ ابْنِ عَبَّاسٍ، أَنَّ النَّبِيَّ ﷺ قَالَ: ‏الأَيِّمُ أَحَقُّ بِنَفْسِهَا مِنْ وَلِيِّهَا…

On the authority of Ibn ʿAbbās that the Prophet (upon him be peace) said: “A single woman has more right to her person than her guardian…”

The word “al-ayyim” refers to any woman without a husband, whether she is a virgin or has been previously married.^[9] This narration is stronger and more authentic than those used as evidence by the other imāms. Thus, if trying to reconcile a contradiction between reports, the Ḥanafī would prefer this one based on its strength.^[10]

(2) And the second is:

عَنِ ابْنِ عَبَّاسٍ، أَنَّ رَسُولَ اللهِ ﷺ قَالَ:‏ لَيْسَ لِلْوَلِيِّ مَعَ الثَّيِّبِ أَمْرٌ

On the authority of Ibn ʿAbbās that the Prophet (upon him be peace) said: “A guardian is not entitled to the matter of a woman who was already married…”

Both narrations clearly state that a woman can marry without a walī.^[11]

From the Companions’ judgements, it is reported that a woman married off her daughter without the consent of her walī. Then, the walī brought the case in front of ʿAlī b. Abī Ṭālib who allowed the marriage. And this judgement was given even though it was not conducted by her walī.

Also, from the perspective of legal reasoning, a mature woman should be permitted to conduct her own marriage. She would be acting pursuant to her own rights. Being mature includes her being sane with the ability to competently manage other aspects of her juristic person. Through these characteristics, she independently has the right to conduct financial transactions; similarly, she has the right to choose her own husband.^[12]

The Shāfiʿī & Mālikī Schools

The Shāfiʿīs opine that having a walī is a requirement of validity. Therefore, a woman cannot marry herself off. And if she does, her marriage is invalid. Imām Mālik is reported to have held the same view.^[13] Although the Ḥanbalīs’ opinion is slightly different than that of the others, the outcome is the same. As well, the evidence they use are the same.

The Ḥanbalī School

In the Ḥanbalī school, there are two opinions. The first is that a walī is a prerequisite. As a result, the marriage of a woman will not take place without one. The second opinion is that having a walī is not a condition.

Mardāwī mentioned that the first opinion is preferred. The second opinion, which maintains that it is not a condition, is specifically in the absence of a walī or governor who may conduct her marriage. Therefore, according to the preferred opinion, if a woman conducts her own marriage without a walī, marries someone else off, or appoints someone who is not her walī as her representative, even with her walī’s permission, the marriage will be invalid.^[14]

The Three Imāms’ Evidences

They support their view with evidence from the Qurʾān, the Sunnah, and actions of the Companions. From the Qurʾānic evidence that they cite are:

(1) Q 2:232.

This is the same verse cited by the Ḥanafīs, as mentioned above. However, the others interpreted it differently. Allāh is commanding the walī not to prevent her from remarrying after her waiting period. This shows that it is the guardian who marries her off.^[15]

(2) Q 24:32:

وَأَنكِحُوا الْأَيَامَىٰ مِنكُمْ وَالصَّالِحِينَ مِنْ عِبَادِكُمْ وَإِمَائِكُمْ

“Marry off the unwed among you, and also the righteous of your bondsmen and your bondswomen.”

Likewise, Allāh commands the walī to marry the woman off. The word “al-ayāmā” as mentioned earlier, refers to those women who do not have husbands, whether they are virgins or not. This shows that the walīs are the ones who are given that authority and not the women themselves.^[16]

There are three primary narrations cited by the three imāms as evidence:

(1) The narration of Abū Mūsā al-Ashʿarī:

عَنْ أَبِي مُوسَى، قَالَ قَالَ رَسُولُ اللهِ ﷺ:‏ لاَ نِكَاحَ إِلاَّ بِوَلِيٍّ

On the authority of Abū Mūsā that the Prophet (upon him be peace) said: “There is no marriage except for with a guardian.”^[17]

(2) The narration of ʿĀʾishah:

عَنْ عَائِشَةَ، قَالَتْ قَالَ رَسُولُ اللَّهِ ﷺ: أَيُّمَا امْرَأَةٍ نَكَحَتْ بِغَيْرِ إِذْنِ مَوَالِيهَا فَنِكَاحُهَا بَاطِلٌ

On the authority of ʿĀʾishah that the Prophet (upon him be peace) said: “Any woman who marries without the consent of her guardians, her marriage is invalid…”^[18]

(3) The narration of Abū Hurayrah:

عَنْ أَبِي هُرَيْرَةَ، قَالَ قَالَ رَسُولُ اللَّهِ ﷺ:‏ لاَ تُزَوِّجُ الْمَرْأَةُ الْمَرْأَةَ وَلاَ تُزَوِّجُ الْمَرْأَةُ نَفْسَهَا فَإِنَّ الزَّانِيَةَ هِيَ الَّتِي تُزَوِّجُ نَفْسَهَا

On the authority of Abū Hurayrah that the Prophet (upon him be peace) said: “No woman should arrange the marriage of another woman, and no woman should arrange her own marriage. The adulteress is the one who arranges her own marriage.” ^[19]

These three narrations explicitly mention that a woman cannot marry without her walī.

Most of the Companions held this view. In one instance, ʿUmar b. al-Khaṭṭāb rejected the marriage of a woman who was married off by someone besides her walī and whipped the one who arranged it.^[20]

Objections from the Ḥanafīs

The Ḥanafīs raised a few objections to the evidence used by the other imāms. In Q 24:32, Allāh addresses the walīs as opposed to the women themselves because it was the norm of the people to rely on their walīs to get them married. Generally, women would not assume that responsibility. This is because it would require going out into the gatherings of men to search for compatible spouses, and if they were to do so, they would be considered shameless.^[21] But that does not mean that a woman cannot marry herself off. Rather, she generally would not. Therefore, the command in this verse is for preference and not for obligation.

The ḥadīth of ʿĀʾishah cannot be used as a proof for reason that she herself married off her niece, Ḥafṣah bint ʿAbd al-Raḥmān, while her father was away on a journey. When a narrator practices contrary to his narration, it weakens the narration. Also, one of the narrators of the ḥadīth is Imām al-Zuhrī, and when this ḥadīth was presented to him, he rejected having narrated it. Accordingly, the ḥadīth is not used as evidence.^[22] Even if it was established, then the word “imraʾah” would be interpreted to mean “bondwoman” considering alternate versions of the ḥadīth.

Then, regarding the ḥadīth of Abū Mūsā, it does not negate the marriage altogether. Rather, it is interpreted to mean that it was not conducted in the preferred manner. According to the Ḥanafīs, having a walī is preferred. They just do not view it to be a requirement.^[23]

Responses to the Objections

The other schools responded to these objections. Regarding the ḥadīth of ʿĀʾishah, Ibn ʿUlayyah was the only ḥadīth scholar who mentioned that Zuhrī rejected it. This shows that there was not unanimity in the criticism. And even if Zuhrī rejected it, many transmitted it from him.

Another response offered is that ‘ʿĀʾishah’s practice did not contradict her narration. What she did was suggest a dowry and arranged the marriage, while the marriage contract was conducted by one of her niece’s agnate relatives. The marriage was attributed to ʿĀʾishah because she arranged it.^[24]

As for the ḥadīth of Abū Mūsā, it cannot be said that it is referring to nafī al-kamāl because that contradicts the apparent meaning (i.e. khilāf al-ẓāhir). The apparent meaning in places of negation is negation of the reality of something. And, in this case, that is the negation of legislation.^[25]

Conclusion

Respectfully, the imāms of the four schools have strong evidence to support their opinions. For this reason, no one can claim that a certain opinion is correct and the other is wrong. The muqallid (trans. follower) should follow the opinion of his own imām.

And Allāh knows best.

^[1] Badāʾiʿ al-Ṣanāʾiʿ, 2:368-369.

^[2] Ibid.

^[3] Ibid.

^[4] al-Mawsūʿah al-Fiqhiyyah, 41:250.

^[5] al-Hidāyah, 3:28.

^[6] Badāʾiʿ al-Ṣanāʾiʿ, 2:370.

^[7] Ibid.

^[8] Ibid.

^[9] Ibid.

^[10] Athar al-Ikhtilāf, 511.

^[11] Badāʾiʿ al-Ṣanāʾiʿ, 2/370.

^[12] Ibid., 2:370-371.

^[13] al-Mawsūʿah al-Fiqhiyyah, 41:247.

^[14] Ibid., 250.

^[15] al-Umm, 6:32.

^[16] Badāʾiʿ al-Ṣanāʾiʿ, 2:369.

^[17] Ibid.

^[18] al-Umm, 6:33.

^[19] Athar al-Ikhtilāf, 510-511.

^[20] al-Umm, 6:34.

^[21] Badāʾiʿ al-Ṣanāʾiʿ, 2:371.

^[22] Bidāyat al-Mujtahid, 4:219.

^[23] Athar al-Ikhtilāf, 512.

^[24] al-Muntaqā, 5:226.

^[25] Sharḥ al-Zarkashī ‘alā Mukhtaṣar al-Karkhī, 5:17.